Lords Sitting of 7 February 1980

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Salisbury):
The LORD CHANCELLOR on the Wool-sack.

ROADS: DAMAGE BY HEAVY VEHICLES
Lord BOYD-CARPENTER: 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, and if so when, they intend to publish the report by the Road Research Laboratory numbered LR.910 on damage to roads by heavy vehicles.
Lord MOWBRAY and STOURTON: My Lords, the report was published on 6th December.
Lord BOYD-CARPENTER: My Lords, while thanking my noble friend for that reply, and expressing the hope that he will send me a copy, may I have an assurance that no action will be taken by Her Majesty's Government to increase the permitted weight or size of road vehicles until there has been full opportunity to discuss the substance of this very important technical report?
Lord MOWBRAY and STOURTON: My Lords, I am happy to tell my noble friend that there are, at the moment, very clear rules about axle spacing for heavy lorries in the Construction and Use Regulations. These apply to all vehicles using our roads. The load that a trailer is permitted to carry also depends on the spacing of the axles. I can assure my noble friend, and other noble Lords who are interested, that we are all waiting eagerly for Sir Arthur Armitage's report, because he and his assessors are going into this matter in very great depth.
Lord BOYD-CARPENTER: My Lords, without under-rating Sir Arthur Armi
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tage's comments, may I have the assurance that I asked for, that there will be full opportunity for public discussion before any amendment is made to the regulations?
Lord MOWBRAY and STOURTON: Certainly, my Lords. The report of Sir Arthur Armitage and his assessors will be made public and there will be every opportunity to discuss it after that.
Lord AVEBURY: My Lords, will the noble Lord confirm that report LR.910 shows that damage to the road surface increases according to the fourth power of the axle load; that, therefore, heavy vehicles are causing a disproportionate amount of damage to our road surfaces in this country and that the owners of these vehicles are paying, in the form of vehicle taxation, very much less than the costs which they are imposing on the rest of the community? Are these not very important facts which have been revealed in relation to the current discussion regarding the increase in the permitted weights of vehicles on our roads?
Lord MOWBRAY and STOURTON: My Lords, I must repeat that we have no intention of permitting increased axle loads and things like that at this moment. We are awaiting the report of Sir Arthur Armitage and his four assessors. With regard to the noble Lord's question about taxation, as he may know, we have issued a consultation paper setting out our proposals to restructure vehicle excise duty so that it will be related to the gross weights and number of axles on the vehicle.
Lord DAVIES of LEEK: My Lords, is the noble Lord aware that these noisome monstrosities are making life intolerable in some of the little villages, and that bridges are being destroyed? For years, the average citizen has protested, and he has now given up the ghost. Secondly, is the noble Lord aware that, despite the fact that the noble Lord has said with all honesty, as a great English gentleman, that we have no intention of increasing the loads, we have had to accept the tachograph and shall have to accept the 44-tonne vehicle if the EEC so decides? What is Britain going to do about this? Lastly, the economics of

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driving these massive monstrosities like madmen from one end of Britain to the other are costing the nation things that it does not know. At last, we are finding that we ought to get something back on to the railways.
Lord MOWBRAY and STOURTON: My Lords, I know that it is a popular fallacy in this country that the railways would be able to take all that the roads are taking——
Lord DAVIES of LEEK: I did not say that.
Lord MOW BRAY and STOURTON——but I assure your Lordships that it is totally impossible for the railways to take more than just a token amount off the roads. What I do say to the noble Lord is that it is up to local road authorities to divert heavy loads, where that is possible. Only last week, we opened a by-pass around the historic town of Ludlow. We regret deeply that, for obvious financial reasons, the last Government and this Government have had to delay by-passes around 20 other historic towns. We are well aware of all the facts which the noble Lord has mentioned, and I totally sympathise. I do not think that the tachograph really relates to this Question. Used intelligently, the tachograph can guide drivers to safer driving, and will also safeguard a man against overdriving which might endanger his own health and safety.
Lord INGLEWOOD: My Lords, is my noble friend aware that there is all the difference in the world between having regulations setting down acceptable limits for axle loads, and having a reasonably efficient system of law enforcement to ensure that those limits are not exceeded? At the present time, there is a widespread feeling in the country that, whatever may be said in the regulations, those who are a little unscrupulous can get away with almost anything.
Lord MOWBRAY and STOURTON: My Lords, I totally accept what my noble friend has said. He knows a lot about this subject. We have been trying to get more weighbridges put in where spot checks can be made and, speaking offhand, I think we have some 30—which I
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accept is not enough—dotted around the country. But we are well aware of the problem on that point and at the ports, in particular, we are watching vehicles coming in from, for instance, the Continent.
Lord SHINWELL: My Lords, may I ask the noble Lord the Minister what measures Her Majesty's Government can take against lorries from Continental countries, the countries of the Nine, with very heavy loads which are damaging our roads? Are we not under the control of the EEC in this respect? What is the use of complaining about the tachograph, or any other kind of restriction or imposition that has been thrust upon us, since we were foolish enough to sign the Treaty of Accession? We deserve everything we get.
Lord MOWBRAY and STOURTON: My Lords, I am very sorry if I upset the noble Lord, Lord Shinwell, but I have to tell him that our regulations apply to EEC vehicles coming into this country, and we are able to turn away those which do not meet our regulations.
The Earl of ONSLOW: My Lords, will the noble Lord please ensure that the designation of lorry routes will be speeded up? Is he aware that at the moment designation is not done? Secondly, is he aware that the report to which the Question refers covers only road damage and shows that considerable damage is being done? But the Armitage Report refers to heavy lorries and the environment, which is slightly wider than the present Road Research Laboratory report.
Lord MOWBRAY and STOURTON: My Lords, the Department of the Environment and the Department of Transport have for long been trying to encourage local authorities to take action of this kind. They have the powers. The two departments concerned try to get bypasses and new routes, but we have a democratic process in this country which allows people to object, and those democratic rights have a slowing-up effect. As regards the noble Earl's last question about the Armitage Report, I do not know whether he is aware of its terms. It was to undertake an independent inquiry on lorries, people and the environment. So I think that it covers all the points that he is worried about.
Lord ELWYN-JONES: My Lords, does the noble Lord agree that when these huge lorries go through small villages, pedestrians can generally be described as of one of two classes—either the quick or the dead?
Lord MOWBRAY and STOURTON: My Lords, as usual, the noble and learned Lord is right.
Lord LUCAS of CHILWORTH: My Lords, would not my noble friend agree that, whether we like it or not, there is a case to be put for increased axle weights? Whether or not noble Lords agree with the case is another matter, but their case should be put within the context of the Armitage Report and an opportunity then given for a public and then perhaps a parliamentary debate on this subject.
Lord MOWBRAY and STOURTON: My Lords, my noble friend probably knows more about this subject than me. However, I cannot pre-empt the Armitage Report. This is exactly the sort of problem he has been asked to consider.
The MINISTER of STATE, MINISTRY of AGRICULTURE, FISHERIES and FOOD (Earl Ferrers): Clearly, my Lords, we have not exhausted the possible supplementaries on this Question, but I wonder whether your Lordships think that it would be appropriate if we moved on to the next Question.

SOVIET ARMY PAY
3.10 p.m.
Lord GISBOROUGH: 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 is the ratio of the pay of a Marshal to that of a private soldier, or conscript, of the Soviet Army; and how this compares with the equivalent ratio in the British Army.
Viscount LONG: My Lords, I understand that a Marshal in the Soviet Army receives about 50 times the pay of a regular private and about 240 times the pay of a conscript soldier. A Field
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Marshal in the British Army receives in gross pay about nine times more than the lowest paid private.
Lord GISBOROUGH: My Lords, I thank the noble Viscount for his most remarkable Answer. May I ask him whether he is aware that this means that the Russian conscript gets about 50p a week. As he is being paid for slave labour, it is little wonder that the Russian Army is so big. With regard to regulars, who therefore receive about £3 a week, would my noble friend be prepared to ask the International Labour Organisation—one of whose objects, among others, is the conditions of pay around the world and upon whose executive council the Russians have a seat—whether they will look into this gross exploitation of labour in order to man the Russian peace-time army?
Viscount LONG: My Lords, I am very grateful to my noble friend. I have a feeling, though, that he is going a little wide of the original Question. It is difficult to draw any comparison between the pay of British and Russian soldiers and their conditions of service since the structure of the two armies is very different. Moreover, the official exchange rate does not give a realistic reflection of the purchasing power of the rouble. If, however, the noble Lord pressed me for a figure, I should have to say that at present rates of exchange a Field Marshal is paid almost double the salary of a Marshal in the Soviet Army, and that the lowest paid British private earns approximately 50 times more than a conscript in the Russian Army and 10 times more than a Russian soldier who has volunteered for regular service. But I must emphasise that such direct comparisons should be treated with caution. With regard to the International Labour Organisation, I must inform my noble friend that this organisation is outside military matters and that therefore I am unable to answer that particular part of his question.
Lord DAVIES of LEEK: My Lords, while not agreeing at all with the sins of omission of the Soviets, and whether or not Russian soldiers are slaves, may I say that millions of us were grateful to them at Stalingrad when they died in their millions in those days fighting for this side of the world?
Viscount LONG: Yes, my Lords, I agree with the noble Lord in what he says about those days, but not about the present moment.
Lord ORR-EWING: My Lords, will my noble friend seek some way of drawing these figures to the attention of those who still believe that the Soviet Union represents an egalitarian Utopia?
Viscount LONG: Yes, my Lords; I will draw attention to my noble friend's question. But we are still a little worried about how much money our own soldiers are being paid at the moment.
Lord M URRAY of GRAVESEND: My Lords, I am sure the Minister would agree that, in view of these interesting and very egalitarian figures, it might be well worth recruiting in the Soviet Union!
Viscount LONG: Yes, my Lords!
Lord WIGG: My Lords, we have to take into account that pay is not the only consideration. There are such things as allowances. Therefore, the noble Lord, Lord Gisborough, looks like all amateurs who have completely ignored the fact that allowances, because they are not taxable, are very often much more important than pay. If one is going to make any comparison, at least it should be done competently by someone who understands what he is talking about.
Viscount LONG: My Lords, one is talking of privileges and comparisons. The two categories of senior party members and important military officers in the Soviet Union often overlap. They enjoy many privileges, including free medical services and free housing, and special prices for consumer goods in the shops. This is on top of the wage they get. That is one of the reasons why it is difficult to draw a direct comparison between the two armies.
Lord PARRY: My Lords, is not the real truth the fact that the original Question was below the level of the intelligence of this House?
Viscount LONG: No, my Lords. It was, if I may say so, a very important Question.

AIRPORTS: MAINTENANCE OF SERVICES
3.15 p.m.
Lord BELHAVEN and STENTON: 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 their policy is in view of the recommendation of the Civil Airports Authority, made with the support of all local authority representatives and local Members of Parliament, that the necessary funds should be made available to ensure that the services at Highlands and Islands airports are kept at the present level.
Lord TREFGARNE: My Lords, the Government are not aware of any proposal to close any of these aerodromes or to reduce the services at them below their present level. They will continue to receive a measure of subsidy from public funds, but inevitably steeply rising costs must result in the charges at the aerodromes being raised.
Lord BELHAVEN and STENTON: My Lords, I thank the noble Lord for his reply, but can he give the House any assurance that the rate of subsidy will continue in line with the rate of inflation and will not push the price of maintaining these airports in remote areas beyond the rate of inflation which we already have?
Lord TREFGARNE: No, my Lords, I am afraid I cannot give that assurance. The subsidy must come from public funds and, like all items of public expenditure, we have to keep it under review.
Viscount THURSO: My Lords, does the noble Lord agree that one of the steeply rising costs of these airports is the sum of money that they have to pay in rates? Would it not be a sensible idea to derate these small local airstrips for the benefit of the communities which they serve?
Lord TREFGARNE: That is a matter which we could consider, my Lords, but I can confirm that indeed increases in rates have been one element of recent cost increases.
Viscount THURSO: My Lords, can the noble Lord give me an assurance that the matter will be considered?
Lord TREFGARNE: Yes, my Lords; I can certainly give an assurance that it will be considered, but I cannot forecast the outcome of that consideration.

BUSINESS OF THE HOUSE
Earl FERRERS: My Lords, I beg to move the Motion which stands in my name on the Order Paper.
Moved, That Standing Order No. 37 (Arrangement of the Order Paper) be dispensed with this day for the purpose of giving precedence to the Motion standing in the name of the Lord Mishcon over the Report stage of the Criminal Justice (Amendment) Bill.—(Earl Ferrers.)
On Question, Motion agreed to.

SLAUGHTER OF ANIMALS (SCOTLAND) BILL
Report received.

PROTECTION OF TRADING INTERESTS BILL
3.19 p.m.
The LORD ADVOCATE (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Overseas measures affecting United Kingdom trading interests]:
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 1:
Page 1, line 5, leave out ("it appears to the Secretary of State").
The noble Lord said: The purpose of this amendment is to remove from the Secretary of State his executive and discretionary power to decide, at least so far as subsection (1)(b) is concerned, whether as a matter of fact the measures of a foreign government will damage or are likely to damage a United Kingdom company's trading interests and therefore the trading interests of the United Kingdom. With the leave of the Committee, I should also like to consider Amendments Nos. 2 and 3, which are purely nominal in relation to the first amendment.
In my view, there should be an objective test in the Bill as to whether the legitimate economic and trading interests of United Kingdom companies are being damaged by the extraterritorial application of the laws of foreign countries. The Secretary of State for Industry at the Second Reading of the Bill in another place emphasised, as I should like to emphasise since I am having the privilege of introducing a number of amendments, that this Bill is not anti-American nor indeed anti-anybody. It is designed to protect and not to provoke, but it deals with matters where the law and legal practice of the United States have become a matter of international concern, not only to us but also to other nations, many of which have adopted their own means of looking after themselves. It is a legitimate exercise of our own sovereignty.
The Secretary of State went on to use very strong words in relation to the attempts by foreign governments to exercise their rights territorially against our interests and, as was said at the Second Reading before your Lordships, this Bill, if it is accepted, is long overdue. The Secretary of State said:
"I wish to leave no doubt that I will be prepared to use it in the defence of the legitimate economic and trading interests of our country. I do not rule out further legal provisions unless we can solve these long-standing problems in a more satisfactory way than we have been able to do up to now".—[Official Report, Commons, 15/11/79; col. 1546.]
Those are very strong words and the principle of this Bill has been widely welcomed, not only in your Lordships' House but in industry generally. But at present the Secretary of State has a complete discretion, which it would seem cannot be challenged, to decide whether the trading interests of this country have

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been threatened or damaged in any way. This amendment would turn it into an objective and not a subjective test. This question of fact should not be allowed to be completely at the discretion of the Secretary of State.
It would appear from what the noble and learned Lord, the Lord Advocate, said at Second Reading in your Lordships' House, that the Government wish to maintain a flexible position. There is nothing wrong in that, but it should not be a flexible position so as to enable this Bill to be used as a diplomatic weapon rather than to give it a legal framework.
I hope it is not inappropriate to say that Secretaries of State may change; their views may be different. Once again industry may be placed in an uncertain position, having to rely on the exercise of the discretion of a minister in relation to facts about trading interests in respect perhaps of the same law of a foreign government. This may introduce another parameter of uncertainty in the trading activities of United Kingdom companies abroad. May I therefore press the Government to reconsider whether a legal framework for Clause 1, particularly in relation to estimating whether trading interests have been damaged under subsection (1)(b), would be more satisfactory to a large body of industry if the Secretary of State did not have these full discretionary powers?
I fully realise from the very interesting speech of the noble Earl, Lord Inchcape, at the Second Reading of the Bill in your Lordships' House that, in regard to the shipping interests which are being attacked at the present time, he feels that this Bill is perfectly satisfactory. But there are many other smaller industries which endeavour to trade abroad in the interests of the British economy and come up against anti-trust and tax laws, particularly in the United States. In the field in which I have had the privilege of working for so long—that of patents, trademarks and know-how in designs, all of which are very important in this modern technocratic age—it would be possible to determine expeditiously as a fact whether there is damage or threatened damage to a United Kingdom company or to United Kingdom trading interests.
It is a simple point which I now present
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to the Committee. It is this: should the Secretary of State have an unchallenged, unfettered—in effect—jurisdiction to determine under Clause 1(1)(b) whether the trading interests of a company or of this country have been or are likely to be threatened in the factual circumstances which that company knows only too well? I beg to move.
3.27 p.m.
Lord RENTON: The amendment moved by the noble Lord, Lord Lloyd of Kilgerran, and the following amendments which he has tabled, really raise two separate issues. The first is, what interests are to be protected? And the second is, who is to be the judge of those interests? On the first issue I think we can probably take the view that used to be taken in the United States by General Motors when they said, "What is in the interests of General Motors is in the interests of the United States". I would very much hope that any British Government trying to protect the interests of British business people in any kind of business would take the view that if the interests of any business were affected that would be against the interests of the United Kingdom. I think it is upon that assumption that Clause 1 has been drafted, but having said that I think it is largely a question of drafting, for I agree in substance with what the noble Lord has said.
However, when it comes to the question of who shall be the judge of whether the interests have been, or might be, adversely affected, we cannot escape from the proposition that the Secretary of State must be the judge and it must inevitably be an objective test because it is he and only he who is going to be given the power to take the necessary protective measures.
That being so, we have to place not only the power but also the obligation firmly upon the Secretary of State, who, needless to say, will be answerable to Parliament in both Houses. Therefore, I would urge my noble and learned friend the Lord Advocate not to accept the first three amendments put forward by the noble Lord, Lord Lloyd of Kilgerran. However, as a matter of drafting and in order to see whether the intentions of the Government are fulfilled, the fourth amendment proposed by the noble Lord does deserve further consideration.
Lord ELWYN-JONES: My Lords, I support what the noble Lord, Lord Renton, has said and your Lordships will observe that in line 15 on page 1 the noble Lord, Lord Lloyd of Kilgerran, whether deliberately or by oversight, I do not know, has retained the power in the Secretary of State.
Lord LLOYD of KILGERRAN: My Lords, I am sorry to interrupt the noble and learned Lord, Lord Elwyn-Jones, but there is no question of any oversight. My amendment relates only to line 1, eliminating the Secretary of State from deciding on (a) and (b): thereafter he has discretion as to whether or not to order.
Lord ELWYN-JONES: I follow that, but it seems to be a little hard on the Secretary of State to give him the duty by order to put certain things in train without apparently giving him any discretion at all as to whether he should do anything of the kind. So I apologise for thinking that it was done by inadvertence, but if it was done deliberately it is even more surprising!
3.30 p.m.
Lord MACKAY of CLASHFERN: As noble Lords have pointed out, there are two questions here. The first is what are the interests designated to be protected? It is, of course, true that normally the interests of a particular trader will represent the interests of the United Kingdom as a whole. It is not absolutely essential that that should be so. There might be matters of judgment to be taken into account in that. What this clause seeks to protect, where there is any distinction, are the trading interests of the United Kingdom rather than those of any particular individual.
In that situation, it seems to us that the judgment which is required is essentially a judgment for a Minister, answerable, as my noble friend Lord Renton said, to both Houses of Parliament, and that is particularly so when, as here, the noble Lord, Lord Lloyd of Kilgerran, does not seek to remove from the Secretary of State the discretion about whether or not to act. It seems a pity to have two different judges for the purpose of reaching a conclusion upon what ultimately will give rise to one act. It seems to us that it is more appropriate that the Secretary
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of State should have the judgment on whether or not the interests of the United Kingdom are affected, and then, if he takes the view that they are, he should take action accordingly. While I am very grateful to the noble Lord, Lord Lloyd, for raising this matter, an important matter, in respect of the meaning and effect of the Bill, I would urge the noble Lord to be kind enough to withdraw these amendments.
Lord LLOYD of KILGERRAN: In view of the fact that two noble and learned Lords are against me as well as another noble Lord with such a distinguished career, if I may say so, associated with the law, chiefly in another place, may I say that I regret that I have not made the position as clear as I should have done. What are the interests that you are protecting? That is not a matter for the Secretary of State. He has not got all the facilities for determining those facts. When he has the facts, when he has the opinion of perhaps a court or a tribunal about the trading facts, then he would be in a position to decide whether an order should he made under the section. But in view of what the noble and learned Lord the Lord Advocate has indicated, I beg leave to withdraw this amendment. I reserve the right to raise it at another stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 4:
Page 1, line 13, leave out ("interests of the United Kingdom") and insert ("or other interests of the said persons").
The noble Lord said: This amendment raises an important point, adumbrated to some extent by the noble Lord, Lord Renton. Under Clause 1(1)(b), it has to be decided whether certain actions are damaging or threatening to damage the trading interests of the United Kingdom. I was not quite clear what the noble Lord the Lord Advocate indicated in his reply on the previous amendment, but I would ask him: Does he accept as a general rule that if the trading interests of a firm have been affected in the way the subsection refers to, then that is included in the trading interests of the United Kingdom? I am not sure that that position can be

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ascertained from the present facts. In the circumstances of damage to certain companies, I would find it difficult to decide whether that would necessarily be damaging the trading interests of the United Kingdom, which, as the noble Lord, Lord Renton, said, was the attitude adopted by General Motors.
Therefore, my intention is to ensure that if there has been damage or threat of damage to the trading or other interests of the persons concerned that is the test that should be applied. I therefore delete the reference to the United Kingdom. But where a firm is able to show that its trading interests have been seriously damaged or are seriously threatened, then this subsection should apply. I beg to move.
Lord MACKAY of CLASHFERN: As I said earlier, I accept the view that very often the trading interests of a particular firm, a particular company, will be the trading interests of the United Kingdom. But the question whether the trading interests of the United Kingdom are subject to a threat of damage is a larger question. One has to look broadly at the trading interests of the United Kingdom as a whole in considering whether individual damage would threaten to damage those trading interests. I submit to your Lordships that where we are seeking to take action, particularly against measures taken by a friendly nation, it is very important that we should have good grounds for doing so, and only where the interests of the United Kingdom as a whole are affected would measures of this sort be properly justified. Therefore, the Bill as it stands, based on the trading interests of the United Kingdom as the matter that must be the subject of a threat of damage, is correct. To substitute for that the individual trading interests of particular companies would not improve the Bill but would damage it. I would therefore invite the noble Lord to reconsider the amendment.
Lord LLOYD of KILGERRAN: I am very much obliged to the noble and learned Lord the Lord Advocate. In view of the very strong words he used, that this amendment might damage the Bill, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.38 p.m.
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 5:
Page 1, line 17, at end insert—
("() Where the trading or other interests relate to intellectual property the Secretary of State shall on request refer the matter to the Court or the Comptroller General of Patents, Designs and Trade Marks; but no appeal shall he from any decision of the Court or of the Comptroller General.").
The noble Lord said: I come to a somewhat technical matter in regard to the way in which the Secretary of State can or should decide whether the trading interests of a company have been damaged or are being threatened in any way in the field of intellectual property, a rather grandiose term now used to cover patents, trade marks, know-how and designs. There are a large number of small and medium-sized firms which are engaged in trading activities abroad very successfully. They are often faced with threats of anti-trust actions in America and other threats in other countries, which of course inhibit their business. The facts will, of course, be put to the Secretary of State; and I ask rhetorically, how will the Secretary of State decide as a matter of fact, in his discretion, whether there has been damage to the trading interests of the firm concerned largely with patents, trade marks, know-how and design?
I would have said, with the greatest respect to the Secretary of State, that his department may not be fully equipped to deal with matters of that kind in coming to a subjective judgment in regard to trading interests. These matters of intellectual property are extremely complex, not only in science and technology but in law. My Amendment No. 5 is directed to suggesting to the noble and learned Lord that, where the interests are related to intellectual property, the Secretary of State should, on request of the parties, refer the matter to the Patents Court or to the Comptroller General of Patents, Designs and Trade Marks, both of which are great experts in this field. Your Lordships may not know that we have two patent judges who were most distinguished practitioners at the Patent Bar before they became Her Majesty's judges. The Comptroller General of Patents has on his staff people of great experience in these matters. In my experience both of those courts can act, very quickly. I then insert

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my amendment that there shall be no appeal from any decision of the court or of the Comptroller General of Patents. That would provide a very expeditious and helpful way for the Secretary of State to reach a conclusion under this clause.
With the leave of the Committee, I should like to mention Amendment No. 6. It is purely a definition Amendment, defining "Court" in the terms to be found in the Patents Act 1977. Amendment No. 6 is purely formal and subsequent to the substantive Amendment No. 5. I beg to move.
Lord MACKAY of CLASHFERN: The first question is whether the matter which the Secretary of State would require to have in mind, in deciding to exercise his discretion under the earlier part of the clause, is a matter upon which he could usefully refer to the court, in any sense of that expression. It seems to us that the question is a matter of judgment on fact, but not in the nature of a contest. It is difficult to picture a situation in which there would be a contest. If the difficulty concerns the Secretary of State making up his mind, because of the complexities of the situation, then obviously he would be the only person to contest the matter with the person seeking the order, and he would have to take up a position upon whether or not he was going to contest it. So, going to the court would not obviate that stage of the proceedings.
On the other hand, I perfectly accept that there are matters of technical complexity which may be involved. My right honourable friend the Secretary of State for Trade is fortunate, in that the Comptroller General of Patents, Designs and Trade Marks is responsible to him and is a member of his department. Therefore, as regards this particular aspect of matters, he will have available to him all the skill which I respectfully agree the Comptroller General has. In taking that line, I of course wish no disrespect whatever to the learned judges who deal with patents, both of whom I know are extremely distinguished and one of whom I have had the pleasure of meeting quite often. However, so far as committing this type of question to them is concerned, in our view it would not be appropriate, and any technical advice which the Secretary of State requires on
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this aspect he could obtain from the Comptroller without any specific statutory provision to that effect.
There are other matters which might arise and which might also require technical help. The Secretary of State would be able, of course, to invite the person applying, if there was such a situation, to give him information on the technical aspects, which would help the Secretary of State to reach a firm conclusion. I ask the noble Lord to be kind enough to reconsider his amendment.
Lord LLOYD of KILGERRAN: I am much obliged to the noble and learned Lord the Lord Advocate for the sympathetic approach that he has adopted towards this matter. I believe that he recognises that so much in the field of intellectual property is very difficult. As he has given me the assurance that the Comptroller General of Patents, who comes under his jurisdiction, can be consulted and will be consulted about these complicated matters, then I am quite happy to leave it at that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
On Question, Whether Clause 1 shall stand part of the Bill?
3.45 p.m.
Lord RENTON: There is one small point that requires further consideration by my noble and learned friend. Your Lordships will see that, under Clause 1(2), a person in the United Kingdom is required:
"to give notice to the Secretary of State of any requirement or prohibition imposed or threatened to be imposed"
upon him—of course, by a foreign authority—
"including any requirement to submit any contract or other document for approval".
I understand that sometimes foreign authorities require documents not to be submitted for approval, but merely to be registered. That in itself, could be a somewhat oppressive request. I ask my noble and learned friend whether he would be so good as to consider between now and the Report stage adding to subsection (2) some words which would take in the point about registration.
Lord LLOYD of KILGERRAN: In. my submission, Clause 1 embodies a very cumbersome procedure for dealing with measures taken by overseas countries so as to affect international trade. I would be grateful if the noble and learned Lord the Lord Advocate could at some stage, not of course today, consider whether any general improvement of Clause 1 can be effected.
Under this clause the Secretary of State has first to specify by order the measures concerned; secondly, to require, again by order, to be notified of any requirements imposed; and, thirdly, to issue directions prohibiting compliance with any such requirements. It seems to some of us that a much simpler procedure for protecting United Kingdom companies would be to make measures taken under the law of an overseas country for controlling trade, inapplicable to the activities of the United Kingdom companies outside the territory of the country concerned, but with the provision that the Secretary of State makes exemptions.
The type of laws and the specific laws which are affecting the trading interests of the United Kingdom and many United Kingdom countries will soon become apparent. It seems to me that the Government should issue lists of such laws which they think may damage, or are damaging, the trading interests of the country, so that British industry can be apprised of those matters. Of course, under Clause 1 no application to the Secretary of State as regards this matter need be entertained, under any orders or regulations, until the United Kingdom company concerned has been subjected to the actions of a particular overseas law. However, the cumbersome procedure of Clause 1 puts industry in some uncertainty as to what are the laws that are likely to affect its trading interests.
Lord MACKAY of CLASHFERN: I am greatly obliged to both noble Lords who have spoken on the question, Whether Clause 1 shall stand part of the Bill?—and I am grateful for the matters that they have raised. In particular, we shall consider whether a requirement to submit a contract or other document for registration is covered. I venture to think that it probably is covered, but we shall be glad to consider the matter.
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As regards the approach taken by the noble Lord, Lord Lloyd of Kilgerran, I certainly can see the advantage of proceeding in the way that he has suggested and we shall certainly consider the matter further. The advantage of the method proposed in the clause is that the amount of action required to be taken to interfere with the effect of foreign laws is reduced to a minimum in scope. That has certain advantages, as I am sure the noble Lord will recognise. However, I am certainly happy to consider these matters between now and the next stage, if your Lordships will agree to that.
Lord LLOYD of KILGERRAN: I am very much obliged to the noble and learned Lord.
Clause 1 agreed to.
Clause 2 [Documents and information required by overseas courts and authorities]:
3.51 p.m.
Lord RENTON Lord RENTON moved Amendment No. 7:
Page 2, line 30, leave out ("commercial").
The noble Lord said: I suggest that with this amendment we should consider Amendments Nos. 8 and 10. All three amendments are on Clause 2 and they stand or fall together. Clause 2 enables the Secretary of State to give directions for prohibiting compliance with the requirement of an overseas country, imposed upon people in the United Kingdom, to produce commercial documents or commercial information.
However, I suggest that by using the word "commercial" we limit the scope of the clause. Of course, a document or information demanded by an overseas government, court or authority could well relate to matters which are not considered in the ordinary way to be commercial; for example, the United Kingdom's contractual relationship or statutory relationship with our own Government; or such matters as the holding by our Government, whether through the National Enterprise Board or in some other way, of shares in a trading company. Documents relating to such matters might not be regarded as strictly commercial. My recollection—and my recent researches confirm it—is

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that our courts have never defined the expression "commercial document". Nor has it been defined in statute—of that I am sure. There are, of course, a number of documents with which we are all familiar which are clearly commercial: charter parties, bills of lading, insurance policies of all kinds, bills of exchange, and so on. Clearly, those are commercial documents.
However, I should have thought that it could be very tiresome if implementation of this Bill was held up by tiresome disputes as to whether a document or information was or was not commercial. I therefore suggest that it is better to avoid the uncertainty by leaving out those words which are in any event, as I say, words of limitation. I find it very strange that we should be using those words in Clause 2 when we have defined "trading interests" so very broadly in Subsection (6) of Clause 1, which reads as follows:
"In this section "trade" includes any activity carried on in the course of a business of any description and "trading interests" shall be construed accordingly".
It seems to me, although it is not a matter on which I would wish to divide the Committee, that this is a very plain case indeed. I hope that my noble and learned friend will see the wisdom of omitting those references to "commercial". I beg to move.
Lord LLOYD of KILGERRAN: I support the amendment so ably proposed by the noble Lord, Lord Renton. It certainly seems to me that the word "commercial" introduces very considerable uncertainties as to what is meant. For some reason the noble Lord, Lord Renton, did not refer to the definition of "commercial document", which is set out is subsection (6) of the clause, where it has a very wide connotation indeed because that subsection reads:
"In this section "commercial document" and "commercial information" mean respectively a document or information relating to a business of any description and "document" includes any record or device by means of which material is recorded or stored".
I agree with the noble Lord, Lord Renton, that, particularly in view of the wide definition of trading activities in a further clause, the Government should consider deleting the word, "commercial" from this clause.
Lord RENTON: If the noble Lord will allow me, Amendment No. 10 proposes that the words in subsection (6) of Clause 2 should be omitted. Therefore, in fact, I have covered that point.
Lord ELWYN-JONES: I have a certain sympathy with this amendment. To leave it naked, as "any document", does make it look a little wide. I do not know whether any other form of words, sufficiently wide for the purposes which have been mentioned by the noble Lords who preceded me, can be devised. I can foresee a tedious amount of initial argument arising from the definition of "commercial document" in subsection (6). if we can invite the ingenuity of the draftsman to have another look at this, it may save a great deal of litigation. Our American colleagues are masters at the construction even of the English language.
Lord MACKAY of CLASHFERN: I think that the difficulty has been highlighted by the noble and learned Lord, Lord Elwyn-Jones. If one omits "commercial" and omits any definition at all, one would have an extremely wide power which would relate to documents of a purely private or personal nature and go rather beyond the protection which the Bill is designed to give.
We had hoped that the definition of "commercial document" included in this Bill was wide enough to cover everything which legitimately it should cover for the purpose of attaining the objects of the Bill. However, in view of the doubts upon that matter which have been expressed, we shall be glad to reconsider the matter. I am bound to say that so far the illustrations which have been given would seem to me to be covered by the definition, but, of course, I am well aware that ingenuity can give rise to tedium. We shall do our best to avoid both of these in this particular situation. In the meantime, I ask my noble friend to be kind enough to withdraw his Amendment.
Lord RENTON: I do indeed ask leave to withdraw Amendment No. 7, and I am grateful to my noble and learned friend. In his further consideration of this matter perhaps he would bear in mind that the first three clauses were, of course, borrowed from the 1964 Act,

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which dealt solely with shipping. Commercial documents in relation to shipping are of a restrictive character and well-known. However, here we are opening up a vast field; we are applying the first three clauses of the Bill to all kinds of trading interests. Therefore, if we use the expression "commercial", we may very well find that it is restrictive in the way that has been mentioned. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
3.58 p.m.
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 9:
Page 2, line 33, after ("authority") insert ("or to summon any person to give oral or written evidence relating to any such document or information").
The noble Lord said: As the noble and learned Lord, Lord Elwyn-Jones, has indicated, American lawyers are very thorough, particularly in their discovery activities. The purpose of Clause 2(1) is to give protection to companies over here as regards the discovery of documents. The purpose of my amendment is to extend the protection so that persons cannot be summoned to give oral or written evidence relating to any such document or information.
Let us take the example of a patent specification which may not relate in any way to the business of the company; it is in the possession of the United Kingdom company. If the patent specification has to be disclosed—and I hope that it would not have to be disclosed under the protection given by this Bill—to the American court, it will be apparent that on any United Kingdom patent specification the name of the inventor appears. It would therefore be very profitable in certain circumstances for the American court to summon that inventor who is named on the patent specification, and to issue the usual legal processes to get him to give either oral or written evidence. It is to deal with that kind of situation where a document is issued and there is a person associated with that document that I beg to move this amendment.
Lord HANKEY: What is the position under this amendment of the agent of
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foreign nationality of a British company, the agent living in the jurisdiction of the foreign country? This is a frequent problem which occurs in the diplomatic protection of British interests. The man may be of the nationality of the country he lives in, and certainly subject to the jurisdiction of their courts. Would he be prevented by this amendment from ever coming to the United Kingdom to get briefed by the parent company? It seems to me that we are putting him in a difficult situation. I appreciate the need for doing something.
Lord RENTON: I shall not endeavour to answer that question. It is better left to a greater expert than I. It is not merely on the principle that one good turn deserves another that I desire to support the noble Lord, Lord Lloyd of Kilgerran, on his amendment. Although Clause 2(1) has been fairly widely drawn it looks as though this question of the summoning of a person to give oral or written evidence has simply been assumed in the drafting. Rather than leaving it to chance, it might very well be spelt out in the way that the noble Lord, Lord Lloyd of Kilgerran, has suggested.
Lord ELWYN-JONES: I suppose the noble and learned Lord the Lord Advocate will rely on the words "to furnish" in Clause 2(1)(a). But that which is furnished is not quite the same as that which is extracted by oral testimony from a witness. It therefore may be prudent to extend the protection against this improper method of obtaining discovery by the sort of language that the noble Lord, Lord Lloyd of Kilgerran, has suggested. I am eager to say something in support of my noble friend, as he has helped me so much in the past in a very tight corner in that place.
Lord MACKAY of CLASHFERN: I suppose that one good turn does deserve another. In a sense, the two amendments are closely connected. I am going to rely on "commercial information" and say that as the clause is drafted "commercial information" will include the oral or written evidence relating to any document or other information. With regard to the point made by the noble and learned Lord, Lord Elwyn-Jones, the context of Clause 2(1)(a) is a requirement to furnish.

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I would venture to think that that would cover an obligation to disclose information such as is imposed on a witness who is required to answer questions of the kind that the noble Lord, Lord Lloyd of Kilgerran, mentioned.
So far as the objects to be attained are concerned I think we are all agreed that the intention is to cover the giving of oral or written evidence relating to "commercial documents" or "commercial information", and the only question is whether what we already have covers that. I think that it probably does, but I shall be happy to look at that again in the light of what has been said.
May I now come to the question posed by the noble Lord, Lord Hankey. The situation is that the requirement which is the subject of Clause 2(1)(a) is a requirement imposed on a person or persons in the United Kingdom. So long as a person is in the United Kingdom he is subject to the jurisdiction of the United Kingdom, and therefore it is within the power of our law to impose a requirement upon him in that connection. If he leaves the United Kingdom and has not breached the United Kingdom law before he leaves it, then we are not in a position to control by United Kingdom law what he does anywhere else. Indeed, that is the very matter from the United States that we are objecting to. I think that the drafting of Clause 2 as it stands meets the point, and meets it in an appropriate manner.
Lord LLOYD of KILGERRAN: I am deeply grateful for the almost unanimous support I have had at least for the general principle and the general mood behind my amendment. It is a different matter in the hurly-burly of an anti-trust suit to know what can hapen to you from discussing it so objectively and nicely in your Lordships' House. It seems to me that an amendment of this kind would be helpful as a matter of caution and prudence in the general jurisprudence. Having regard to the fact that the noble and learned Lord is kindly proposing to consider the matter, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
4.6 p.m.
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 11:
Page 3, line 31, after ("to") insert ("or in the possession of").
The noble Lord said: This is an amendment in relation to Clause 2(6). I shall assume that the text here dealing with a definition of "commercial document" and "commercial information" stands. According to this text it means:
"a document or information relating to a business of any description …".
What is meant by "relating to a business"? There may be a number of documents which do not relate to a business and should have the protection of this definition.
I come again to my reference to a patent specification relating to an invention which is not used in the business in any way. I suggest in this amendment that the "information relating to or in the possession of a business" would be a happier and better phrase to use in these circumstances. A patent specification does not relate to a business. It may be in the possession of a company, and that is liable to be got at. As I indicated, the patent specification may have the names of inventors on it and they could be called to give evidence, and asked all kinds of difficult questions. Therefore, my amendment is to include in the definition of "commercial document" or "commercial information" a "document or information relating" not merely" to a business of any description" but which is also "in the possession of" that business. I beg to move.
Lord RENTON: Although it would be a rare occurrence we could find a situation in which somebody had a lien on documents belonging to somebody else. If that were so it would seem to be wrong that that possibility should be overlooked. That is the only point I would wish to add in support of the noble Lord.
Lord MACKAY of CLASHFERN: This comes back very much to the question we have already discussed. If one is giving power in relation to a particular class of document then it seems right that that class of document should be described by reference to its character rather than

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by reference to the possession in which it lies. As I said earlier, it is not proposed—and I do not suppose that anyone would think it right to propose—that this clause should apply to private or personal documents. If the noble Lord's amendment were to be accepted it would have the result that private or personal documents which happened to be in the possession of a person running a business would be covered.
For example, my personal documents in the hands of my solicitor, if I had one, would be covered by the clause, and that would seem, with respect, inappropriate. The mere fact that it happens to be in the possession of a business would not seem a very satisfactory criterion, and therefore I believe that the solution to this problem is in considering the appropriate description of the class of documents and then leaving, as a complete incidental, where the document happens to be, whether in the possession of the business, in the possession of someone connected with the business or whatever. I therefore invite the noble Lord to withdraw the amendment and leave the matter on the definition of "commercial document" itself.
Lord LLOYD of KILGERRAN: I understand that the definition of "commercial document" will be considered by the noble and learned Lord Advocate and I will await his further views as to that definition. In those circumstances, being grateful to the noble and learned Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2 shall stand part of the Bill?
4.12 p.m.
Lord MISHCON: On Second Reading I drew the attention of the House to the wording of Clause 2(3)(b), which relates to a requirement—
"wholly or mainly for the purpose of obtaining discovery of documents in any such proceedings "
—and "any such proceedings" relates back to Clause 2(3)(a), namely civil or criminal proceedings. I have not tabled an amendment at this stage, having given notice of the point I am now going to repeat, in the hope that I might be convinced by the noble and learned Lord
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the Lord Advocate that my point is covered in some way or is a bad one, and I will therefore listen to him with great respect and attention when he answers this point. Subject to that, I may then take the liberty of tabling an amendment on Report.
My worry is that if one looks at subsection 1(a) and 1(b) one finds that the requirement in regard to the production or otherwise of a commercial document and the Secretary of State's powers to prohibit compliance with the requirement are limited to the exercise of the Secretary of State's discretion which is contained in subsections 2(a) and 2(b); in other words—
"if it infringes the jurisdiction of the United Kingdom or is otherwise prejudicial to the sovereignty of the United Kingdom; or … if compliance … would be prejudicial to the security of the United Kingdom or to the relations of the government of the United Kingdom with the government of any other country".
I repeat, the discretion of the Secretary of State is defined and is limited in that way.
I can imagine perfectly plain, simple, uncomplicated civil proceedings taking place abroad where there is a request for discovery of documents made against an English defendant. The Secretary of State, it seems to me under this clause—without being limited in any way by the considerations which are mentioned elsewhere and which govern the considerations of subsections 2(a) and 2(b)—has completely unlimited power to say, "I direct that the discovery in these civil proceedings of this commercial document shall not be allowed". His discretion having been exercised, it appears to end there. It seems that however iniquitous was the way in which the discretion was exercised, it cannot be questioned. Why there is a limitation in respect of the requirements in Clause 2(1)(a) and (1)(b) without that limitation on the discretion in the case of Clause 2(3)(b) at all events is beyond me at the moment. I therefore await the noble and learned Lord's explanation of this, in the hope that I have either missed something or that my point is a bad one, before I can consider my position at a later stage of the Bill.
Lord MACKAY of CLASHFERN: The situation on this point is that subsection 3(b), indeed subsection (3) as a whole, is intended to provide the Secretary

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of State with a basis on which he can exercise his discretion under Clause 2(1) in order to prevent compliance; and the conditions so far as subsection (3) are concerned are, first, the conditions of paragraph (a), that the requirement—
"is made otherwise than for the purposes of civil or criminal proceedings"
and that is something to which I understand the noble Lord sees no objection.
Accordingly, the question is really whether paragraph (b) is not a proper extension of that. Paragraph (b) is intended to deal with the case, and only with the case, in which an order is made wholly or mainly for the purpose of obtaining discovery; that is to say, for fishing around for documents which are not likely to be required for the proceedings themselves. The purpose is that of obtaining discovery; the Secretary of State has to be satisfied that the purpose for which the requirement is made is wholly or mainly for the purpose of obtaining discovery. A document which was fundamental to the proceedings themselves would not be intended to be covered by this provision. Accordingly, I submit that this is a perfectly reasonable provision to be made to enable the Secretary of State to judge.
Of course, if a requirement was made for obtaining discovery of documents in proceedings abroad and it appeared to the Secertary of State appropriate that that order should be complied with, there is nothing to prevent it being complied with. But it seems perfectly appropriate that where the order of the foreign court, exercising jurisdiction outside its own territory, is made to people in this country purely or mainly for the purpose of obtaining discovery, the Secretary of State should have a right to say, "That jurisdiction will not be exercisable here. You are working outside your own jurisdiction and I am not prepared to allow your power to extend to this country".
4.17 p.m.
Lord MISHCON: The noble and learned Lord has spoken with his usual courtesy but, I say most respectfully not with his usual clarity. I do not see from his explanation how the wording of this clause is limited to "fishing expeditions". The description "discovery of documents" is well known in
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our courts and rules and relates of course to documents which are relevant to proceedings. This does not just affect the proceedings which, all of us know, we have in mind in the United States; this is a Bill which affects civil proceedings in this clause of any foreign country.
I fail to see the logic of why the Secretary of State's discretion is being limited in respect of the requirements—I hope I will be forgiven if I repeat the point. but the noble and learned Lord Advocate did not answer me on this—in Clause 2(1)(a) and (b), which are very serious requirements, and his discretion is limited to matters which infringe our sovereignty and which could do us harm commercially or otherwise; yet in ordinary civil proceedings taking place abroad the Secretary of State, without giving any reason whatever and without his discretion being limited in any way whatever, can decide that that requirement is inadmissible and that therefore he ought to forbid the discovery of that document.
I repeat the point only because it did not appear to me that it had been answered by what the noble and learned Lord said, but I shall again wait for any further explanation he wishes to give and, if I do not feel satisfied with it—and I say that most respectfully—reserve my right to deal with this matter at a further stage of the Bill.
Clause 2 agreed to.
Clause 3 [Offences under ss. 1 and 2]:
4.21 p.m.
Lord RENTON Lord RENTON moved Amendment No. 12:
Page 3, line 34, leave out from ("who") to ("knowingly") in line 36.
The noble Lord said: The amendment arises in the following way. At Second Reading I suggested to your Lordships that we did not need the heavy sanction of the criminal law to force people whom we are trying to help into taking those steps which were necessary to enable us to help them. Those steps, I may remind your Lordships, are set out in Clauses 1 and 2 which now stand as part of the Bill, but the criminal sanction is contained in Clause 3. I suggested at Second Reading—and gave some reasons for my view—

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that the criminal sanction should be replaced by the civil remedy of injunction, at any rate in England, and interdict in Scotland. However, I have since discovered that interdicts can be granted only to prevent people from doing certain things, and that there are not mandatory interdicts in Scotland. In Scotland it is necessary to follow procedure which is entirely unfamiliar to me as an English lawyer, and the less I say about it the better.
My noble and learned friend the Lord Advocate, as reported at columns 594–5 of the Official Report of 24th January, first pointed out to me that the criminal sanction had never been used under the 1964 Act. I think that the necessary comment to make on that is, as I said on an earlier amendment, that the 1964 Act referred only to shipping, whereas this Bill refers to all manner of trading and business. So when we are broadening the powers contained in the 1964 Act, we really should consider very carefully how far it is appropriate still to maintain the criminal sanction for enforcement of all the steps which under the Bill the Secretary of State is given power to enforce.
My noble and learned friend's second point in answer to what I said at Second Reading was that Clauses 1 and 2 are in the nature of a prohibition, and that in order to enforce a prohibition a criminal sanction is needed. But with deep respect to my noble and learned friend, it is not entirely so that Clauses 1 and 2 deal only with prohibition, because under Clause 1(2) all that is required is the giving of notice to the Secretary of State of any matters imposed or threatened to be imposed upon the person concerned by an overseas country. That this is so is confirmed by those words in Clause 3 which I propose should be left out. There is a reference to
"any person who without reasonable excuse fails to comply with any requirement.…".
That is concerned with a person failing to do what he ought to have done, rather than his not doing what he ought not to have done. That involves a very considerable difference, I should have thought, when we are deciding whether or not to impose a criminal penalty upon people whom we are trying to help in the circumstances of the Bill.
I concede, however, that the rest of
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Clauses 1 and 2 deal with prohibitions and that the criminal sanction may be the correct method of enforcing them. Therefore, in view of what my noble and learned friend the Lord Advocate said on Second Reading, I am no longer suggesting that we should change that provision. But in regard to enforcing compliance with the requirement to give notice under Clause 1(2), I still maintain that the criminal sanction is unnecessarily cumbersome, slow, expensive and, in the circumstances, oppressive, and that a civil sanction by way of injunction in England, and whatever is the appropriate procedure in Scotland, would be best. So I propose that we leave out the words I have referred to in Clause 3(1).
It is arguable, I suggest, that no specific sanction needs to be written into the Bill because we are imposing a duty within the Bill, and when we impose a duty it is always possible, at any rate in England, to go to the High Court for a declaration and an injunction—or sometimes it is done by means of a writ of mandamus—to enforce our duty. So, strictly speaking, by leaving out these words we would not be doing without a sanction altogether. But if we need to spell out what the civil sanction should be, I say in all candour that they would be better done by the parliamentary counsel than by my poor attempts to draft a new clause. I in fact attempted to draft a new clause and it was included on the Marshalled List earlier in the week, but upon sleeping on the matter I decided that it would not stand up. So I have withdrawn the new clause and it is not on the Marshalled List today, I am thankful to say.
I wish to add only one point, and I feel obliged to do so, even though the noble Lord, Lord Mishcon, is not with us at the moment. At Second Reading he referred to the need for a criminal sanction to enable the litigant in the United States to plead the amendment. I do not understand what that meant. I do not know whether any of the—I think there are three—amendments to the United States Constitution could he what he was referring to. I simply do not know what the noble Lord meant, but he probably has the advantage of me in having some knowledge which I ought to have.
I conclude by referring to the 1964 Act, under which, by the way, my noble

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and learned friend told us at Second Reading, no prosecutions have so far been brought. With regard to that Act, whatever pleading the amendment might be, it does not seem to have helped our shipping companies, because even since the 1964 Act they have from time to time been troubled by the exercise of the extraterritorial jurisdiction of the United States. Therefore, unless something further is said to explain the point made by the noble Lord, Lord Mishcon, I shall still maintain that it would be better to have a civil sanction for the enforcement of this merely negative requirement. I beg to move.
4.30 p.m.
Lord MACKAY of CLASHFERN: Perhaps I could first mention the point that my noble friend Lord Renton made as to what the noble Lord, Lord Mishcon, said on Second Reading, since we have the benefit of Lord Mishcon's company now. My understanding of the point which he made, which I followed at the time, I think, was that in order for a person in the United States to protect himself in this connection it was necessary for him to be able to plead the amendment, and I suspect that he had in mind the amendment which prevents a person from being obliged to incriminate himself. The noble Lord's point of view as expressed at that time was that unless there was a criminal sanction in relation to the prohibition in our statute, that self-incrimination doctrine would not apply.
So far as civil proceedings are concerned, the difficulty I still feel is the one I previously expressed, and that is that the essential thing one is dealing with here is a matter which would have passed before you knew anything about it. You would not be aware that a person was going to comply until they had actually complied, and by that time even the great procedural efficiency of the law of England would have difficulty in coping with it. I think that the provisions for enforcement of a statutory duty which are available in Scotland would match those available in England up until the time the act was actually done, but once the act is done there is a difficulty, I think, about civil proceedings. In our view, it is therefore necessary to have some sanction, and criminal sanction seems appropriate. As I said on Second Reading, no such proceedings
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were required under the 1964 Act. Of course, that is not the reason why the 1964 Act was not completely effective in relation to shipping. The reason was the omission of clauses such as the later clauses of this Bill. I think we do not know of any case in which the provisions of the 1964 Act were breached. That is the reason for no criminal proceedings, rather than that these provisions were ineffective in the field in which they operated.
My noble friend is perfectly right that at Second Reading I said that Clauses 1 and 2 are in the nature of prohibitions, and he has pointed out that that is not accurate in that under subsection (2) of Clause 1 the Secretary of State has a power to order people to give notice. But the purpose of their giving notice is that he may consider whether to make a prohibition. So, although I apologise for not expressing the matter with complete accuracy, I seek to defend myself by saying that the effective thrust of both clauses is to prohibit certain activities which are there described.
With regard to the amendment which my noble friend has moved, it would have the effect (unless I have misunderstood it) of withdrawing the defence in the criminal proceedings of giving a reasonable excuse. The purpose of the words which my noble friend's amendment seeks to delete is to provide a defence if the person in question has accidentally, or in a situation in which there is a reasonable excuse, failed to comply with a prohibition. So in a way these words go some distance towards mitigating the criminal offence in question.
Lord RENTON: If my noble and learned friend would allow me to say so, leaving out the words which I propose should be deleted in fact means that you could not bring any proceedings at all against a person who failed to comply with Clause 1(2). So the question of a defence would not arise. There would not be proceedings brought against him.
Lord MISHCON: I wonder whether I may be permitted to apologise to the Committee, and especially to the noble Lord, Lord Renton, for veing absent when my name was mentioned in connection with something I had said on Second Reading. I was called out on something urgent, and I apologise to the

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Committee; but may I say that on this occasion the noble and learned Lord the Lord Advocate has spoken with his usual clarity and courtesy.
Lord RENTON: I heartily concur with what the noble Lord has said about my noble and learned friend, and I beg leave to withdraw my amendment. In doing so, however, may I say that I do it in a spirit of complete surrender and conviction. I think that the answers I have been given show convincingly that the criminal sanction is required. I only express the hope that it will never have to be used when this Bill becomes an Act, just as it has never been required under the 1964 Act. If it does have to be used, I think we shall have to be very careful indeed—and it will be the responsibility of my noble and learned friend so far as Scotland is concerned, and of the Secretary of State and the Attorney General elsewhere—to see that this criminal sanction is not used in any way wantonly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 agreed to.
Clause 5 [Restriction on enforcement of certain overseas judgments]:
Lord RENTON Lord RENTON moved Amendment No. 13:
Page 5, line 7, at end insert ("; or

(c) a judgment for punitive or exemplary damages; or

(d) a judgment given in proceedings in reliance upon a measure in respect of which the Secretary of State had given directions under section 1(3) above before the start of those proceedings.").

The noble Lord said: The purpose of this amendment is to extend the category of non-enforceable judgments under subsection (2) of Clause 5 by adding two things. The first is punitive damages, or, as they are sometimes called, exemplary damages. In fact, in the courts in England and Wales and Northern Ireland that is the more usual expression. I should point out that the circumstances in which punitive damages or exemplary damages are awarded in our courts are rare indeed,
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and when they are awarded they are not usually heavy. Indeed, for years the courts leaned against them altogether.
In the United States, on the other hand, especially in product liability actions, punitive damages are awarded in a very big way in addition to the ordinary compensatory damages. Of course, it is the juries in the United States who award the damages, and they certainly let themselves go sometimes. There is one case which has been brought to my notice in which the compensatory damages were 350,000 dollars but the punitive damages were 10 million dollars. A great many examples of an immense excess of punitive damages over compensatory damages are there on the records to be found, but that is perhaps the most vivid example that I have come across.
The punitive element in foreign judgments will nearly always be quite clearly ascertainable, and therefore I cannot accept the argument which was put forward by my right honourable and learned friend the Attorney General in another place that if we included punitive damages among the non-enforceable judgments in Clause 5, there would be confusion. He even went so far as to say that a separate trial would be necessary in order to decide which of the damages awarded by the overseas court were exemplary and which were compensatory. But that does not correspond with the practice, at any rate, of the courts in America and of other countries; so I should have thought that that argument against having exemplary damages excluded.
But there is another rather important argument we should not ignore. In a case in 1976, The Consortium General Textiles and The Sun Sand Agencies Limited, in the Court of Appeal here, the noble and learned Lord, Lord Denning, defined a penalty—and I may remind your Lordships that we do not enforce foreign judgments which are judgments by way of penalty, we do not enforce foreign fines, for example, or taxes and so on—or described a penalty as a sum payable to the State by way of punishment and not a sum payable to a private individual even though it is payable by way of exemplary damages. But then he went on to say—and, admittedly, this was not part of his reason for judgment; it was an obiter statement:

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"Likewise, I see nothing contrary to English public policy in enforcing a claim for exemplary damages which is still considered to be in accordance with the public policy of the United States and many of the great countries of the Commonwealth".
That dictum of the noble and learned Lord, Lord Denning, raises a doubt in the context of this Bill. I suggest that it is a doubt which we ought to be anxious to remove. And it is easily removed if we accept the first part of my amendment which points out that a judgment for punitive or exemplary damages is excluded. So much for punitive orexemplary damages. May I move on to the second part of my amendment which deals with judgments of foreign courts based on measures mentioned in Clause 1.
I suggest that the logical outcome of Clause 1 should be that we ought not to enforce payments under Clause 5 for judgments which were made under measures which we are trying to counteract under Clause 1. It seems to be self-defeating on our part as well as illogical to be doing so. I suggest that the second part of my Amendment should be added to the Bill so that we say:
"a judgment given in proceedings in reliance upon a measure in respect of which the Secretary of State had given directions under section 1(3) above before the start of these proceedings"
should be excluded from enforceability. Again may I refer to my right honourable and learned friend the Attorney-General in another place: because he said that this raised questions of public policy. I quote the exact words that he used:
"It is improbable that a judgment could result that would not be criminal or penal and therefore not enforceable in the United Kingdom under the existing common law rule. If such a situation arose whereby a civil judgment was given in pursuance of such legislation, I believe that the mere existence of an order under Clause 1 would be sufficient to argue that such legislation was against the public policy of the United Kingdom and the judgment would not be enforceable".
But I question whether it is, in fact, improbable that civil judgments might arise as a result of non-compliance with a foreign measure and, in any event, the concept of public policy when it comes to be interpreted by the courts is a disputatious matter, as we all know, and is notoriously vague, besides.
It is unfortunate that the Bill should leave it to companies to have to rely upon it in order to resist enforcement of a civil judgment given in clear defiance of
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the steps to be taken by the Secretary of State under Clause 1. For that reason, therefore, I submit that the second part of my amendment is well founded and, accordingly, I beg to move.
4.46 p.m.
Lord HACKING: I stand to support the noble Lord, Lord Renton, in the moving of Amendment No. 13. Before I do so, may I express my regret at having been unable to be in the House at the Second Reading of this Bill. I express regret for two reasons. First, I am in the unusual position of being a member of the Bar in the State of New York, although I disclaim all responsibility for any anti-trust law anywhere: and, second, particularly when in the United States, I have become closely involved in the debate on the extraterritorial application ofUnited States laws. I was bold enough or unwise enough to precede the Secretary of State by just over a year in addressing the International Section of the Los Angeles County Bar Association on this subject. The Secretary of State addressed the British-American Chamber of Commerce a year later in September of last year. At a later stage, being unable to persuade the noble and learned Lord, Lord Elwyn-Jones, to speak, I managed to persuade the then Attorney-General, Mr. Sam Silkin, to speak in a debate with the Head of the Anti-Trust Division of the Department of Justice, Mr. John Shenefield, on this topic. That was an agreeable occasion, but a less agreeable occasion was when I debated with Mr. John Shenefield in Dallas last August over the Antitrust Guide for International Operations, which represents the creed against which we are taking our stand.
Having expressed my regret at having been unable to take part in the Second Reading, may I turn to the amendment proposed by the noble Lord, Lord Renton. When I first came to consider the first of the two amendments, which proposes that judgment for punitive or exemplary damages be added to the unenforceable judgments under Clause 5, I had some hesitation, because, after all, in this country as the noble Lord recognised, we have punitive or exemplary damages included in damages awards of our courts. It is true that these are of a very restricted nature; but we have them. I was unhappy,

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therefore, about the proposition that our own exemplary or punitive damages were enforceable in this country and those from outside were not.
The noble Lord has wholly made out the case when he draws our attention to the product liability cases in the United States and the sheer enormity of the punitive element in those damaging awards. The one that he quoted of 35,000 dollars of compensation and 100 million dollars of punitive——
Lord RENTON: It was 350,000 dollars and 10 million dollars.
Lord HACKING: Thank you. I thought that the compensation was on the rather low side. That is a good example and having heard the noble Lord's arguments, I find myself now able to support him on his first amendment. Before I came to the Committee, I was already in the position of wanting to support him in the second of his two extensions to Clause 5: I refer to the reference back to Section 1(3). I urge the Committee to consider and encourage the noble Lord, Lord Renton, to extend this other category of judgment to judgments which arise out of proceedings in which directions have been made by the Secretary of State under Section 2(l) of the Act. I have on a scrappy piece of paper in my hand my suggested amendment in order that we may have some record of it. Perhaps it can he considered at some later stage. I will read it. It follows the final words that are in my noble friend's amendment:
"or given in proceedings in relation to which the Secretary of State has given directions under Section 2(1)"."
In suggesting this extension, I draw the Committee's attention to the requirement in Section 2(1); that is, if it appears to the Secretary of State that a requirement has been, or may be, imposed on a person or persons in the United Kingdom to produce to any court—and I am paraphrasing—any commercial document which is not within the territorial jurisdiction of that country, or to furnish any commercial information to any such court, the Secretary of State can make an order. The purpose of that, which is in the earlier Act, the Shipping Contracts and Commercial Documents Act 1964, is to protect
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certain commercial documents from being used in court proceedings in other countries.
It so happens that there was a case heard by Judge Sirica (who later became better known for presiding over the Watergate trials) at the beginning in the early 1970s. It concerned the English company Beecham's. Briefly, certain documents in the ever-seeking discovery process of American litigation were sought from Beecham's. Beecham's objected to the production of the documents and sought protection under the Shipping Contracts and Commercial Documents Act of 1964. They came back to Judge Sirica and said, "We are unable to produce those documents because we have now been prohibited from so doing under the direction from the English Secretary of State". Judge Sirica then proceeded to find against Beecham on all matters which were covered by the documents that Beecham's were refusing to produce. It is precisely to that situation that assistance should be given. That is why I have suggested to the noble Lord, Lord Renton—and I hope he will not be offended—that there will be improvement to the amendment he has proposed to have that extension placed upon it.
4.53 p.m.
Lord MACKAY of CLASHFERN: It appears to be the case that the noble and learned Lord, Lord Denning, has expressed the view that punitive or exemplary damages might be enforceable in this country: but whether or not it is wise to prevent that, it is plain that that question could well go much wider than the trading interests of the United Kingdom, because damages of that sort might well be ordered in cases which have little or nothing to do with the trading interests of the United Kingdom. Accordingly, this would appear to be a wider question than falls within the scope of the Bill. If one is to seek to prevent the enforcement of judgments of that character under the provisions which apply here, this is a matter for consideration in relation to a more general provision affecting the enforcement of judgments.
Regarding the second matter, the amendment, as proposed and as enlarged by the noble Lord, Lord Hacking, would have the

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effect of applying only to civil judgments for money. So far as we know, up to now these exist only under the United States' anti-trust legislation. I would speculate that the Beecham's case, to which the noble Lord, Lord Hacking, referred, was litigation of that type, and accordingly would be affected by the provisions of the Bill already because the damages would be of the multiple damage type. The clause as presently framed, I would remind your Lordships, provides for the Secretary of State enlarging the scope of the judgments that may not be enforced here by reference to what one might call anti-competition legislation. I refer to subsection (4).
In this area it seems wise—and I commend this course to the Committee—not to proceed into the unknown but to deal with the difficulties that we know exist. As I said, these seem to appear in the existing law which provides for multiple damages in the United States, and possibly other places, and also in the field which is generally mapped out in subsection (4), but not otherwise. Accordingly, it would appear to me that the present provisions adequately cover the existing problem. I would also adopt the arguments that my right honourable friend the Attorney-General used in another place to which the noble Lord, Lord Renton, referred—without wearying the Committee by repeating them.
4.58 p.m.
Lord RENTON: My noble and learned friend has said in effect that the two parts of my amendment are unnecessary to fulfil the purpose which I described. He has referred to Clause 5(4). I assume in the background he has in mind also Clause 4 which extends the 1975 Act. If that is so, well and good; I would then have to apologise for having troubled the Committee. However, we were told at Second Reading that Clause 5 is largely declaratory. It seems to me to be almost declaratory of the existing law. If we are declaring the existing law at all, I think that it behoves us to do so with some thoroughness. However, on the assurance that my noble and learned friend has given—and I hope to goodness that he is right about this—I wish to withdraw my Amendment.
Lord MACKAY of CLASHFERN: Before my noble friend sits down I should like to make it clear that I did not intend to say—and I hope that I did not say—that the first part of his amendment, paragraph (c), was unnecessary; on the contrary, I appreciate the problem, but I say that it is not one to be dealt with here. I did not mean to convey that it was covered by the present Bill.
Lord RENTON: I am very much. obliged for that clarification. I must confess that with one's knowledge of the 1975 Act and the practice which has grown up under it, I had assumed that my noble and learned friend was asking the Committee to accept that a British court would not normally award punitive damages. If it be the fact that, for example, the kind of case that I mentioned from the United States, and the product liability cases where the punitive damages can be so enormous, are going to be enforced by judgments in our courts, then I regard that as an intolerable situation. It is one which Parliament should not accept especially when we are trying to legislate in this way. I hope, therefore, that my noble and learned friend will give further thought to this matter because it will he a serious gap in the Bill if we leave it that punitive damages can be so enforced in spite of what we are trying to do in Clause 5. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.1 p.m.
Lord HACKING Lord HACKING moved Amendment No. 14:
Page 5, line 7, at end insert ("; or
(c) a judgment given in proceedings based on a claim for contribution pursuant to a judgment as defined in paragraph (a) above:).
The noble Lord said: This is another amendment under Clause 5 which might be conveniently described as the "non-enforceable foreign judgments clause". The purpose of the amendment is to prevent foreign judgments otherwise unenforceable under Section 5(2)(a), because they have a multiple damages element, from being enforced by a co-defendant under a contribution claim.
I should like very briefly to explain what a contribution claim is. It arises between

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defendants and occurs when one defendant is ordered to contribute in part or in whole to the judgment debt which another defendant is under order to pay the plaintiff. Let me give an example of the operation of a contribution claim. Suppose a plaintiff, having succeeded in an action against more than one defendant, seeks to enforce and does enforce a judgment of 100,000 dollars—a modest sum for the noble Lord, Lord Renton—against Defendant A, which is a United States domiciled company, because the plaintiff cannot proceed or enforce against Defendant B because it is a United Kingdom domiciled company and hence protected under Section 5(2)(a). Then, taking the example further, Defendant A, by way of a contribution claim, proceeds against Defendant B, which is the United Kingdom domiciled company, and, because there is no prohibition in this Act, can then succeed in getting the full 100,000 dollars, or a lesser sum if that is the right figure for computation of the contribution from Defendant B. In short, the purpose of this amendment is to lock a back door when the front door has already been locked by Clause 5(2)(a). I beg to move this amendment.
Lord MACKAY of CLASH FERN: Perhaps I may take just a moment to express my regret that the noble Lord, Lord Hacking, was not able to be here on the Second Reading. However, I am very glad he is here now—better late than never—because he has drawn attention to an important matter which I am very happy to consider for a later stage of the Bill. I believe this is a matter which we ought to cover.
Lord HACKING: In view of that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Airedale): I understand there is a mistake on the Marshalled List in the numbering of the next two amendments. I think I should next call No. 16, followed by No. 15.
Lord HACKING Lord HACKING had given Notice of his intention to move Amendment No. 16:
Page 5, line 12, at end insert ("(hereinafter referred to as" the judgment creditor")").
The noble Lord said: With regard to this amendment, I am proposing that the person described in this clause of the Bill as "the person in whose favour the judgment is given"—that is, the foreign judgment creditor—should be defined as" the judgment creditor."The purpose of the Amendment is to facilitate the drafting of my Amendments Nos. 20 and 23 which I shall be moving later and, since I intend to withdraw those two amendments after debate has taken place, it would seem appropriate not to move this one, unless any of your Lordships wishes now to address the Committee on this elegant phrase "the judgment creditor." I thought the noble and learned Lord was rising to his feet, but I think I am mistaken.
5.7 p.m.
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 15:
Page 5, line 12, at end insert ("and includes any order for any payment made in any proceedings in the course of which it is alleged or claimed that multiple damages are payable under the laws of an overseas country.").
The noble Lord said: As the noble Lords, Lord Renton and Lord Hacking, have explained to your Lordships, Clause 5 is concerned with restricting the enforcement of certain overseas judgments where damages or other fines or other orders have been made against some United Kingdom company. The clause goes on to define that one of the judgments that cannot be enforced is a judgment from abroad for multiple damages. It then proceeds to define in subsection (3) what is meant by "judgment for multiple damages."
I apologise once again for introducing one's experience of practice, certainly in relation to American jurisprudence, into this matter, but there may be a case in the course of which it has been alleged that multiple damages are payable. The case goes on on the basis that there is an allegation as to anti-trust which involves multiple damages being claimed and then, at some time or other, that aspect of the case is withdrawn. Therefore, the British company, or its subsidiary in America, has been fighting a case which they thought involved anti-trust and have taken all the steps to defeat that; and then the case is withdrawn.
In those circumstances, an order will be made and the question then arises:

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should such an order be enforceable in the United Kingdom by the United States company, as against the United Kingdom company? In my view, this is a lacuna in the definition of judgments which are not enforceable in Clause 5. My amendment is that the judgment, as defined here as being a judgment for multiple damages, should include any order for any payment made in any proceedings—those will be proceedings in the foreign country—in the course of which it was alleged or claimed the multiple damages are payable under the laws of the overseas country.
The words themselves are quite simple and the circumstances are quite common where this anti-trust claim against a British company or its subsidiary is raised and then dropped in the course of a very long case, which may last several years. Therefore, I beg to move that the definition of a judgment for multiple damages under Clause (5)(2)(a) should be extended in the way I have submitted.
Lord MACKAY of CLASHFERN: I am not absolutely clear that I have grasped the lacuna which the noble Lord, Lord Lloyd of Kilgerran, has identified to your Lordships. So far as I understand the position, it would hardly be sufficient to define proceedings by reference to what is alleged or claimed in them, because I think most of us who have had experience of litigation in any place have had experience of false allegations or allegations being made which were not substantiated. It seems a rather unwise test to apply to consider only what is alleged or claimed. So if the intention is to enlarge the scope of judgments which are unenforceable under this clause beyond the field of true multiple damages into fields where that is alleged about the basis of the claim but it never turns out whether or not that claim is true, then, with respect, I think that would be unwise.
Lord LLOYD of KILGERRAN: Before the noble and learned Lord sits down, may I put a specific matter to him? If you try to take a patent action in the United States, it is very common that by way of defence an action for multiple damages for anti-trust is introduced into the hearing. That is not usually just an allegation; it is often pressed very hard. Therefore, while I fully realise that the drafting of this amendment may require
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further attention, what I am trying to direct the Government's attention to is the fact that a United Kingdom company or its subsidiary may be precipitated into very considerable damages and costs, because a claim for anti-trust—and, therefore multiple damages—is pressed in the United States courts, and then afterwards withdrawn.
The final order often reflects the fact that it is an anti-trust suit and, therefore, that the damages assessed in the case are not ordinary damages but have been clouded by the multiple damages aspect of the case in the anti-trust circumstances. This is not a case where it has merely been alleged. It is a case where it has been prosecuted and has therefore precipitated the company into very considerable costs. I hope that the noble and learned Lord understands the general principle behind the amendment. He has far better facilities for drafting than I have, and it may be that these words do not quite cover the general principle which I have in mind and which is a common position to be found in cases in America.
Lord MACKAY of CLASHFERN: Certainly, I shall endeavour to consider the matter and perhaps I can enlist the help of the noble Lord in that consideration between now and the next stage.
Lord LLOYD of KILGERRAN: I am very much obliged to the noble and learned Lord. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.13 p.m.
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 17:
Page 5, line 17, after ("restrain") insert (", distort").
The noble Lord said: I am very happy to inform your Lordships that I am now able to introduce an atmosphere in relation to the European Economic Community, and I am sure your Lordships will be pleased to consider at least one point in this Bill in that context. Under subsection (4) of Clause 5,
"The Secretary of State may for the purposes of subsection (2)(b) above make an order",
if it appears to him to be concerned with—and these are the material words—

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"arrangements or practices designed to restrain or restrict competition in the carrying on of business".
My amendment would modify that phrase by the introduction of the word "distort", so that this subsection would be dealing with,
"arrangements or practices designed to restrain, distort or restrict competition".
In practice, competition can be restrained and restricted, but competition in the carrying out of business can also be distorted in a way which is well recognised in the competition laws of the EEC.
Your Lordships may be familiar with Article 85 of the Rome Treaty, which deals with competition matters. That states that the following shall be prohibited as incompatible with the Common Market—
"all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member States"—
and I now come to the important words—
"and which have as their object or effect the prevention, restriction or distortion of competition".
Those of us who have been concerned with Article 85 for many years are very familiar with this aspect of competition which is being prevented, restricted or distorted. Therefore, my suggestion is that perhaps the Government would consider amplifying—if that is the correct word—the words in subsection (4) by including the word "distort". There is an increasing amount of jurisprudence in relation to Article 85 of the Rome Treaty. I beg to move.
Lord MACKAY of CLASHFERN: It appears to me that the suggestion which the noble Lord has made would be an improvement. If he will be kind enough to withdraw his amendment, we shall consider bringing forward an improved definition at the next stage. I am very much obliged to the noble Lord.
Lord LLOYD of KILGERRAN: I am very much obliged to the noble and learned Lord. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Recovery of awards of multiple damages]:
5.16 p.m.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 18:
Page 5, line 31, leave out ("Subject to subsection (2) and (3) below") and insert ("This section applies").
The noble and learned Lord said: If it is convenient to your Lordships, perhaps I may address myself both to this amendment and to Amendment No. 19. The problem to which this amendment is directed is that of contribution, which the noble Lord, Lord Hacking, raised in another connection. The Bill as it stands provides that the recovery is limited to so much of the damages paid to or obtained by the judgment creditor under the judgment as exceeds the compensation, if I may put it shortly.
Let me just illustrate the matter. Judgment is for 600,000 dollars and the compensatory element in that is 200,000 dollars, the balance being the penalty. If you have three United Kingdom defendants in that action, each having to pay 200,000 dollars, this clause as drafted would prevent any of them from recovering anything, because the 200,000 dollars would limit their claim. The result would be that the United States judgment creditor—to use the phrase of the noble Lord, Lord Hacking—would be able to keep the whole of the award and that is not what we have in mind. So the clause is defective as drafted.
I regret to say that in seeking to remedy that we have a fairly complicated formula. What it comes to is this: the payment which any person in this country makes under the judgment will be divided into two parts; a part which represents the compensatory proportion and a part which represents the penal proportion, and he will be entitled to recover the penal proportion but not the compensatory proportion of what he has paid.
There are other problems under this clause. One of them, to which the noble Lord, Lord Mishcon, drew attention on Second Reading, and which we have it in mind to deal with, is the question of avoidance of the whole clause by reference to assignment or assignation. We intend to bring forward an amendment in due

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course for dealing with that problem. It is quite a difficult problem to deal with effectively, because one has to take account of all the various possibilities by which the right of the judgment could pass from the judgment creditor to other people. This amendment does not seek to deal with that problem, but since we have reached the stage of dealing with "contribution" we thought that we should bring it to your Lordships now. I beg to move.
5.20 p.m.
Lord HACKING: My Lords, since the noble and learned Lord, the Lord Advocate has addressed the Committee also on Amendment No. 19 and has introduced this topic by means of a very lucid introduction, I should like, with the leave of the Committee, to widen the discussion to include Amendment No. 26 of the noble and learned Lord the Lord Advocate and also my own Amendments Nos. 20 and 23. In short, I should like at this stage to address the Committee on all four amendments.
These amendments concern the novel but ingeniously bold Clause 6 of the Bill. Before dealing with the detail of this matter, may I say that I firmly support the powers proposed in this clause as a weapon of protection against the excesses of United States anti-trust law, and as an assistance towards the settlement of United States anti-trust cases, most of which are settled—after they have been in being for 20 years or more!
The starting point for my remarks to the Committee is the drafting in the Bill of Clause 6(1). I submit that this drafting has three deficiencies. Firstly, it does not cover the multiple party suit. Nearly all anti-trust cases are multiple party suits. Secondly, it does not enable recovery when property is seized, as opposed to execution upon money. Thirdly, it does not cover the assignment of judgment debts, and this has been recognised by the noble and learned Lord the Lord Advocate in his comments to your Lordships.
I should like to take those three categories in turn and deal first with the multiple-party suits. If your Lordships read the draft of Clause 6 as it is proposed to be amended by the noble and learned Lord the Lord Advocate, your Lordships will
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see that its wording does not cover multiple suits. To paraphrase, it says that the qualifying defendant is entitled to recover back from the judgment creditor so much of the damages as—and I read the rest of the text—
"exceeds the sum assessed by that court as compensation for the loss or damage sustained by him".
I was misleading your Lordships, and I apologise. At this stage I am addressing the Committee on the original Clause 6(1). It was a slip of the tongue to refer your Lordships to the form of the amendment. As I said just now, the starting point is to consider Clause 6 and to note the deficiencies. As I illustrated just now by reading from Clause 6(1), it does not cover multiple-party suits. As an example, if a judgment creditor obtains a sum equivalent to compensation damage from each defendant, the plaintiff will have got the lot—that is, the compensation damages and the multiple—but no individual defendant will be able to demonstrate that he has paid the multiple proportion of the damages. Because of that difficulty, a simple arithmetical formula was needed and my Clause 20 adopts the same arithmetical formula as has been used by the noble and learned Lord the Lord Advocate. My clause states that the same fraction (that is, between one-third and two-thirds: the compensation part of the damages against the multiple part) is applied on the amount being extracted from the qualifying defendant as was applied to the total damages in the judgment. That is the best way that I can explain it at this stage. If your Lordships find my explanation difficult to follow, the only thing that I ask is that I should be allowed at Report stage to bring in a blackboard and chalk; I would then try again to demonstrate how the arithmetical formula works.
The second lacuna in Clause 6(1) as it is now drafted is that it does not cover the recovery of money representing property seized. The noble and learned Lord the Lord Advocate has not addressed us on Clause 26, but may I say simply yes, his Clause 26 does cover that problem. I would venture to make only two comments upon that. They are two drafting points and nothing more, but still I believe of substance. My first comment is that the word used in Amendment No. 26—"amount"—is, I suggest, stretching

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the meaning of that word beyond its normal use. Secondly, I suggest that the word "execution" as opposed to the word "obtain", which I use in my amendment, is too restrictive. I make those two drafting comments in the hope that one day the parliamentary draftsmen will harken to my humble suggestions.
The third lacuna is the assignment lacuna. That arises when a judgment debt is assigned from the original judgment creditor to another party. Then the other party is in a position in England to sue on that judgment debt. My suggestion is that it should be covered, and the noble and learned Lord the Lord Advocate has already intimated that it is the intention of the Government to bring in an amendment at Report to cover it.
The final comment which I make upon these four amendments—because they are all, as I have tried to illustrate to your Lordships, "tie-able" up into one parcel—is this: there is a certain difficulty in the clause as drafted. I am referring to Clause 19, as drafted in the Marshalled List. The difficulty is that there is no sentence in that clause. The noble and learned Lord the Lord Advocate is shaking his head. I do not want to get into a dispute about grammar with the noble and learned Lord——
Lord MACKAY of CLASHFERN: If you take account of Amendment No. 18 as well, I do not think I accept that.
Lord HACKING: That is a linkage which does not appear on the Marshalled List. If the noble and learned Lord the Lord Advocate is linking the two together and stretching the words from one clause to another, then we do find a sentence; but certainly we do not find a sentence in the first portion of the clause in Amendment No. 19.
I should like to do this. If he would be generous enough to take this course, I ask the noble and learned Lord the Lord Advocate to consider all four of these amendments to see whether they can now be tied together into one composite clause. If one looks at the Marshalled List, at the moment one has Amendment No. 19, then Amendment No. 26, which covers recovery concerning property; then one has also the helpful undertaking of the noble and
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learned Lord the Lord Advocate to consider assignment. So we have one amendment, then an amendment to an amendment, and then a proposed amendment to an amendment. I suggest to the Committee that it would be helpful if they could be all drawn together into one clause. That is why I am asking the noble and learned Lord the Lord Advocate to be kind enough to approach it in this way.
Lord ELWYN-JONES: I intervene only briefly so as to get in before the noble Lord, Lord Renton, because he, being the Chairman of the Renton Committee on Drafting, would probably say what I am about to say; namely, that the drafting in subsection (1)(a) is breathtaking in its complexity. I wonder whether I may read it out to the Committee.
"Subject to subsections (2) and (3) below the qualifying defendant shall be entitled to recover from the party in whose favour the judgment was given"—
that is fairly easy so far—
"so much of the amount referred to in sub-section (1) above as exceeds the part which bears to the whole of it the same proportion as the sum assessed by the court that gave the judgment as compensation for the loss of damage sustained by that party as bears to the whole of the damages awarded to that party".
I wonder whether that could be reduced to a little fraction. I have seen it done in a Bill. Your Lordships will know the sort of thing that one used to see on the famous blackboard that we have had referred to, in a class at school. It is really extremely difficult.
Lord RENTON: May I say how grateful I am to the noble and learned Lord, Lord Elwyn-Jones. I think there is still a strong case for reminding parliamentary counsel, who do such a magnificent job for us, that even they are capable of still further improvement, perhaps on the lines recommended by the Committee on the preparation of legislation, to which the noble and learned Lord referred. He has given us another example of what is sometimes called an arcane art, which leaves us with long sentences of great complexity, whereas shorter sentences and more subsections would make things more easy.
With regard to the substance of the amendments proposed by my noble and learned friend the Lord Advocate, I

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welcome them, and I do so even though it clearly means that my Amendment No. 22 would fall because it could not be fitted into the drafting (which your Lordships will no doubt accept) of the amendment of my noble and learned friend the Lord Advocate, Amendment No. 19.
I think it is right that when we are trying to introduce these very adventurous claw-back provisions we should do so with great precision, and indeed draw them as widely as possible, because to the extent that we know the claw-back provisions, those who are adversely affected by them—and of course they are over-seas—will take full advantage of the narrowing.
If it is not out of order for me to do so, I should perhaps mention that had it been possible to consider my Amendment No. 22 it would have had the purpose of probing the Government on a matter raised in another place, where the Attorney-General undertook to consider it further. The effect of the amendment was to draw attention to the fact that the clause as drafted and still in the Bill (although it will not be there for long) operates where the overseas authority has legitimately according to its own eyes, but wrongly according to British eyes, exceeded its jurisdiction. So we really must make quite sure that this Clause 6 is widely enough drawn.
I should like to support what the noble Lord, Lord Hacking, said, especially about the position of multiple defendants. Even now that does not appear to be adequately covered by the Bill, and I hope that by Report stage that matter may be dealt with. I should like to make a personal apology to your Lordships. I have a very compelling engagement of long standing outside the House and I shall not be able to remain very much longer.
Lord MACKAY of CLASHFERN: So far as the amendment is concerned, I would invite your Lordships to agree it. I certainly undertake to consider the matters which have been raised, and I am sorry that not even the mellifluous Welsh accent of the noble and learned Lord, Lord Elwyn-Jones, makes this entirely happy. We will see whether we can improve it.
On Question, amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): I have to call your Lordships' attention to the fact that if Amendment No. 19 or Amendment No. 20 is agreed to I shall not be able to call Amendment No. 21.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 19:
Page 5, leave out lines 40 to 44 and insert ("(in this section referred to as a "qualifying defendant") and an amount on account of the damages has been paid by the qualifying defendant either to the party in whose favour the judgment was given or to another party who by virtue of any enactment or rule of law is entitled as against the qualifying defendant to contribution in respect of the damages.
(1A) Subject to subsections (2) and (3) below, the qualifying defendant shall be entitled to recover from the party in whose favour the judgment was given so much of the amount referred to in subsection (1) above as exceeds the part which bears to the whole of it the same proportion as the sum assessed by the court that gave the judgment as compensation for the loss or damage sustained by that party bears to the whole of the damages awarded to that party.").
The noble and learned Lord said: I have already explained this amendment. I beg to move.
Lord HACKING: I am a little troubled that this amendment is being moved at this stage in view of the remarks that I have made to the Committee and the difficulty of proceeding forward on this amendment when the noble and learned Lord, Lord Mackay of Clashfern, has down Amendment No. 26. He has also undertaken to deal with the assignment matter, which again is something which should be incorporated in Amendment No. 19. In those circumstances, would it not be more satisfactory if Amendment No. 19 was not carried?
Lord LLOYD of KILGERRAN: I support the noble Lord, Lord Hacking, in his submission to the noble and learned Lord the Lord Advocate. I have an amendment tabled, No. 21, which I am sure would appeal to the noble Lord, Lord Renton, on account of its clarity, its brevity and its conciseness. If Amendment No. 19 is accepted by the Committee, then my little amendment will fall.
Lord ELWYN-JONES: Will the noble Lord allow me to say that nothing dealing

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with intellectual property is clear or understandable?
Lord MACKAY of CLASHFERN: I would prefer to have this amendment agreed to, subject to the undertaking which I have given; and in that case we would try to improve the clause as a whole, if that is convenient to the Committee.
Lord LLOYD of KILGERRAN: I am not quite sure of the scope of the undertaking given by the noble and learned Lord the Lord Advocate, but will he consider my Amendment No. 21 in that general undertaking?
Lord MACKAY of CLASHFERN: Yes, indeed, I shall be happy to do that.
On Question, amendment agreed to.
5.38 p.m.
Lord HACKING Lord HACKING moved Amendment No. 20:
Page 5, leave out lines 40 to 44 and insert ("(in this section referred to as a "qualifying defendant") and the judgment creditor or any assignee thereof or any other person or any assignee thereof who by virtue of any enactment or rule of law is entitled as against the qualifying defendant to contribution in respect of the damages, has been paid or obtained from the qualifying defendant, or from any company which is (directly or indirectly) wholly owned by him, money or property on account of the damages, the qualifying defendant, subject to subsections (3) and (4) below, shall be entitled to an order under subsection (1A) below.").
The noble Lord said: In view of the position taken by the noble and learned Lord the Lord Advocate on Amendment No. 19, I formally move Amendment No. 20. I have already addressed the Committee on this and I have no further argument to put forward. I beg to move.
Lord MACKAY of CLASHFERN: As I said earlier, this raises the question of the assignee—a rather difficult question which we are hoping to solve in due course. I would ask the noble Lord to be so good as to withdraw this amendment, on the undertaking that we shall endeavour to cover this matter and possibly some related matters in an amendment to be brought forward at a later stage.
Lord MISHCON: May I try to help
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by saying that as one who dealt with the question of assignment on Second Reading I consider that the noble and learned Lord has dealt with that suggestion very generously today, and I certainly have no objection to this matter waiting until the Report stage, so that we may see the clause.
Lord HACKING: If I may say so to the Committee, that is entirely satisfactory. The Committee has already heard me express more than once my concern as to how these clauses should be joined together; the noble and learned Lord the Lord Advocate has made his response, and in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.40 p.m.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 24:
Page 6, line 1, leave out from ("(2)") to ("is") in line 2 and insert ("Subsection (1A) above does not apply where the qualifying defendant").
The noble and learned Lord said: This amendment is consequential, and the same applies to Amendments Nos. 25 and 26. I beg to move.
On Question, amendment agreed to.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 25:
Page 6, line 7, leave out from ("(3)") to ("carried") in line 8 and insert ("Subsection (1A) above does not apply where the qualifying defendant").
On Question, amendment agreed to.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 26:
Page 6, line 15, at end insert—
("() The reference in subsection (1) above to an amount paid by the qualifying defendant includes a reference to an amount obtained by execution against his property or against the property of a company which (directly or indirectly) is wholly owned by him.")
On Question, amendment agreed to.
Clause 6, as amended, agreed to.
Clause 7 [Short title, interpretation, repeals and extent]:
Lord LLOYD of KILGERRANhad given Notice of his intention to move Amendment No. 27:

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Page 6, line 20, after ("Act") insert ("except so far as the context otherwise requires").
The noble Lord said: In view of the undertaking given by the noble and learned Lord the Lord Advocate in regard to amendments to Clause 6, I do not propose to move Amendment No. 27.
[Amendments Nos. 27 and 28 not moved.]
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 29:
Page 6, line 32, at end insert—
("() Subsection (4) above shall not affect the operation of the said Act of 1964 in relation to any directions given under that Act before the passing of this Act.")
The noble and learned Lord said: The purpose of this amendment is simply to keep in being action taken under the earlier Act, although this Bill will repeal it. I beg to move.
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
Title agreed to.
House resumed: Bill reported with the amendments.

RULES OF THE SUPREME COURT (WRIT AND APPEARANCE) 1979
5.43 p.m.
Lord ELWYN-JONES: My Lords, this is a matter which very much concerns the noble and learned Lord the Lord Chancellor. The admirable expedition with which the previous Bill was completed in Committee may have taken the noble and learned Lord and his staff a little by surprise. I do not know whether it would be convenient and in order in the circumstances for the House to adjourn during pleasure for five minutes. If the acting Chief Whip on the other side has no objection, may I venture to suggest that we adjourn for five minutes?
Viscount LONG: My Lords, I beg to move that the House do now adjourn during pleasure for five minutes.
On Question, Motion agreed to.
[The Sitting was adjourned from 5.44 p.m. to 5.49 p.m.]
Lord MISHCON: My Lords, may I immediately say how happy I am to see the noble and learned Lord the Lord Chancellor now sitting on the Woolsack. I beg to move the Motion standing in my name on the Order Paper, and to ask for your Lordships' indulgence if my speech is longer than the allotment to which I normally limit myself. I have, however, to deal in an unusual manner with an unusual matter so far as many of your Lordships are concerned, which is surrounded by unusual facts and circumstances, and I must, in view of its importance, try to do justice to it.
My Lords, the Motion asks,
"That an humble Address be presented to Her Majesty praying that the Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716), laid before the House on 20th December 1979, be annulled.".
As your Lordships may know, the Statutory Instrument is the means by which the Supreme Court Rule Committee—whose membership includes members of the Judiciary and of both sides of the legal profession under the chairmanship of the Lord Chancellor of the day—make, under a statutory power, rules regulating the practice and procedure of our Supreme Court of Judicature. The only method by which the exercise of their power in this connection can be challenged, or indeed debated in Parliament, is by the procedure that I have had to adopt; namely; this Prayer for annulment of the Statutory Instrument in question.
I cannot move to annul only a part of it, although I would make it clear from the outset that my attack is directed solely to that part of the Instrument which removes the Royal Command and, indeed, all direct reference to the Monarch from the High Court Writ of Summons on which it has appeared in approximately its present form since the Uniform of Process Act 1832, but which has constitutional and symbolic origins going back over 700 years in our legal history. It had its origins even before Henry II in whose reign the writ was issued via the sheriff, who was ordered to summon the defendant in the name of the King. Holdsworth, in his History of English Law, dates the issue of original writs by the Chancellor at 1238 and writes:
"The English legal system had become a system of royal justice. This royal justice must be called into action by original Writs which must be sealed by the Chancellor".

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The only time in our long history since those ancient days until now when the Royal Command on the writ has not been present, was rather understandably, during the Commonwealth, and then, by ordinance, the writs ran in the name of the Protector. All that is now to remain on this writ by way of reference to the Sovereign, under this Statutory Instrument, will be an insertion of the Royal Arms at the top of the form, which your Lordships may well think will make the document look like a typical form emanating from a Government Ministry.
I understand that a similar Motion to mine has been put down in another place at the instance of two honourable Members, but has not yet been debated. Only so that it may be apparent—although I should have thought it obvious in any event—that party politics in no way intrudes into this matter, do I mention that both of these honourable Members sit on the Government side and that I speak from these Benches as an individual Member of your Lordships' House and in no other capacity whatsoever.
I turn first to what is involved. As your Lordships will know, a writ is the usual way in the High Court of commencing a civil action in which a plaintiff claims his rights and remedies at law against a defendant. Based upon an old and valuable tradition that the subject looks to the Sovereign as the fountain of justice to see that his cause is attended to and that the dispensation of justice in this land is not dependent upon the transient Government of the day, or indeed upon some Ministry of Justice, and as a constant reminder of that, and whatever be the wording adopted for good or ill elsewhere in our courts or tribunals, the present High Court writ is addressed to a defendant with the words:
"Elizabeth the Second by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of our other realms and territories, Queen, Head of the Commonwealth, Defender of the Faith".
It continues with a command to the defendant to enter an appearance to the suit of the plaintiff. That merely means completing a form and is now, by this Statutory Instrument, very sensibly to be dealt with by a form of acknowledgement of service. The writ then further tells the defendant what he must do if he
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wishes to defend the action; what may happen to him in default; and how to act if he wishes to admit a liquidated claim.
Again let me make it clear at once that there is a good case for simplifying and clarifying the present wording of the writ and tonight I have no quarrel with the Rule Committee for their amendments in that context. That, however, has nothing to do with the deliberate removal of the Royal Command, that the defendant, should under the amendments elsewhere contained in this Instrument, acknowledge service of the writ and deal with the plaintiff's claim whether by admission or denial, or suffer the effects of default by judgment being entered against him.
What are the arguments for the removal of this traditional and symbolic wording? In my submission, they have to be over-whelming before one embarks upon the dangerous exercise of removing what is said to be a fiction—not to be confused with delegation which I submit this is—or what is thought superfluous when one is dealing with a tradition associated with the Crown. It is very easy and very dangerous in that way to create precedents for future Acts you know not of. In my humble submission—and I unashamedly regard the concept of the Monarchy in our constitution and in the life of the nation as a rock of safety and security in an insecure and sometimes insane world—there will be those in the future who will seize upon these precedents for further attempted erosion, if not destruction, of something very precious in our national life. To quote but one example, if only, if you like, to show the room for possible misunderstanding—one senior judge in Australia wrote to the Chief Chancery Master, of whose minority report I shall have something to say hereafter, in the following terms:
"I hope you succeed in your battle to retain the Queen's title on Writs of Summons. I thought it was only the would-be republicans in Australia who went on with that nonsense".
As I have said, what are the arguments? At least one of them was considered in fairly recent years by the Evershed Committee presided over by that great Master of the Rolls, and they turned it down. All of the arguments were considered, as your Lordships will hear, only months ago by the Law Reform Committee of the Senate of the Inns of Court

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and Bar and were unanimously found not to be worthy of support. Your Lordships will hear that the Rule Committee itself—the Committee responsible for the present Statutory Instrument—considered them only some 18 months ago and found against them, and came to the same conclusion again less than a year ago.
Having said that, let me summarise the arguments for the omission of the Royal Command. In general terms they are that the Royal Command reduces respect for the law and makes it appear remote and distant from the ordinary life of the people; that it may appear to the defendant that the Sovereign has descended into the arena against him; that it is illogical, unnecessary, fictitious and obsolete; and that there are other forms of process in our courts and tribunals which do not have the Royal Command.
My Lords, if you had the patience I would deal—I hope, effectively—with each and every one of those arguments. I have, however, said that they have been considered by others wiser and more learned than I, and have been found wanting. However, my purpose tonight is not necessarily to prove the case for retention of the Royal Command, sincerely though I believe in that case, but to persuade your Lordships, and I hope upon reflection the Rule Committee, that before the Royal Command is removed there must be the opportunity for public discussion and consideration, which there have not been.
There must be proper consultation, not impeded by any required undertaking of secrecy, with the membership of the legal profession, and unless there is shown to be overwhelming support for this change—and the evidence is all the other way at the moment—no further action should be taken. Because of that purpose, and because I regard it as so important to achieve, I hope to avoid dividing the House at the end of this debate. In this connection, I am aware of the normal custom of this House, but will be appealing to the moderation and public spirit of those in charge of this Statutory Instrument to hear what has been said tonight and to act appropriately.
I turn to the history of this attempt to remove the Royal Command. Let me say at once that nothing in my argument tonight turns upon the retention of that
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"witnessing" by the Lord Chancellor, and if it be practicable to omit it but still to retain the Royal Command, I know of no objection which will be raised on this issue. When he graced the Woolsack, my noble and learned friend Lord Elwyn-Jones decided that it was appropriate to have a review of the whole function of the writ, Appearance and Service; and in June, 1975 he set up an informal four-man working party to look at all aspects of this review, which included the question of the Royal Command. That informal working party consisted of the Senior Master of the Queens Bench Division of the High Court, the Chief Master of the Chancery Division of the High Court, a solicitor who was also a member of the Rule Committee, and a senior officer of the Lord Chancellor's Department.
It is important that I emphasise that the working party records in its eventual report issued in July, 1977, having reminded itself that it was an informal working party—indeed, if I may say so in parenthesis, its creation and operation were unannounced and generally unknown—that it would be a misconception of its status and function if it called for or took evidence, or sought answers to questionnaires, or if it required special statistical material to be provided or collected, or if it sought comparative studies from other countries, and that included the Commonwealth. I repeat, that included the Commonwealth.
It therefore did none of those things. With all these limitations which it imposed upon itself, the working party proceeded with its deliberations and on all matters, other than the omission of the Royal Command, produced a unanimous report. In case it is suggested in this debate that your Lordships are dealing, in regard to the Royal Command, with an issue of little consequence and that heavy weather is being made of a mere raindrop, let me say that the working party itself certainly did not think so. I quote first from a unanimous section of their report:
"There is however one question which we propose to leave for separate treatment at the end of our report, namely, the important question concerning the Royal Command in the Writ of Summons and the teste of the Lord Chancellor. We have unfortunately experienced a sharp division on this question, the majority of us proposing the omission of the Royal Command on the Writ of Summons and the Chief Chancery Master proposing its retention.

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"In these circumstances we decided that it would be wiser to state the proposals on which we are all agreed, without disturbing the calmness of these waters by the storm of controversy on the subject of the Royal Command in the Writ of Summons. We further decided that it would be wiser that the majority and minority views on this question of principle should be stated separately, so that they can be examined and considered from all sides. We think this is a separate and self-contained question which can be separately considered, and whatever conclusion thereon is finally arrived at should not in any way affect the remaining proposals in this report".
Again, in the majority report, in which this informal working party recommended the omission of the Royal Command, those making that recommendation say:
"These matters are delicate and sensitive and they cannot be dealt with lightly, but must be approached with the greatest care and circumspection … We accept that in view of the very exceptional nature of the subject, there lies a very heavy burden on those who contend that the Royal Command should be omitted from the form of the Writ of Summons to establish, by an overwhelming and convincing case, that it would be right and proper to do so".
The reports of the working party were duly submitted and were passed by the Lord Chancellor's Department under strict confidentiality to the Council of the Law Society who passed them for consideration to their Contentious Proceedings Committee and also, under strict confidentiality, to the Senate of the Inns of Court, who passed them for consideration to their Law Reform Committee. The Law Society Committee found itself equally divided on the question of removal of the Royal Command and said so, and, therefore, in that sense did not support the recommendation for the removal.
The Law Reform Committee of the Senate, however, set up a special working party under the distinguished chairmanship of Mr. Charles Sparrow, Q.C., who had as his fellow members representatives of the Queen's Bench Procedure Committee of the Bar, the Chancery Procedure Committee of the Bar and the Family Law Bar Association. They reported back in May 1978, only some 21 months ago, and their unanimous recommendation was, in turn, unanimously approved by the Law reform Committee of the Senate. I read from the report which was kindly supplied to me by the Office of the Senate:
"Omission of the Royal Command.
We do not approve this recommendation. We support unanimously the recommendation of the Chief Chancery Master".
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That recommendation of the Chief Chancery Master was, of course, the minority report of the working party to which I have referred, and was against the removal of the Royal Command.
In June 1978 the original working party report—that is, the majority and minority reports—came before the Rule Committee, the same committee as is responsible for the Statutory Instrument before your Lordships tonight. By a vote of that Committee, with but one dissentient—and he was a member of the working party and was a signatory of its majority report—the Rule Committee decided against the recommendation of the majority report that the Royal Command should be dispensed with, and supported the minority report of the Chief Chancery Master that it should be retained. The Senate was so informed; so was the Law Society. Both bodies, I am assured, were content with this decision and that this issue had, as they thought, been respectably interred.
As recently as April 1979, but nine months ago, a formal document from the Lord Chancellor's Department, with some amended draft rules relating to all the other matters dealt with in this Statutory Instrument, was sent for consideration, again under the umbrella of confidentiality, to the Senate, the Law Society, and, by special leave obtained by the Law Society, to the London Solicitors' Litigation Association, the Rule Committee having met in March 1979. May I read from that April 1979 document.
"There was a difference of opinion amongst the members of the working party as to whether the Royal Command should be omitted from the Writ. The Rule Committee preferred the minority view of the Chief Chancery Master that it should be retained".
The document goes on to refer to the new form of writ proposed, and deals with it as follows:
"The new form of Writ presented in the draft amendments while retaining the Royal Command …".
The professional bodies were left in no doubt whatsoever that the Royal Command was in the new form of writ proposed by the Rule Committee and that as I have said, the issue of removing the Royal Command was dead and buried and now had a formal memorial. That was, I repeat, in April 1979.
With the sole purpose of getting the chronology and record right, may I bring

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to your Lordships' recollection that a certain national event occurred at about this time which led to the noble and learned Lord, Lord Hailsham, gracing the Woolsack for a second time. I pause here appropriately, and indeed with appropriate respect, before telling your Lordships of the opening of an amazing chapter in this saga.
Very soon after May 1979 rumour had it that the Rule Committee, over which the noble and learned Lord the Lord Chancellor presides by virtue of his office, was being asked to consider again the omission of the Royal Command as to which they had come to a firm, recorded and published decision only a short time before. The Chief Chancery Master, to whose minority report, previously supported by the Rule Committee, I have referred, was told that this was a fact and ventured to express views—views which of course he had consistently held—to colleagues and others of the legal profession. He was in no way responsible for any communication whatsoever to the media.
The Chief Chancery Master was not only told that in discussing the matter as he had he was guilty of some dereliction of duty, but was verbally informed at the very highest level that he had committed an offence under the Official Secrets Act. In endeavouring to achieve by this speech the purpose of which I have informed your Lordships, I am intent on keeping a moderate tone. Perhaps indeed silence in this context may be more eloquent than words. I shall therefore merely say that the Chief Chancery Master decided to resign the high position which he had held with such distinction, so important to him was this issue, in order that there could be no limitation upon his right to say and write what he felt about it.
Perhaps I may be permitted to add that he is, and will continue to be, respected and indeed loved by his colleagues and the members of the legal profession who have appeared before him, whether they agree or disagree with his views on this matter, as a man of principle, and that he will be honourably remembered as a fine Chief Chancery Master, and not least for the manner of his going.
My information is that the only way by which the Senate and the Law Society
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were officially informed that it had been decided to reopen the matter of the Royal Command was in November last when they were sent a copy of an agenda, as is the usual courtesy practice, for a meeting of the Rule Committee to be held on 26th November last. That agenda had as one of its items the Lord Chancellor's intention to reopen with the Rule Committee the matter of the Royal Command on the writ.
At that meeting of 26th November, the Rule Committee—apparently at the invitation of the Lord Chancellor—reversed its previous decision. No communications were sent to inform the Senate or the Law Society that the Rule Committee had done so. No explanation has been given to this very day as to why the Rule Committee decided to change its mind. There has been no information as to new arguments or evidence.
I believe that I am right in saying, but no doubt I shall be corrected by the noble and learned Lord the Lord Chancellor if I am wrong, that there has been no consultation with the Law Commission. As for the public and Parliament, there has been no opportunity whatsoever to discuss this question except as a result of this Motion tonight. This was a question described as—and I repeat the words used in the majority report which the Rule Committee has, by changing its mind, decided to support—"delicate and sensitive"and as having to be"approached with the greatest care and circumspection", and as imposing, by virtue of "the very exceptional nature of the subject, a very heavy burden on those who contend that the Royal Command should be omitted to establish by an overwhelming and convincing case that it would be right and proper to do so".
Far from the case for the removal of the Royal Command meriting any such description as "overwhelming and convincing", it is one unsupported by the appropriate committee of the Law Society, unanimously opposed by the appropriate committee of the Senate, and only so very recently dismissed with but one dissentient by the same Rule Committee responsible for the Statutory Instrument which now seeks to remove the Royal Command—and discussed by nobody else.
The right is given under the appropriate statute for the Lord Chancellor and any

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four members of the Rule Committee to make new rules. I very much hope that it may be possible as a result of this Motion for there to be some concession—that is all I seek—which will enable a statement to be made before this debate concludes that what has been said in this debate will be brought to the attention of the Rule Committee, and that in view of what I hope will be the expressed feeling of this House, the Rule Committee will be recommended by their chairman, the noble and learned Lord the Lord Chancellor, who has the respect of us all, by a further speedy and short Statutory Instrument, which can so easily be prepared in this instance, to reproduce all the reforms otherwise provided by this Instrument but to reinstate the Royal Command in the new form of writ.
The new Statutory Instrument could easily be effected at the same date as the date of operation of the present Instrument, namely, June next. If the Rule Committee decide not to do this, despite the noble and learned Lord's advice, if he is prepared to tender it, then I hope that at least we will hear that the committee would be advised by him, by the same means, to defer the date of coming into operation of that part of the Statutory Instrument which effects the omission of the Royal Command until such time as the Rule Committee has had the benefit of considering views, capable of being expressed, in full and public discussion and after proper and uninhibited consultation with all those directly concerned in this matter, not least the professional legal bodies who would now be free to test the opinion of their membership, who are in daily contact with plaintiffs and defendants and who have experience of day-to-day practice in our courts. I may add incidentally that these bodies are, to my own knowledge, most unhappy about the requirement of strict confidentiality which is imposed on them in connection with proposed amendments of the Rules, a matter which, one would have thought, scarcely merited such strict security.
I was handed only an hour or so ago the 16th Report from the Joint Committee on Statutory Instruments and, as your Lordships will know, that committee is not empowered to express any views on the merits of a Statutory Instrument.
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That report was available in both Houses only this morning and I feel that I should, very shortly, read from it:
"The Committee draw the special attention of both Houses to the Rules of the Supreme Court (Writ and Appearance) 1979, Statutory Instrument 1979, No. 1716, on the ground that their purport calls for elucidation. The Rules amend the Rules of the Supreme Court mainly by prescribing new forms of Writ of Summons and replacing the entry of appearance by acknowledgement of service. In the Committee's opinion, the new form of writ makes an important change in court procedure by the omission from it of the Royal Command to a defendant to enter an appearance. The purport of this change has been elucidated in oral evidence submitted by the Lord Chancellor, Chairman of the Supreme Court Rules Committee".
I am really indebted to your Lordships for your patience and forbearance and apologise again for detaining the House so long. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the Rules of the Supreme Court (Writ and Appearance) 1979 [S.I. 1979, No. 1716], laid before the House on 20th December 1979, be annulled.—(Lord Mishcon.)
Lord AIREDALE: My Lords——
6.25 p.m.
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): My Lords, I was intending to address the House, but if the noble Lord, Lord Airedale, wishes to speak at this stage——
Lord AIREDALE: No, my Lords.
The LORD CHANCELLOR: I think it would be for the convenience of the House, my Lords, if I replied at once to the various arguments which have been presented with great clarity by the noble Lord, Lord Mishcon, because I do not think he has given at all a fair or full account of what has taken place. I cannot of course complain, in view of the report of the Committee on Statutory Instruments, that he should have brought the matter to the attention of your Lordships; I take it that that was the object of the report.
I should, first of all, explain the capacity in which I now address the House. I cannot do so as a Minister of the Crown because the committee whose Statutory Instrument is under discussion is not in any

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sense a Government committee; it is a committee of which the Lord Chancellor is chairman, and I would respectfully like to set out the composition of the committee to indicate exactly who belongs to it; and I am reading from the Supreme Court of Judicature Act 1925. It is a committee composed of the Lord Chancellor, together with any four or more of the following persons: the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, four other judges of the Supreme Court, two practising barristers—who in practice represent the Senate—two practising solicitors of whom one shall be a member of the Council of the Law Society and the other a member of the Law Society and also of a provincial Law Society.
The rule which has now been under discussion is signed not only by myself but by Lord Widgery, Lord Denning, Sir John Arnold, Sir Robert Megarry, Sir John Donaldson, Sir Hilary Talbot, Sir Patrick O'Connor, Mr. Maurice Price, Mr. John Toulmin, Mr. Montgomery Campbell and Mr. Harold Hewitt, two of the last four being practising barristers representing in effect the Senate and the last two representing the Law Society.
The first thing I should like to say about that committee, with great respect to the contrary impression, I hope unintentionally, conveyed by the noble Lord, Lord Mishcon, is that anybody who thinks that a committee so composed, mostly of Privy Councillors and almost entirely of the senior judiciary, would do anything which would diminish the authority or position of the Crown or the monarchy in this country, is not only unthinkable but, I would venture to suggest but for the speech to which we have just listened, ridiculous.
It is quite clear that a committee so composed would not entertain for a moment a proposal which either was calculated or likely to have that effect. And I must say this in view of the references to the late Chief Master of the Chancery Division, who is not a member of the committee and never has been, and to the various suggestions implicit in the noble Lord's speech and explicitly stated in a letter to The Times by Mr. Ball; that anybody who thinks that I myself could override or steamroller the views of a
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committee so composed is also being insulting as well as ridiculous; insulting to the committee and, in fact, ridiculous.
The idea that those people whose names I have read out could be overridden or stampeded by the Lord Chancellor is one which does not bear examination for a single moment. I must add this in my own defence, since a veiled attack has been made upon me. If I had the power to try improperly to influence the opinion of the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, Lord Justice Donaldson, Mr. Justice Talbot, Mr. Justice O'Connor and representatives of the Law Society and of the Bar, I simply would not wish to exercise it. I am the Chairman of the Committee, and I am nothing else. I must add this to what I have to say to the noble Lord, Lord Mishcon. Although I might have an opinion about the subject of discussion before the Rule Committee, if I found that there was an equality of vote, or any serious divergence of opinion in which I exercised a casting vote, I would always exercise it against change, not because necessarily I do not favour change, but because I regard the position of a chairman in such a situation as one in which a casting vote should be exercised on principle, rather as the Speaker of the House of Commons exercises his casting vote when there is an equality of vote.
I must say that not merely have all those persons signed the Rules which have been so severely censured by the noble Lord, Lord Mishcon, but I think that every member of the committee was present. They not only signed them, but they were unanimous in support of them. The idea that I can advise the committee or recommend the committee, or do those things which the noble Lord, Lord Mishcon suggests that I should do, is one which is quite contrary to fact. What I can do, and what of course I shall do, is to convene a committee which can consider what the noble Lord, Lord Mishcon said; and it can consider the report of the Statutory Instruments Committee. Of course the committee can be reconvened, but the idea that I could influence it, if that was not its opinion, is one which I must steadfastly resist. It is a committee of which I am chairman in virtue of my office as Lord Chancellor, and nothing else, and I will not try to influence its opinion on matters upon which it is qualified to

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adjudicate or which depend upon its own professional judgment. I can bring a matter to the attention of such a committee, but I cannot compel it to do anything.
Lord MISHCON: My Lords, I am absolutely delighted to intervene for one purpose, and I am most grateful to the noble and learned Lord Chancellor for allowing me to do so. If my censure tonight can be turned upon a committee, I should feel very much more gratified because then I should know that there was no question of a personal remark or of any kind of argument being directed to the noble and learned Lord the Lord Chancellor himself. While I am on my feet, may I say I know that the noble and learned Lord would never wish to mislead the House. I have it on the authority of the Senate and the Law Society that their members who are on that committee are in no way representatives of either the Senate or the Law Society; they are merely their nominees, at the request of the noble and learned Lord.
The LORD CHANCELLOR: Of course they are nominees, my Lords, but they are in fact the channel through which the Committee, when matters are under discussion, consults the two branches of the profession. That is what happens, and that is why they are there; and they have in fact exercised that right, as I believe, to the full.
Having said that, let me now turn to the form of the originating process in the High Court, which is what we are discussing. It is of course, true and I suppose that there would not be a Member in this House, with possibly only one exception whom I can think of, who would not recognise the Queen as the fountain of all justice in this country; and we all would. Speaking for myself, and having been deeply wounded by some of the implications which have been made, may I say that I have been a Privy Counsellor since 1956. I have on many occasions sworn both the Oath of Allegiance to Her Majesty and the judicial oath which binds me to serve Her Majesty. I was deeply wounded by the suggestion that I would be even a party—even as a minority—to a view which would undermine the position of the Monarchy as
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the fountain of justice. All the courts of this country—and I am speaking, of course, in particular of England and Wales but I see the Lord Advocate present, and no doubt if there were a representative of Northern Ireland he would say the same—are the Queen's courts. The law which is administered is the law of the Queen in the sense of the Queen in Parliament by statute, or the Queen's Peace by common law.
All the judges of those courts, except in the Duchy of Lancaster, are the Queen's justices. They are the Queen's justices, from the lowest JP, most recently appointed, to the Lord Chief Justice and the Master of the Rolls themselves, and for that matter, the Lord Chancellor. They take the oath to serve Her Majesty in the office of justice of the peace—or Lord Chief Justice.
The idea that any process in any court requires a Command from the Queen to make it the Queen's justice is, I should respectfully have said, but for the speech to which we have just listened, a simple piece of legal nonsense. The great majority of processes in the courts of this country do not bear the Queen's name or Title, or the Queen's Command. This is true from the information before a petty sessional court to a number of processes in the High Court. The noble Lord gave the impression that the Queen's Command was the sole, or ordinary, method by which High Court proceedings are started; this is not so. One has only to look at Order 5 of the Rules of the Supreme Court to be able to point out that a bankruptcy petition, a petition for divorce, an originating summons in the Chancery Division, an originating motion in the Chancery Division or the Queen's Bench Division, or an ex parte summons—none of these bears the Queen's name, or the Queen's Command. But they are equally demands for justice in the name of the Queen, in front of the Queen's court.
This, of course, is true in every court in the land. In the county court, before which by far the largest quantity of civil litigation takes place, the Queen's name and the Queen's Command are not part of the originating process at all, and so it is true throughout the criminal courts of the country, although the Queen herself in such a case is the prosecuting party

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nominally. So the idea that the process of the Supreme Court necessarily involves, as part of our respect for the Monarchy, the Queen's name, is not only dangerous, but it is undermining of the whole position of the Monarchy in relation to the administration of justice in this country.
The Queen's justice is administered just as much in the county court as it is in the High Court, just as much when a divorce petition is heard, as when there is an action concerning the collision of two ships at sea. The writ is issued in the High Court in what I would almost call, without disrespect, a ragbag of different residuary actions which are not started in any other way. Typical examples would be an action involving a collision between two motor cars and a pedestrian in Piccadilly Circus, or an action for the price of goods sold and delivered. The question we have to consider, when we are considering the form of originating process in the High Court, is whether much assistance is gained from the Royal Command.
My experience, which goes back for I think 50 years or so at the Bar and four years as Lord Chancellor—and I am very happy to see the noble and learned Lord, Lord Elwyn-Jones, in his place—is that a very great deal of unhappiness, abuse and misunderstanding is in fact caused by the present form of the writ. It is directed to the defendant, it begins with the Queen's Title, and it then says:
"We command you that within 14 days",
and so on, and then:
"Witness: Quintin McGarel Baron Hailsham of Saint Marylebone",
Or,
"Elwyn Elwyn-Jones",
as the case may be and as the fortunes of political warfare cause one to change to the other. It does not tell you on its face either what the writ is or what the defendant is expected to do, except that he is to enter an appearance, which as a matter of fact he is under no obligation to do.
My Lords, if you really respect the Monarchy in this country, as I do and as I have no doubt the noble Lord, Lord Mishcon, does, you do not want it to say something which is basically ridiculous; you do not want it to be associated with anything which is ignoble, and, above
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all, you do not want it to be associated with something which is an untruth. On the face of the writ at the moment there are three or four rather palpable untruths. One is that the Queen has issued a command. She has not, because the defendant is not under an obligation to do anything. The second is that the Lord Chancellor has witnessed it. He has not, because he has witnessed nothing; the thing has been bought out of a law stationers. Until you look at the back of the writ you do not know what the thing is about or what you have got to do, because it contains something perhaps not more informative than that the plaintiff's claim is in damages for negligence. So the writ is not a satisfactory document as it stands. That is in contrast, for instance, to a county court summons, which tells the defendant exactly what the claim is that is made about him and what he has got to do about it when he gets it. What he has got to do about it, or what people want him to do, if he wants to defend the action, is to say, first, whether or not he has received it; secondly, whether he admits the claim or he does not; and, thirdly, if he does not admit the claim, whether he is going to defend it on the grounds that he has a defence on the merits or on the grounds that he disputes the jurisdiction of the court.
Perhaps I may just say this by way of light relief, though it is not really so much light relief as an illustration of the kind of thing that happens. I put before your Lordships the kind of misunderstanding which arises from the form of writ which is now before the House. I will tell the House in a moment the more serious misunderstandings, but this is a letter which was put into my hands only this week. It is a letter written by a defendant to his solicitor. The defendant had received a writ, and he writes to his solicitor as follows:
"Regarding the writ issued in this matter, a copy of which we enclose, we would inform you as follows:
"On the 30th October 1979 a gentleman by the name of Quintin Hailsham, we believe, acted on behalf of W. Sadler. A test drive of the vehicle, Volvo HUW 497 N took place, and he left £10 deposit after a satisfactory test drive. We the above company agreed with Mr. Hailsham to check the car over and make the car satisfactory for Mr. Sadler".
He had mistaken the words "Witness—Quintin McGarel Baron Hailsham",

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and believed that I was the witness in the case. I do not altogether blame him for thinking that when it said "Witness" it meant witness.
My Lords, the noble Lord, Lord Mishcon, suggested that it would be proper to omit the Lord Chancellor's name but to keep the Queen's name on it. That is the one thing which would be constitutionally impossible, because where the Queen's name appears on any document, so far as I know, either the Lord Chancellor's name or that of some other responsible Minister must appear on it to attest it. You can have both or you can have neither, but you cannot have one without the other. That, I should have thought, was really constitutionally elementary in England. I do not know whether it is true in Scotland, but it is true in England. At any rate, the form which I have read out dates, as the noble Lord pointed out quite accurately, from Henry II. In those days the King or the Queen actually signed the top of the document and the Lord Chancellor actually signed the bottom of the document. What happened to the defendant if he did not appear—because the word "appearance" is used even to this day—was that he was arrested and dragged in front of the court. That was literally true until 1832, when this archaic form of language was retained but the obligation physically to appear and the liability to arrest disappeared. So, really, it is not surprising that the Rule Committee should think that this extraordinary piece of archaism should be revised. The question is: How?
I must add at this stage that although Messrs Sadler (or whatever their name was), who mistook me for the witness in the case, were perhaps an unusual example of the misunderstandings which arise. I can say from my experience that a fairly regular trickle of people write to me—old ladies who have been served with writs, old clergymen, people who do not really know—having been frightened out of their wits by this document. They write to me saying, "How could you endorse, or use Her Majesty's name to endorse, a claim which is so fraudulent as that of the plaintiffs?" They complain of the Lord Chancellor primarily, but latterly also of Her Majesty. Indeed, I can remember shortly after I became Lord Chancellor sending such a document to the noble and
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learned Lord, Lord Elwyn-Jones, and asking him to deal with it on my behalf; to explain in terms that the Queen really had nothing to do with it although the justice was her justice, and, as for the Lord Chancellor, he had witnessed nothing because the form had been bought from a law stationers' and he had never seen it.
Lord ELWYN-JONES: My Lords, I dealt with the question of the noble and learned Lord in my subsequent communication to the person in question.
The LORD CHANCELLOR: I forget what the noble and learned Lord said, but what he says is always nice, always courteous and always sensible. At any rate, he was not the author of the letter. I can recall another case when I was a member of the Bar. There was a vexatious litigant who, not wishing to pay the £5 necessary to get the seal of the court put on the writ, bought 25 or 30 of these forms from the law stationers' at a time, and fired them off against defendants, all of whom were greatly frightened, did not know what to do and were put to a great deal of expense and trouble because they saw the Queen's Command and the Lord Chancellor's name on the document which the vexatious litigant had bought. This caused a very great deal of unhappiness and a great deal of expense.
It is of course quite true that in 1975 my predecessor referred this, not unnaturally, among other things, to the Rule Committee for consideration. Of course, I am not allowed officially to know (though I suppose I can know perhaps more than I am allowed to pretend I know) the course of events which took place during the tenure of his Lord Chancellorship. At any rate, by the time I became Lord Chancellor—and I do ask the noble Lord, Lord Mishcon, to disabuse himself of the idea that I was the initiator here—there was in fact, in addition to the documents which he described, a report from all the Queen's Bench Masters, going up to the Senior Master, Sir Jack Jacob. They suggested the dropping of the Command and the dropping of the teste, and, indeed, a form of writ which was basically that which is now contained in the Rules of which such complaint is made.
What did I do, having just taken office? I referred it to the Rule Committee, and

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I asked for a further investigation and a further consultation to take place. That was the only thing I did, although I happened, as a matter of fact, to agree with what the Masters had suggested. But that is what I did. What was the result of what I did? That was rather remarkable. I think that it was so remarkable that I had better refer to the original document because, having referred to the Rule Committee, I woke up one morning, having, as far as I know, done no harm to anybody during the night, to read the "William Hickey column in the Daily Express:
"Hailshamv. Regina sparks legal row. Within weeks of taking office as Lord Chancellor, Lord Hailsham has created a major row in the High Court directly involving the Queen. Already one major figure has threatened to resign over Hailsham's controversial decision to eradicate the Queen's name from all High Court writs"—
I had made no such decision—
"and a major debate involving judges and such figures as Lord Denning will have to thrash out the history-defying decision. In the forefront of the quarrel is the Chief Master of the Supreme Court, Robert Ball, who has warned Hailsham that he will quit his £18,000 a year job if the Queen's name goes."
At that stage I had had no communication from Master Ball.
"This does not quell the twice-times Lord Chancellor who says the Queen's name on writs frightens people and has no legal significance these days".
Then it referred to my private secretary and said that, according to Mr. Montgomery Campbell, who is one of the members of the committee, I was as much in favour of the Royal Family as anybody but the Royal Command should be dropped. "'It is a nonsense ', he trilled". How Mr. Montgomery Campbell trills, I do not know. It went on:
"As the beaks bounce on their benches with rage, the Chief Master of the Supreme Court broke ranks long enough to tell me, 'I have said a lot about this already and if things go a certain way, I will be saying a great deal more. Make no mistake. This is the start of a big one'."
Having woken up to this with my breakfast coffee, I naturally wondered what it was all about. I was, at first, extremely incensed with William Hickey but when I got to my office I was told there was no doubt whatever that Master Ball was the author of the story, and so far from being innocent of the leak, he has since written a letter, of which I hold a copy, in which he confesses to three separate telephone
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Conversations leaking the matter to William Hickey's representative on the Daily Express. So I could hardly blame Mr. Hickey.
Since Master Ball had once again breached confidence—and I certainly admit to the noble Lord, Lord Mishcon, that up to this moment he had enjoyed my complete confidence and my complete sympathy, although it was not very well merited—I sent for Master Ball and asked him to explain how the matter got into William Hickey in this form and why, if it had got into William Hickey, it was not more truthful? After a certain amount of bluster, Master Ball had to admit frankly that he was in fact the author of the leak.
The noble Lord, Lord Mishcon, says that on that occasion I threatened him with the Official Secrets Act. I do not blame Lord Mishcon for saying it because Master Ball wrote to The Times. In the ordinary course, conversations between the Lord Chancellor and the judiciary are absolutely confidential; and nothing except a breach of confidence would have led me to tell the House exactly what I said to Master Ball. But I happened to make a record at the time and I know exactly what I said. I said to him that the agenda of the Rule Committee was always confidential and that those who happened to know its contents should communicate it only to those who had need to know; and that to communicate it to William Hickey was doubly indefensible. I said that the duty of confidence was even more important where the Queen's name was directly involved and that that made his behaviour even more difficult to understand.
By the time I saw him, I had seen a letter to one of my senior officials in which he had threatened to resign if the Rule Committee decided in a way with which he disagreed. I told him that this was a most improper action on his behalf. I told him that he had no right to seek to blackmail the Lord Chief Justice and the other distinguished members of the committee by threats of resignation. It was for them to decide what the Supreme Court was to do; and they were not to be threatened by the Chief Master of the Chancery Division. Up to that moment I had made no reference to the Official Secrets Act at all.

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Then this is what I said—I remember the exact words—"If you were only a junior official, I should have to remind you of your duty under the Official Secrets Act; but it is my melancholy duty now not to do that but to tell you that it is a melancholy day when the Lord Chancellor has to remind the Chief Master of the Chancery Division of the obligations of a gentleman." If that is threatening him with the Official Secrets Act, I can only say that it is not my idea of threatening a man under the Official Secrets Act. Indeed, I have not studied the question of whether a Chief Master of the Chancery Division who had behaved in this way was, in fact, subject to the Official Secrets Act. I have not studied it to this day.
To say that he did not communicate with the Press, to say that he had been entirely discreet in his dealings with the Press, is to say what is, in fact, not so. I told him to go away and consider his position—leaving him in no doubt whatever that he must either send an unqualified apology to me or resign. He sent me an unqualified apology—which I accepted—not a word of which he communicated in his misleading letter to The Tines after-wards.
In fact, the Rule Committee had not met and did not meet until November. The only part I played in the preparation of the agenda was to tell the secretarial staff to frame two alternative versions of the originating process, one of which contained the Queen's Command in a changed form which might not frighten people and contained the view of the majority of the working party (in which Master Ball had been in a minority of one) and one which contained no reference to the Queen's Command but did contain what the Masters of the Queen's Bench Division thought was a more suitable version, which was the Royal Arms instead of the Command. That was the document which came before the Rule Committee on 26th November. I made no attempt to persuade them in one direction or another. I said, "You can do nothing; you can select one of these alternatives; or you can select the other." And unanimously and without pressure from me, they selected the form now before the House.
It is for this that I have been made the
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subject of a concerted attack in the Press, very largely orchestrated by Master Ball. I can say to the House that I have tried throughout my life to serve the law, to serve my Queen, and to serve my country; and that I deeply resent this attack made on me. This does not alter the position. The Rule Committee have to make up their minds between two alternative forms of the originating process. I do not particularly mind which the Rule Committee ultimately chooses or even if the House rocks the whole thing and joins the army of the troglodytes who stop every helpful suggestion for the reform of the law. This is in the hands of the House, and whatever follows will be in the hands of the Rule Committee. All I can say is that I do not believe that the present form is sustainable; I do believe that it diminishes and does not enhance the position of the Monarchy. I do believe that the teste by the Lord Chancellor leads to both injustice and misconception, and I do think that when you are using the Queen's name you should not make her seem to do something which is either untruthful or ridiculous. If we try to frame a Royal Command, saying that you must fill in a form with several boxes in it, putting a tick in the appropriate box, and saying that unless you do this within 14 days certain untrue consequences will happen, when the defendant is not under an obligation to do anything, you are in danger of under-mining the Monarchy and not strengthening it.
Having said that, I want to be as conciliatory as I can to the noble Lord, Lord Mishcon. I am not going to make recommendations to these senior judges. What I will do, in view of what he has said, is to reconvene the Rule Committee and ask them to read his speech and to read anything else which noble Lords may think it fit to say, and come to their own conclusions. I am not going to leave the writ in its present form. They can choose between the form which includes the Royal Command, which I think is then a brutum fulmen, or they can choose the form to which they have adhered by their unanimous decision, which is now under discussion.
If it is suggested that this House ought to reverse a decision of the representatives of the High Court Bench and the two branches of the legal profession when, so far as I am concerned, the fullest

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consultation has taken place through the appropriate lines of communication, all I can say is that that is not the way I could recommend this House to behave. I would urge the noble Lord, Lord Mishcon, to withdraw his Motion on the undertakings which I have given.
I do not know what Lord Elwyn-Jones's practice was when he was chairman of the Rule Committee. I fancy that it was not very much different from what mine is; but, so far as I am concerned, I know the practice while I am Lord Chancellor is to consult as fully as possible with both the branches of the profession and their interested bodies. My normal channel is with the Law Society, on behalf of the solicitors' profession. I leave them to consult subordinate bodies, their provincial societies or the litigating solicitors' association, or whatever it may be.
The same is true of my relations with the Bar. I approach them through the Senate, with whom I wish to have the fullest possible consultation. Except in the very few cases where I am working to a tight timetable, I would wish there to be a very full consultation indeed. I hope that future discussions will be carried on perhaps through the Law Journal or the Law Quarterly Review rather than through William Hickey's gossip column on the instigation of the Chief Master of the Chancery Division.
7.3 p.m.
Lord ELWYN-JONES: My Lords, the noble and learned Lord has addressed a question in my direction. This is a matter for the House to decide and for my noble friend; but the noble and learned Lord the Lord Chancellor has indicated his willingness to reconvene the Rule Committee to examine the matter again in the light of what has been said in this debate and in other places. It would certainly conform with the normal practice of the Lord Chancellor to consult and take soundings from those who are able to advise upon these matters. It is entirely, of course, a matter for the House and for my noble friend whether in those circumstances the appropriate course now would be to accept the willingness of the noble and learned Lord the Lord Chancellor to recall the Committee and to leave the matter there at this stage of the proceedings.
7.4 p.m.
Lord AIREDALE: My Lords, I should like to take this occasion to mention briefly that I think we have here an instance of a defect in our own procedures. Not by any means is this a unique instance but it is an instance. At the conclusion of his magnificent speech—if I may be permitted so to refer to it—the noble Lord, Lord Mishcon, referred to the report of the Joint Committee on Statutory Instruments.
This Instrument came before the joint committee last Tuesday week. I think that I can say safely in the presence of three fellow members of the joint committee that the committee was most deeply grateful to the noble and learned Lord the Lord Chancellor for coming before the committee as a witness and explaining to us in great detail the reasons for the making of this Instrument; and then, with the greatest patience and good humour, answering a number of questions from Members of the committee. In addition to making their report, to which the noble Lord, Lord Mishcon, referred, the committee ordered that the Lord Chancellor's evidence be printed in the hope—as always in the hope—that, if and when the matter came to be debated in the House, this informative evidence would be available in printed form in advance for noble Lords who may be interested.
It immediately became quite clear that there was no hope at all of having the Lord Chancellor's evidence printed in time for this debate, and it was even very doubtful whether it could be available in the printed form by the end of the 40 days that were available to the noble Lord, Lord Mishcon, to move his Motion. So the next best course was adopted: an uncorrected proof of the evidence was placed in the Library. But of course the disadvantage of that course is that it attracts far less publicity than the proper arrival of a printed document in the Printed Paper Office because in the latter case the document is minuted on what I think is called the pink form which is circulated to noble Lords who arc interested; and in that way noble Lords become aware that this document of evidence is available.
So in this case—as in others—noble Lords were deprived of their best opportunity of knowing that the Lord Chancel

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lor's evidence was available in written form. It is rather a waste of public money if a document is going to be printed only after the subject-matter has been debated and the matter has been decided and all the "fizz" has gone out of the subject-matter of the document. I will not weary the House with putting forward remedies for this situation. I am sure that wiser heads than mine can do it better. But I will make one suggestion: in the case of the moving of an Affirmative Instrument, when this is referred to in the Minutes, as when one reads in the Minutes that on 21st February the Earl Ferrers will move a draft order to be approved, one finds in brackets and in italics afterwards:
"[Seventeenth Report from the Joint Committee]."
If that practice were adopted in the case of Prayers to Annul like this, that would be another clue to noble Lords to enable them to discover that written evidence was in existence which they would be able to consult before the taking place of the debate. That is all I have to say and apologise for taking up time.
7.10 p.m.
Lord MISHCON: My Lords, I have no doubt that the intervention from the noble Lord, Lord Airedale, has reduced the atmosphere by giving an interval of time which all your Lordships would want in these circumstances. There is much I should have loved to say in answer to the noble and learned Lord the Lord Chancellor. I am not going to take advantage of it. He has shown tonight, as he has shown throughout his career, the art of the brilliant advocate—if I may say so, a brilliant advocate who forgot to mention, for example, that the Rule Committee he was talking about twice decided to the contrary of what they have now decided and that the Senate of the Bar were equally unanimous in their view.
The noble and learned Lord the Lord Chancellor has been good enough to make the concession that he will convene a meeting of the Rule Committee. I am grateful to him for it; and I am grateful, too, for his assurance that before the Rule Committee come to a decision at all there will be the fullest consultation with all bodies representing the legal professions. I repeat my gratitude and ask leave of the House to withdraw my Motion.
Motion, by leave, withdrawn.

CRIMINAL JUSTICE (AMENDMENT) BILL [H.L.]
7.11 p.m.
Report received.
Clause 1 [Circumstances in which reporting restrictions may be lifted]:
Lord WIGODER Lord WIGODER moved Amendment No. 1:
Page 1, line 5, leave out ("For section 3(2)") and insert ("At the beginning of subsection (2) of section 3").
The noble Lord said: My Lords, Amendment No. 1 is a paving amendment for Amendment No. 2 and, with your Lordships' leave, I will address myself to the two amendments at the same time. As we now proceed to sail on to, I hope, the more placid waters of the prosaic details of this modest little Bill, there are amendments to be presented to your Lordships at this Report stage. They are amendments of some substance to the form of the Bill although they do not in any way alter its intention.
The first two amendments in fact substantially alter the structure of Clause 1 of the Bill and their object is to provide, in a situation in which some defendants on committal proceedings have elected that reporting restrictions should be removed and others wish them to remain, precise criteria by which the magistrates can decide those issues. I ought to say, in putting forward these amendments, that they have taken some little time to emerge since the Committee stage of this Bill. I am deeply grateful to the noble Lord, Lord Belstead, and to his colleagues in the department for their most invaluable help with the drafting of the amendments which are now before your Lordships.
These two amendments, as I say, alter the structure of Clause 1 of the Bill. The original draft of the Bill replaced Section 3(2) of the Criminal Justice Act 1967. The new amendments, as drafted now propose to leave Section 3(2) untouched, so that the new proposals are contained not in a replacement section but in a new section, Clause 3A, which is set out in Amendment No. 2.
The position is that, Amendment No. 2 being the substantial one, your Lordships

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will see that the really substantial part of this amendment is subsection (1) of the proposed new Clause 3A. It deals there with the position where there is an application to lift reporting restrictions and where there is objection to that application. The test that is now proposed by these amendments is that set out towards the end of subsection (1) of the new Clause 3A:
"… the Court shall not make the order if, after hearing the representations of the parties, it considers that any increase in the applicants' chances of securing an acquittal, a conviction or a lesser offence or a lighter sentence would be outweighed by a reduction in the objectors' chances of doing so; and in this subsection acquittal' includes a determination not to commit for trial".
The precise criterion has been the cause of some difficulty in the course of the progress of this Bill. As I originally drafted it, it merely suggested that the criterion should be "the interests of justice". There was considerable discussion about that and, as a test, it was criticised—I concede with some validity—because it was not precise and because it did not give sufficient assistance to magistrates in applying their minds to the problems that are posed, and also because "the interests of justice", as an expression, might be perhaps construed as applying to matters which are not strictly relevant to the actual proceedings with which the magistrates were concerned. Therefore the original proposal, "the interests of justice", came under some criticism, as I say.
At Committee stage, after much reflection, what was put forward was a modification of that and it was suggested that the justices should have regard to the necessity to secure "a fair trial" and that the benefit to the defendant making application was not outweighed by the disadvantage likely to be suffered by any other defendant relating to the trial.
That again came in for some criticism, because primarily the concept of "a fair trial" gives rise to a little difficulty in relation to this Bill. I think all of us know what "a fair trial" is, but on reflection it does appear that the concept of "a fair trial" might include matters which are not relevant to the decision that the examining justices would have to take. For example, it has been pointed out to me that the way in which the trial is conducted and whether, for example, the court was in any way biased, are mat
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ters that would have to be considered if one were asking: is this a fair trial? But that is not the sort of consideration the examining justices would have to consider in deciding whether or not to lift reporting restrictions.
Conversely, the real issue, as was made quite clear throughout the history of the Bill, when reporting restrictions are in issue, is the probability of an essential, a vital or a useful witness being traced. I think that on reflection it could properly be said that "a fair trial" can take place in the absence of a vital or a material witness. Therefore it is now proposed that the test should be the precise test set out in subsection (1) of the new Clause 3A. The magistrates consider, where there is a contested application, what is the increase in the applicant's chances of securing an acquittal, a conviction of a lesser offence or a lighter sentence. They consider what is the position in relation to the respondents', the objectors', chances in that regard, and they come to their decision accordingly.
Of course, as is provided in this subsection—and I am grateful to the Magistrates' Association for this proposal—the word "acquittal" includes a determination not to commit for trial. I would concede that my immediate reaction to that test, as it was drafted and suggested to me, was that it was perhaps a trifle cumbersome; but the more I reflected on it the more it appeared that, though it might appear to be a little cumbersome, perhaps that is something that arises out of the nature of the Bill itself and is not something that could properly be laid by way of complaint against the draftsmen. I now suggest to your Lordships—and I hope you will agree—that that is a clear and satisfactory test which the magistrates can apply. They will know what it is that they have to look for and how to deal with it.
I should draw the attention of your Lordships to the fact that there has been an alteration in this subsection from the previous proposals that were put forward, in that the onus has now been altered to this extent. In the extremely unlikely event that the magistrates came to the conclusion that the chances of the applicants and the objectors were precisely equal, they would allow the application and allow reporting restrictions to be

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lifted. Whereas previously, when we were talking in terms of the concept of a fair trial or the interests of justice, the onus had been put upon the applicants to satisfy the magistrates that it was necessary to lift the restrictions in the interests of justice or to secure a fair trial.
Again, it has been necessary to reflect with some care upon whether this was the fair and proper course to take. It seems to me, on reflection, and having consulted a number of my friends at the Bar, that this is the right way round to put it, for two reasons: first, because it is consistent with the way in which the original parent Act of 1967 is expressed, under which any defendant who wanted restrictions lifted had an absolute right to have them lifted; and, secondly, and perhaps more importantly, if the magistrates came to the conclusion that an applicant had made out a genuine case that it was necessary for his chances of securing an acquittal, a conviction of a lesser offence, or a lighter sentence that restrictions should be lifted, it is right that the magistrates should be slow to come to any other conclusion, and should come to such a conclusion only where the objectors had clearly made out that their case was stronger than that of the applicants.
That, therefore, deals with the main part of the only substantial amendment now before your Lordships, and that is new subsection (1). I should refer briefly to new subsections (2) and (3), which are also part of Amendment No. 2. The new subsection (2) replaces the original attempt in the Bill to ensure that, whether or not reporting restrictions are lifted on the committal proceedings as a whole, they shall continue to apply to the hearing of contested applications as if restrictions have not been lifted.
The reasons for that are, of course, obvious. During the argument—if there is an argument—as to whether or not restrictions should be lifted, there may well be matters said before the magistrates which it is clearly undesirable should be reported until the end of the proceedings. This amendment, as now drafted, will prohibit the reporting of any such matters until the proceedings are at an end, because the case is dismissed by the examining justices, or until the last of the defendants has been tried—if there
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is a committal for trial—and prejudice can thus be avoided. I should add that the last three lines on the first page of the Marshalled List simply make lawful the reporting of the facts as to whether or not restrictions have been lifted. That clearly can prejudice nobody.
The amendment continues over the page with a new subsection (3). That is, I think, a formal matter. The Bill as originally drafted did not include any transitional provisions. This includes the simplest form of transitional provision, by stating that the section would not apply to committal proceedings begun before the commencement of the Act. I hope that those amendments will commend themselves to your Lordships. I beg to move.
7.25 p.m.
Lord MISHCON: My Lords, my noble and learned friend Lord Elwyn-Jones has asked me to apologise to the House, and especially to the noble Lord, Lord Wigoder, for the fact that he has been called away for an urgent appointment. I know that he would have wished, as we all wish, to thank the noble Lord, Lord Wigoder, for again having brought this Bill before us to deal with a matter which is obviously a very important one, and which was emphasised so much in a recent trial.
My only observations relate to the amendment which now finds its way into subsection (2) of the new Clause 3A. It is perfectly true that many of us were worried earlier about too vague a direction to a court, which had to decide on an application whether or not there should be publicity for a trial. I think most of us had in mind that there would very often be a lay Bench, and that they should be directed to a balance of injustices that might occur.
I must confess that I never had in mind that there would be a complicated formula which would make a very substantial hearing of an application of this kind. I now find, as your Lordships do, that what the court is expected to do, after hearing the representations of the parties, is to consider whether the increase,
"in the applicants' chances of securing an acquittal, a conviction of a lesser offence or a lighter sentence would be outweighed by a reduction in the objectors' chances of doing so".

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Then they have to go on to consider whether or not there is any effect on the success of an application made, when there is no case to go to trial. It seems to me, with the greatest respect to the draftsman, that this is going to mean almost a trial of the proceedings before the application is itself properly dealt with.
I am making those observations only in the hope that before Third Reading there may be second thoughts in regard to this question. I do not propose to oppose the amendment as such, but there could be a simplification not only of the wording but of the onus put upon the court, many of us would feel a little more happy. At the moment, it is a very complex matter and we have listened with great attention to the explanation given by the noble Lord, Lord Wigoder. I hope that, on reflection, it can be simplified before the Third Reading.
7.28 p.m.
The PARLIAMENTARY UNDER-SECRETARY of STATE, HOME OFFICE (Lord Belstead): My Lords, I am grateful to the noble Lord, Lord Wigoder, for giving us another opportunity to consider this difficult question of how courts should decide between the competing claims of co-defendants, as regards the lifting of reporting restrictions in committal proceedings. And it is a difficult problem, as our debates so far have demonstrated. The two noble Lords who have spoken have not entirely agreed this evening, and this is the third draft to try to provide guidance to magistrates examining these applications. One thing, however, is certain, that no single solution which has so far been hit upon stands out as self-evidently the right one. Nevertheless, I very much welcome these amendments to which the noble Lord has spoken and, if I may, I will confine my few remarks simply to the effect of subsection (1) of new Section 3A of the 1967 Act.
The noble Lord, Lord Wigoder, referred to the doubts which were expressed in the previous stages of the Bill about whether a general expression, such as "the interests of justice", is too wide and whether it gives magistrates adequate guidance. If he will forgive me for saying so, I take a different view from that of the noble Lord, Lord Mishcon. It seems to the Govern
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ment that this amendment goes to the heart of the matter by attempting to focus attention on the critical considerations in contested applications. Moreover, there is a simplification, in that the narrower focus which this amendment represents should also encourage defendants themselves to confine their representations to the relevant considerations.
When we debated this Bill in Committee I ventured the observation that one of the questions which most troubled the Government was whether it would be reasonable to expect a court to arbitrate between arguments of a very different character and perhaps of different weight. I shall not weary the House by going over that ground again, but it is against that background that I particularly welcome this amendment and why I take a different view from that of the noble Lord, Lord Mishcon.
Lord Wigoder has referred to the fact that reference to "a fair trial", which figured in the amendment at the Committee stage, has now disappeared from the noble Lord's amendment. What this amendment seems to me to achieve is now a balance of like with like, cumbersome though the wording may be. The court is being asked to consider, first, whether the lifting of reporting restrictions would have any effect on the defendant's chances of securing an acquittal, conviction for a lesser offence or a lighter sentence; and if the court considers that a lifting order could have such an effect it must then weigh the beneficial effect for the applicant against the detrimental effect on the objector. In other words, the court is being asked to assign probabilities for two sets of circumstances which I suggest to your Lordships are comparable.
I would not for one moment pretend that this will always be an easy process, but the effect of the wording of the amendment is that guidance is being given to the examining magistrates that an application for the lifting of reporting restrictions will normally be granted unless the objector can show that he stands to lose more than the applicant stands to gain. I agree with the noble Lord who moved the amendment that this is the right way of placing the onus.
I think that this amendment is probably as near as we shall get to a balance be

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tween the conflicting interests of co-defendants and that it gives as much guidance as possible to the magistrates' courts who are going to be required to decide applications on the lifting of reporting restrictions.
May I add one last thing? As your Lordships may remember from the Second Reading debate, the Royal Commission on Criminal Procedure would wish to take into account in their deliberations any clear consensus of parliamentary opinion on this subject. I think it would be rash to predict that we have as yet reached a consensus of opinion. After all, another place has yet to consider the Bill; yet I am sure that the noble Lord's amendment should be accepted as being a very real improvement.
Lord WIGODER: My Lords, I am grateful to both noble Lords who have spoken. If I may say so to the noble Lord, Lord Mishcon, my immediate reaction was similar to his. Then I began to reflect on the amendment which the noble Lord, Lord Mishcon, had himself moved at Committee stage, in which he invited the magistrates to consider whether greater injustice would be done to the applicant by refusing such an order than to any other defendant by making it. The more I thought about it the more it seemed that the only form of injustice which the magistrates could properly consider was the injustice which is now set out in detail in the new amendment. I hope that on reflection the noble Lord will come to the view that the new amendment does meet the point that he has raised. It deals with the test which he proposed but in a rather more precise way and a rather more helpful way to the magistrates. In those circumstances, I hope that Amendment No. 1 will be accepted.
Lord MISHCON: My Lords, this is an evening during which many of us have been asked to reflect again. I, therefore, am pleased to reflect.
On Question, amendment agreed to.
7.34 p.m.
Lord WIGODER Lord WIGODER moved Amendment No. 2:
Page 1, line 7, leave out from ("proceedings)") to the end of line 22, and insert ("there shall be
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inserted the words "Subject to section 3A of this Act".
(2) After that section there shall be inserted the following section—
"Contested applications under section 3.
3A.—(1) Where in the case of committal proceedings relating to two or more defendants—

(a) one or more defendants ('the applicants') apply for an order under subsection (2) of section 3 of this Act; and

(b) one or more other defendants ('the objectors') object to the making of an order under that subsection,

the court shall not make the order if, after hearing the representations of the parties, it considers that any increase in the applicants' chances of securing an acquittal, a conviction of a lesser offence or a lighter sentence would be outweighed by a reduction in the objectors' chances of doing so; and in this subsection 'acquittal' includes a determination not to commit for trial.
(2) An order under subsection (2) of section 3 of this Act shall not apply to reports of proceedings under this section; but any decision of the court to make or not to make such an order may be contained in reports published or broadcast before the time authorised by subsection (3) of that section.
(3) The foregoing provisions of this section shall not apply in relation to committal proceedings begun before the commencement of this Act.").
On Question, amendment agreed to.
Lord WIGODER Lord WIGODER moved Amendment No. 3:
Page 1, line 23, leave out subsection (1).
The noble Lord said: My Lords, this is a technical amendment. The Bill as previously drafted required, I think, a provision that the expressions used in the Act would have the same meaning as in the Criminal Justice Act 1967. The way that the Bill has now been redrafted writes a new section in the 1967 Act. Therefore the interpretation section in that Act suffices, and it is quite unnecessary to have a separate interpretation section in this Bill. I beg to move.
On Question, amendment agreed to.
Lord WIGODER Lord WIGODER moved Amendment No. 4:
Page 2, line 2, at end insert—
("() This Act shall come into force at the expiration of a period of three months beginning with the date on which it is passed.").
The noble Lord said: My Lords, this is a commencement provision which provides that the Act should come into force three months after the date of Royal Assent. Three months has been selected as what it is hoped is a reasonable time after the Act receives Royal Assent for advice to be given to courts as to the details of the new procedures. I beg to move.
On Question, amendment agreed to.