Lords Sitting of 17 January 1978

Preamble
Reassembling after the Christmas Recess, the House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Saint Edmundsbury and Ipswich

GENTLEMAN USHER OF THE BLACK ROD
The LORD PRIVY SEAL (Lord Peart): My Lords, I have to acquaint the House that Her Majesty has appointed Lt.-General Sir David House, GCB, CBE, MC, to be Gentleman Usher of the Black Rod, in succession to Admiral Sir Frank Roddam Twiss, KCB, KCVO, DSC, and that he is at the door ready to receive your Lordships' commands.
Whereupon the House directed that he be called in. Accordingly he was called in and officiated in his place.

TRIBUTES TO SIR FRANK TWISS
Lord PEART: My Lords, it is my sad duty to take this opportunity to say farewell to Sir Frank Twiss, but it is also my pleasure to pay tribute to his exceptional
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service to the House. The House is always fortunate in receiving the assistance of distinguished officers from Her Majesty's Forces who come to serve us as Black Rod, and we welcome today another in that line in the person of Sir David House. Your Lordships will all be well aware that Sir Frank had already enjoyed an outstanding career in the Royal Navy when he came to us just over seven years ago, in October 1970, following his retirement as Second Sea Lord and Chief of Naval Personnel. Since 1970, the duties of Black Rod have changed out of all recognition. In 1970, the job of a Gentleman Usher was largely ceremonial, with responsibility for our invaluable Doorkeepers and occasional sorties to knock on the doors of another place. These duties have remained, but in 1971 Sir Frank also became Secretary to the Lord Great Chamberlain, Serjeant at Arms to the Lord Chancellor and the Agent of the Administration Committee.
Since taking on these wide responsibilities, Sir Frank has transformed the administrative services of the House and there is now virtually no aspect of its security, maintenance and administration which has not concerned him. To mention only one aspect of his work, he has overseen the extension of the Dining Room; the construction of new Committee and writing rooms on the Committee corridor and the Peers' rooms above them; in addition to these, the new offices

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on the Clerks' corridor on the first floor and, most recently, the ingeniously designed new offices for the typing agency and Hansard.
These extensive operations have been no more than one aspect of the multifarious activities of Black Rod. It would be repeating to your Lordships what your Lordships already know well to draw attention to the consummate kindness and tact with which we have become so familiar in all our dealings with Sir Frank. We must have tried his patience many times, though he has never shown it. He has never tried ours.
I know that the House would like to join with me in congratulating him upon the honour of Knight Commander of the Royal Victorian Order which the Queen bestowed upon him in the New Year's Honours. I know that all Members of this House will also join with me in wishing him very well in his retirement and in wishing luck to our most distinguished new Black Rod.
2.41 p.m.
Lord CARRINGTON: My Lords, may I associate those who sit on these Benches with the tribute which the Leader of the House has paid to Sir Frank Twiss. On 27th October 1970 when there was an equivalent ceremony, the noble Lord, Lord Shackleton, said that Sir Frank Twiss was highly recommended to us by the Ministry of Defence and that we were fortunate to have such a distinguished and able officer. To a certain extent I believe that Lord Shackleton was taking Admiral Twiss on trust; I do not think he knew him. However, Lord Shackleton was absolutely right. We have been particularly fortunate during these last seven years in a Black Rod who, with new duties, has set a new high standard. I must, however, tell your Lordships that, unlike Lord Shackleton, I was not taking Admiral Twiss on trust because he was recommended by the Ministry of Defence.
Many years ago when I was First Lord of the Admiralty, Admiral Twiss was appointed Naval Secretary to the First Lord. There cannot be many of your Lordships who have had a Rear-Admiral as their Secretary, but of course it was not really like that at all. The Naval
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Secretary was an officer destined to get to the very top—detailed for two years or so to look after promotion to Captain and Flag rank in the Royal Navy and, in the course of doing so, to look after a civilian First Lord, almost invariably ignorant of naval tradition and likely, particularly when visiting the Fleet, to make mistakes of so fundamental and tasteless a character that it would call into question not just the credibility of the Government but our political institutions. For two years Admiral Twiss—quick witted, nimble and tireless—prevented this ex-First Lord from making too much of a fool of himself. In the course of those two years, which I for one greatly enjoyed and during which we travelled a great deal and laughed a great deal, I came to recognise the quality which his senior officers saw in him and which was to serve the Royal Navy and your Lordships' House so well. He did indeed rise to the top of the Royal Navy, despite an occasion which I remember when cruising with him in HMS "Tiger". Anxious to show off the skill of his ship's gunnery in front of an old First Lord, he made the unpardonable error of shooting down a very expensive target aircraft, to the cheers of the ship's company but to a stinging rebuke from their Lordships of the Admiralty. I am glad to say that he responded that, since for 30 years he had been trying to hit a target and failed, he could not quite understand the attitude of their Lordships.
I cannot think of any occasion on which anybody in this House can have had any cause to rebuke Admiral Twiss, or, indeed, to do anything other than to thank him for the immeasurable service which he has rendered both to the House and, I imagine, to all of us individually. He has performed the duties of Black Rod with wit and with wisdom and I hope that he knows how much he has been appreciated by all of your Lordships and by all who work in and for the House.
At the same time, I should like to welcome Sir David House as the new Black Rod. After the quick pace of the Green Jackets I hope he will become accustomed to the leisurely march of your Lordships' House. All your Lordships will wish him well and we express our pleasure that he has come to work with us.
2.45 p.m.
Lord BYERS: My Lords, we on these Benches wish to be associated whole-heartedly with the two tributes paid today to our outgoing Black Rod, Sir Frank Twiss. As has already been said, he has rendered distinguished service to this House, for which all of us have cause to be extremely grateful. He really has created a remarkable transformation in the House from which we have all, Members and staff alike, benefited. What is more, as we have come to expect from the "Silent Service", these changes have been brought about with that apparent effortlessness which is the hall-mark of the genuinely efficient administrator. We have also appreciated—and I speak as his nearest neighbour because his room is next to mine—his constant cheerfulness which has been a wonderful facility to be able to enjoy, particularly on a Monday morning. He can retire with our deepest thanks and the knowledge that this has been a job truly well done.
We welcome his successor and look forward to working with him for some considerable time.

TRIBUTES TO THE OPPOSITION CHIEF WHIP
2.47 p.m.
Lord PEART: My Lords, I know that this House does not like multiplying tributes unnecessarily, but I also know that your Lordships will wish me to draw attention to the retirement of the noble Earl, Lord St. Aldwyn, as the Chief Whip of the Party in Opposition. The noble Earl first became Government Chief Whip in 1958 and has served as Government Chief Whip and as Opposition Chief Whip in successive Conservative Governments and in Opposition ever since, As a newcomer in comparison I feel a little diffident in trying to express the respect and affection in which the noble Earl has been held both by my predecessors as Leaders of the House and the Opposition and by the Labour Chief Whips who have worked opposite the noble Earl.
His retirement marks the end of an era. We on this side of the House would like to express our respect for the noble Earl, who has combined with such distinction the subtle mixture of being a formidable Party Chief Whip and the need to work
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closely with his Party's opponents, whether in Government or in Opposition. It should be remembered that he has been perhaps the principal architect of the offices of the Whips in their present form. During his tenure the Whips in this House have become an essential ingredient in the organisation of the business of the House. Few who have not been responsible for arranging a business timetable will appreciate how awkward and difficult this apparently straightforward task can be. Without qualification I can say that the increase in the business of the House and in the activity of your Lordships during the noble Earl's years in office have ensured that it would now be impossible for the House to function as sir smoothly as it does without the constant attention of our hardworking Whips.
During his many years as Conservative Chief Whip in this House, the noble Earl, Lord St. Aldwyn, has imposed on himself an almost monastic silence in the House, with the exception of occasional remarks on the business of the House. Perhaps on this occasion the noble Earl will allow himself to make some observations on those matters with which he has been so closely concerned for many years. We shall look forward to the noble Earl's presence in the House for many years to come, and we look forward also to working with his successor, the noble Lord, Lord Denham. I am sure the House will wish to join with me in congratulating the noble Lord on his appointment.
2.50 p.m.
Lord CARRINGTON: My Lords, I think all of us who sit on the Conservative Benches are greatly touched that the Leader of the House should have spoken in such terms about my nobly, friend Lord St. Aldwyn. He does so, I think, because my noble friend was not just the Conservative Chief Whip but in a very special way a servant of the House. His knowledge of its customs and traditions was and is unrivalled. My noble friend has been a friend of mine for over 30 years and, in the 11 years in which I have been either Leader of the House or Leader of the Opposition and he has been the Chief Whip, I do not believe we have ever had a cross word or an argument, though I suspect that that may be due to the extremely sensible attitude I have always adopted of letting him have his own way.

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My noble friend has one great advantage among many others: he looks like the Conservative Chief Whip; he is the very model of a Conservative Chief Whip. But his character is as upright as his posture; his mind is as tidy as his hair; his views are as straightforward as his manner. He matches kindness with firmness and he tempers the Party battle with generosity and with magnanimity. There was never any rancour when the representative of the permanent Conservative majority was so generous and so pleasant a person as Lord St. Aldwyn.
My noble friend has an encyclopaedic knowledge of the House. Even on the infrequent occasions when I used to see him sitting on the Front Bench with his eyes closed I always knew that he was really awake, ready to pounce upon the Leader for failing to do his job properly or failing to obey and observe our customs. I shall greatly miss my two friends, Lord St. Aldwyn and Admiral Twiss, but I am happy to think that, as Cheltenham comes along and Ascot looms nearer, Lord St. Aldwyn will, unlike in all the past years, feel it unnecessary to be here and will find it possible to attend those two functions in the knowledge that he can now ignore Lord Denham's two-line whip in exactly the same way as Lord Denham ignored his.
My Lords, 20 years is a long time in somebody's life. It is a very long time in one job. I hope that my noble friend will reflect from time to time in the future that his 20 years of service have greatly benefited his Party, this House and the political fabric of this country, and have gained him countless friends and admirers.
2.53 p.m.
Lord BYERS: My Lords, the retirement of the noble Earl, Lord St. Aldwyn, as Conservative Chief whip is to me as surprising as it is distressing. I always regarded his as an appointment in perpetuity and I had no idea that it was possible for him to resign. But he has rendered distinguished service to this House. He has displayed a loyalty to it and an affection for it which have been quite outstanding, and which I think have been infectious to a lot of people who have joined the House during his term of office. His long service on both sides of
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the Chamber has been very much appreciated, not least on these Benches. Over the years, I have come to regard him less as a political opponent—except, of course, when the Conservatives were for a short time in office—and much more as a personal friend and a genial adviser, even to the point of accepting his advice from time to time. I want to thank him personally for the tremendous help he has given to me, as a Member of this House, and to many others, and I hope his counsel will be available to us for many years to come.
2.55 p.m.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, I thought it might be proper for me to say a word about the noble Earl, Lord St. Aldwyn, my implacable opponent! In many years in political life I have never met with such immovable obstinancy, determination and almost impenetrable cunning as I have in my work with the noble Earl! It has been quite an experience, but of course infinitely rewarding, because, as the whole House knows, his complete dedication to his Party is equalled by his integrity, his honour and by his splendid sense of humour. He served his Party with a tenacity which has been very daunting to me on occasions, but he has always been a dedicated servant of your Lordships' House.
Nothing has been too small or too domestic for his energies and his concern. On the basic and difficult problems of our legislative duties he has been untiring and indeed ingenious, both in Government and in Opposition. For myself, I should like to thank him deeply for his generosity, for his always ready sense of fun, and for his helpfulness in anything which concerned the wellbeing of your Lordships' House. All noble Lords on all sides of the House will wish him and his enchanting lady well, and we shall hope to see him often.
2.56 p.m.
Lord SHEPHERD: My Lords, may I add my congratulations to the noble Lord, Lord Denham. The reason why I rise is that I have had a long association with the noble Earl. He became Chief Whip about the time that I became Deputy Chief Whip for the Opposition. For some 18 years, therefore, I have been

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associated with him in one form or another in what is referred to as "the usual channels". Like my noble friend, I can speak of his complete integrity. There could never be any question that if you needed advice you could always go to him knowing that even the noble Lord, Lord Carrington, would not get the slightest wind of it. The noble Earl was of great assistance, despite what my noble friend has said about his being a Party man. I shall never forget the assistance the noble Earl gave to me when I became Chief Whip after those 13 disastrous years of Conservative rule, when Labour sat for the first time for many years on these Benches, having to grapple with all the problems involved in the new Session and the setting up of business.
The noble Earl was always kind. I think the thing that always struck me about him was his basic concern for the House as a whole, not just in the Chamber, but the general atmosphere. I can well remember the noble Earl coming to me one day and saying, "We must do something about the dining room". It was nothing to do with the food. The noble Earl had taken the view that it was quite wrong that Conservative Peers should sit at a Conservative table and Labour Peers should sit at a Labour table. Where the Liberals sat and where my noble friends the Cross-Benchers sat, I am not certain. The noble Earl was quite right. We both agreed to exhort our various friends to mix up and sit at different tables. This House, as usual, took not the slightest notice. So the noble Earl came to me and said, "There is one solution only—one table". I believe that that one act had a profound effect on the House, because we were all forced to sit and meet each other—I think very much for the benefit of our friends opposite.
The noble Earl has given great service to the House. He has made very many friends, and I join with all others, particularly my noble friend the Chief Whip, in wishing him not so much a retirement but a return to a more active and vocal role in your Lordships' House. I have no doubt that his charming wife will be able to provide him with some information and ammunition for speeches of that type.
2.59 p.m.
Lord SOMERS: My Lords, I think it only right that someone from these Benches should say a word on the retirement of the noble Earl. I have every reason to remember him with gratitude, because at one time in the far and distant past I actually sat on the same Benches as he does. I remember well one occasion upon which I had, in spite of that fact, spoken and, so far as I can remember, voted, against my own Party. One of the most remarkable things about the noble Earl is his gentlenesss in reproval. Shortly after that incident I had a note from him saying, "Do you think that occasionally you might speak and vote in favour of the Government?". To those who rather think of the Chief Whip in terms of a strict disciplinarian the noble Earl has been the very greatest possible contradiction of that conception. I, for one, shall miss him not only as a Whip but also as a great personal friend.
3.2 p.m.
Earl ST. ALDWYN: My Lords, I have been deeply touched by what has been said by the Leader of the House, the Leader of my own Party, the Leader of the Liberal Party, my noble friend on the Cross-Benches and the Chief Whip. Indeed, the noble Baroness described me as obstinate. That I find a little difficult to understand, because I have always found that I have had to give way to her. The noble Baroness has that female instinct which enables her to know just how to get under the skin of an opponent and obtain the answer which she wants. She does it with enormous charm and on numerous occasions I have succumbed to such beguiles from her.
I find myself in some difficulty because there are so many people on all sides of the House whom I should like to thank personally for their help, assistance and co-operation. However, if I started to do so I would exceed even the suggestion of the noble Leader of the House that I might speak for a few minutes. Therefore, I shall refer to only a few people and hope that those who are not included will not take any offence or feel that I have failed to appreciate what they have done for me and with me for the House.

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First, I should like to thank the noble Lord, who was then the noble Earl, Lord Home, for appointing me as Chief Whip in 1958 and having the kindness to have sufficient faith in me to leave me to try to work out a solution. On the other side of the House, the character to whom I think I must refer is the late Lord Alexander of Hillsborough. If ever there was a Leader of the Opposition who never let the Government get away with anything it was him. However, we were great friends and outside the Chamber we had many happy meetings. I am perhaps inclined to think that the Opposition, at present, should follow his example more closely and press Ministers to give more complete answers than has sometimes been the case.
The next person whom I should like to thank is my noble friend Lord Denham who has succeeded me. I could not be more pleased that he has done so. He was thrown in very much at the deep end. I was lying in a bed the other side of the river and it was the time of the Industrial Relations Bill where the temperature inside the House—even if not outside—rose exceedingly high. My noble friend had to cope with all that and he did so with great skill and what he learnt will, I am sure, stand him and the House in great stead in the future. Equally, I should like to thank all my colleagues, especially those who have served under me in the Whips' Office over many years.
There is only one other person that I would name; that is, my wife. She has the uncanny knack of keeping my feet on the ground on occasions when I have been tempted to let them rise off the ground. She has a much better memory than I have and she remembers many more Peers' names than I do. My present Leader was always twitting me whenever a strange face came in, and immediately turned round to me and said, "Who is that?"; of course, I did not know so I had to ask the Table. However, my wife's common sense and guidance on how I should do things has been absolutely invaluable to me. She brought sanity where sometimes sanity was inclined to fly out of the window.
I shall take up the remark of the noble Leader of the House and say a few words about how the Whips' Office came into
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being. I think that that needs to be recorded somewhere and this seems to me as good a place and as good a time as any. When I was appointed by my noble friend in 1958, I had an office, a telephone and a file, which noble Lords may have seen reference to in the Sunday Telegraph, saying "Dead Peers." but with no names in it. That is literally all that I succeeded. to. The business of the House was then totally organised by the Secretary to the Leader of the House, Sir Charles Hendriks, a remarkable character who served this House quite brilliantly over many years. However, he was getting on in years and was due to retire at the beginning of 1960. In 1958 the Life Peers arrived, and then, after a defeat of the Conservative Government by the Conservative Peers backed by the then Opposition, hereditary Peeresses were also admitted.
I was then faced with the problem of what to do when Sir Charles Hendriks left, because I felt that the Chief Whip's job was to run the business of the House. I had many long discussions with the then Clerk of the Parliaments, Sir Victor Goodman, as to what was the best solution. He came forward with the suggestion, which I very readily accepted, that the Government Whips' Office should be manned from the Parliament Office. I must admit at once that that seemed to me a thoroughly sound idea, for two reasons; first, because it meant that there would, over the years, be an increasing number of Members of the Parliament Office who really understood the Government machine. In the past there has always been a slight tendency—I think probably in both Houses—for the Parliament Office to consider itself slightly remote from the Government offices. This scheme has undoubtedly proved a great success and I think that most of your Lordships would agree that we have benefited from it. It also had the great advantage that various people were loaned for short periods only, which meant that no servant, either of the House or from anywhere else, rose to a position of extreme power.
I am sure that it has been very much for the benefit of the House that we have had this constant turnover. Really, the business has been in the hands of the Chief Whip, assisted by his secretary, but not run by his secretary. Sir Victor I suggested a young man to come and be

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the first of these secretaries to the Leader of the House and to the Chief Whip—a combined office which was very important. His choice, with my full agreement, was of a young man of exceptional ability. I know that it is totally wrong to mention any Clerk by name in this House; all I can say is that he happens to be the Clerk of the Parliaments at the moment.
My Lords, I thank you for receiving the nice things that have been said about me in the way in which you have. I hope to see many of you constantly for many years to come.

DECIMALISATION AND METRICATION
3.12 p.m.
Lord SOMERS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what substantial benefits to the nation as a whole have been obtained through—

(a) the decimalisation of the coinage,

(b) the metrication of weights and measures,

(c) the use of the 24-hour clock,

and whether they consider such benefits great enough to justify the confusion and inconvenience caused by their introduction.
Lord ORAM: My Lords, the decimalisation of the coinage has brought substantial benefits of simplification to offices, banks, shops and schools as well as to individuals. Again, metrication will simplify measurements and help to improve the position of our industry in world markets. The operational advantages of the 24-hour method of expressing time have long been recognised. The Government are not aware of widespread confusion or inconvenience.
Lord SOMERS: My Lords, I thank the noble Lord for that Answer. Why is it that the answers that he has given seem to be so much in conflict with the experiences of other people as told to me? Every shopkeeper that I have visited seems to be extremely annoyed at the
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metrication of weights and measures. Is the noble Lord aware that a great deal of confusion will arise when metrication takes the form of changed speed limits?
Lord ORAM: My Lords, there are, of course, differences of view and of experience in this matter, but it is my experience that the metrication programme is proceeding smoothly. In many consumer commodities there is dual marking for a period, which enables most people to become accustomed to the new system.
Lord PEDDIE: My Lords, is my noble friend in a position to give an estimate of the total cost of the conversions in these three areas?
Lord ORAM: My Lords, no, I would prefer my noble friend to give ate notice of the question on the overall cost. Just before the Recess I indicated that the cost of the Metrication Board and its work was £6·5 million, but I should need to reflect a little more on that. I should like notice of a question about the total figure.
The Earl of HALSBURY: My Lords, will the noble Lord agree that decimalisation and metrication were acts of altruism undertaken by an older generation for unborn generations of their descendants for all time, by aligning the monetary and physical units that we use with the structure of the language that we talk?
Lord ORAM: My Lords, I agree that the benefits for children and future generations will be considerable. We have to suffer a little confusion in the meantime, but it is well worth while.
Lord HALE: My Lords, does the noble Lord recall that we have been told it is the Government's policy to e encourage small businesses? Indeed, we are taught that reorganisation small is beautiful. Are we not continually doing things which cause no trouble to large firms with large staffs and resources—computers and so on—but which are apparently causing the greatest possible embarrassment in some industries? For instance, the use of some of the metric measures in methods of recording milk production and all the other details of recording milk, and indeed

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of cheese, are, according to the participants in the industry, being forced upon them at short notice in circumstances in which they just do not have the resources to get going.
Lord ORAM: My Lords, the metrication programme was thought out well in advance. It is proceeding step by step and in an orderly fashion. I do not think that the accusations which my noble friend has put forward in respect of small organisations are really justified.
Baroness WHITE: My Lords, will my noble friend not confirm that all industries in this country which have been asked to undertake these changes have had ample notice—in fact, that they have had many years' notice? I can assure my noble friend Lord Hale that that includes the agricultural industry. Will my noble friend also confirm that there has been no precipitated action in this field?
Lord ORAM: My Lords, I thank my noble friend for that intervention. In recent months I have had the duty of conducting quite a number of orders through your Lordships' House and in every case there has been extensive consultation with all the interests concerned.
Lord THOMAS: My Lords, will the noble Lord not agree that there is a strong element of pointlessness in this discussion because any idea of going back to the old system is right off the cards?
Lord ORAM: My Lords, I entirely agree.
Lord SOMERS: My Lords, can the noble Lord say how soon the Government intend to introduce a 10-day week and a 10-month year?
Lord ORAM: My Lords, not yet.
Lord SEGAL: My Lords, can my noble friend give the House an indication as to when the metrication of distances is likely to be introduced into this country?
Lord ORAM: My Lords, I think that my right honourable friend the Minister of Transport made a Statement about this not long ago. Speaking from memory,
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I believe he indicated that it would be quite a long time before that takes place.
Lord MONSON: My Lords, will the noble Lord agree that we do not export our climate to world markets and, therefore, there is no advantage whatsoever in denominating air temperature in Centigrade units, particularly as such units are almost 45 per cent. less precise as units of measurement than Fahrenheit ones?
Lord ORAM: My Lords, in science the Centigrade measure has been well established over many years. As long ago as when I was at school I found it convenient to use it. I think that many generations of school children will find it useful if we have that system.

SOLICITORS' DUTIES AND CLIENTS' INTERESTS
3.18 p.m.
Lord SUDELEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied that the various functions performed by solicitors in their various capacities as sheriffs' officers, notaries public and commissioners for oaths cause no conflict of interest with their professional relationships with their clients.
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I am not aware of any case in which there has been a conflict of interest. But if the noble Lord can provide me with details of any case I shall be very glad to look into it.
Lord SUDELEY: My Lords, I am most indebted to the noble and learned Lord for his generous Answer. When I make available to him the papers which he so kindly offered to examine, will he consider them on the basis that the writ of fieri-facias, being a command of the Sovereign, should outweigh any duties which a solicitor should owe to his client? Further, will he consider whether solicitors who are sheriffs' officers should undertake litigation, because cases of the kind to which my attention has been drawn may arise?
The LORD CHANCELLOR: My Lord, I shall certainly consider those interesting matters. In fact, I would have expected, if there was a conflict of interest in the kind of case to which the noble Lord has referred, that another solicitor would be consulted by the client, and the solicitor in question would give him that advice. That, I suspect, is what the Law Society would advise him to do. I shall look into this question, although I am bound to say that I have no responsibility for under-sheriffs and their performance of their duties. It is the high sheriffs who have that responsibility.

BROADCASTING AUTHORITIES MEMBERS' FEES
3.21 p.m.
Lord AYLESTONE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what figure would be required in view of the change in monetary values to bring up to date the fee of £1,000 per annum currently paid to the ordinary members of the BBC Board of Governors and the members of the IBA which has been the fee for the past 19 years.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, based on movement in the index of prices of consumer goods and services, the amount required would be about £3,800.
Lord AYLESTONE: My Lords, while thanking my noble friend for his reply, may I ask him whether he is aware that whatever changes, if any changes at all, arise from the Annan Committee report, the ladies and gentlemen mentioned in this Question will be involved in a great deal of additional work? Would it not be reasonable to offer them some increase on the figure which has now obtained for the last 19 years?
Lord HARRIS of GREENWICH: My Lords, I think that I should say two things in answer to the point put to me by my noble friend. First of all, this figure of £1,000 applies to part-time members of public boards, including the
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nationalised industries. Therefore, it is a wider question than simply that of the fees paid to members of the IBA and the BBC. Secondly, as was made clear in another place just before the Christmas Recess, the Government will wish to look at the way forward when the review body on top salaries makes its recommendations for April, 1978.
Lord PARGITER: My Lords, may I ask my noble friend whether or not, on the basis of the law of supply and demand, there is any lack of applicants for these places?
Lord HARRIS of GREENWICH: My Lords, there are no applicants because these are matters for ministerial decision.

DOMESTIC PROCEEDINGS AND MAGISTRATES' COURTS BILL [H.L.]
3.23 p.m.
Lord HARRIS of GREENWICH: My Lords, I beg to introduce a Bill to make fresh provision for matrimonia proceedings in magistrates' courts; to amend enactments relating to other proceedings so as to eliminate certain differences between the law relating to those proceedings and the law relating to matrimonial proceedings in magistrates' courts; to extend Section 15 of the Justices of the Peace Act 1949; to amend Part II of the Magistrates' Courts Act 1952; to amend the Maintenance Orders (Reciprocal Enforcement) Act 1927; to amend certain enactments relating to adoption; and for purposes connected with those matters. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now lead 1a.—(Lord Harris of Greenwich.)
On Question, Bill read 1a, and to be printed.

SUPPRESSION OF TERRORISM BILL [H.L.]
Lord HARRIS of GREENWICH: My Lords, I beg to introduce a Bill to give effect to the European Convention on the Suppression of Terrorism; to amend the law relating to the extradition of criminals

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and the obtaining of evidence for criminal proceedings outside the United Kingdom; to confer jurisdiction in respect of certain offences committed outside the United Kingdom; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.— (Lord Harris of Greenwich.)
On Question, Bill read 1a, and to be printed.

REFUSE (DISPOSAL) BILL [H.L.]
The LORD CHANCELLOR: My Lords, I beg to move that this Bill be now read a second time. Your Lordships should not be misled by the title, Refuse (Disposal) Bill, into thinking that this Bill is pure rubbish. It is, however, pure consolidation, and makes no changes in the existing law. I beg to move.
Moved, That the Bill be read 2a.—(The Lord Chancellor.)
On Question, Bill read 2a and referred to the Joint Committee on Consolidation Bills.

LOCAL GOVERNMENT (SCOTLAND) BILL [H.L.]
3.26 p.m.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): My Lords, on behalf of my noble friend Lord Kirkhill, I beg to move that this Bill be now read a third time.
Moved. That the Bill be now read 3a.—(Lord McCluskey.)
Lord CAMPBELL of CROY: My Lords, a few words should be said before this Bill goes to another place. First, to thank the noble and learned Lord, Lord McCluskey, for having piloted it through its stages. The Government considered that action was necessary on a number of miscellaneous subjects in the local government field because they were urgent and needed in this Session. I should also like to point out that your Lordships have in this Chamber altered the Bill in certain important respects. It was introduced
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in your Lordships' House and the Government immediately moved an Amendment. I would say to the noble and learned Lord, Lord McCluskey, that he had no need to apologise, because I feel that in your Lordships' Chamber the Government's second thoughts will always be welcome however soon they come after their first thoughts, if they improve or correct a Bill. He certainly had no need to apologise.
From this side we also raised certain points in Committee and the Government agreed to them. First, we have provided opportunities for the domestic ratepayer in Scotland to be heard. Sometimes domestic ratepayers in Scotland who, on the whole, have to pay a great deal more than their counterparts in England and Wales, feel oppressed, and have some reason for so feeling. We in your Lordships' House have been able to come to their aid in this Bill.
The second main Amendment has very wide application and interest beyond Scotland and beyond this House. It concerns the question of the treatment of hybrid orders. In this Bill we have set another precedent where private legislation is concerned. That is, of course, something of special concern to your Lordships' House where so much private legislation is dealt with. Three years ago we worked out an expedited procedure for dealing with hybrid orders involving great urgency or national importance. Through agreement of both sides of this House, what was called an expedited procedure was worked out whereby 28 days were allowed for Petitioners. Originally, that clause was included in this Bill, but when we investigated we found that the kind of urgency and national importance in question would not arise under this Bill. I am glad to say that the Government agreed and deleted that part of the Bill at the Report stage. The rights of individuals would have been further restricted under the original text of this Bill, but that w ill not now happen.
I would remind your Lordships that where an order is hybrid, and where individuals consider that they are being discriminated against, they have a right to petition and to be heard personally with their legal advisers before Parliament. We have preserved also their right to have a reasonable time to do this, and not have it shortened to the period,

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which is really a minimum, of 28 days unless there is real urgency or national importance. That the Government agreed to this, and that it has now been established that the procedure should not be used unless there is great urgency, can only be satisfactory for our whole process of legislating. That is why I draw attention to its having happened in this Bill. We have been setting another precedent.
I believe that our efforts on this Bill provide an excellent example of the role your Lordships' House can play in revising a Bill, and in helping the Government to revise their first draft. I should like to thank my noble friends who helped in all the stages of this Bill. I should particularly again like to thank the noble and learned Lord, Lord McCluskey. There was only one week between the Committee and Report stages, and he had to work very fast behind the scenes in order to agree the Amendments which we had suggested.
Lord McCLUSKEY: My Lords, I am indebted to the noble Lord, Lord Campbell of Croy, for his kind words. I believe your Lordships can be entirely satisfied with the manner in which this measure has been dealt with as it has proceeded through this House. The House is particularly indebted to the noble Lord, Lord Campbell, for alerting us to certain features of the Bill which could, without damaging its real underlying purposes, he improved. The House saw fit to make these improvements, which were fully described on Report, and I think that we are now all agreed that the Bill which goes from here to another place is a better measure as a result of these changes. I also gratefully acknowledge the contribution which other noble Lords made to the proceedings both in Committee and on Report.
On Question, Bill read 3a; an Amendment (privilege) made; Bill passed, and sent to the Commons.

THEFT BILL [H.L.]
3.31 p.m.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this Bill he now read a second time. The Bill results from the Criminal Law Revision Committee's Thirteenth Report, on Section 16
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of the Theft Act 1968, which Was published last February. This is an intricate and complex area of the criminal law and I am sure the House will wish to join me in paying tribute to the noble and learned Lord, Lord Edmund-Davies, then chairman of the Committee, and the other members of the Committee, for the careful and painstaking way in which they have carried out their task. They have in fact reconstructed Section 16(2)(a) of the 1968 Act and provided us with an entirely new and I believe much improved set of clauses.
I suppose that in a way we should partly blame ourselves for having to give our attention after a span of only 10 years since the passing of the Theft Act to an offence of deception which the noble and learned Lord, Lord Edmund-Davies, when giving judgment in the Court of Appeal in the case of R v. Royle called a "judicial nightmare". As your Lordships are aware, Section 16, which is concerned with obtaining a pecuniary advantage by deception, came about as a result of amendments made to the Criminal Law Revision Committee's original draft clause—arising out of their Eighth Report—during the passage in 1968 of the Theft Bill through your Lordships' House and in another place. The particular wording of the section arose from the desire of your Lordships to qualify the original clause as introduced, which it was considered was too wide and made any kind of dishonesty criminal. Unfortunately, owing to the extreme difficulties of drafting such a provision, it has not introduced the certainty into the law which was expected of it, and quite soon after its introduction the interpretation of the section began to trouble the courts.
No less than three cases have been referred to your Lordships' House for decision. Two arose in 1973, Director of Public Prosecutions v. Turner and DPP v. Ray, both of which concerned the evasion of a debt. In the first case, as was pointed out by the noble and learned Lord, Lord Reid, the respondent evaded his obligation to pay immediately in legal tender for work done—in act by a couple of decorators—by giving a worthless cheque instead. The second case concerned a man who, after having eaten a meal in a restaurant, changed his mind and evaded his obligation to pay for the

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meal by leaving without paying, having waited for some 10 minutes until the waiter was out of the room. The third case, the Metropolitan Police Commissioner v. Charles in 1976, related to the fraudulent use of cheques at a gaming club, backed by a cheque card, which the appellant had no funds to meet. Your Lordships found that a pecuniary advantage had been obtained by deception in that case also. I will not detain your Lordships by citing the numerous other relevant cases decided by the courts which have a bearing on the precise meaning of Section 16 of the 1968 Act, but, as I have indicated, a significant number have arisen.
In August 1972, therefore, the then Home Secretary asked the Criminal Law Revision Committee to look into the whole question of the working of Section 16 of the Theft Act and to consider whether any changes in the law were desirable. The Committee felt that their task ought not simply be to find a better way of stating the effect of the section, but that they should go further and fully reappraise the proper extent of the criminal law in this field. There are many views as to where the borders between criminal and civil liability for this type of conduct should lie, and, because of the difficult nature of the task, the Committee decided for the first time to publish an account of their provisional conclusions in a Working Paper in order to test public opinion. A wide range of comments were received from organisations and individuals whose views have been reflected in the recommendations of the final report.
In their report the Criminal Law Revision Committee have taken the view that a new provision is required to replace Section 16(2)(a), framed in such a way that it would broadly cover the same conduct, but re-stated in terms which more clearly define the scope of the offences in question. In one minor respect, however, they felt the law should be slightly narrower than at present, and in another that it should go wider than its current interpretation. I refer in the first case to the stalling debtor, and, in the second, to the new offence of making off without payment. I shall deal with both of these points in more detail when I come to discuss the individual clauses of
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the Bill. The Criminal Law Revision Committee embodied their recommendations in a draft Bill which they appended to their report and the Bill as introduced into your Lordships' House is based, with only very minor changes, on that draft.
The Committee have thought it right to confine their proposals to subsection (2)(a) of Section 16, which has given rise to all the difficulties, since the Law Commission are reviewing the law on conspiracies to cheat or defraud and, in the course of their review, will have the opportunity to consider fraud offences generally. That review will also cover consideration of problems associated with the fraudulent use of cheque and credit cards. The Committee have been in close touch with the Law Commission throughout their deliberations and it has been agreed that the problem of subsection (2)(a) requires such urgent solution that it should be dealt with in advance of the Commission's review, which may inevitably take some time to complete.
I should now like to take the opportunity to explain the main clauses of this short Bill in some detail. It creates two separate offences, in Clauses 1 and 2, to cover conduct at present caught by Section 16(2)(a) and a third offence, in Clause 3, which extends the scope of the present offence to deal with people who, for example, make off from restaurants and similar places without paying their bills or run off at the end of a taxi journey without paying their fares. Clause 1 creates an offence of "deception as to prospect of payment "and covers the more common frauds to which Section 16 applies, where there is a deception at the outset of a transaction which causes a person to act on another's promise of payment. The deception in this case must be one which goes to the prospect of payment being duly made. The words "promise of payment" are given a wide meaning and include any promise, express or implied, whether legally enforceable or not, that payment will be made. Subsection (3)(c) ensures that deception involving the use of a worthless cheque is covered by providing that the giving of a cheque is to be treated not as payment but as the making of a promise of payment.
A simple example of an offence committed under this section would be that of

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a man who deliberately gives the proprietor of a hotel a worthless cheque when he is asked to pay in advance for his room. Another would be where someone pretends to be a wealthy visitor and gets services—for example, theatre tickets—from a department store which he cannot afford, and for which he does not intend to pay. So much for Clause 1.
Clause 2 creates an offence of obtaining relief from liability by deception in cases which, for the most part, involve fraudulent conduct where a deception is practised after a transaction has been entered into. The clause covers three forms of deception. Subsection (1)(a) makes it an offence to practice a deception which dishonestly secures the remission of the whole or part of an existing liability to make payment. An example would be where a man has ordered goods for his business and after their arrival, disputes ever having received them and by lies persuades the seller to cancel the invoice. Subsection (1)(b) is concerned with the stalling debtor who, by deception, dishonestly induces his creditor to wait for payment or to forego payment. Under the Bill, conduct of this kind would only be an offence if the offender intends never to pay and, this is the one respect which I mentioned earlier in which the new Bill narrows the scope of the existing law.
As the Criminal Law Revision Committee pointed out, Section 16(2)(a), as it has been interpreted, has the effect, for example, of making it an offence for a housewife to tell a milkman she cannot pay that week because her husband has been off work. The Committee considers that the offence should be limited to the person who, in order to escape altogether from his obligations to pay his debt, attempts to make use of his opportunity to delay repayment. An example of the kind of conduct caught by this offence would be where a tenant not only lied to the rent collector in order to postpone the payment of his rent, but also concealed his plans to move to a new flat, knowing that it was unlikely that he would be able to be traced.
Section 2(1)(c) makes it an offence to practice a deception in order to obtain exemption from or abatement of liability to make a payment. It differs from the two previous sub-paragraphs in that it can include frauds where the offender has
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been acting dishonestly from the outset of the transaction. The most important function of this provision is to ensure that there continues to be available a penalty for fraudulently evading statutory charges or obtaining allowances or relief under statutory provisions.
Clause 3 deals with a matter which I think is of some importance. While, for the most part, comment on the deficiencies of Section 16 has bean confined to the courts and to academics, there is one respect in which the law has achieved some notoriety in the Press. That is the kind of conduct known as "bilking". In some cases there may be no offence under the present law where, without any deception being involved, a person has his car filled up by an attendant at a petrol station and leaves without paying, or after eating a meal in a restaurant changes his mind about paying and immediately runs out.
The Criminal Law Revision Committee considered that this was an unsatisfactory state of affairs, because, among other things, it created an anomaly whereby the man who, for example, distracted the attention of a waiter in a restaurant, so enabling him to make his escape, was guilty of an offence, while the man who simply ran out could, in sonic circumstances, get off scot free. Indeed, it seems artificial for a jury to have to consider whether the man who has not paid for his meal practised a deception on the waiter when he ordered the meal—in which case he obtained the food by deception—or after finishing the meal—in which case he obtained a pecuniary advantage by deception. Deception or not, the restaurant has lost the price of the meal with no practical means of recovering it by civil action. The Criminal Law Revision Committee, therefore, proposed a new offence, which is contained in Clause 3, of making off without payment in circumstances in which it is known that payment on the spot is expected or required, and with intent to make permanent default.
The clause will cover such things as garage frauds, where the petrol has to be paid for on the spot, restaurant frauds where everyone knows that the meal is supplied on the understanding that the bill will be paid before the diner leaves the restaurant, and other frauds, like being at

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a hotel or boarding house and leaving without paying, and defaulting on taxi fares.
The penalties for the new offences are set out in Clause 4. In view of the general policy of reducing maximum sentences of imprisonment in appropriate cases and taking account of the comments made by Professor Glanville Williams and Sir Rupert Cross in the report and of others elsewhere, the maximum penalty for the offence in Clause 3 has been reduced from the three years proposed by the Criminal Law Revision Committee to two years. Otherwise, the penalties follow the Committee's recommendations. All offences under the Bill are triable on indictment or summarily, and when the relevant provisions of the Criminal Law Act 1977 are brought into force, will become 'either way' offences. The fines available on summary conviction are inflation proofed.
The remaining two clauses of the Bill deal with supplementary and formal matters: they follow the Criminal Law Revision Committee's draft Bill, with additional provisions securing that offences under the Bill (like those in the Theft Act itself) are made extraditable and are brought within the scope of the Fugitive Offenders Act.
I have drawn the attention of the House to the main points of this Bill which the Government consider will deal effectively and comprehensively with an extremely complicated aspect of the criminal law. When Lord Reid delivered judgment in one of the cases in this section which had to be decided in your Lordships' House, he expressed the hope that,
"ways can be found of drafting such provisions in a form which does not require elaborate and rarefied analysis to discover their meaning".
We consider that, given the great complexity of the matters with which it deals, this Bill accords with the noble Lord's sentiments and presents an excellent opportunity to clear away many of the difficulties the courts have suffered in dealing with this area of the law.
I feel confident, therefore, that your Lordships, who will have had the opportunity to study the Criminal Law Revision Committee's detailed working paper and report, will accept the Committee's
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valuable proposals for amending the law and will give this Bill a Second Reading. I beg to move.
Moved That the Bill be now read 2a.—.(Lord Harris of Greenwich.)
3.49 p.m.
The Earl of MANSFIELD: My Lords, first, I should thank the noble Lord, Lord Harris of Greenwich, for his, as usual, clear and succinct exposition of this Bill. I suppose that Parliament every so often goes through the motions of an attempt to tidy up the law relating to what I may call small frauds and to the way in which people obtain goods and services in dishonest circumstances, or, if they have obtained them honestly, the way in which they try dishonestly to evade their monetary responsibilities. There has long been a desire to produce a series of simply understood and easily applied offences which cover every aspect of fraudulent behaviour in these connections. I suppose that the Larceny Act 1916 might at that time have been thought to be the solution, particularly when it was taken into account in conjunction with the various common law offences which existed at that time. Certainly, much was hoped of the Theft Act 1968; but, as the noble Lord, Lord Harris, has said, a number of cases have been thrown up since then which have shown that the Theft Act did not solve the problems and, indeed, set quite a number of new ones. It is fair to point out, as has been pointed out already, that Section 16 of that Act did not result from the draft Bill annexed to the Eighth Report of the Criminal Law Revision Committee, but was introduced on Report—I think, in this House—and no doubt received the blessing of the Government of the day. I believe it was the late Lord Stonham who was sitting where the noble Lord, Lord Harris, is sitting now.
I say all this because, although I yield to no one in my admiration of the Committee, of its report and of its labours generally, I think we must be very careful that we do not extricate ourselves, legally speaking, from one quagmire only to descend sharply into another one. I am not sure (although I shall try to make a Second Reading speech) that parts of this Bill do not in fact make the cure worse than the disease, but no doubt we shall

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see in Committee. Section 16(2)(a) which this Bill seeks to replace is, as I think has been said, fairly narrow in scope, and I do not suppose that many of the offences with which it deals are of the greatest gravity. Nevertheless, offences of this nature frequently occupy the time of the courts; they all involve a measure of dishonesty which has to be sifted through by the court and by the bench of magistrates or the jury which is trying the case.
Clause 1 of the Bill can be seen as being labelled,
"Deception as to prospect of payment",
which may be described as rather quaint English. In any event, as I understand it, the offence has two ingredients: first, the victim of the fraud performs some sort of act; secondly, the victim is induced to do that act by a deception which goes to "the prospect of payment being duly made." It is that second element of the offence which I think will cause some little difficulty in the future. On page 12 of its report the Committee cites examples of when it thinks the offence may be committed. The deposit on hiring a car is a prime example. As I understand the situation, if somebody seeks to hire a car, gives a worthless cheque by way of a deposit and does so in a dishonest frame of mind, then the offence is complete and he is liable to be prosecuted. It matters not, for those purposes, whether he thinks that, although there are no funds to meet the cheque in the bank at the moment, funds may well flow in within a few days, of whether he believes that circumstances will be different in the future so that he will be able to meet the cheque.
I say that because when one takes Clause 2 into account a very different situation obtains. Clause 2 deals with existing liabilities and what I might term dishonest measures on the part of the debtor to gain some sort of advantage, whether by way of time or by way of the amount to be paid. I do not suppose that there would be much quarrel with Clause 2(1)(a), but it is Clause 2(1)(b) which I believe can and probably will cause some little difficulty, because there the provision is prefaced by the words,
"with intent to make permanent default".
By that, as I understand the situation—and, indeed, the Committee says so in
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terms on page 14 of its report—if our car hirer hires his car (whether or not he pays a deposit at the inception of the period of hire and, if so, by whatever means that deposit is paid) and, at the conclusion of the rental period, pays for the hire of the car with what I might term a dud cheque, but does so not with intent to make permanent default but in the hope, if not the belief, that he will be able to pay later on, then, under Clause 2(3), a cheque or other security is treated as being an inducement for the creditor to wait for payment. No offence will, at that stage, at any rate, have been completed unless the debtor has the intent to make permanent default.
I regard this as really standing the criminal law on its head. The justification which the Committee uses is that it does not wish to bring the criminal law to the aid of the civil creditor; but it is really very odd that, should somebody, at the inception of the hiring period, give a cheque which is worthless and do so dishonestly, he will be guilty of an offence, whereas, should he do so at the end of the hiring period and do so just as dishonestly but with intent to gain time, he will not be guilty of any offence at all. That, I think, is one part of the Bill which is less than satisfactory.
We also have the creation of a new offence; that is, "making off without payment". Here, again, one must inquire what "making off" means. I suppose it is intended to cover the way of escape rather than the actual refusal to pay if the goods and services are regarded as being deficient. For instance, if one goes to an expensive restaurant with very slow service and there is a large service charge attached to the bill, before the VAT at the end, and one says, "I am not going to pay the service charge because you have been so slow", and walks out, I hope—and I see the noble Lord nodding—that no court would say that that was "making off". But one wonders.
If I may introduce a personal note into this, it concerns Clause 3(4). Those of us who conduct business and have to travel, very often stay in concrete hotels which render some sort of bill in the morning, usually, if it is at London Airport, when one is trying to catch an aeroplane. They have a vary slow method of receiving payment, and one

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sometimes finds oneself at the end of a queue after a good many airline personnel who want to pay first. It has certainly been my habit in the past to write my name and address on a piece of paper, to put it in an envelope with a £10 note and an invitation to the hotel to send me a bill for the balance, and thereafter to put the envelope into one of the little slots where the keys go. That saves my time and probably, I hope, teaches the hotel to give a better service in the future; but I have a horrible suspicion that I may be liable to arrest without warrant under Clause 4. "Arrest" I say; I hope not conviction. I think that that is something which needs to be looked at by this House, if only because it gives a power of arrest which may not be warranted.
I think the noble Lord, Lord Harris, certainly believed that we were going to enter a new era of certainty in the law with the passing of this little Bill. I myself think that those who frame the questions for the Bar exams are going to have their wits—and their imagination, too—stretched just as much as they have been in the past. Nevertheless, we wish the Bill well, if only for the fact that it gives this House an agreeable moment or two to discuss our criminal law before we get down to the much less pleasant and more serious study of the Scotland Bill, on which the noble Lord, Lord Harris, and I will face each other across this Dispatch Box in a few weeks' time.
4 p.m.
Lord WIGODER: My Lords, ever since the noble and learned Lord, Lord Edmund-Davies, described Section 16 of the 1968 Theft Act as being a judicial nightmare, the time has been ripe for its reform and improvement. That, I think, is so even though in 1973, in the case of Turner, the law was considerably clarified and there have been very many less confusions since that date. The difficulty arises because we are dealing with a rather grey area where criminal law and civil law overlap. If I may give a simple illustration, it appears from this Bill, as I understand it, that, if a motorist has a credit account at a garage and obtains petrol intending to pay at the end of the month and then at the end of the month finds that he has no money and changes his address and does not pay, he commits no
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offence under this Bill. On the other hand, if a motorist goes into a garage intending to pay in cash but finds after he has been served that he has left his wallet at home and simply drives off, he is committing a criminal offence under this Bill. Why there should be in the one case civil liability only and, in the other, criminal liability would perhaps be not entirely easy to explain.
Because one is moving in that rather grey area, when one conies to look at the terms of this Bill, one cannot help feeling very grave anxieties. I rather venture to agree with the noble Earl, Lord Mansfield, that what one is in danger of doing here is replacing judicial nightmare by a recipe for judicial insomnia. I say that because one must look at the realities of the situation as they are going to affect juries in listening to cases. The kind of case that arises under this Bill will be, for the most part, fairly small cases and substantial fraud that may exist under this Bill will also be substantial fraud under other sections of the Theft Act. They are cases which will be dealt with by junior recorders, junior circuit judges, having to direct the jury as to what the law means.
Perhaps one has had something of an illustration of that difficulty this afternoon, because one might perhaps put the noble Lord, Lord Harris, in the position of being the judge directing the jury as to what the law means. He has had all the advantages of having the report of the Criminal Law Revision Committee and the whole of the departmental resources at his disposal in explaining to us what Clauses 1 and 2 mean. May I ask, rhetorically, what those of your Lordships who are not lawyers, and who might put themselves in the position of being intelligent members of a jury, would think on listening to an explanation of the law as it emerged this afternoon? I mean that not in any way as a criticism of the noble Lord—of course not—but as a criticism of the complexity of this piece of legislation.
The jury would have to be told, if the offence was an offence under Clause 1, first of all that there has to be a deception. A deception, the jury will have to be told, must be a deception about existing fact; a deception about the future would not suffice. That is the existing law and it is already the law in Section 15 of the Theft

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Act and is reiterated and re-enacted in Clause 5 of this Bill. Clause 5(1) says:
"deception' has the same meaning as in section 15 … any deception' … by words or conduct as to fact or as to law …".
That means a deception as to existing fact. Of course, one knows that an intention can be an existing fact. There are observations not unknown to your Lordships about the state of a man's mind being as much a fact as the state of his digestion. But it is a concept that I think juries find not entirely easy to understand. However, that will have to be explained to them.
They will then have to be told that the deception must be relevant to the prospect of payment. That clearly emerges by virtue of subsection (1) of the new clause. They would then have to be told that a cheque is not in itself a payment; it is to be regarded simply as a promise of payment under subsection 3(c) of Clause 1. They will then have to be told—and their minds will be beginning to boggle by this stage—that inducing somebody to act includes the concept of inducing somebody to refrain from acting. That, again, is specifically set out by Clause 1(3)(a):
"'act' includes refraining from action:"
They will then have to be told that the deception (assuming that they find there is one as to existing fact, and assuming that they find it is relevant as to the prospect of payment being made) must be one which induces the act or, alternatively, the refraining from action. They will then have to be told—and this arises from Clause 1(4)—that an agreement to act does not amount to an act; and they will then have to be told, finally, under Clause 5, that inducing someone to refrain from taking steps to enforce a liability is not an offence under this section.
This is not an exaggeration. These are the ingredients of the offence under Clause 1 as it is created by Clause 1. One knows only too well that where the law is enshrined in Statute in this way, recorders and circuit judges will, in fact, repeat the whole of the clause to the jury adding a few comments, as the noble Lord, Lord Harris, did, and hoping that the jury will understand it. They know perfectly well, judges in that position, that providing they take that course they are safe from any criticism in a higher court
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for having failed to direct the jury adequately. Therefore, I must confess, I find that Clause 1 is extraordinarily complex and really rather unrealistic in its attempt to set out what is a perfectly simple criminal offence to define; and I shall come back to that in a moment.
I want to add one other comment about Clause 1 as it stands. I find it very difficult to understand what is the relationship of Clause 1, as at present drafted, to the ordinary common law situation where there is an attempt to commit a criminal offence. Under various other sections of the Theft Act - Section 15, which is obtaining property by deception or Section 20(2) which is procuring the execution of a valuable security by deception—if the villain makes a deception and succeeds because the victim acts on it, the offence is committed; if the villian makes the deception but fails because the victim fails to act on it, then there is the common law offence of attempting to commit the offence in question. But under Clause 1, as drafted, it is difficult to see how the offence of attempt to commit an offence under Clause 1 can ever arise.
I would explain it in this way. As I understand Clause 1, if "A" asks "B", for example, to build him a garage and tenders a "dud" cheque in payment and "B" agrees to build a garage, then it may be that in certain circumstances Clause 1 will operate. If "B" starts off by stacking some bricks in order to build the garage, Clause 1 will operate and there will be an offence because there will be part performance under subsection (2) of Clause 1. If "B" does not stick any bricks but simply cancels another contract that he had on hand in order that he might begin work for "A" the next day, there will be an offence under Clause 1 because "B" has then refrained from taking some action as a result of the "dud" cheque being tendered to him.
If "B" does nothing at all, then although "A" has made the deception, although the dishonesty is there and although the promise of payment by means of the cheque is there, no offence of any sort is committed. The reason is because of this proviso in Clause 1(4):
"A person does not for purposes of this section act on a promise if he only agrees to act".

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As I understand the clause, in those circumstances this will give rise to what I think is an unprecedented situation in the criminal law in which whether an offence is committed in fact depends not upon what the villain does, but upon what the victim does, if anything, when the villain has completed his villainy. This again appears to me to be a wholly unhappy situation.
It is easy of course in a matter of this complexity to stand up and be critical. I entirely accept that. Perhaps I ought to indicate that what I propose to have the temerity to do is this: I have discussed the matter with a number of my learned friends at the criminal bar. We believe that Clause 1 can be covered in a wholly different way so simply that the ordinary member of the public might actually be able to read it and understand what it was about. The report of the Criminal Law Revision Committee makes it quite clear in paragraph 9 when, dealing in effect with Clause 1, that the offence of deception
"… as to prospect of payment is essentially an offence of dishonestly obtaining by deception services on which a monetary value is placed".
Similarly in paragraph 12, where the Committee give examples of what they are dealing with, they say:
"We think that it will be helpful to follow this account of the detail of Clause 1 with examples of frauds which could be prosecuted under the clause. The typical offence under the clause involves obtaining services by deception".
I believe that it is not difficult so to redraft Clause 1 as to make it not a deception as to prospect of payment, but the dishonest obtaining of services by deception. I propose to table an Amendment which is a complete redraft and invite the noble Lord to look at it—as I am sure he will—with an open mind. I also invite other noble Lords—particularly any noble and learned Lords who may be taking part in this debate—to see whether that may offer a simpler approach to this somewhat difficult problem.
The other clause about which I have to make some observations is Clause 2, because here again it appears that there are unnecessary complexities. Clause 2, "Obtaining relief from liability by deception", divides subsection (1) into three paragraphs. First, there is dishonestly securing the remission of a
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liability to make payment whether or not, apparently, there is an intention of making a permanent default. Paragraph (c) consists of dishonestly obtaining any exemption from liability to make payment, whether or not there is any intent to make a permanent default.
The second paragraph, paragraph (b), where delay is concerned, makes it obligatory that there should be as an ingredient of the offence the intent to make permanent default. I pass over the fact that, as a matter of proof that will be almost impossible to demonstrate and the clause may therefore become a dead letter almost as soon as it is enacted. What I venture to ask Lord Harris of Greenwich—without expecting an immediate reply—is this: Clause 2 (1) (a) does not require an intention to make permanent default, and consists of dishonestly securing the remission of a liability. Clause 2 (1) (b) requires intention to make permanent default and includes the dishonest inducing of the creditor to forego payment. There may be a rather esoteric distinction between securing the remission of a liability and inducing the creditor to forego payment. If it is, again, I find it difficult to see how that will be explained to a jury. Yet, although the words—to the lay mind certainly—will mean exactly the same thing, there is in fact a totally different intent in the two subsections: the intent to make permanent default on the second occasion and no such intention being required on the first occasion. In those circum stances, I hope that it may be possible to put forward a redraft of Clause 2 which would simplify the matter very materially.
I hope that your Lordships will agree that it is important that, where the criminal law is being defined by Statute, it should be in terms which the ordinary, intelligent layman can read and get some glimmering as to what it is all about. I mean it as no disrespect whatsoever to the invaluable work of the Criminal Law Revision Committee—they were bound somewhat by their terms of reference on this particular matter—if I venture to suggest that there are complexities in this Bill that are unnecessary. We welcome the Bill in principle; and I hope that it might be possible in Committee to effect some sub stantial improvements.
4.17 p.m.
Lord GARDINER: My Lords, I rise to ask mainly one short question. It is a question on which a layman's opinion is just as useful as a lawyer's. It is this: What is the justification for Clause 6 (2) of this Bill? This is a clause which reads as follows:
"This Act shall come into force on a day appointed by the Secretary of State by order in a statutory instrument".
We have once or twice briefly discussed in this House in recent times the change which has taken place from the days when Parliament decided when an Act was to come into force, to modern times when more and more Ministers instruct Parliamentary draftsmen to put in a clause leaving it entirely to the Executive to decide when, if ever, an Act of Parliament shall be brought into force.
We discussed this in relation to the Road Traffic Act, one section of which, in relation to parking vehicles on pavements, was carried against the Government, but it was approved by the other House and received the Royal Assent. But, after all this time, the Minister still will not make an order bringing it into force. Secondly, we also briefly touched on it in relation to the Bail Act of the year before last.
When my noble friend Lord Harris of Greenwich moved the Second Reading of that Bill on 22nd March 1976, at column 500 of Hansard he said:
"I beg to move that this Bill be now read a second time. My Lords, this Bill emphasises the Government's concern over the size of our prison population, and their desire to see that bail is given in all cases where this is reasonable".
At column 507 of Hansard he said:
"This Bill is of very considerable importance, both as an additional protection for our country's liberties and because of the beneficial effects which we hope will flow from it, not least on the size of the prison population".
That hope has not been realised because no section of the Act has yet been brought into force, although it received the Royal Assent on 15th November of the year before last. The explanation given was that rules have to be made, and when we touched on this on 14th November of last year at column 410 I said this to my noble friend:
"… may I ask him whether I am right in saying that the only reference in the whole Act, including
38
the Schedules, to rules to be made is it Section 8, which says—rules will be made as to the form which recognisances are to take?"
When he came to reply, my noble friend did not answer that question, and perhaps I might respectfully repeat it today.
It is really sad to think that the high hopes we all entertained of this having a real effect on the prison population—that being an urgent matter—have got been realised and that, getting on for two years later, no section of the Act is in force. Here is a Bill, the object of which, as I understand it, is to replace certain provisions of an Act relating to the criminal law by words which will work better than the present ones do If and when Parliament as a whole has finished with it, it is to be hoped, of course, that that object will have been achieved. But if it is achieved and it receives the Royal Assent, I cannot understand why it cannot be made law unless a Minister chooses to make an order, leaving it to the bureaucracy to decide.
I hope I shall not be understood to be saying that I think all Bills ought to come into force on the day they receive the Royal Assent; I do not think that. I think, prima facie, they should come into force one month after the date of the Royal Assent. I say that because all the lawyers I know are overworked. They have to read their weekly legal papers to see what new Acts are coming into force and to decide whether or not they are Acts with which they ought, in relation to their practice, to familiarise themselves. If the anser is "Yes", they have to send a boy to the Stationery Office to get copies and then they must read, mark, learn and inwardly digest the contents. To do that is very difficult when it is not even easy to get hold of the Act itself, but broadly speaking that should be the general principle.
Nor do I in the least suggest that there are not cases in which, for one reason or another, it would be advantageous that the Act should not be brought into force for a certain period of time. To say that is one thing, but to say that every Bill is now to have a clause of this character is a different thing, particularly when no time limit of any kind is set. If, on reflection, my noble friend agrees with that view, perhaps the Government would

39
introduce an Amendment at the Committee stage of the Bill, at least to have some maximum—not later than three months, six months, 12 months, two years or three years. But I suggest that we ought not to pass Acts, leaving it to the Minister to decide when, if ever, an Act is to be brought forward.
4.23 p.m.
Lord MORRIS of BORTH-Y-GEST: My Lords, I hope that your Lordships will give your approval to this Bill by according it a Second Reading. I am sure that in the administration of the law Section 16 of the Theft Act was giving rise to considerable difficulty. Therefore, if I may respectfully say so, it was so eminently reasonable for the then Home Secretary, who is now the noble Lord, Lord Carr of Hadley, to refer to a Committee the question whether changes in Section 16 were desirable. To what better Committee could he have referred the problems than to the Criminal Law Revision Committee?
When one considers the composition of that Committee and sees the names of the 14 members, all of whom signed this report, and when from a reading of that report it is clear that all the problems were very carefully considered, I think one's first instinct is to say, "Well, we can have such confidence in this Committee that we are prepared to accept their recommendations". That is certainly my first approach, and on a reading and re-reading of the report it continues to be my view that we should follow the advice of this Committee.
The result is that we have the present Bill, the Long Title of which is:
"An Act to replace section 16(2)(a) of the Theft Act 1968 with other provision against fraudulent conduct".
In the result—and I do not say this in any way by way of criticism—we have three lines replaced by three pages. But I think it was inevitable that this would happen. It was the view of the Committee that the effect of Section 16(2)(a), as interpreted by the courts, was to punish conduct which Parliament did not intend to bring within the scope of the criminal law. The Committee expressed that view in paragraph 5 of their report. I am not
40
so sure about that, because Parliament expresses its intention in the words that Parliament uses, in the words that Parliament enacts; and the wording of Section 16(2)(a) received consideration in your Lordships' House. It is quite clear that the Committee felt that the mere giving of a worthless cheque should not in all circumstances be automatically a criminal offence. May I just refer to what they said on page 8 of their report, at the end of paragraph 6:
"Accordingly, we recommend that where a debtor intends never to pay a debt and by deception induces his creditor to wait for payment, this should be an offence. Subject to this, we think it right that most of the conduct within Section 16(2)(a) should continue to be an offence and our aim has been to find the most satisfactory restatement of the effect of that provision".
It seems to me that here is the central feature of this Bill; here lies the change that is proposed in this Bill. It seems to follow from the recommendations of this Committee that if ail the facts in Turner's case, to which the noble Lord, Lord Harris of Greenwich, referred, had occurred after the passing of this Bill, if it is passed, the prosecution would have to prove more than they had to prove in Turner's case. They would have to prove the question of intent not to pay.
In this country we have not had, and we do not now have, any general offence of passing a worthless cheque. In some systems of law, I understand that there is the penalising of the issue of a cheque without belief that it would be honoured. Here, I think, is one of the chief topics for debate in regard to this Bill. Should it, or should it not, be an offence to pass a worthless cheque? Suppose that money is owed to a creditor. Suppose that there is no doubt at all as to liability, that the creditor wants payment and that the debtor says, "Well, I will put him off for a bit. I will give him a cheque. I am afraid that it is a worthless cheque. I know that it won't be honoured, but it will give me some time". Would that, or would that not, come within the wording of Section 16(2)(a)? The wording is,
"any debt … is reduced or in whole or in part evaded or deferred".
If, knowing that there is an admitted liability, you give a cheque that is a worthless cheque, are you evading payment of your liability? I should have thought that you were. Indeed, that is

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the decision of your Lordships' House in Turner's case.
The question now raised is whether it is desirable to change that liability. Do we in this country want an offence of merely passing a worthless cheque? If money is owed in the circumstances that I have mentioned, if there is no doubt as to liability and if a cheque is given which is worthless, and the intention is to gain time so that the liability may at least be postponed or deferred, that is an offence, at present and I think that the main recommendation of this Committee is that that should be changed. If somebody passes a worthless cheque, it being acknowledged that he owes money, he still owes the money after the worthless cheque is passed. Indeed, the creditor has additional proof if he chooses to sue. He can sue on the cheque. He has the admission that the cheque gives. So it seems to me that this is one of the central issues raised in this Bill. Do we want to make it an offence, in the circumstances that I have mentioned, to pass the worthless cheque, or, as the Committee proposes and as is provided in Clause 2(1)(b), should there be an intention to avoid payment altogether?
Undoubtedly, there is, as Sir Roger de Coverley would have said, a great deal to be said on both sides. I, for my part, have come to the conclusion that the recommendation of the Committee should be accepted. I think that it is very reasonable to say that, unless there was a desire permanently to avoid payment in the circumstances that I have mentioned, the matter should be left to the civil courts and should not be the subject of criminal prosecution. I believe that the Committee performed a very useful function in devising its three classifications, which are most helpful. The first covers deception as to prospect of payment; the second, obtaining relief from liability by deception; and the third, making off without payment. It is in regard to the second of these that a change is to be made by this Bill, for, as has been pointed out—and I believe that the noble Earl, Lord Mansfield, read out the words—the words in Clause 2(1)(b) are:
"with intent to make permanent default in whole or in part".
As I have said, having, more than once, read this report with care and great
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interest, I think that the change proposed by this Committee is a reasonable one. It must, however, be recognised that it may be very difficult for the prosecution to prove an intent to make permanent default. I agree with all that the noble Lord, Lord Wigoder, said in regard to that matter. But that is recognised by the Committee, and, in paragraph 14, it sets out that it had that consideration fully in mind. The Committee stated:
"We recognise that the practical difficulties of proving an intention never to pay will have the consequence that there will be few prosecutions under this head, but this is consistent with our view that the criminal law should no: apply to the debtor who is merely trying to delay making a payment".
Therein lies the chief Change and I entirely agree with what the Committee said. It will be very difficult for the prosecution to prove that there was this intention never to pay. Equally I think the result may be that there will not be many prosecutions under Clause 2(1)(b), but that is reasonable if one thinks that the criminal law should not apply to the debtor who is merely trying to delay making a payment. All members of the Committee signed this report, though one member wrote a note of reservation. He stated in the note that he had signed the report because its implementation would effect a great improvement in the law. I think that we should accept the recommendations of this high-powered Committee.
Perhaps, having quoted those last few words, I ought to remind your Lordships that the concluding part of that paragraph of the report sets out that two members of the Committee were opposed to the inclusion of Clause 2(1)(b) in the draft Bill, and in the note of reservation the reason of one of them was set out. For the reasons that I have given, I believe that this Bill brings about a real change in the law as it exists now and, on the whole, I think that it is one which is desirable.
I would offer just one reflection before I sit down. As I mentioned before, we have here a case of three lines being replaced by three pages. I have no doubt that codification of our criminal law is necessary in regard to some—indeed, many offences. In the case of stealing, larceny or theft—whatever word we use—we have for a long time recognised that we need codification there. But I venture

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to suggest that we should pause before we decide upon a complete codification of all our criminal law. So many offences are still common law offences. Common law has the merit of flexibility. Once an offence is defined in an Act of Parliament, that flexibility is lost. The rigidity of the statutory words is imposed and, as we now see, three lines of difficulty are shown to need very many lines of alteration and clarification. That is by the way in regard to this Bill. For my part, I think that an improvement in the law will be effected if this Bill is passed and I hope that your Lordships will take that view.
4.40 p.m.
Lord HALE: My Lords, I came down today to try to perform a useful function. Having no committee work to do, because I have not been put on one, and having very little knowledge of any particular subject to rival that of the Members of your Lordships' House, and certainly not having practised law for many years—although people think that at one time in the past I may have gained some knowledge of the law, which is flattering—I thought that on occasion I might be able to put the view of the uninformed and simple man, who obviously is a very rare figure in this House. Indeed, it may be that there is nobody in this House who attains the full degree of incapacity, lack of organisation, lack of co-ordination and lack of any genuine knowledge that I attain. So when I looked at this Bill it seemed to me to be an admirable opportunity for the exercise of that function.
Let me say at once that I venture respectfully to disagree with the basic philosophy enunciated by the very distinguished noble Lord who has all my admiration and, in so far as it is not an impertinence or disrespectful, my affection. Unconsciously, what he is really saying is that we have got to catch in the bag every small fish in order to make the law equal, which of course it never can be. When this Committee move on, as we are told they will, to the question of conspiracy, which is a very grave and serious matter, they will come up against the privilege of limited liability companies, of multiple companies and multiple directors, of cross-country doings, of tax evasion and so on, all of which, generally speaking, have completely succeeded in
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establishing prosperous millionaires in Jersey who rarely get tackled by the law; and when they are, the law is so complicated that there has to be a Board of Trade inquiry and the Attorney General has to be called in.
At the moment we are, in the main, dealing with small matters. Sixty-one years ago, Parliament in its widsom, at a time when battles were raging in France and elsewhere, passed the Larceny Act 1916 which was supposed to be, and which was believed to be—and for a good many years was—the last word on the definition of theft and burglaries, with a Clause 1 so designed as to cover what appeared to be everything. As I was just about to take my law examinations, I learned that clause off by heart. I can still remember it and, even though it has long since been repealed, am still indignant about its repeal. Indeed, if it had not been for my lecturer's suggestion that I might devote special attention to this subject I might never have become a solicitor, in which case I should be, in my view, an extremely prosperous financier, piling up money in millions.
Is it really necessary that we should I search for the minor offender? The people who commit large frauds on hotels are perfectly easily and regularly dealt with and are among the simplest of criminals to catch. May I mention quite briefly what is the position about theft today when we consider the reform of the law. In the area in which I live, theft from the household is a regular occupation. There have been about six or seven burglaries in my house in the last 10 or dozen years, although there is practically nothing in my house worth pinching. Sometimes I feel that the thieves should sue me for damages: for inviting them in by implication, by occupying a house which looks worth burgling. None of the thieves was ever caught. The police say quite frankly that they do not have the resources to try to catch them.
Thefts are happening in my area of South London by the thousand. In my area we have an extraordinarily nice type of burglar who wipes his feet on the mat and who never mugs anybody unless somebody puts him into difficulties—I do not think he would do so then. A Royal Academician friend of mine and his wife, also a distinguished lady, who live

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down the street were tied up some months ago. The burglars said that they had come for the Rembrandts and the Picassos. My friend said it marked an electric taste, but he certainly does not possess paintings of that kind. However, the thieves ransacked the house very carefully. The three of them came in wearing masks and looking very ferocious, but they asked my friend whether he had been tied up too tight. As it was Christmastime the lady of the house explained, although tied up, that the cake was cooking in the oven and they asked her whether they should turn off the oven. She could just see her wrist-watch so she said, "No, not for 20 minutes". When they left and were five or six miles away they rang up the police and said, "We've tied up some people and you had better go and untie them". That is the method, and it is dealt with in a reasonably prosperous area, in this way.
My insurance company, for which I have respect and which treats me very well, writes to say that in view of the increased cost of goods perhaps I should consider doubling my insurance. I write back to the insurance company and say that I am not sure which of the articles which have been pinched are worthwhile but that they are entitled to more money and that therefore I will double the insurance. Then they send a notice to say that they have also doubled the rates for all of the houses in that area. Indeed, the insurance premium has gone up four times for a large proportion of the metropolis. I feel very happy that I have not been mugged.
It is literally true—one can look at the figures—that in these circumstances nobody ever gets pinched for theft. If a man takes out an expensive girl to a much advertised restaurant and sits her down and asks her to order what she would like, he hopes to God that she will not. Somerset Maugham has described this scene much more clearly than can I. If she says she would not mind just a spot of asparagus and perhaps a little bit of lobster and a single glass, or a couple of glasses of Mouton Rothschild, no doubt he is counting over the money in his pocket, but he has to bid her goodbye with an air of flamboyance. If he then has to say that he cannot pay the bill for the moment, he is coming very near to the criminal law. If instead he gives some document, he may well get over
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it. All this has been ably dealt with by the noble Lord, Lord Wigoder, and with great clarity and force.
I never expected this. I thought that I was going to be one of the simple souls who said, "Really, I don't know". I do not doubt that the Committee have done their best to make this point clear. It is unfortunately true that in the past many of these Committees have led to a very considerable amount of litigation. The noble Lord, Lord Wigoder, mentioned one occasion. The clarity of the law is not exemplified completely by the number of times the House of Lords overrules the Court of Appeal. It is not easy for the law to be clear. It is very satisfactory at least that the Bill itself is clearer than the Explanatory Memorandum, which is, I find, almost incomprehensible.
Is it necessary for us to sit in judgment almost—if I may say so respectfully—in the position of the final judge watching each sparrow fall and examining carefully how it falls? Is it really necessary and, what is more, can we afford it? The prisons are full now, anyhow. But in the main will a juror be able to do clear justice?
I ask for some consideration to be given to decent people who may suffer from a little absence of mind. I used to spend my happiest days in secondhand book shops and a very large number of books bought at prices ranging from as little as threepence to as much as sixpence testify now to the pleasure and rewards I got. But I am terrified to go into a bookshop now. If I go to the best known bookshop I have to deposit my bag while I am being helped by the girl. I am taken to the shelves; I am then directed to go upstairs and to pay upstairs. If I meet anyone on the way and they say, "Good morning", I am distracted. It is so easy to be distracted: three days ago I walked to the House carrying a wireless set instead of my bag. I had been talking to someone on the telephone after I had packed my bag and that is the sort of thing that happens to people. When I was a Member of another place, how many Members of the House of Commons did I see dragged up and prosecuted for pinching a couple of books from a stall? I do not want to see more criminal law, at any rate not to deal with the "sparrows". There are quite enough "eagles" about to whom we are giving far too little attention and we

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have not devised a system which will beat the complex cases.
The point has been put by the noble Earl, Lord Mansfield, and the noble Lord, Lord Wigoder—and I never thought we should hear criticisms of that kind—much more forcefully than I can put it. I hope that this Bill will be reconsidered and that we shall wonder whether all the expertise and all the gifts are being devoted to things of relatively minor importance, minor effect, increasing costs, increase in prosecutions, and certainly without reforming the community or making much difference, but on the basis of the curious idea that that is how it is.
I should like to add a single sentence which I had forgotten. In earlier days, fraud was not an offence. In those days people said, "If you are defrauded, it is your own fault". That was very tough, although not so tough in those times when poor people practically could not be defrauded because they had nothing of which they could be defrauded; but the general principle was that if a chap did not know the three card trick he ought to know it, and if he was fool enough not to know that the other chap had an ace up his sleeve and played without putting two aces up his own sleeve, it was his own fault. We should not run to judges to protect people against petty fraud.
For the last few years of my wife's life we had a joint bank account. Many people do, and we regarded it as a very civilised thing. My wife used to sign 10 cheques out of 11; she was much more to be trusted with a cheque book and with figures than I am. If this Bill had been on the Statute Book then what would have happened if I had signed a cheque in Nigeria because someone said that I had breached the Customs regulations, and she was signing one for the rates at home, and therefore our account would have been overdrawn. What happens if and when people really are faced with an emergency which demands that they shall pay money although they have done no wrong?
An innocent man may drive up to the Irish Customs—as I have done—and be told that he must deposit £100 in cash or present a cashable cheque for £100. What happens if that means that I have overdrawn my account? This would create
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unnecessary complexity and unnecessary legislation. There is far too much legislation today. It costs too much, it takes up too much time, it complicates matters, it adds to the labour of those who are striving to administer the law and nearly always it creates some sort of offence which takes half the police away from their normal duties.
4.57 p.m.
Lord HARRIS of GREENWICH: My Lords, I should like to begin by saying that I very much welcome the number of kind things that have been said about this Bill. I think the only person who has spoken in the course of this debate, who has had what I might describe as reservations in principle, is my noble friend Lord Hale. I think it is right to say that all those who have spoken, apart from him, have come to the conclusion that the Bill, broadly speaking, is on the right lines.
I think it would have been wrong for us to leave this matter on one side. As I indicated when I moved the Second Reading of this Bill, a number of cases came before the courts following the passage of the 1968 Act. There was a high degree of uncertainty about the state of the law, and the then Home Secretary, now the noble Lord, Lord Carr of Hadley, came to the conclusion that it was right to refer this matter to the Criminal Law Revision Committee. He did so, and today we are considering the recommendations of that Committee as to how we can improve the state of the law in this important area.
I should like to deal briefly with a number of the points which have been made in this debate because inevitably we shall go over a great deal of this ground again during the Committee stage of this Bill. However, I think it would be right for me to make one or two observations on points which have been made by speakers on both sides of the House. I began the debate with some degree of anxiety, following the speech made by the noble Earl, Lord Mansfield, who put to us the rather serious situation which could arise if, when paying his hotel bill outside London Airport, he put his £10 on the counter in the place where keys are normally placed, simply because he did not want to wait in a queue and his choice was between paying his Bill fully

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and catching his aircraft. I am assured that the practice—and I think this will reassure the noble Earl—is that if this Bill is carried into effect as drafted at the moment, he would not be committing an offence because there would be no dishonest motive on his part. Therefore he would not be caught by the Bill and I can reassure him that therefore he will not be troubling the criminal courts in this matter.
The Earl of MANSFIELD: My Lords, the noble Lord has missed the point. What I was interested in was subsection (4). The hall porter sees me making off in what is called the courtesy bus. He then takes advantage of that subsection and arrests me.
Lord HARRIS of GREENWICH: My Lords, certainly I would be anxious to prevent the hall porter arresting the noble Earl, and I will look carefully into that point to ensure that the hall porter is not being given that opportunity if we can avoid it, as I am quite sure we can. The noble Lord, Lord Wigoder, indicated that he was going to put down what would be really a new clause in substitution for Clause 1 of the Bill. Obviously we will look at this with great care, and certainly if he can deal with this matter in a wholly satisfactory way and perhaps with more economic use of language I am sure we would all be very grateful. Certainly I can assure him that we will go into the matter with great care. If he would like to discuss it with me at any time, I would be glad to meet him and discuss any particular points he would wish to put to us.
My noble and learned friend Lord Gardiner raised two points on the commencement order. Why was it necessary to give the Secretary of State the power to make the order, and why did we not state a particular date? Well, there is no particular mystery in this; there is certainly no intention on the Government's part to delay enacting this piece of legislation; indeed we want it to come into effect as soon as possible. I will gladly look into this point before the Committee stage of the Bill to see whether there is any way in which we can satisfy my noble and learned friend. Although this argument does not apply on this Bill, I would put it to him that it would be going altogether
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too far to say that the date of a commencement order must always be contained in a Bill. If I may give one particular example of why I think this would be very difficult. The Criminal Law Act came on to the Statute Book to wards the end of last year; already some parts of that Act have had commencement orders made, and other sections have not. It is not in fact possible, as my noble and learned friend will recognise from his far greater ministerial experience than my own, simply to have one particular date in an Act of Parliament. In this Bill it might well be possible, but in a more substantial piece of legislation it would be far more difficult.
On the question of the Bail Act, which my noble and learned friend and I have discussed on a number of occasions in the past, it is true that a commencement order has not been made, and I regret that. As I replied to him, I think in answer to a question that he put to me, the fact is that the Act cannot be brought into force until the rules of court for the High Court, the Crown Court, the magistrates courts and others are made. However, I can give him this piece of news. The rules will be made shortly and the Act is likely to be brought into force in the spring of this year. Certainly the Government are anxious to have this matter proceeded with as swiftly as possible for the very reason he gave; namely, that the number of people remanded in custody is still formidably high and we are anxious to take any action which brings those numbers under a greater degree of control. That deals with the particular point referred to by my noble and learned friend so far as the Bail Act is concerned and so far as the commencement order in relation to this Bill is concerned. I will look into the particular point, but there is no sinister intent in the form of words used in this Bill. Certainly I can reassure my noble friend on that point.
I think the debate we have had this afternoon demonstrates one thing; that is, that this is a field in which there are many differing views about the proper extent of the criminal law and the way in which it can most effectively be expressed in statutory form. In its review of Section 16 of the 1968 Theft Act the Criminal Law Revision Committee was conscious of the wide range of opinion

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on the questions under its consideration, the comments which it received from a variety of organisations and individuals reflected undoubtedly some diversity of opinion, and that indeed has been reproduced in the debate we have had this afternoon. In putting forward in its final report the recommendations in this Bill which is now before the House it attempted so far as was possible to mediate between the sometimes conflicting views which were expressed; we are confident that its proposals represent a sound and reasonable middle course. I am glad to say that that view has, generally speaking, been supported in the House, not least by the noble and learned Lord, Lord Morris of Borth-y-Gest, in his speech. As I have indicated already in respect of the remarks made by the noble Lord, Lord Wigoder, certainly we will consider the points which he and others have made about the Bill, and about the details particularly of Clauses 1 and 2. That clearly will be done and can be done at the Committee stage.
I would, if I may, conclude by thanking all those who have spoken today for the general welcome they have given to this Bill, which attempts to remedy the existing defects in the law on fraudulent conduct. We will consider the various points which have been made and look at these more closely when we get to the Committee stage on this Bill.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

STATE IMMUNITY BILL [H.L.]
5.7 p.m.
The LORD CHANCELLOR: My Lords, I beg to move that this Bill be read a second time. The primary purpose of the State Immunity Bill is to lay down in a statutory form the law on the immunity which foreign States enjoy from the jurisdiction of courts in the United Kingdom, a subject which is at present covered entirely by the common law. If the Bill is enacted the immunity of foreign States will no longer be complete, and in relation to a wide range of matters which are set out in the first part of the Bill a foreign State will be amenable to
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the civil jurisdiction of our courts in much the same way as is the private individual or the body corporate today. Immunity from criminal jurisdiction is not affected and that will remain. The Bill represents a major change in our law, and one which I believe to be highly desirable, long overdue and to the benefit of United Kingdom nationals and companies.
International law and practice relating to the immunity of Sovereigns and of States on which our common law is based was first developed long ago when, generally speaking, in their international context, Sovereigns and States confined themselves to acts of a sovereign nature such as diplomatic activities. It was before the time when States began to engage extensively in trading or industrial activities or to acquire extensive property outside their own frontiers. So it was natural in those earlier days that the courts of all countries should adopt a practice of not assuming jurisdiction over foreign Sovereigns and foreign States, on the ground that the exercise of jurisdiction would be incompatible with the dignity and independence enjoyed by every Sovereign or sovereign State. The principle was founded on broad considerations of public policy, international law and comity.
This practice became embodied in the common law of this country as a rule of absolute immunity. In the words of Lord Atkin in a case decided shortly before the war, the two basic elements of the rule were, first—
"that the courts of a country will not implead a foreign Sovereign, that is, that they will not by their process make him against his will a party to legal proceedings where the proceedings involve proceedings against his person or seek to recover from him specific property or damages",
and secondly,
"that they will not by their process, whether the Sovereign is a party to the proceedings or not, seize or detain property which is his".
However, immunity from the processes of jurisdiction accorded to States does involve denying a remedy to those who have a claim against that State. As, particularly since the First World War, sovereign States began increasingly to engage in activities which could equally well be carried out by private persons or trading corporations, the continuing immunity and the corresponding denial of

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justice to individual claimants against States began to be questioned. The first international moves away from absolute immunity occurred in relation to maritime law. A diplomatic conference in Brussels produced in 1926 a Convention on State-owned Ships which, broadly speaking, places commercial ships operated by States in the same position as if they were privately owned. The Convention, however, proved to be imperfect and had to be supplemented by a Protocol in 1934. But it pointed to a major change of international custom and practice. It has been ratified by a large number of maritime countries. Plans to implement its provisions in this country, however, were overtaken by the outbreak of the war and for one reason or another we have never been able to ratify it. This Bill will now at last bring our law into line with the provisions of that Convention and the Protocol and enable the United Kingdom to ratify them.
While the rule of absolute immunity has remained firmly embedded in our common law, at any rate until very recently (a point to which I shall come in a moment), it has come under much criticism in this country, particularly in the last quarter of a century. In the rest of the world the rule has been largely abandoned.
Some of your Lordships may remember the concern expressed in this country when in 1949 the Court of Appeal felt itself constrained in proceedings for defamation brought against the Tass Agency, to accord the Agency immunity as a department of the Soviet State. That case led to the appointment of an inter-departmental committee under the chairmanship of the late Lord Somervell to examine whether our law accorded the organs of foreign States immunity wider than was desirable or strictly required by international law. But the committee's report was inconclusive as to the exact position reached in international law, and they were particularly daunted by the difficulty they saw in drawing a sufficiently precise distinction between sovereign activities on the one hand and trading, commercial or industrial activities on the other. Accordingly, the Government of the day did not feel justified in taking legislative action, and absolute immunity remained the law of this country. This invited continuing disapproval by many critics, and not least of those was the noble and
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learned Lord, Lord Denning, whom I am glad to see is not only in his place but is to address your Lordships later.
As long ago as 1957 the noble and learned Lord said obiter in a leading case in your Lordships' House:
"It seems to me that at the present time sovereign immunity should not depend on whether a foreign Government is impleaded directly or indirectly but rather on the nature of the dispute, not on whether conflicting rights have to be decided but on the nature of the conflict … If the dispute concerns, for instance, the commercial transactions of a foreign Government (whether carried on by its own departments or agencies or by setting up separate entities), and it arises properly within the territorial jurisdiction of our courts, there is no ground for granting immunity".
Indeed, the law of absolute immunity has been continuously criticised by judges, writers of legal text books and contributors to the legal periodicals, and it was against this background that in the early 'sixties my predecessors and the Law Officers of the day took a leading part in encouraging an examination of the current international law and practice and the possibilities of an international convention on State immunity by the Member States of the Council of Europe. The result of that task was the European Convention on State Immunity, which was opened for signature in May 1972. Much of the present Bill is founded on that. We believe that the Convention, which is now in force, represents not only a consensus of European opinion but broadly reflects the present state of international practice on State immunity among a good cross-section of States generally. It is remarkable that we have delayed and tarried so long in dealing with this situation.
The trend away from strict immunity has indeed gone very far in some countries—and perhaps the state of affairs in the United States is the outstanding example. As long ago as 1952 the State Department declared that it would not in future accord immunity to commercial activities of foreign States, and that where proceedings were brought in United States courts it would advise the judges accordingly. In 1976 statutory expression was given to this approach by the United States' Foreign Sovereign Immunities Act. This establishes not only that foreign States are amenable to United States jurisdiction in respect of their non-sovereign activities. It also sets out machinery for suing States,

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and even permits execution against assets of foreign States in certain circumstances. Other States, among them Germany and Italy, have equally moved a long way from absolute immunity. The results, I fear, from the point of view of this country, is the worst of both worlds. The United Kingdom is unable to assert immunity when we are sued in foreign courts, while persons in this country who have claims against foreign States are deprived of a remedy.
The Bill is intended to redress the balance. It follows, as I have said, more or less the line of the European Convention, but applies its principles in relation to all foreign States. When the Bill is enacted we shall be in a position to ratify the 1972 Convention.
The broad principles on which the Convention is based are as follows. First, that States acting in a sovereign capacity are entitled to immunity from civil jurisdiction. This covers, for example, all diplomatic activities of States. Secondly, that the commercial, industrial and other non-sovereign activities of States enjoy no immunity. Thirdly, that no measures of coercion may be used against States or their property; execution or seizure is not permitted. As a counterpart to the principle that judgments cannot be enforced against them, Member States of the 1972 Convention undertake to recognise and give effect to such judgments. I have no doubt that would and will be done in practice.
It might seem that these broad principles could have been laid down in the Convention and consequently enacted in the law of Member States in broad terms. But for practical reasons that would not be satisfactory. First, the dividing line between sovereign and non-sovereign acts (as was found to be the case by the Somervell Committee) is not capable of precise definition.
Secondly, and more importantly, if countries undertake to recognise and give effect to judgments given against them, they need an assurance not only that those judgments are given in respect of issues which may properly be entertained against States, but also that there was a proper territorial basis on which the foreign
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court was entitled to entertain the proceedings; that is to say, that the matter complained of arose within the area of the court's jurisdiction. In other words, there must be a proper link with the foreign court which justified it hearing the action.
The European Convention therefore removes immunity (with one exception) only from those non-sovereign activities which can be clearly linked with the jurisdiction of particular foreign courts. For example, where the issue concerns land owned by a State, only the courts of the country where the land is situated may assume jurisdiction; where commercial activities are involved they must have been conducted through an office or other establishment of the foreign State in the country of the court.
So the European Convention has sought to list all those non-sovereign activities of States where a link justifying foreign jurisdiction can be identified. This Bill enacts a corresponding list and the activities are identified in Clauses 3 to 10 of the Bill. For instance, Clause 3 mentions commercial, industrial and financial activities, with the link of an office in the country; Clause 4 refers to contracts to be performed in the country of the court; Clause 6 refers to personal injuries or damage to property caused in that country; matters relating to real property are dealt with in Clause 7; issues concerning patents, trade marks and similar rights registered or protected in the foreign country are dealt with in Clause 8; arbitrations in or in accordance with the law of the country are dealt with in Clause 10, and so on.
Inevitably this selection leaves some gaps where States engage in activities of a non-sovereign character and yet cannot readily be submitted to the jurisdiction of foreign courts because the particular activity is not clearly linked sufficiently closely with the territory over which a foreign court operates. I am conscious that there is one such gap left by the Bill which is of considerable practical importance; namely, the ownership or possession of movable property. Some of the most important cases on State immunity which have come before our courts have, in fact, concerned such interests of foreign States, such as gold bars or bank accounts. In respect of these issues the Bill will not change the law.

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The originators of the European Convention did not find a solution and the Government have not been able to provide one in the Bill, though in Clause 7(3) and (4) the Bill goes some way towards easing the position of persons claiming property which is in the possession of another person but in respect of which a foreign State claims an interest.
Generally speaking, although maritime jurisdiction is the subject not of the European Convention to which I have referred but of the Brussels Convention of 1926, the principles applied by the Bill to jurisdiction over State-owned ships are the same, but there is an important difference in relation to seizure and execution. The Brussels Convention goes further than the European one in permitting commercial ships and cargoes to be arrested and in allowing execution against them to enforce a judgment. The embargo against the use of all coercive processes against States embodied in Clause 14 is therefore subject to an exception in the case of ships and cargoes.
I said earlier that the corollary to the removal of immunity enjoyed by foreign States before our courts must be recognition in the United Kingdom of judgments given against the Crown in foreign courts. Provision to that effect, limited, of course, to the courts of other States party to the European Convention, is found in Clause 19. On the other hand, in respect of the rest of the world we want to remain free to reduce their immunities still further, and in particular to retain the possibility of permitting execution against their property should we find that the immunity which the Crown enjoys in the country concerned, particularly in relation to freedom from execution, is not as extensive as the immunity we accord to them. A bit of reciprocity does not seem to be out of place in this field. This necessary latitude is preserved by Clause 16.
I said at the beginning that there had been some recent developments in the common law of this country to which I would refer. In 1976 the Privy Council in a case referred to it from Hong Kong, called the Philippine Admiral, held that a foreign trading vessel is not immune from admiralty jurisidiction. That decision, persuasive though it will be for our judges, is not, of course, part of the law
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of the United Kingdom. But very recently a similar view has been taken by a majority of the Court of Appeal in the Trendtex case regarding the ordinary jurisdiction of the courts of this country over commercial transactions of foreign States. The majority believed that the common law was not crystallized by the decided cases but was itself developing in line with the international practice which it embodies. The case is now on appeal before your Lordships' House and naturally I must not speculate on its ultimate outcome. If it is decided before this Bill is enacted, Her Majesty's Government will certainly review the provisions of the Bi11 in the light of it, but whatever the outcome of that case I believe that only legislation can achieve some of the results that we are looking for: a degree of precision which will make the law certain to apply, and enactment of the particular provisions—including the provision for recognition in the United Kingdom of foreign judgments given against the Crown—which are needed to enable the United Kingdom to ratify both the Brussels Convention and the European Convention.
Those are the main objectives of the Bill. I am sorry if I have taken a little time to describe them, but I believe that this provides an opportunity to clear up one or two areas of uncertainty. For instance, the exact extent of the privileges and immunities of foreign Heads of State in their private capacity is difficult to ascertain from the decided cases. Clause 21 will equate the position of the Head of State and that of his family while he visits this country as a guest and an invitee of the Government with the position of an ambassador. Therefore, it might not at this moment of time apply to every Head of State of whom your Lordships may be able to think. I shall not be more specific than that.
There is a degree of uncertainty about the ability of our authorities to sue foreign States for taxes, customs and other duties. Such levies are outside the scope of the European Convention, but we are taking the opportunity in Clause 12 to make it clear that in relation to value added tax and Customs and Excise duties there is no immunity.
I hope that the Bill will commend itself to your Lordships as a useful measure

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of reform of our law. It will codify and, I think, bring greater certainty into an area where clear guidance is needed; it will provide remedies in cases where they are sometimes at present unjustly denied, and bring our law on the immunity of foreign States more into line with current international practice. I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
5.30 p.m.
Baroness ELLES: My Lords, a subject so complex and having such important consequences for the trading activities between United Kingdom citizens, or corporations, and foreign states does not often come to be debated before your Lordships' House. I must thank the noble and learned Lord the Lord Chancellor for having introduced this Bill on State immunity with such clarity. We are indeed grateful for his assistance in comprehending its scope, application, and effect.
The need for some form of legislation in this field has been evidenced particularly in the last 30 years by the increase in the extension of State activities to acts other than those exercised under sovereign authority. The apparatus of State has been brought into the market place, and, in relation to those with whom it deals, it is fair and equitable that the same norms should apply in its relationship with an individual as between that individual and another private person.
Recognising the political and economic changes in world affairs, learned judges have in recent years been faced with the task of deciding on the intricacies of the application of international law into English law, on the diverse doctrines of incorporation or of transformation and on the identification in precise legal terms of which rules of customary international law should be applied. In some aspects, the practice of States appears to be so divergent that it cannot always truly be said that there is any consensus as to the rules of international law which should be applied, nor indeed that there is any norm in international law which can be clearly distinguished and identified.
In the case of State immunity, the legal systems of some States recognise the
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difference between sovereign acts and acts relating to commercial activities, but it is suggested that the criteria used to decide the differences between these categories of act have not yet been clearly established. Hence, in my own view, the sensible and pragmatic approach contained in the Bill before your Lordships.
The introduction of this Bill confirms the view that adherence to the principle of absolute immunity has certainly become outdated, and a change is to be welcomed to bring our laws more into line with those of other nations. Already in 1952, as indeed the noble and learned Lord indicated, at the time of the famous "Taft letter" it appeared that most, if not all, States were applying the principle of restrictive immunity. It may, however, be recalled that the number of sovereign States at that time was about 90, of which comparatively few were probably engaged in major transnational litigation, whereas now, with about 149 or 150 sovereign independent States, many are involved in trading activities and the circumstances are totally different.
The removal of uncertainties in English law regarding the scope and application of the doctrine of sovereign immunity may indeed contribute to the reduction of friction between sovereign States. The United States Congress, again as the noble and learned Lord said, confirmed this principle in the Foreign Sovereign Immunities Act of October 1976. It states clearly and without condition that,
"Under international law, states are not immune from the jurisdiction of foreign courts in so far as their commercial activities are concerned".
The Bill before your Lordships acknowledges this rule, and in that respect, is much needed and to be welcomed. Both major political Parties have held this view for some time, as exemplified by the contribution of successive Governments to the formulation of the European Convention and the signing of the Convention following its adoption by the Council of Europe. It is to be hoped that eventually this Convention will be signed and ratified by more States so that, at least in Western Europe, there may be some visible sign of the consensus on the doctrine contained in that Convention.
A tribute should be paid to the work of those who prepared the Convention

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within the Council of Europe and the initiative taken by that body, but it also had recourse to the studies of the Harvard Law School, the International Law Association and other learned bodies, and their contribution should certainly be acknowledged in your Lordships' House not only for the work that they have already done but for the further development of international law which they are still undertaking.
Despite the clear need for a recognition by the United Kingdom courts of the political and economic changes in the activities of States, the Bill, in its present form, gives rise to some concern in spite of its quite excellent drafting. The intentions and objectives underlying the Bill may be desirable and praiseworthy, including as they do a strengthening of the guarantee of the rights of the individual involved in commercial activities with foreign States, but it must be asked whether the Bill, in its present form, achieves those objectives. It is all very well to give an individual the right to bring a foreign government before a United Kingdom court to assert his rights, but unless the State concerned has either declared its willingness to accept enforcement or has ratified the European Convention—and that, at the moment, applies only to Austria, Belgium, and Cyprus—or unless the subject matter of litigation is a ship or its cargo, there appears to be no legally binding right of redress.
The individual may incur heavy costs and may have to rely on the willingness of the foreign Government or—which to my mind is undesirable—on diplomatic pressure from Her Majesty's Government. Having removed procedure and proceedings from the diplomatic to the legal arena, enforcement of judgments and acceptance of obligations remains outside the legal field. It may well be that the need will arise for the diplomatic protection of the successful litigant.
The Bill may discourage transactions between British exporters and foreign governmental entities negotiating large-scale loans. Such contracts with the United Kingdom may now become unattractive to foreign States which have hitherto been able, contrary to the practice in those countries which have followed the doctrine of restrictive immunity, to rely on the doctrine of absolute sovereign
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immunity from our courts. At the same time, the capital exporter will not achieve sufficient and adequate protection by bringing a foreign State before a municipal court without any legally assured right of redress or observance of the judgment on that State. If the Bill is to remain in its present form, only time will tell, and the standing and probity of foreign governments will be on trial. But this may be at the risk and expense of the individual United Kingdom litigant.
To draw once again on the United States Foreign Sovereign Immunities Act—and this point has already been referred to by the noble and learned Lord—that Act allows claims for relief and the foreign State may be liable,
"in the same manner and to the same extent as a private individual under like circumstances"
except in certain instances. I believe that that is an improvement which would benefit the Bill before your Lordships' House.
Another provision of the Bill which fails to give a litigant in the English courts adequate protection, is the right given to a foreign State not to give security for costs. In the European Convention, the Article dealing with this particular matter leaves the question open, and I think that the Bill should take a more robust line on this particular aspect.
Finally, Clause 12, to which the noble and learned Lord referred but which is not mentioned fully in the Explanatory Memorandum of the Bill, and which provides for proceedings to be taken against a foreign State for failure to pay taxes, customs dues and levies—a matter specifically excluded from the European Convention incidentally—appears to me to introduce a new element into our law by allowing a Department of Her Majesty's Government to take proceedings in our domestic courts against the foreign State in question. It must therefore be asked who will bear overriding responsibility for deciding whether such proceedings should be initiated. Will it be a political decision based on existing relations and taken by the Foreign and Commonwealth Office, or a decision taken on technical consideration by the Customs and Excise without any reference to diplomatic relations? Is it indeed in the interest of maintaining good relations between States

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that the normal course of diplomacy or, possibly, eventual arbitration by some international court should not be resorted to rather than litigation in domestic courts?
These are some of the considerations which appear to me to arise on the Bill. However these may eventually be settled, the effects of the Bill will undoubtedly be far-reaching, affecting, in relation to the security of the transaction, commercial and financial transactions between companies and individuals and foreign States, and influencing the need for export guarantees and the new approach needed in foreign direct investment, especially in developing countries. The choice between restricting the effects of the Bill to ratifiers of the European Convention or extending its provisions to all States does not, in my opinion, offer a totally satisfactory answer to what is undoubtedly a highly complex and difficult area of law. But the great advance which it already contains over existing provisions in our law is certainly to be welcomed and I willingly support the Bill's Second Reading.
5.41 p.m.
Lord WILBERFORCE: My Lords, I am happy to speak in this debate following the noble Baroness, Lady Elles, because she has covered the Bill comprehensively and clearly and has said a good deal of what I should have wished to say. I particularly welcome what she said both at the beginning and at the end of her speech when she drew attention to the general overall importance of the Bill. It looks like a lawyers' Bill, a technical Bill fit only for discussion by lawyers, and I am afraid that those discussing it this evening are all lawyers, but one cannot say too often that it is not a technical Bill; it is a Bill of very great importance to a large number of companies and individuals who are trading, and trading every day to a greater extent, not only with foreign States but, more importantly, with the huge and proliferating number of State agencies which are now set up all over the world to carry out trading activities.
It is important in this commercial context not to give any greater immunity in our courts to foreign States or foreign State trading agencies than is recognised by international law generally, and that
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is a consideration we should bear in mind in considering the Bill. Its form, as is clear to the House, is derived from the European Convention on State Immunity, drawn up by the Council of Europe and to be applied as between Council of Europe States and such other States as the Convention may be extended to. But it is a Council of Europe document and that part of the Bill which deals with State immunity—and I shall be speaking about only that part of the Bill—is based on this Council of Europe document.
That raises the question whether this Western European document, based on Western European legal philosophy and institutions, is wholly suitable as a model for application to Eastern European trading operations, where one knows that all trade is conducted through State agencies and in particular ways; to Latin America; to particular countries such as India, Nigeria, Iran or even to the United States. I shall come back to that shortly.
To extend a particular Instrument drawn up between a family of nations in a particular way to this very much wider field seems to require at any rate some examination. A particular consideration in that context is that the European Convention has, as the noble and learned Lord on the Woolsack made clear, provisions about judgments and the enforcement of judgments, and these are brought into Part II of this Bill as between the Council of Europe Members. These provisions as to judgments in the European Convention have had a substantial influence—I shall explain this shortly—on the provisions in the Convention itself and it seems to me doubtful whether these substantive provisions in the Convention, influenced as they have been by the provisions about judgments, are suitable for application to other States.
A great deal of work has been put into this Bill and I quite agree that it represents a great advance, and that we must take advantage of it and build upon it. But I hope it will not be rushed either through this House or through Parliament generally I do not want to step into dangerous waters but I have heard rumours that the rails are being lubricated, or whatever the right expression is, to ensure a rapid passage. I hope we will give the Bill mature consideration so far as we can before parting with it.

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There are two particular reasons which I would give for taking that course. The first relates to the United States' Act of Congress to which reference has been made. That took three years of very elaborate discussions before it got through Congress. A great many difficulties and complications showed up which had not previously been thought of and which have been reflected in amendments brought into the Act. I very much doubt, however, whether the lessons of that Act of Congress have been fully absorbed in this Bill. Indeed, it seems quite apparent that they have not; there is no reference whatever in the Explanatory Memorandum to consideration of the United States Act and there is no provision that I can find in the Bill which indicates that the lessons which they have learnt in Washington have been drawn on here.
The second reason for taking this with some care and caution arises out of the Trendtex case, to which the noble and learned Lord referred. Again, I cannot discuss and would not want to discuss the merits of that case, but the fact is—and it is a fact—that this particular piece of litigation concerning proceedings by a Swiss company against the Central Bank of Nigeria, which I think I am right in saying has no office in London (the noble and learned Lord will correct me if I am wrong) and raising the question whether the Bank is an agency or Department of the State of Nigeria and, if so, whether it is entitled to immunity, is now pending before this House in its judicial capacity.
In the Court of Appeal, after prolonged argument conducted by the most eminent Queen's Counsel, among whom was included the Professor of International Law at Oxford University, important, though not altogether unanimous, pronouncements were made as to the present state of international law on State immunity in commercial matters. I do not think there is any case so far on our books in which such a profound examination has been carried out, and what the members of the Court of Appeal said on that matter as to international law generally will undoubtedly have to be considered when the case reaches this House.
If this House were to endorse some of the wider views expressed in the Court of Appeal, it might appear that the Bill follows a more restrictive line on State
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immunity than is generally warranted by international law, and that would surely be unfortunate. I would suggest that this Bill, based on the European Convention but extending very widely beyond it, should be in line with, or at any rate should not be more restrictive than, the international law as it will ultimately be declared by the House of Lords
I must fill out that argument for a moment by reference to one or two concrete provisions in the Bill. Those which are most relevant and the core of the Bill are Clauses 3 and 4. I am not going to read them because noble Lords can see what they are dealing with. Clause 4 deals with contracts and says that a State is not immune as regards proceedings on contracts, but limits that particular case to contracts which fall to be performed wholly or partly in the United Kingdom. Clause 3 deals with commercial activities. That states in a very restrictive way that commercial activities must be conducted through an office, agency or establishment maintained for that purpose in the United Kingdom. With that one has to read Clause 15 in the Bill which deals with separate institutions. Parenthetically, I do not believe that either of those clauses would cover the Nigerian case, but that remains to be seen.
The point I would make is that Clause 3 of this Bill is of a very limited character and scope. It is far more limited than the corresponding clause in the United States Act, and the definition of the separate entity in Clause 15 is also very restrictive, even more restrictive than the corresponding article in the European Convention—Article 27. The reason why that is so is explained in the notes to the European Convention and I believe that these are worth bringing to the notice of noble Lords. In the notes to Article 7 in the European Convention, which is the article that corresponds to Clause 3 in the Bill, it is explained that if the article had been concerned only with jurisdiction it might have been framed in more general terms so as to cover all commercial activities having a territorial connection with the United Kingdom. In fact, that is the United States position and I suggest that that is the right position but it is not that taken by the European Convention and therefore not taken by the Bill

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because of the provisions in the European Convention about judgments, which is what we come back to again.
As has been pointed out, these provisions about judgments apply only as regards Convention countries. They will not apply to other countries—for example, Nigeria, India, Iran or the United States—so it surely must be undesirable to allow this vital Clause 3, which is the one dealing with commercial activities, to be narrowed as it is by the special requirements of Europe. Correspondingly the other way round it must surely be desirable to permit judgments in all cases to be enforced against commercial property of States which is not done in this Bill and is contrarily stated in Clause 14(4) except in relation to ships.
Clauses 3 and 4 are the core of the Convention. One could develop similar arguments on other clauses. It is not simply a question of drafting or of Committee argument. These clauses have assumed the form which they have because they have been derived from the European Convention, because the European Convention takes the form it does, because of its position about judgments so that as a matter of principle they rest on a very insecure foundation. I would respectfully suggest to noble Lords and to the Government that this Bill requires very careful study in the light of, first, the United States Act of Congress, which I do not feel has been sufficiently taken into consideration and, secondly, of the Trendtex case and whatever appraisal of the position in general international law may come out of that case.
The noble and learned Lord on the Woolsack was good enough to say that if the Trendtex case as decided here were to bring out any points which required consideration the Government would take them into account before the Bill was passed. I do not feel that that is quite good enough. The Trendtex case ought to be taken into consideration at the beginning, particularly in this House, and indeed it would be impossible for any of those of your Lordships who might be involved in the Trendtex case to suggest any amendments or take part in any discussion on the Bill while the Trendtex case was pending. That may not be a
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handicap but it would be a fact. We would be completely disabled from offering the benefit of our help to the House while that case was waiting to come on.
I very respectfully ask your Lordships to take this slowly, to give best consideration to this Bill in this House and not to leave it to a later stage in another place where the opportunities for amendment are much fewer than they are here, and on the contrary to give full consideration to the matters I have suggested before proceeding further with the Bill.
5.55 p.m.
Lord GARDINER: My Lords, I too should like to add my thanks to those which have already been expressed to the noble and learned Lord the Lord Chancellor for the way in which he has introduced this Bill to us. The subject is indeed an important and very interesting one, and it is clear from what the noble and learned Lord, Lord Wilberforce, said that the House will have to give it most careful attention. I rise only to ask one question: what is the justification for Clause 24(4) which provides:
"This Act shall come into force on such date as may be specified by an order made by the Lord Chancellor by statutory instrument".
I can see myself in some danger of making the same speech twice in the House on the same afternoon. My noble and learned friend the Lord Chancellor was not here for the discussion on the Theft Bill so out of courtesy to him I shall shortly recapitulate what I said on that Bill.
As my noble and learned friend will remember, once or twice lately we have had discussions in this House about what appears to be happening; namely, the transfer of power from Parliament to the Executive deciding when, if ever, although it has received the Royal Assent, a Bill is to come into force. When I asked my noble and learned friend whether there was not some form of legal procedure which Parliament could take against a Minister if he refused to bring an Act into force my noble and learned friend said, obviously rightly, that the matter was entirely in the hands of Parliament itself for letting the Executive get away with clauses of this kind. As I made clear in relation to the Theft Bill, may I explain to my noble and learned friend that I am not saying that every Bill should

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come into force as soon as it receives the Royal Assent. I do not think that. I suggest that, other things being equal, every Act ought to come into force or contain a provision by Parliament that it is to come into force a month after it has received the Royal Assent, the month being intended as a practical means because of the difficulty of lawyers in finding out what Bills are coming into force, whether or not they affect the sort of matters they have to deal with in their practices, sending to the Stationary Office to buy copies of Acts, reading and digesting them and so forth. Nor am I saying that there are not occasions when there are special reasons why there should be some delay after Royal Assent before an Act of Parliament is brought into force.
All I am suggesting is that Parliament in future should consider whether, in the particular Bill before them, it is not for Parliament to decide, and not a Minister, if and when an Act of Parliament is to come into force. Nothing was more interesting on the Theft Bill than the realisation from what my noble friend Lord Harris of Greenwich said, that there was not any reason at all why it should not come into force as soon as it received the Royal Assent. He assured us that the Minister had no evil intention in putting down the clause, but it was clear that there was no special reason at all—just a matter of general principle to take away from Parliament all the powers your can, and give them to the Minister. It is natural that those who advise Ministers should want Ministers to have these powers. While I have the greatest admiration for the qualities of civil servants in my experience, human nature is the same everywhere, and a man who has to draft Rules will say "There is no hurry because nothing can happen until our Minister makes an order; and our Minister will not do so until I have the Rules ready. So there is no hurry about it." It is almost inevitable.
From the point of view of the Minister, it is nice to have this power. But ought not these things to be decided in general by Parliament and not left to Ministers? There may be very good reasons, indeed, and particularly with a Bill of this nature, why it should not become law when it receives the Royal Assent. I am simply asking, if I may respectfully do so, what they are.
6.1 p.m.
Lord DENNING: My Lords, speaking for myself, I have the gravest misgivings about the contents of this Bill. It is based upon a European convention of 1972 and that convention was based on the international law, as some people thought it was. Furthermore, it was unduly restricted because of the judgment provisions which are contained in it. That was five years ago. That convention is out of date. Furthermore, it has been extended by this Bill not only to the European countries who signed it or ratified it but also to the whole world; and all the States of the whole world are affected, and our relations with them are affected with it.
Mention has been made of the Trendtex case. It is a very important case which, if our view in the Court of Appeal is right, has altered the approach to all these questions. If this Bill stands and goes through, our decision will have been wrong. But let me tell your Lordships the facts of the case. You should know them.
The Government of Nigeria, through its Departments, before 1975 ordered 20 million tons of cement from European suppliers; and they could not deal with it. They could deal with only 1 or 2 million tons coming into Lagos. Those European suppliers made contracts for the supply of that cement to Nigeria. Ships were chartered to carry the cement and payment was to be made by the Government of Nigeria through letters of credit issued by the Central Lank of Nigeria. Those letters of credit were through the office in Lagos, Nigeria, of the central bank. That bank had not got an office in London but only correspondence in London through the Midland Bank. I must say that there was so much cement ordered that they could not deal with that. When I was in Lagos there were 200 to 300 ships eating their heads off with demurrage running up waiting outside Lagos to get in. When the new military Government took over they cancelled those contracts. They found that the previous Administration had made contracts for cement which were unorthodox, imprudent or inequitable. So they cancelled the contracts.
What about the payment to the European suppliers? What about the ship

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owners with their demurrage? According to the letters of credit the order had been paid for by the Central Bank of Nigeria. Actions were brought in Germany against the central bank and this action was brought in this country through the Swiss suppliers, who had taken an assignment, against the Central Bank of Nigeria. That Bank of Nigeria pleaded State immunity: "We cannot be sued in the English courts." The Central Bank of Nigeria was not independent; it was simply an entity, an organ of the State of Nigeria. I do not say anything about the rights or the wrongs; but the claim was that they could not be sued. The European suppliers and the shipowners could not get any money; although there might be assets in England if they only got a judgment.
The Court of Appeal held, whether right or wrong, that the Central Bank of Nigeria was not an organ of the Central Government—and we might have been wrong about that. We also said that, if it was an organ of the State of Nigeria, on a commercial transaction like this there was no plea of State immunity available. Were we right or were we wrong? The House of Lords, I trust, will decide. But if this Bill goes through as it stands, that plea of immunity would prevail. The opening clause is quite out of date. Clause 1 says:
"A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in … this Act".
And what of the development of immunity here. Clause 3, relating to all commercial properties, says:
"A State is not immune as respects proceedings relating to any commercial, industrial or financial activity in which it has engaged in the same manner as a private person through an office, agency or establishment maintained by it for that purpose in the United Kingdom".
The Central Bank of Nigeria, so far as I know, have no such office.
I would agree with every word of the speech of my noble and learned friend Lord Wilberforce. When you look at the explanatory notes in this convention, it is limited in that way simply because they have the judgment enforcement provisions. It might have been possible to have framed it in more general terms so as to cover all cases where a State engages in
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commercial and so forth activities. This Bill is, as I suggest, doing quite wrong. It is giving immunity, when it ought not to be given, to some of these State corporations. My noble and learned friend said, "Right!" So many of these countries now do not trade in their own names or through their own nominal Departments. They have their own organisations. This Bill does nothing to deal with it. There is the clause dealing with separate entities. I wondered myself if they had only thought of a case we have had about Polimpex, the Polish State organisation. This is another case I can tell you about.
The Polish State organisation agreed to sell 200,000 tons of beet sugar to the English merchants, Czarnikow, the great sugar dealers, in London. They agreed to sell it and then when the crop was harvested they had not got 200,000 tons of beet to spare. They wanted it for their own people in Poland; and so they broke the contract with the London merchants. Is Polimpex entitled to immunity from the commercial courts of this country? There is evidence as to what Polimpex was. They do not have separate companies, nationalised undertakings or the like. They have a whole string. They have these organisations and goodness knows whether it would be a separate entity for that purpose. Clause 15 goes on to say that it is only a separate entity which under the law of that State is "capable of suing or being sued". You are going to have all sorts of questions. Do you think those corporations behind the Iron Curtain are "capable of suing or being sued"? I do not know; but some lawyers may tell us. I mention these matters merely to show what we are getting into.
My Lords, take Clause 4, which, again, my noble and learned friend mentioned:
"A State is not immune as respects [a contract] which falls to be performed wholly or partly in the United Kingdom …".
It is immune as respects all other contracts; the only exception is when it is performed in the United Kingdom. What about the charter-parties we have every day in our courts, or even the sugar case that I mentioned? English merchants buy here under a contract but they sell the goods on, and they are supplied to some other, far-off countries. We heard a case in which a ship was chartered to carry fertiliser from Poland to Pakistan. The

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contract was negotiated through the London market, and the firms were governed by the law of England, in London. It was a German ship, it got to Karachi, bombing was taking place there, the ship was delayed and there was a claim against the charterers, Pakistan. Is there immunity, or not? The contract was not to be performed in England, but elsewhere. As my noble and learned friend says, Clauses 3 and 4 do not affect only this Continent of Europe and the countries which have signed the Convention: they affect all the countries of the world, whether it be Africa through to India and Pakistan, or Poland behind the Iron Curtain.
International law is not static. The whole of this law has been developing rapidly since 1972. The framers of this Convention and, I am afraid, of the Bill have gone by the law as it was. When I first started, there were three cases saying that States had absolute immunity: The "Cristina", reported in 1938 Appeal Cases; Dollfuss Mieg, reported in 1952 Appeal Cases; and Rahimtoola, reported in 1958 Appeal Cases. The framers of the Bill have not had any regard to the cases which have developed since 1972. I have them here; they are all in the last year or two. There is The "Philippine Admiral", in 1977 Appeal Cases. That, again, is a case in which a Philippine Government ship went into Hong Kong, where repairs were done and goods supplied to the ship. The suppliers want to sue and get their money. The Philippine Government claim State immunity and, according to a case in 1920, the ship could not even be arrested. Fortunately, the Privy Council said it could, and that has been a step forward. That case is reported in 1977 Appeal Cases. Then there is the case of Trendtex which I have just cited, reported in 1977 Queen's Bench 529, on appeal to this House. Then there is the Thai case, reported in 1975 1 Weekly Law Reports 1485. I could go through them all. This Bill, it seems to me, has not taken into account the developments in the law since 1972.
Furthermore, it is a very unwise thing to deal with these matters of international law by legislation in regard to one country. This Bill, if it is passed into our statute law, will sterilise it and stabilise it, if you like, for the United Kingdom.
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Other countries may become more liberal: we shall stand still. International law changes. There may be no reciprocity behind the Iron Curtain. They still believe in absolute immunity. I hope they will come round later. In the United States, there has been a case which has not been taken regard of. It was a very important case in 1976 in the Supreme Court, when a more liberal view was taken, not allowing this absolute immunity and giving freedom of action in regard to all commercial and financial transactions. That was in 1976; and Congress has this legislation before it. In fact, in this sort of field we ought not to legislate by Act of Parliament so as to fix the law of this country in this way.
How do they try to get over it here? Clause 16, I think, is the one which says that if there is any trouble about a country not giving reciprocity to us, not "doing as you would be done by" and all that sort of thing, the matter will be reviewed and it will be altered by Order in Council. If these other countries are not giving our people immunity, privileges and the like, Her Majesty can provide for them by Order in Council. Goodness! that is shutting the stable door after the horse has gone. When are we going to find out whether they give the immunity or privileges? Do we have to wait until the cases come on in their courts, or someone tells us? And when is this Order in Council going to be made? In truth, international law is not perceptible of legislation in this sort of way.
My Lords, those are the misgivings I have had. I would, if I may, endorse every word that my noble and learned friend Lord Wilberforce has said. He has had great experience of arguing and hearing these cases, and we have had a good deal in the Court of Appeal. It is not a technical Bill. It is a most important Bill affecting our financial and commercial organisations, especially in the City of London, which, these days, has its contracts with countries and State organisations all over the world. It is of the greatest importance; and I ask that it be not proceeded with, at all events until after the House of Lords has heard and considered the important Trendtex case, which surely will throw a whole new light on this subject.
6.17 p.m.
The LORD CHANCELLOR: My Lords, I certainly cannot claim that this Bill has received an enthusiastic reception in this House. Of course, we shall naturally consider very carefully all the matters which have been raised by noble and learned Lords of great expertise. It is the case that this Bill comes before your Lordships at a time when the Trendtex case is waiting to be considered, which I understand will be fairly shortly, by noble and learned Lords, and for that reason I am not going to enter into discussion of a matter which is eminently sub judice. We have heard the most eloquent intervention, if I may say so, by the noble and learned Lord, Lord Denning, nothing fearing, into the merits of the case, but I think that perhaps I ought myself to refrain. Perhaps your Lordships ought to know that the judge at first instance—a judge of great commercial standing—took a view different from that of the noble and learned Lord, Lord Denning, as did one of his colleagues in the Court of Appeal; but I am not the sort of person to make that sort of point—not very much. But there it is. Of course we shall consider the effect of the Trendtex decision upon this Bill; and I hope that it may still be possible (if I may so put it) to pick the brains of the noble and learned Lord, Lord Wilberforce, and his colleagues to help us in further consideration of this Bill.
The Bill, and particularly Clause 3, has been criticised by the noble and learned Lords, Lord Wilberforce and Lord Denning, as being too narrow in relation to States not parties to the 1972 Convention. That indeed may well be so, but I think at least it can be claimed for it that it follows the European position; and it can also be said—and it is the case—that the world position is certainly not readily agreed. The position taken by the United States certainly goes further than would be agreed internationally. In relation to the United States legislation we did our best to restrict some of its impact.
But may I say this to the noble and learned Lord, Lord Denning, in regard to what effect this Bill might have had in the remarkable circumstances of the long line of ships loaded with cement which could not get into Lagos—I think
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we saw it at about the same time. If this Bill had been law at the time when those unhappy events occurred, there would have been several grounds on which the Government of Nigeria could have been deprived of immunity. For instance, the impact of Clause 4, in that letters of credit were drawn on United Kingdom banks. One might have claimed that an obligation to be performed partly in the United Kingdom would be derived from those circumstances. Then Clause 15 in relation to State entities having no immunity here. The Bill does not change the law on what is a separate entity, and that is a question of fact, including the relevant foreign law. If I may say so, with great respect, I think the Bill has been too readily dismissed in regard to its potential impact on a Trendtex situation.
The noble Baroness who spoke from the Opposition Front Bench welcomed the Bill subject to the criticisms that she made, as I understand it. The noble Baroness criticised the absence of legal sanctions against foreign States to enforce judgments. As I indicated in my opening speech, certainly there is no general power of enforcement and there would be no coercive action available. It is, however, generally accepted that States do not take coercive action against each other or their property. It is not a good thing; it is something to be discouraged. The United States Act contains, as I am informed, many safeguards and only allows execution in limited circumstances.
It is the case that execution against the property of another State could create international tensions; and, on the whole, one hopes—and, broadly speaking, it is the case—that States must rely on each other's compliance with legally established obligations. That broadly is the rule of the game, these days; and it applies equally to countries like China and the Soviet Union, so far as I understand. Happily, we are not living in an international jungle in the commercial field. I have reasonable confidence that the procedures that will enable the obligations to be fulfilled by agreement and by arrangement without powers of enforcement ought to work reasonably satisfactorily. If we reach the stage where they do not, then international commerce will be in a very had condition indeed.

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The noble Baroness was also concerned about the impact of the Bill on the raising of loans here. As I understand it, a foreign State has the choice. If it waives immunity in advance, in, for instance, the loan contract there will be no immunity, in accordance with the provisions of subsections (1) and (2) of Clause 2 of the Bill. If it does not waive immunity, there will be immunity unless it has an office in the United Kingdom, as provided for in Clause 3. But the loan will then not perhaps be so attractive to lenders. I certainly will bear in mind and discuss with my colleagues the matters of criticism which have been raised. In my view this Bill constitutes an important advance. It improves the position of those engaged in commerce and will improve the position of corporations functioning in this country. I will certainly undertake that the Trendtex case will be considered most carefully.
My noble and learned friend Lord Gardiner raised the question—not, if I may say so, for the first time, but I make no complaint about that—as to why there is need for Clause 24(4) in this Bill which defers the coming into force of the Bill to a date to be specified by statutory instrument. He was kind enough to say that there might be special reasons in certain cases for delay; and there arre, I venture to suggest, in this case. First of all, Orders in Council have to be made, under Clause 15(3) of the Bill, to confer State immunity on constituent territories of federal States. Steps have already been taken to draw the attention of relevant Commonwealth countries to the Bill and to invite them to make requests for State immunity to be conferred on their constituent parts—for instance, the Canadian provinces—in due course. That process may not be completed by the time that the Bill is enacted. Then, Orders in Council will be needed if the Bill becomes law under Clause 16 to extend the immunities in relation to one or two countries where they conflict with bilateral agreements which are already in force. For example, under the Protocol to the 1968 Treaty of Merchant Navigation with the USSR no execution may be levied against merchant ships. The immunity from execution conferred by Clause 14(5) on non-commercial ships will therefore have to be extended to Russian merchant ships. Finally, Rules of Court will be
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needed for the procedural matters and the new procedural provisions, which are set out in Clauses 13 and 14. Frankly, I cannot at this moment of time anticipate that this further work which will remain to be done can be completed in anything like the period of a month that my learned friend had in mind.
Certainly we attach importance to the Bill. I am dismayed at the reception it has had from one or two noble Lords. All I can say is that we will look at it again. Our concern here as a Government is to assist the commercial trading activities of our country, certainly not to restrict it. This matter has been needing attention for about 50 years in the maritime field. It has been pressed for for decades in the fields which the Bill seeks to cover.
We have certainly given careful consideration to the earlier cases. I thought that the noble and learned Lord, Lord Denning, did less than justice to those who have been working on this Bill in suggesting that they disregarded all the other learned authorities. That is not so. We have given them careful thought. In my submission, the basic suggestion of the noble and learned Lord, Lord Denning, to replace the Bill with the learning that may emerge ultimately from noble and learned Lords in the Trendtex case, would be frankly a step backwards.
The decision in that case will not remove immunity in many areas where this Bill does so—for instance, Clause 6, personal injuries, Clause 7, real property, Clause 8, patents, and so on, and Clause 10, arbitrations. Are all those protections to go by the board? I think that if the noble and learned Lord, Lord Denning, gives further thought to this he may well think that the Trendtex case itself would not provide all the answers, even if they all agreed with the noble and learned Lord, Lord Denning. My Lords, that is all I have to say on this difficult matter and I will not detain your Lordships' House further on this occasion. We shall have to return to it again, of course.
On Question, Bill read 2a, and committed to a Committee of the Whole House.