Lords Sitting of 24 January 1980

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

GATWICK: SECOND TERMINAL
Baroness BURTON of COVENTRY: 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 when the projected second terminal at Gatwick will be in operation.
Lord TREFGARNE: My Lords, the British Airports Authority estimate that the proposed second terminal at Gatwick could be in operation in 1985, subject to the outcome of the public inquiry.
Baroness BURTON of COVENTRY: My Lords, will the Minister agree that, whatever may be the outcome of the public inquiry, it is obviously essential that the second terminal at Gatwick is built?—because is that not central to the Government's policy on airports?
Lord TREFGARNE: My Lords, it is, of course, an important feature of our policy, hut, like everyone else, we are subject to the proper democratic processes.

GIBRALTAR: SPANISH RESTRICTIONS
3.8 p.m.
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 their discussions with the Spanish Government have yet resulted in any alleviation in the Spanish attempted blockade of Gibraltar; and
526
what to date has been the cost to United Kingdom public funds involved in countering this unfriendly act.
The SECRETARY of STATE for FOREIGN and COMMONWEALTH AFFAIRS (Lord Carrington): My Lords, there has been some minor alleviation, but the main restrictions on Gibraltar in force since 1969 remain. There was a continuing small-scale development aid programme for Gibraltar long before the restrictions were imposed. But since 1969 when Spanish restrictions were introduced, aid expenditure has totalled £20 million. The aid programme for 1978–81 totals £14 million. Defence expenditure on Gibraltar totals about £37 million per annum, of which some £25 million is spent locally. It is not, however, possible to identify separately the proportion of these costs attributable to the restrictions.
Lord BOYD-CARPENTER: My Lords, in view of my noble friend's frequently demonstrated capacity to solve the insoluble, is it not possible to persuade the present Spanish Government to abandon this last remaining relic of the policy of the late unlamented General Franco, and to persuade them to understand that no British Government could conceivably trade away the rights and wishes of 25,000 people who have stood up to blockade for 10 years in their determination to be British?
Lord CARRINGTON: My Lords, it is certainly the intention of Her Majesty's Government to seek to resolve this problem, and this problem can be resolved only having regard to the British pledge to respect the wishes of the people of Gibraltar.
Lord PAGET of NORTHAMPTON: My Lords, is the noble Lord aware that a good many of us feel that the only advantage which has accrued to Her Majesty's Government from joining the Common Market is that we are in a position to say to the Spaniards, "Pipe down over Gibraltar, or you have no hope of Europeanisation"? Can we be assured that that is what we shall say?
Lord CARRINGTON: My Lords, that perhaps seems to be a rather extravagant way of putting what is, no doubt, a problem that will arise.

THE YEMEN ARAB REPUBLIC: RELATIONS WITH UK
3.10 p.m.
Lord DENMAN: 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 steps they propose to take to restore to total harmony relations between the United Kingdom and the Yemen Arab Republic following the seizure at Heathrow Airport on 30th November last of the aircraft which the Prime Minister of the Yemen was about to board after an official visit to this country.
Lord CARRINGTON: My Lords, Her Majesty's Government deeply regret this incident which came at the end of the first—and very successful—visit by a North Yemen Prime Minister. However, I am glad to inform the House that the aircraft left for Sana'a on 19th January. I hope that our two countries can now begin to draw benefit from the Prime Minister's visit. I have sent a message suggesting that the Minister of State at the Foreign Office, Mr. Hurd, might soon visit the Yemen Arab Republic.
Lord DENMAN: My Lords, I thank the noble Lord for that very helpful reply. Will it also be possible to take a look at the development of further aid to that country in order to demonstrate our goodwill to them?
Lord CARRINGTON: My Lords, the aid budget and the aid programme are under very severe strain. I doubt whether we could do much more in the way of aid. However, I think that there is quite a lot that we could do in the way of trade. Nobody is more aware of that than my noble friend.
Lord PAGET of NORTHAMPTON: My Lords, can the noble Lord tell us whether, in his view, after Afghanistan and events like that, our relationship with Communist Administrations can be described as "total harmony"?
Lord CARRINGTON: My Lords, I do not quite understand the noble Lord's question. The Yemen Arab Republic is not a Communist Government.
Lord HAWKE: My Lords, is any survey for mineralisation taking place in the mountains of North Yemen?
Lord CARRINGTON: My Lords, I am afraid that I could not answer that question without notice.

DETENTE: CONTINUATION OF INITIATIVES
3.12 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will support within the European Community and NATO West Germany's determination to "step up its efforts for peace in Europe and for déente, and to persist in efforts for arms reduction and control", as stated by Chancellor Helmut Schmidt on 17th January 1980.
Lord CARRINGTON: My Lords, like the Federal Government and our other partners in the Nine and NATO, we remain committed to seeking ways of promoting the stability of East/West relations and to the pursuit of arms control negotiations which make a genuine contribution to our security. But the Soviet invasion of Afghanistan is bound to cast its shadow over the détente process.
Lord BROCKWAY: My Lords, I welcome the noble Lord back. May I put this question: is it not desirable, while strong opposition is expressed to the Soviet Union's action in Afghanistan, that, with that and as a parallel to it, the campaign for disarmament and verification should be extended? Would not the Russian armies have to obey this as well as other armies? Did the noble Lord note that yesterday, in President Carter's forthright State of the Union message to Congress, he included the following clause:
"The prevention of nuclear war is the foremost responsibility of the two super-powers and the effort to control nuclear weapons will not be abandoned"?
Will our Government support that?
Lord CARRINGTON: My Lords, I should like to welcome the noble Lord back, too. We are very glad to see him. I do not think that Her Majesty's Government would in any way differ from the sentiments expressed by the President of the United States.
Lord GLADWYN: My Lords, would the Government recognise that perhaps the best way to step up efforts for peace in Europe is to recognise that détente has now been completely undermined by the Soviet Government, and take the necessary action?
Lord CARRINGTON: My Lords, I think that the atmosphere has been soured by what has happened, but I think it is in the interests both of the West and of the Warsaw Pact countries to seek to get arms limitation which is advantageous to both sides.
Lord CHELWOOD: My Lords, while feeling that Europe can hardly be looked at in isolation where these matters are concerned, may I ask my noble friend to comment on the fact that the Soviet invasion of Afghanistan, and the chaos in Iran after the revolution, have highlighted yet again the imperative need for NATO to cease to regard its area of responsibility as bounded by the Tropic of Cancer? May I ask my noble friend whether he can say what has been the outcome of the very long talks that have been going on for some seven or eight years in NATO in considering this question?
Lord CARRINGTON: My Lords, I shall shortly be making a Statement on Afghanistan, which I fear will be much too long, but in answer to my noble friend's question I do not think that so far there is any inclination on the part of most members of NATO to increase the geographical area for which NATO is responsible.
Lord GORONWY-ROBERTS: My Lords, may I warmly welcome the Foreign Secretary's answer to my noble friend Lord Brockway's supplementary question?—namely, that proper and forceful denunciation of the action of the Russians in imperilling peace and stability in Afghanistan and the Near East must
530
nevertheless not be a reason for our abandoning the essential and necessary process of detente and of disarmament.

AFGHANISTAN: SOVIET INVASION
3.17 p.m.
Lord CARRINGTON: My Lords, with your Lordships' permission, I should like to make a Statement on Afghanistan. I apologise for its length.
The Soviet invasion of Afghanistan is an event of the widest significance. For the first time since the Second World War, Soviet combat troops have been used in massive numbers outside Europe to establish a military hold on a sovereign, non-aligned country.
The Soviet action is a breach of all the conventions which have governed East-West relations for the last decade. It is a vivid demonstration of the Soviet drive to gain wider influence wherever possible, by propaganda, by subversion, and where necessary by force. Together with the arrest of the Nobel Peace Prize winner, Dr. Sakharov, it reflects cynical disregard for world opinion. It is bound to affect our attitude in current and future negotiations between East and West, though we naturally want these to continue where they clearly serve our own interests as well as those of the Soviet Union.
But the present crisis is not in the first instance an East-West confrontation between super-powers. Although the significance of the Soviet action is worldwide, its immediate impact has been on the region of South-West Asia, and on the neighbouring Moslem countries. Afghanistan is a strategic salient into the region. One is bound to ask oneself where the Russian drive is to stop. If the Russians are to be deterred, a sustained and significant response will be needed, not only from the West, but from the countries which themselves feel threatened.
I discussed these issues with the Governments of the region during my tour between 9th and 18th January. This took me to Turkey, Oman, Saudi Arabia, Pakistan and India, with a brief call at Bahrain. Despite the obvious differences of perspective, certain important points of agreement emerged. One was that the West and the countries of the area have a common

531
interest in the stability and integrity of the Gulf and the Straits of Hormuz. Secondly, in the light of the Soviet threat, Pakistan must be able to count on the material and political support of its friends. Thirdly, the real threat to Iran's recent revolution and to her future security came from the Russians. And finally, there was of course a general repugnance in the Islamic countries I visited at the Soviet onslaught on another Islamic nation.
An effective response to the Soviet threat in South-West Asia and its neighbourhood is above all a matter for the peoples of the region. All the statesmen with whom I spoke recognised the Soviet threat of intervention, by force or subversion, which now extends across the region as far as the Yemen, and they accepted the responsibilities that flowed from this assessment. In particular, the need for solidarity among like-minded people, and for a fresh effort to overcome the divisions of the past was widely recognised. This will not be easy. Conflicts of local interest have to be overcome, and in some cases the present crisis has sharpened them.
In India, where I was able to meet Mrs. Ghandi and some of her Ministers almost immediately after they had taken office, I found a deep concern that Western military aid to Pakistan could disturb the delicate political balance in the subcontinent. The Indians have no desire to see their part of the world become the arena for a clash between the superpowers.
I pointed out to Mrs. Gandhi that Western help for Pakistan was a direct consequence of the incursion of the Soviet super-power, and that Russia is, after all, the only super-power with a powerful military presence on the sub-continent.
Mrs. Gandhi made it clear that she wished to continue the process of better understanding with Pakistan, which she herself had begun with the Simla Agreement of 1972. President Zia had already assured me in Pakistan that he too looked forward to a development of the Simla process. I found this encouraging. It will be a major contribution to peace of mind in the sub-continent if each country's worries about the other can be dissolved.
532
The response to the Soviet invasion of Afghanistan is not, of course, the exclusive responsibility of the people of the region, even though theirs is the most immediate interest. They need—and they look for—material Western assistance and a firm Western commitment to their security and independence.
The West itself needs to find ways to make the Russians understand that they cannot break the rules of international behaviour with impunity, either now or in the future. This entails responses by individual countries and by the West's collective organisations, above all by NATO and the European Community.
In the region itself, the first need is to help Pakistan. There are already half a million Afghan refugees there and the number could soon double. Many of them bitterly oppose the Soviet invasion of their country, and are determined to return. Their condition is wretched. We have already sent blankets, tents and medicines and the United Nations Commissioner for Refugees is active. Other countries, and especially the United States, are helping too. Pakistan needs further help to tackle her political, economic and military problems and we are discussing with our allies how best to do this.
We are also considering other measures to help the countries of the region as a whole, both in the short-term and in their struggle against the long-term threat of Soviet disruption and subversion. We need to develop our co-operation with Turkey both bilaterally and multilaterally. We need to strengthen our links with the countries of the Arab peninsula. We look forward to rebuilding a mutually satisfactory relationship with the people and Government of Iran once the American hostages in Tehran have been released. Above all, we believe that one of the most important of all possible contributions to the political stability of the area would be a settlement of the Arab-Israel conflict which recognises the rights of the Palestine people as well as Israel.
Immediately after the Russian invasion, the British Government proposed that the North Atlantic Alliance and the European Community should discuss the measures we might take, bilaterally and collectively, to impress on the Russians how seriously

533
we view their actions. Some of our allies, notably the United States, have already acted. I expect others to follow suit. I shall now announce the measures which the British Government have so far decided to take. These are in addition to the measures related to Afghanistan which my honourable friend the Minister of State announced in another place on 14th January.
The British-Soviet Credit Agreement, concluded by the Labour Government in 1975, expires on 16th February. Its terms were too favourable to the Soviet Union, since the export credit was subsidised more than that which we extend to other countries. The Government's view is that all trade should be pursued on a basis of mutual advantage. We shall apply that principle to British-Soviet trade. We do not propose to renew the credit agreement when it expires. Credit in future will have to be considered on a case-by-case basis. Assuming that other Western countries do likewise—which would be very much to our collective advantage—we shall not provide export credit to the Soviet Union at rates more favourable than those set by the international consensus on credit terms.
On technology, we are studying with other countries the tighter application of the COCOM rules for controlling the transfer of sensitive technology to the Soviet Union. The European Community has decided not to export any food to the Soviet Union which would directly or indirectly replace supplies denied by the United States. The Community has therefore decided to curb exports of grain in the future. Britain is also pressing for an end to subsidised sales of butter, meat and sugar to the Soviet Union.
The Government have also decided to avoid high-level and ministerial contacts with the Soviet Union for the time being. They will cancel military exchanges which were under consideration and they will avoid the kind of cultural and other events which would give an impression that nothing has changed and thus appear to condone Soviet aggression. In accordance with the agreement between the Foreign and Commonwealth Office and the BBC, I have approved an increase in broadcasts by the External Services of the BBC to listeners in the Soviet Union and Afghanistan.
534
I now turn to the question of the Olympic Games. Her Majesty's Government sympathise deeply with the Olympic ideal that young people from all over the world should be able to compete freely together with no overtones of politics. But this view has never been shared by authoritarian Governments, who exploit such events for their political advantage. As in 1936 for the Nazi Government, so now for the Soviet Union the Olympic Games arc a major political undertaking designed to impress the whole world with the prestige of the system. For the Games now to be held in Moscow would appear to condone Soviet aggression abroad and repression at home.
But for the Games to be cancelled entirely would be a bitter blow to the athletes in Britain and elsewhere, who have trained so hard for so many years. This is why the British Government believe that the Summer Games should be moved. That will not be easy, but it should not be beyond the capacity of the 104 countries which condemned the Soviet Union in the United Nations last week. If necessary the Games could be held in more than one country. My right honourable friend the Prime Minister has accordingly urged the British Olympic Association to approach the International Olympic Committee to propose that the Summer Games be moved from Moscow. The Government are fully prepared to help with arrangements for those parts of the Games which might be held in this country.
I do not conceal from the House that recent Soviet actions in Afghanistan and at home are not a happy augury for the future. They undermine much of what has been achieved over the past decade, and more, to provide the basis for a stable and mutually satisfactory relationship between East and West.
They underline the need, above all, to develop political solidarity among the members of the European Community and among the members of the North Atlantic Alliance. It is from that political solidarity, and from the defensive arrangements which accompany it, that our dealings with the Russians have to start. But both East and West live on one planet. The consequences of serious miscalculation could be disastrous for many of its inhabitants.

535
It is right that the Russians should feel the strength of our disapproval. That should help them to avoid miscalculation in future. But it is also right that we should, where possible, continue the search for arms control agreements, commercially justified trade, and other arrangements of mutual benefit. In the long run both we and the Russians need a sound East-West relationship. But the Russians must understand that there can be no such relationship so long as they behave as outrageously as they have done in Afghanistan.
3.31 p.m.
Lord GORONWY-ROBERTS: My Lords, the House is very grateful to the noble Lord the Foreign and Commonwealth Secretary for coming here to make the Statement that he has made—a Statement of the utmost importance, and possibly with momentous implications. It was a very long Statement and a very comprehensive one. Here and there it was a little less clear than one would have hoped, but as one who in the past has taken part in preparing Statements of this kind, I am bound to say that it was remarkably expressive of the mood and intentions of the Government.
I do not at this stage wish to dilate on the Statement, but may I say at the outset that the Statement as it stands, and the way in which the Foreign Secretary has presented it, would not be at any serious variance with the specific gravity of view on these Benches on this occasion. We strongly support a clear and forthright denunciation, on grounds of international law and morality, of what has taken place in Afghanistan. At the same time we hope—and the penultimate paragraph of the Statement made it very clear that the Government share this view—that the purposes of détente and disarmament will continue to be pursued exactly as the American President made clear earlier today in his State of the Union message.
I should like to put one or two specific points to the Foreign Secretary, and in so doing may I anticipate that both Houses of Parliament might find it convenient and necessary in due course to discuss these matters in debate rather than in the necessarily constricted circumstances of Question Time. For the moment may I
536
put these questions to the noble Lord: Does he agree with the general purport of the President's State of the Union message? I anticipate that the answer is, "Yes". Has the noble Lord, in putting together his conclusions and formulating this policy following his visits to the Near East, consulted closely the United States, our partners in the European Community—all of them—the Commonwealth, and other countries outside these organisations which have an equal interest in the maintenance of peace and stability in every part of the world, and some of which, in certain parts of the world, may indeed feel themselves to be particularly threatened?
In consulting our friends and allies and others, have Her Majesty's Government put together the package of action in denunciation of Soviet behaviour? Have they in fact concerted their action with other countries? For instance, one should like to feel a little more confident that the European Community was moving as one on this matter. There are some who from time to time have expressed certain reservations regarding the economic organisation of the Community but who have worked very hard for, and welcomed, the progress towards political co-operation in the Community. It is those who find in the events of recent days cause for a little disappointment and indeed alarm about the maintenance of European unity. May I ask the noble Lord whether he will recall the exchanges regarding the advent of Spain and other countries to the Community in 1981 and 1982—and possibly other countries after that? It does not augur well for the expansion of Europe, of democratic Europe—which we all hope to see—if present-day Europe falters in the test of unity which this particular challenge presents to it.
I very much hope that the Foreign Secretary and the Government with, I think, the support of both Houses and indeed that of the overwhelming majority of people in this country, will speak clearly to our European friends about the need for concerted action, as well as an agreement about words.
Secondly, I want briefly to reinforce the point made on both sides of the House, that while we must stand on the United Nations Charter and indeed on the firm base of international morality in denounc-

537
ing actions such as those that the Russians took in Afghanistan, nevertheless, today it is more than ever necessary that there should be a strong democratic initiative for real détente, real disarmament; that in fact we meet the Russians certainly to denouce, but also to discuss. We should do this in order to say to them: "The threat of destabilising actions such as these are as much to your disadvantage as they are to ours. We have a common interest in sustaining the clear and definite provisions of the Charter and a common interest in not taking an adversary position the one against the other—systems come, systems go—but, whenever either of us sees a situation of instability arising or about to arise in discussing how best not to take unilateral action, but rather to consult and to concert the necessary measures to reestablish stability and peace in that particular part of the world."
3.38 p.m.
Lord GLADWYN: My Lords, we on these Benches should like to congratulate the Foreign Secretary on the really magisterial survey that he has made of the situation arising out of the Soviet occupation of Afghanistan and on the clear indication of his general attitude towards this monstrous aggression. Before I say anything else may I say that though I believe that detente has suffered a very severe blow, naturally we would not be opposed to, but in fact would favour, every effort still being made to achieve some kind of agreement on arms limitation, if that is possible. But I believe that, if we are realists, we must recognise that the probability is that the Soviet Government have now found themselves strong enough to throw down the gauntlet, as it were, towards the West. Both the occupation of Afghanistan and the exile of Sakharov show that now they could not care less what the West or the United States thinks. The Soviet Government believe that they are strong enough to do more or less what they like within reason, dictated by other events.
Having said that, I—and I am sure my colleagues, too—would approve of the action that the Foreign Secretary is taking. Broadly speaking, I am sure that we would agree with all of it. We can only hope that our friends across the Channel will agree not to supply surplus butter to the Soviet Union any more and indeed not
538
to go ahead with competition in credits with their allies when everything indicates that we ought to have a joint policy on reducing credits. I think that most people would be in favour of that.
With regard to measures being taken, I am very glad to see that the Government are now agreeing that the BBC should have a further extension of its programmes to the Soviet Union and other Communist countries. That is only to be desired, and I hope that it will be greatly extended in the near future.
There is one outstanding point, as I see it, in the measures that we are taking to build up some kind of common resistance, as it were, to Soviet aggressive policy, and it relates to the situation in Israel. If anything can be done in the way of inducing the Israeli Government to be less intransigent about the situation on the West Bank—I do not know whether the Foreign Secretary can do anything about that, but certainly the Americans can if they want to—then that, I am sure, is really the best way to get the Islamic resistance, which is inherently improbable now, to the threat of further advances of the Soviet Union in that area.
Finally, my Lords, on the Olympic Games, in spite of what the Government are suggesting as to the transfer of certain events to London or elsewhere, I do not myself believe that the Olympic Committee will agree to that. I think it is very difficult to imagine that that will be possible. I believe that the Olympic Games will therefore be held in Moscow in all probability, in the probable absence of an American delegation; I dare say Australia and certain other countries, too, will not be there; and in the case of other countries, perhaps including our own, there will be only a partial representation.
However, I believe that it would be wrong to put definite political pressure on our own athletes to attend or not attend. It should surely be a matter for their own conscience whether they do. But it should still be represented to them—and I am sure it can be represented to them—what is going to happen if they turn up in these circumstances. What would happen if, for instance, near or during the Games, the Soviets proceeded to occupy Azerbaijan or proceeded to indulge in increased pressure on Yugoslavia? Would our Olympic Committee still be in favour of proceeding

539
with the Games? Do they not imagine that there is any political aspect to this problem? Apparently they do not, but they should; and I believe that our athletes ought to understand that. Therefore, although we cannot force them, I think they ought to be told what the situation will be if they do turn up.
3.42 p.m.
Lord CARRINGTON: My Lords, I am most grateful to both noble Lords for what they have said, and for the specific assurance by the noble Lord, Lord Goronwy-Roberts, that the sentiments expressed in the Government's Statement are shared, as I knew they would be, by noble Lords opposite, and I know also by noble Lords on the Liberal Benches. If it is the wish of your Lordships that there should be a debate on this matter, I have no doubt that it can be arranged easily enough through the usual channels. I think that earlier on in the afternoon I made it clear that Her Majesty's Government agreed with the President in what he said in his State of the Union message, not just about détente but also in what he said about the problem of Afghanistan and his condemnation of the Soviet action.
During and since the visit that I paid to that part of the world I have both consulted and kept informed my American, Community and Commonwealth colleagues, and I have shared my impressions with all of them. But, of course, the conclusions which Her Majesty's Government have come to are our conclusions, and not the conclusions of anyone else. This is the policy of Her Majesty's Government. The noble Lord spoke about concerted action, and, of course, there has been a great deal of discussion both in NATO and in the Community about what action should be taken. I think it would be a mistake to underestimate the unanimity which there has been in both those organisations, certainly on the condemnation of Soviet action. There was a very strong statement from the Nine, and also from NATO. Quite a number of other countries have already detailed the measures they intend to take against the Soviet Union as a result of the Soviet Union's action in Afghanistan. They tally very closely
540
with what I have announced to your Lordships this afternoon. Others have not taken quite the same view, but certainly I do not feel that the reaction of either the Community or NATO has in any sense lent comfort to the Soviet Union in what they have done.
I agree very much with the noble Lord, Lord Gladwyn, when he says that what has happened must obviously slow down the process of détente. It is inevitable that it should do so. Indeed, the very fact that the President of the United States has postponed the discussion of the SALT II agreement in the Senate for a period of time means inevitably that it is slowed down; and it would be foolish to deny that the atmosphere for détente has not been soured. Her Majesty's Government will be pressing our colleagues in Europe as hard as we can, and the Commission as hard as we can, not to sell surplus butter, sugar, poultry or meat to the Soviet Union, but, of course, it does not lie entirely with us.
The noble Lord also spoke about the need for a settlement of the Middle East problem, the Arab-Israel problem. Certainly one of the chief impressions that I got from the trip from which I have just returned is that the conflict, the Arab-Israel dispute, bedevils politics in that area, and to some extent obscures the Arab reaction to what has happened in Afghanistan. Finally, I am very grateful to the noble Lord for what he said about the Olympic Games, and I hope those responsible will note the words, the very strong language, that he used.
Baroness GAITSKELL: My Lords, may I dare to ask the Foreign Secretary a very short and specific question? No one can praise more highly the efforts that he has made in the last few weeks, but there is an idea that the motive behind the attempted conquest of Afghanistan was to move towards world domination. Did he find, in his travels, that there was another reason for the attack on Afghanistan? Was it that they want to get hold of the Iranian oil?
Lord CARRINGTON: My Lords, I think that the Soviet motives are complex, and the Russians would be best qualified to express the reasons for what they did—better qualified than I would be. But I

541
would judge that, having by subversion got to a situation in which, with this spurious excuse, Soviet troops could be asked to be brought into Afghanistan—a country in a vitally important strategic situation—the opportunity will be open to the Soviet Union, should they so wish, to expand by subversion and other means in any direction that they care to expand.
Lord WIGG: My Lords, the Foreign Secretary has been good enough to tell the House the actions and policies of Her Majesty's Government in (if I may use the phrase) a peripheral sense. I wonder whether he would be good enough to enlighten us as to what the reaction of the Government is in the purely military sense. Obviously, the Government have collaborated with President Carter, and President Carter has announced that he is taking steps to introduce registration of manpower as a prelude to, if necessary, re-instituting the draft. In comparable circumstances—comparable in the sense that the Foreign Secretary has drawn a parallel between now and what happened before the last war—in May 1939 the Government of the day introduced a measure to register all young men. This was not the question of a call-up; it was a registration.
In that way the Government would in fact be able, at very short notice, to take steps to improve both the quantity and the quality of the armed forces, so that at least they would catch up with their NATO allies; because we are the only country in NATO which is incapable of expanding its forces at short notice.
In my judgment—and I hope the Foreign Secretary will accept this—the test of this country is not what the Foreign Secretary says at that Dispatch Box but what he does, and it is that test which the world will apply. If the Government therefore introduced such a measure, or showed evidence that they intended to introduce it, it would strengthen the Foreign Secretary's own hand and it would certainly strengthen the reputation of this country.
Lord CARRINGTON: My Lords, I do not think that Her Majesty's Government feel that the situation at the moment makes it necessary to reintroduce conscription, or anything of that kind. The noble Lord will of course have
542
noticed that Her Majesty's Government are increasing the spending on defence, and that, I think, is extremely important. But what we will obviously have to do in the light of what has happened in the area of South-West Asia is to keep our defence policy in that area under review. What we must do is to contribute to the security of our friends with equipment and with military training, and with a periodic deployment of naval, air and land forces in the area. I do not think we see at the moment any need to re-establish a substantial permanent United Kingdom military presence in the area.
Lord ALPORT: My Lords, may I ask whether my noble friend recognises that, although the vulnerability of Pakistan may to a great extent be military, it is even more vulnerable from the point of view of the economic and social conditions existing in that country and, not least, as a result of the enormous influx of refugees? Although I realise that the Government have sent £120,000 of supplies for the refugees, that is a very small contribution to the solution of this problem; and even though the overseas aid programme may be under strain, as the noble Lord has said, is it the intention of Her Majesty's Government to give increased economic aid to Pakistan in the near future?
Lord CARRINGTON: My Lords, I recognise wholly what my noble friend has said. I think the problems of Pakistan are both economic and political. It is the Government's intention this year to increase aid to Pakistan. We shall be giving something in the region, all told, of the equivalent of £30 million.
Lord HARMAR-NICHOLLS: My Lords, although my noble friend said that we ought not to underestimate the unanimity or near unanimity of support that he got from Europe, would he allow me to say that he ought not to over-estimate the value of that, either; because the reaction from the European Parliament, from its elected representatives, was muted, diffuse and not very impressive as regards the possible impact it may have. Will he allow me to say that I hope that he might get better support from the Council of Nine than he got from the elected Parliament as I witnessed it a fortnight ago.
Lord CARRINGTON: My Lords, I spend most of my waking hours trying to keep a balance.
Lord ELWYN-JONES: My Lords, has the noble Lord brought China within the ambit of his discussions? If so, what has been the consequence of the approaches?
Lord CARRINGTON: My Lords, only in so far as when I was in Pakistan, the Chinese Foreign Secretary was due to visit the following week, and did so. Clearly, the Pakistan Government set great store by their friendship with China because they felt themselves to be doubly threatened now that the Soviet troops were on their border. Equally, you have the mirror image, that of distrust when you cross the border from Pakistan into India. It is important that all of us should do what we can to eliminate the distrust between Pakistan and India because that, in itself, will be a security for the subcontinent.
Lord GORE-BOOTH: My Lords, would the Foreign Secretary agree that one of the most important items on our agenda in the immediate future must be the furnishing of accurate information from our own sources to all who are interested in immediately forthcoming events? Will he (or his department generally), who did such a good job on this front in Rhodesia, be considering urgently whether we need to reinforce the number of people engaged in this matter so that we keep our voice heard right away and consistently on our side?
Lord CARRINGTON: My Lords, I believe that the fact that we have a worldwide diplomatic Foreign Service, and the fact that we have information from all corners of the world, helps the West generally and British foreign policy in particular. I believe that one of the ways in which we can help the countries in the area that I have visited is to let them have the assessments that we have as a result of our worldwide representation. That may be of some use to them in making up their own minds.
The Earl of ONSLOW: My Lords, will the noble Lord comment on this: The original reason for the Americans cutting off arms aid to Pakistan was the nuclear factor and the possibility that they might
544
be on the threshold of developing a nuclear weapon. If you ally this to the inherent instability of Pakistan, and then further ally that to the possibility that the Russian intervention in Afghanistan was a combination of gerontocracy, fright, worry and incompetence as well as aggressive intentions, does this not make the situation possibly even more dangerous than we have already thought it to be?
Lord CARRINGTON: My Lords, the Pakistani Government have repeatedly said that the nuclear programme they are undertaking is for peaceful purposes. I think that it is the wish of all of us—and I am sure that it is the wish of everybody in this House on all sides—that no country in the sub-continent would build nuclear weapons.
Lord DAVIES of LEEK: My Lords, while congratulating the noble Lord and thanking him for the hard work that he has done on behalf of peace, would he try to take the initiative that was taken by a famous Foreign Secretary, one of his predecessors, Sir Anthony Eden? I was at the Geneva Conference in 1954 after the famous battle of Dien Bien Phu when the Russians, the Chinese and others were taking a completely different attitude. Could he make the effort to get once again a conference similar to the Geneva Conference which at this moment is needed? Before we effervesce with righteous indignation, let us remember that Cambodia and Vietnam at one time suffered more bombing than the whole of Europe—and it was Western nations that were involved. I believe that we must try. Would he try to revive some type of Geneva conference?—because the sanctions that we are now taking will hurt Europe more than the Soviet Union.
Lord CARRINGTON: My Lords, is the noble Lord referring to the Arab-Israeli conflict?
Lord DAVIES of LEEK: My Lords, the Far Eastern—
Lord CARRINGTON: My Lords, I think perhaps the global situation is a little more complicated at the present time than a Geneva conference would settle for the time being.
Lord DAVIES of LEEK: My Lords, I heard on the Asian broadcasts a fortnight ago that we have already told Thailand that we will revive the Manila Pact, and we have a liability to defend Thailand. Britain cannot take on liabilities all over the world. Can we have the opportunity of a full debate on this?
Lord CARRINGTON: My Lords, certainly. I have said that if there is need for a debate then I am sure that my noble friend behind me will arrange it.
Lord ANNAN: My Lords, the Foreign Secretary was good enough to outline the measures that the Government so far have taken—and he emphasised "so far". Would he, in future measures which the Government are considering, consider the future of the Soviet-inspired States in the area of Yemen and Aden with a view, possibly, to their elimination? Would he agree that a tit-for-tat policy is the one thing that the totalitarian countries understand? Would he also agree that the one thing which has made Greece a part of the Free World today was the personal intervention by Winston Churchill in 1944, against massive criticism from many quarters, which persuaded Stalin that Greece was not part of his sphere of influence?—whereas the Persian Gulf is part of our sphere of influence.
Lord CARRINGTON: My Lords, I do not think I could disagree with the noble Lord about that. I think that the situation in the PDRY, the country to which the noble Lord, Lord Paget, thought that we were referring earlier, is extremely worrying. We must see what we can do.
Lord KENNET: My Lords, will the Secretary of State clarify what he said about the invitation to the Soviet Union to send troops into Afghanistan? Have the Government any evidence that such an invitation was sent and, if it was, that it came from a party who could legitimately at that time have been described as the Government of Afghanistan?
Lord CARRINGTON: My Lords, the Soviet story is both confused and unlikely. On occasions, we are told that the request was made on 26th December by the Afghan Government, which would have meant that President Amin, who was
546
running Afghanistan at the time, asked the Soviet Union to come in to depose him. Equally, we hear that it was made on 28th December, which was after the Soviet Union troops had arrived.
Lord STEWART of FULHAM: My Lords, the Foreign Secretary mentioned the importance of worldwide representation. Can he assure us that it is still worldwide and that his governmental colleagues, particularly in the Treasury, have not been getting at him to reduce it?
Lord CARRINGTON: My Lords, should they get at me to reduce it, I shall enlist the support of the noble Lord opposite.

SLAUGHTER OF ANIMALS (SCOTLAND) BILL [H.L.]
4 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 Recommitment) on this Bill.
Moved, that the House do now resolve itself into Committee (on Recommitment).—(Lord Mackay of Clashfern.)
The LORD CHANCELLOR (Lord Hailsham of Saint Marylehone): My Lords, in putting this Question, may I tell the House that I may be sitting judicially next week and I hope that my absence from the Woolsack will not be adversely commented upon in consequence. The Question is that the House do now resolve itself into Committee (on Recommitment) upon the said Bill.
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The EARL of LISTOWEL in the Chair.]
Clauses 1 to 10 agreed to.
Clause 11 [Saving for Jewish and Mohammedan method of slaughter]
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 1:
Page 7, line 6, leave out ("Mohammedans by a Mohammedan") and insert ("Muslims by a Muslim").
The noble and learned Lord said: This is a consolidation measure. The words used in the existing statutes in reference to exemptions for certain religions refer to Mohammedans. It is thought appropriate in the consolidation to substitute "Muslims". That is the reason for the first three of the amendments proposed. I beg to move.
Lord DAVIES of LEEK: Some of us in the Committee are trying to find out why "Muslims" has been substituted for "Mohammedans". Can the noble and learned Lord tell us why, so that we are not accepting matters uninformed?
Lord MACKAY of CLASHFERN: My understanding is that those who answer this description prefer now to be called by this name, and we see no reason why we should not give effect to their wishes.
Lord DAVIES of LEEK: I am satisfied, thank you.
On Question, amendment agreed to.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 2:
Page 7, line 10, leave out ("Mohammedan ") and insert (" Muslim ").
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clauses 12 to 15 agreed to.
Clause 16 [Further provisions in relation to licensing of slaughtermen and knackers]:
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 3:
Page 10, line 24, leave out ("Mohammedan method for the food of Mohammedans") and insert ("Muslim method for the food of Muslims").
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clauses 17 to 21 agreed to.
Clause 22 [Interpretation]:
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 4:
Page 12, line 34, leave out from ("authority"") to ("means") in line 36.
The noble and learned Lord said: This is a drafting amendment in order to give
548
effect to a provision of the Local Government (Scotland) Act 1973 and to ensure that the consolidated measure is in accordance with the existing law. I beg to move.
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Remaining clauses and schedules agreed to.
House resumed: Bill reported with the amendments.

POLICE NEGOTIATING BOARD BILL [H.L.]
4.6 p.m.
Report received.
Clause 1 [The Police Negotiating Board for the United Kingdom]:
Lord INGLEWOOD Lord INGLEWOOD moved Amendment No. 1:
Page 1, line 12, at end insert ("or special constables").
The noble Lord said: My Lords, I beg to move this amendment and, with the permission of the House, I shall speak to all three amendments together and so, I hope, save time. In any case, I wish to be brief. I move these amendments with two purposes in mind: the first is to do justice to special constables, the volunteer element in our police force, which at present this Bill does not do. Secondly, to give the Minister a chance of appearing rather less inflexible than he did when this matter was raised last week. There are many stages to come before this Bill reaches the statute book, and if the noble Lord says he will look at the amendment again or if any recommendations of the working party, which is about to sit, come to the same conclusions as these amendments, then I hope that the noble Lord can say that legislation will be introduced without a long waiting period, which could be some years if we have to wait for a general Bill. In those circumstances, I would ask leave to withdraw the amendment.
The instinct of your Lordships' House is to be fair, and after all the efforts made recently in the interests of the guerrillas in Zimbabwe-Rhodesia with blood on their

549
hands (and who can hardly accurately be described as on the side of law and order) it seems strange here that the Government should treat our special constables, whose morale is low at this time, as second class members of the Police Service. They take the same obligations, and accept the same risks, as their regular colleagues; but, under the Bill as now drafted, they are allowed no representation on this board; their interests other than pay are the same as those of their regular colleagues.
Last week the Minister attempted to make out that a special constable was different from other classes of police officers because he volunteered for service with a particular force. I should like to ask: how is this different from regulars who volunteer with a particular force? I could not see his argument. He also said special constables were "under the operational control of their own chief constables, and in sense therefore their interests are looked after". I fail to see why that argument should apply to special constables alone.
In the opinion of some who are knowledgeable, unless something drastic is done quickly, in about four years' time the Special Constabulary in this country will cease to exist as an effective national force. There is one force in this country where 12 or so years ago, the membership strength was something like 3,500; now it is 350. I quote that one example as an illustraton of the decline in numbers which is happening all over the country. I have no personal interest in this matter to declare. I feel that the Government and chief constables together must take their share of the blame for this decline and I will listen with interest to the Minister's reply, I beg to move.
Lord BOSTON of FAVERSHAM: My Lords, although I am not able to support the noble Lord, Lord Inglewood, in moving these amendments, he has performed a service, not only today, but on two occasions last week, in raising points concerning special constables, who indeed perform a very valuable service and who form a most useful part of the Police Service as a whole. One certainly hopes that we can look forward to an increase in their numbers in the future.
Is the noble Lord, Lord Belstead, able to help the House by indicating whether
550
any representations have been made recently by special constables themselves in seeking representation? The Minister told us last week about the working party, in reply to a question put to him by the noble Lord, Lord Inglewood, and he explained to your Lordships that it is at this very moment setting about the business of looking at the whole question of the future of special constables.
I suppose we have no means of knowing when that working party will make its report, but if it were to make a recommendation along the lines that special constables should have some special form of representation, either by means of a representative body or in some other way, I wonder whether the Minister might be able to say, even at this juncture, whether he would be able to look at any such recommendation sympathetically with a view to making any appropriate recommendations to Parliament at an early stage. That, I think, would be helpful to your Lordships. It might also be appropriate, if the Minister were able to give such an assurance, for the noble Lord, Lord Inglewood, in those circumstances to seek to withdraw his amendment.
4.11 p.m.
The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead): My Lords, I entirely agree with my noble friend Lord Inglewood that justice on all occasions should be done to special constables, who fulfil such a valuable role in helping to keep law and order in this country. I also agree with my noble friend that the situation with regard to the Special Constabulary at the moment gives rise to considerable concern. I think this was very much in the forefront of the mind of the noble Lord, Lord Boston, when he said, quite rightly, that my noble friend had done a service in making some pretty trenchant comments on this subject last week, and again today in moving these amendments. But I do not think that the way to assist the Special Constabulary is to move these amendments into the Bill. I should like to explain very briefly why that is so, and then I should like to respond, if I may, to both noble Lords by trying to make some constructive conclusion.

551
The police negotiating machinery in this country has been in existence since 1919 but special constables have never been represented on the negotiating machinery. The committee on the Police Service, under the noble and learned Lord, Lord Edmund-Davies, examined the question of representation on the new negotiating board, which is what this Bill is setting up, with great care. However, the committee did not recommend that provision should be made for the representation of special constables. Moreover, the working party on the Special Constabulary which was appointed by the Police Advisory Board, and which reported in 1976, contained representatives of the Special Constabulary. They specifically considered the question of whether there was any need for special constables to be represented at national level, and decided there was not. In their view any problems were best resolved by consultations at force level. That recommendation, I might make clear, was a unanimous one, and in 1976 there was no question of the Special Constabulary representatives on that working party being outvoted by the representatives of other bodies. When the noble Lord, Lord Boston, asks me the view of the Special Constabulary at the present time, that really is the latest situation as we know it. This is one reason why the Police Advisory Board this year have decided that a new working party ought to be set up.
Having heard my noble friend speak, your Lordships may be rather surprised at these conclusions—the conclusion of the Edmund-Davies Committee and that of the 1976 working party. The reason for those conclusions lies in the terms and conditions of service of special constables. These people make a very valuable contribution to the Police Service as volunteers who give their services part-time and without remuneration and who are not subject to a disciplinary code or to conditions of service, such as hours of duty, leave and overtime, in the same way as police officers and cadets. Such allowances as are made available to special constables are designed to ensure that they are not out of pocket as a result of their duties. I suggest to your Lordships, therefore, that it is not appropriate, and has been seen in the past as being inappropriate, for special constables to be
552
represented on a board which is designed to negotiate pay and conditions of service for people who are making a career in the Police Service.
As I sought to say last week to your Lordships, the Police Advisory Board has now set up another working party on the Special Constabulary. Now my noble friend asks me for a clear indication of what line the Government will take when that working party reports. This is what I should like to say: if the working party recommends, and the Police Advisory Board agrees—because the working party is a working party of the board—that there should be some form of national representation for the Special Constabulary, I can assure the House that we shall look at this again with the greatest care, but I think it would be undesirable to attempt to anticipate the recommendations of the working party. If I have persuaded my noble friend of that line, I would ask that perhaps he would consider withdrawing the amendment.
Lord INGLEWOOD: My Lords, since my noble friend has shown much more understanding of the problem this week, I would not wish to press him at this stage. I would only add one sentence. I wish he would not quote so often that the working party which reported four or so years ago included representatives of the Special Constabulary as if they were on an equal basis with the other members of that working party, because they were not. None the less, I do not wish to pursue this at this time and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment Nos. 2 and 3 not moved.]

REPRESENTATION OF THE PEOPLE BILL
4.7 p.m.
Lord LLOYD of KILGERRAN: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Lloyd of Kilgerran.)
On Question, Bill read 3a.
Lord LLOYD of KILGERRAN: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Lloyd of Kilgerran.)
Lord SANDYS: My Lords, on behalf of Her Majesty's Government, I am pleased to support the Motion that the noble Lord's Bill do pass. We have been most gratified at the progress of this Bill through all its stages in both Houses of Parliament. That has been due in no small measure to the assistance and support of the Opposition Benches, both here and in another place. We believe that the Bill makes two important and welcome changes to electoral laws, enabling Service wives resident in the United Kingdom to register as civilian voters, and permitting the electoral registration officer to correct the electoral register after it is published so that the names of electors accidentally omitted may be included.
As the House will appreciate, it will be necessary for those provisions to be brought into force by a commencement order after the regulations have been made by the Secretary of State to provide for some of the mechanics of the provisions in the Bill. The Government will now proceed with the preparation of the regulations and will, of course, make them available in draft to the political parties and to others interested, so that their comments can be taken into account. It is our intention to have these matters settled so that the new arrangements introduced by the Bill can take effect for the February 1981 register of electors.
Lord BOSTON of FAVERSHAM: My Lords, we on this Bench would like to join the noble Lord, Lord Sandys, in congratulating the noble Lord, Lord Lloyd of Kilgerran, on introducing this Bill, on conducting it through your Lordships' House and on commending it to your Lordships.
Lord LLOYD of KILGERRAN: My Lords, I am very much obliged to both noble Lords for their kind words in this matter. I, too, would like to join the noble Lord, Lord Sandys, in thanking those in the other House, and particularly Mr. Onslow, for making such a great contribution during the initial stages of
554
the Bill in the other place. I thank your Lordships very much indeed for your kind words.
On Question, Bill passed.

PROTECTION OF TRADING INTERESTS BILL
4.20 p.m.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this Bill be read a second time. I am moving today the Second Reading of a Bill which deals with matters which are of the greatest importance to the interests of the United Kingdom as an international trading nation. The objective of this Bill is to improve the defence of the United Kingdom against attempts by other countries to enforce their economic and commercial policies outside their own territories.
The problem was recognised as long ago as 1964 in relation to international shipping and the Shipping Contracts and Commercial Documents Act of that year introduced a measure of protection in relation to shipping. Since then the problem has spread to many other areas of trade, as I shall show briefly. In theory this is a problem which could arise generally since many countries have policies which they might seek to enforce beyond the normal bounds of national jurisdiction as recognised in international law. However, the practices to which successive United Kingdom Governments have taken exception have arisen almost entirely, I am sorry to say, from the United States of America. That powerful friend and ally has over several decades been developing a policy of enforcing its economic rules outside its own jurisdiction, in a manner which has become even more acutely difficult for us over the last few years.
The Government recognise that the United Kingdom bears a heavy responsibility in the maintenance of the open international trading system in what is an increasingly interdependent trading world. We have to maintain the principle of enterprise and competition between undertakings within individual nations, and between trading nations themselves. At the same time, the increasing volume of international trade, the swiftness of modern communications, the international nature

555
of many enterprises and increasing specialisation on the part of industrial nations mean that, while trading nations are interdependent in a real sense, their economic and commercial policies are bound sometimes to come into conflict.
We recognise this, and we believe that the right way to sort out the resulting differences of policy and approach is by inter-governmental discussion and negotiation through the established international bodies by which trade policy is co-ordinated, as well as in bilateral contacts and negotiations between Governments. Only where the results of discussion and negotiation are unsatisfactory do we have to fall back upon the basic principle limiting the extent to which a country's jurisdiction is recognised in international law.
The United States has over the last three decades shown a tendency increasingly to try to mould the international economic and trading world in its own image. This is an attitude not only of the United States legislature, but it is shared by its courts and its enforcement agencies, all of whom have contributed to the matters to which we take objection. By this I mean that there are certain well-established and deeply held principles in United States economic thought and law which they are well entitled to enforce rigorously within their own jurisdiction, but which, no doubt from the best of motives, they have increasingly sought to impose on their trading partners elsewhere in the world. Pre-eminently this happens in the field of anti-trust, but, as I shall explain later, there are several other areas in which the United States seeks to impose its own law or concept of good practice on others.
I turn first to the anti-trust field, in which our differences with the United States have been wide-ranging and have affected such different and, to us, such important trading interests as oil, platinum and uranium, aviation and book-publishing, as well as shipping. Since this field is perhaps the most important illustration of our difficulties, perhaps your Lordships would hear with me if I concentrate on it for a few minutes.
The basic anti-trust statute is the Sherman Act which, as your Lordships will know, was passed in 1890. That Act
556
is based upon broad policies outlawing restraints of trade in very general terms. It has been amended from time to time—for example, by the Clayton Act in 1914—and has, of course, been considerably developed by the process of judicial interpretation. The legislation provides for criminal offences and also for civil actions for damages, in which the sum awarded is three times the amount of damage suffered in consequence of the breach of the statute. If this legislation was applied only to activities within the United States we could have no reasonable objection, and this was the extent to which the legislation was originally enforced.
By 1945, however, the United States' view of its position in the world had affected the attitude of the United States courts. In a case generally known as the Alcoa case, involving a Canadian and five European aluminium producers who had joined together to allocate the amount of aluminium to be produced, the United States alleged that there had been an effect on the price of aluminium in the United States of America. A quorum of the Supreme Court could not be obtained and, therefore, a special statutory court was set up. In giving the judgment of that court, Judge Learned Hand stated,
"That any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the State reprehends".
This is the "effects doctrine" and it has been applied and extended not only by the United States courts in relation to the granting of court orders, but also by the regulatory authorities in relation to action outside the courts.
In the application of this doctrine, the United States courts and agencies pay comparatively little attention to the interests of foreign states, unless the acts in question are mandatory under the law of those states. Although in some recent cases the United States courts have shown an awareness of the international implications of their claims to jurisdiction, and have expressed a willingness to take into account the domestic policies of other countries, it is highly doubtful whether there is any real change in the rule they apply.
As I have said, the Acts are enforced not only by criminal sanctions in the

557
ordinary way, but they also confer a right to treble damages on parties claiming to be injured by them. We regard these civil actions as being penal in character, rather than compensatory. The United States Government itself, in a note to Her Majesty's Government about the Bill, a copy of which is in your Lordships' Library, has stated that,
"The private treble damage action acts as a deterrent to illegal activity in the same manner as governmental enforcement and provides an incentive to victims to act as private Attornies General".
This possibility of concurrent criminal and civil penal proceedings introduces a clear element of double jeopardy, and in civil proceedings the plaintiff will be acting, as the United States Government has pointed out, not with the quasi-judicial discretion of a prosecuting authority, but in his own financial interest.
These civil proceedings are not subject to any of the limitations we would regard as appropriate to criminal proceedings, whether in the course of the proceedings themselves or to the eventual penalty. For example, the defendant need not be present in the United States. Whether or not he appears, he is subject to wide-ranging discovery of documents. Failure to appear is deemed to involve an admission of the plaintiff's pleaded facts or, in other words, to be an admission of guilt. The United States system of class actions and the contingency fee method of payment to lawyers combine to facilitate the bringing of these actions.
Our objection to excessive United States claims to jurisdiction and to United States practices in this field are long-standing and sustained. In the early 1950s Her Majesty's Government intervened in a case involving the major British oil companies. In 1959 we discussed our differences at a meeting between the two Attorneys-General. This was followed in 1960 by formal discussions in Washington, at which I understand the noble and learned Lord, Lord Wilberforce, was present. Discussions and representations have continued ever since, but to limited effect, although I should like to record with gratitude that the United States Government, bound as it is by the tight rules of its own law, has at least managed to help us in giving advance notice of investigations which might concern us.
558
As I said, this matter first attracted the attention of Parliament in relation to shipping, and shipping continues to be much affected by these difficulties. Only recently two of our shipping lines operating in the North Atlantic were very heavily lined and now face treble damage proceedings arising from the same matters. But, as I said, the problem is by no means confined to shipping. Let me give just one further illustration. This is an illustration only, but an extremely good one. In 1964, when the United States uranium mining industry was threatened by foreign imports, it was afforded long-term protection by means of an effective ban on the import of uranium for use in United States reactors. This had the immediate effect of denying to the non-United States producers about three-quarters of the world market for uranium. During the late 1960s and early 1970s Westinghouse, the USA's biggest power engineering company, concluded a number of contracts relating to the construction of nuclear power stations in which they agreed to supply future quantities of uranium, but did not take the precaution of buying forward to cover those commitments.
Following a large and unexpected increase in the price of uranium after 1973, Westinghouse found themselves in serious difficulties and, in September 1975, they gave notice that their uranium supply contracts had become "commercially impracticable", blaming the large oil price rise in 1973 and the "actions of foreign uranium producing countries and companies that have significantly curtailed international uranium supplies" as the cause. This led to Westinghouse being sued by the public power utilities. The total amount of compensation claimed was in the region of two billion dollars. It was an attempt by Westinghouse to obtain from RTZ evidence in these proceedings which led to the Westinghouse v. RTZ appeal in your Lordships' House in 1977.
Westinghouse, in their turn, took this figure as the basis for a treble damages anti-trust claim against the uranium producers, brought in Illinois. This latter case is still going on. The action of the non-United States uranium producers was in any event fully supported by the Governments of the uranium producing countries involved and was a direct result of the earlier United States pro-

559
tectionist embargo. It appears quite unreasonable that a United States company should now be able to bring United Kingdom and other non-United States companies before a United States court in order to obtain massive damages multiplied threefold, and thus involving considerable enrichment, for activities by non-United States companies outside the United States at a time when they were denied access to the United States market. I hope the House will agree that whether it be shipping, uranium, or any other trading activity that is affected, no Government can stand by and allow companies vital in our trading structure to be threatened in this way when we contest the very basis of the United States action.
But the anti-trust Acts are not the only cause of contention between ourselves and the United States. There are many agencies which have criminal or civil powers in the execution of the duties laid on them by the United States Congress. These powers may lead them on occasion to pursue inquiries or launch proceedings against persons who, according to the conception of international law to which we adhere, are outside the jurisdiction of the United States and in relation to which successive Governments have been obliged to intervene on behalf of our traders. These agencies include the Federal Trade Commission, the Securities and Exchange Commission, the Federal Maritime Commission, and others.
In all these fields the Americans regard it as appropriate that they should exercise unilateral control over any activity which has an effect on United States commerce, whether domestic or foreign, and we have the same objections as we have in relation to the anti-trust Acts. Our objections are not theoretical. For example, we have to take exception to an investigation by the Securities and Exchange Commission relating to the activities outside the United States of a major United Kingdom company. The claimed jurisdictional basis for the inquiry is solely that depositary receipts based on United Kingdom-held shares of the company were being dealt in in the United States. The company itself was in no way a party to these arrangements.
A third objectionable practice on the part of the United States is that it from
560
time to time treats companies in which United States citizens hold a number of shares—not even enough to make the companies subsidiaries of United States companies—as being for that reason subject to United States jurisdiction. An example can be found in regulations made under the Export Administration Act 1979, which treat a non-United States company in which there may be as little as a 25 per cent. United States interest as "controlled in fact", and therefore as an American company for the purpose of the Act. Such companies are required to behave in certain ways, including providing information under the regulations. The requirements could well be prejudicial to the commercial and economic policies of the countries in which these companies arc incorporated and do business, and the United States claim to jurisdiction and control over them is, in our view, entirely unjustified.
Therefore, in the light of the recent intensification of the problems which I have just outlined, we hold strongly that it is time for the United Kingdom to take what action is open to us, not to undermine the legal system of a friendly country, nor to attack the exercise of jurisdiction by the country within its own borders, but to protect the legitimate economic and trading interests of our own country. This will in no way prejudice the friendship and co-operation we enjoy in so many other spheres.
I should observe in passing that the United Kingdom is far from alone in objecting to the approach of the United States in these matters. Over the years and on different occasions some 20 Governments of other countries, including the United Kingdom, have protested to the United States of America about what was seen as the unacceptable exercise of jurisdiction. We know of many countries which have powers to control or block the passing of information to authorities of other countries.
In considering what steps we could and should take in practice, we mainly built on the existing powers in the Shipping Contracts and Commercial Documents Act 1964, to which I have referred. First, it appeared appropriate to have wide power to prohibit compliance by persons in the United Kingdom with objectionable United States and other

561
foreign measures. In this respect, Section 1 of the 1964 Act applied only to shipping in limited circumstances and we propose that it should be re-enacted in a much wider form. In practice, one of the most objectionable aspects of United States regulatory activities has been wide requirements to produce documents.
Section 2 of the 1964 Act has been reasonably effective here but time has shown that it was not wide enough. We have reached the conclusion that we should be able to control the production of documents from the United Kingdom in any circumstances except those in which, if the application were made through our courts, those courts would order production under the Evidence (Proceedings in other Jurisdictions) Act 1975 as a matter of course.
A small amendment is made to that Act which I think I should draw to your Lordships' attention. Clause 4 of the Bill provides that in proceedings under Section 2 of that Act, United Kingdom courts shall not make an order for compliance with a request for evidence by or on behalf of a court or tribunal of an overseas country if it is shown that the request infringes United Kingdom jurisdiction, or is otherwise prejudicial to our sovereignty. A certificate from the Secretary of State to that effect will be treated by the courts as conclusive evidence. Your Lordships' House has already decided in Westinghouse v. RTZ that the courts should in principle follow the executive in cases of this kind. We think that it will save dispute if, as in relation to questions of security, the point is made the subject of an executive certificate rather than judicial decision.
Clauses 5 and 6 contain the amendments to the law we propose in relation to multiple judgments. Not only does the enforcement of such judgments through the machinery of our courts appear to us to be unreasonable, but the existence of the possibility that they might be enforced against assets in this country has a deterrent effect on United Kingdom companies who are defendants in such proceedings appearing in the United States. Clause 5 therefore provides that multiple damage awards are not to be enforceable here. This may be the case at present either on the grounds that such awards are penalties or that enforcement
562
would be contrary to our public policy. I know, however, of no case in which the matter has been discussed in our courts and the well known case of Huntington v. Attrill, 1893, Appeal Cases, throws doubt at least on the former ground. We propose therefore that the point should be put beyond doubt. By its terms, this clause can be extended to other judgments in the field of competition.
Lord HAWKE: My Lords, before the noble and learned Lord moves away from Clause 5, can he explain to us laymen exactly what circumstances obtain when these multiple damage judgments are given?
Lord MACKAY of CLASHFERN: My Lords, the circumstances are, principally, in the anti-trust field, in which, as I have sought to explain, the penalty is not only the ordinary penalty of a fine, as in ordinary criminal proceedings, but the penalty exacted by a private attorneygeneral—the individual company which alleges that it has been harmed—of three times the damage which it has suffered.
The remedy we propose in Clause 6 is unusual and in our law unprecedented. I am certain that it is one which your Lordships will wish to discuss. The clause provides that a United Kingdom businessman or company, as defined in subsection (1), who has had to pay multiple damages abroad shall be entitled to recover in our courts the penal element in those damages. This in our view should enable our companies to recover the element of what we see as unjustified enrichment involved in the penal element of multiple damages.
By not attacking the compensatory element in those damages, even where we object on jurisdictional or other grounds to the original proceedings, we are minimising the direct confrontation between court and court and recognise that in normal proceedings for compensation countries are prepared to extend their jurisdiction more widely than might be acceptable in criminal or penal proceedings. Subsections (2) and (3) contain two limitations. The right given by the clause is not to apply if the defendant abroad was an individual resident or company with its principal place of business in the country in question when

567
based on competition laws which have been specified by order made by the Secretary of State shall not be enforceable in the United Kingdom. In my view, this is acceptable and the philosophy behind it is in line with the traditional attitude of our law to the non-enforceability of foreign revenue and similar judgments.
The most important innovation in the Bill is, of course, Clause 6 and its most contentious provision. Both in the context of anti-trust cases and the United States "long arm" jurisdictions, if I may so describe them generally, we have always been troubled by the fact that nothing can be effectively done to protect British assets in the United States. We could prevent the resulting judgments from being enforceable here all right, but that is a very imperfect remedy. It might well deter British commercial organisations from trading in the States so as to commit assets there and so give hostages to fortune. Furthermore, in many cases British assets in the States may be so vast—as is the case with RTZ—that the non-enforceability of United States judgments may be largely academic, because the judgment creditors might easily find sufficient assets on which to levy execution within the United States itself.
Presumably, then, Clause 6 is an attempt to deal with this situation by enabling the judgment debtor to recover or claw back in so far as he can the penal, as opposed to the compensatory, part of the amounts awarded against him. It provides a wholly new weapon for seeking to neutralise the effect, albeit penal, of judgments given under the domestic legislation of a foreign State; additionally in effect in the context of assets within the jurisdiction of the foreign State by seeking to neutralise their recoverability. I must ask the noble and learned Lord the Lord Advocate whether anything of this kind has ever been done before either in this country or in any of the other countries that have been adversely affected? I see without surprise that the noble Lord, Lord Renton, shakes his head, because I myself believe that the answer is in the negative. So we are plunging into deep waters here and taking a road which has not been taken before. But your Lordships are not surprised when I say I am not afraid of novel proposals or dealing
568
especially with old wrongs. Indeed, I have spent most of my political life trying to do so, in circumstances which obviously have not been quite so palatable to noble Lords as my support of what they are seeking to do now may, I hope, be. But they are important proposals in Clause 6 which I think we should examine very carefully indeed. They could, of course, give rise to reprisals.
But there is an important practical question that also arises in regard to Clause 6 which was raised in another place by my learned friend Mr. Jeffrey Thomas and others; namely, will Clause 6 be effective? The claw-back judgments here clearly would not be recognised in the United States, and the United States defendants to such proceedings here would or could easily be able to arrange their affairs so as to have no assets within the jurisdiction here which could be clawed back. This is why at one stage in the consideration of the Bill in another place my learned friend Mr. Thomas moved an amendment providing that, where the party in whose favour judgment for multiple damages was given is a company and an associated or subsidiary company thereof is registered or carries on business in the United Kingdom, the company or person against whom judgment was given shall be entitled to recover back the amount of damages stated in subsection (1) from the associated or subsidiary company.
The learned Attorney General intervened in the debate and expressed his sympathy with my learned friend's amendment and he stressed the harshness of and unacceptability of mandatory triple damages, as indeed the noble and learned Lord has done today. As he pointed out, not only do triple damages have to be awarded but no regard can be paid to the means of the company affected or of the person concerned; each could be made bankrupt. He conceded that Clause 6 as it stands will not be very effective, and he added:
"…because we do not have the rather draconian powers that United States courts have by which a company merely by virtue of the fact that an associated or subsidiary company is carrying on business in the United States can be made liable and can have jurisdiction asserted over it."
He clearly indicated that not only do we no have these draconian powers, as he described it, but that he would indeed be

569
very reluctant to have them or to accept them or to introduce them in the Bill. Under the advice of the Attorney General, my learned friend Mr. Thomas withdrew his amendment. The view taken by the Government was really a political question; how far down the line we could go in this matter. That was the critical issue which faced them.
So it may well be that we should examine this question. For instance, your Lordships may come to the conclusion that Clause 6 was so ineffective that it might be wiser to drop it rather than incur the odium in the United States which would result from having it on the statute book. On the other hand, it may be said that the fact that it remains on the statute book is an indication of the sense of injustice that would be felt in this country if these powers continued to be sought to be exercised in the United States.
That is the situation. We shall look into it carefully. There is a great deal of expertise both in law and in business in your Lordships' House and we shall no doubt be able to consider this matter in depth. Indeed, perhaps my noble friend Lord Mishcon will comment upon this aspect of the Bill, among others, when he intervenes in due course. In the meantime, we on this side of the House shall be happy to support the Bill on Second Reading.
5.2 p.m.
Lord LLOYD of KILGERRAN: My Lords, may I presume to congratulate the Government on bringing forward the Bill and congratulate the noble and learned Lord the Lord Advocate on the clear and positive presentation he has made in introducing this important Bill. The Bill is long overdue, directed as it is to an attempt to deal with some of the outrageous instances of interference through foreign courts and agencies with the international trading of United Kingdom firms in so many areas. It has become increasingly intolerable to many British interests that other countries should so often assert their laws outside their own territories so as to enforce their own economic and commercial policies unilaterally in relation to international trade.
As the noble and learned Lord has already indicated, the Bill is really the culmination of bitterness about the policy of the United States—often referred to as
570
the "judicial imperialism of the United States of America"—in enforcing stringent controls, particularly in the field of anti-trust and taxation, affecting the business of foreign firms. However, as the noble and learned Lord the Minister is aware, there are now many other countries apart from the United States of America, which have introduced legislation, particularly as regards tax, which is being exercised extra-territorially against British interests. For example, in the taxation field there is the Canada Act 1971; the West German Taxation Acts of 1972 and the Acts in Japan of 1978. Quite apart from those, there are an increasing number of German and French courts, agencies and authorities who appear to be unwilling to conform with European and EEC court decisions.
Time and time again the Americans have asserted extra-territorial jurisdiction in a wide range of matters. With your Lordships' consent I should like to refer to an article published in the Columbia Law Review of December 1978 dealing primarily with American law regarding taxation of foreign companies. The author, I am privileged to say, is a friend of mine. We are both Fellows of my college at Cambridge. He is a distinguished American lawyer, Professor W. W. Park, now at Boston University in Massachusetts. He analyses in this interesting essay what he calls "the untoward economic and political consequences of the fiscal extra-territorial jurisdiction of the United States of America on international business". He sums up the position generally in this way:
"Claims of the United States to extra-territorial jurisdiction have been extensive in the area of anti-trust, corporate securities regulation, foreign bribes, profit repatriation by foreign companies, and the embargo of trade with communist countries".
There now comes an interesting passage because he says:
"The only American concession to criticism voiced by governments and scholars"—
over a long period—
"appears to be a recognition that when a person is subject to conflicting directives of different sovereigns, considerations of fairness and commity may argue for moderation of the enforcement, but not prescription, of rules".
He goes on in the article to advocate self-restraint in United States practice to limit extra-territorial assertions in the field of taxation of foreign companies, but he mournfully concludes:

575
it is made in the course of civil or criminal proceedings. I am never quite clear whether anti-trust proceedings in America arc civil or criminal proceedings. There is some difficulty in deciding, and I suggest that the word "civil" should be deleted.
I should like to refer to Clause 6. The noble and learned Lord, Lord Elwyn-Jones, has raised points on this clause. He asked rhetorically whether it was academic. Does the noble and learned Lord the Lord Advocate really think that it is legally effective? Is it merely intended to be symbolic in the hope that we can precipitate more international diplomatic discussions on this matter? As I indicated in the article by my friend Professor W. W. Park, these discussions have been going on for a very long time and there have been protests by Governments and by academics on this issue. They have not got very far. Perhaps the noble and learned Lord will be able to assure the House about the effectiveness of this clause for United Kingdom firms.
I conclude by pointing out this: We hope that this Bill can be realistically effective in assisting and protecting United Kingdom firms in their increasing attempts to create wealth, particularly in the context of new technology advances. I feel that this Bill should be made legally effective and not be an attempt for further discussions of a diplomatic nature.
5.20 p.m.
Lord RENTON: My Lords, in addressing your Lordships' House for the first time I should first like to thank my noble and learned friend the Lord Advocate and, if I may so call him as he referred to me, my noble and learned friend Lord Elwyn-Jones, for their kind welcome in anticipation of my maiden speech. After the three exceedingly well-informed and full speeches which we have heard, Members of your Lordships' House may wonder what there remains to be said, but I must remind your Lordships that lawyers do not readily concede the last word to any other lawyers. A committee in which I was involved dealing with legislation recommended that there should always be a Scottish law officer serving in your Lordships' House. For that reason, I am so glad to be taking
576
part in a debate on a Second Reading which has been moved by my noble and learned friend the Lord Advocate.
I, too, welcome this Bill. I welcome it not only because of its intrinsic merits but also because it gives further evidence of our refusal as a country to be clobbered by friend or foe, great or small. Although, as the noble Lord, Lord Lloyd of Kilgerran, has said, this Bill is long overdue, there is of course a startling paradox about the motive for it. The United States is our greatest friend and ally. As has been said, the peace of the world depends largely upon our alliance, and yet ironically here we are in Parliament asked by the Government, with the support of both the main Opposition parties, to pass legislation to defend our trading interests against the long-established punitive legislation of Congress enforced for many years by a partly extraterritorial jurisdiction of the American federal courts. It is tempting on an occasion like this to argue with the Americans about their own legislation and the way in which it is enforced, but I do not think that we should concern ourselves with that. What we should do is consider what needs to be done to protect our own people from the quasi-extraterritorial effects of that legislation.
Let us consider what has been the position for many years right back in the common law, certainly well back into the last century, of our own courts. Our own courts have always placed strict limits upon their own power to enforce payment of money due to people within our jursidiction under the judgments of foreign courts. In particular our courts have always refused to enforce payment of fines, taxes, penalties or penal awards of damages by courts overseas, although I must point out in passing that in a case in 1976 the noble and learned Lord, Lord Denning, courageous as always, suggested that it might be feasible for our own courts to support a foreign judgment which awarded exemplary damages. Now exemplary damages are something that our own courts have leaned against, although exceptionally they do grant them, but I must say that I think it would be dangerous to concede the principle (and I hope that the Bill does not concede it) that exemplary damages awarded by the judgment of a foreign court could be enforced in this country.

577
It is of course true that under our own law the Customs and Excise, and indeed the Inland Revenue, are able to exact penalties amounting to triple the amount of Customs duty evaded and of triple the amount of tax. But certainly in the latter case my understanding is that that is not a mandatory provision. It is within the discretion of the court. But we never do try to enforce these triple penalties under our own law by attempting to exercise an extraterritorial jurisdiction, as the Americans attempt to do under their anti-trust law. So that to that extent we are in the clear in this matter. It is only right that we should place on record that we are in the clear. So that situation which I have just described is quite different from what happens under the American anti-trust laws when applied territorially.
What they have been doing for many years, certainly since fairly early in the century but with increasing intensity in recent years, is completely contrary to what under our common law, under our statutes, and under our rules of court, has been considered just and proper in the United Kingdom. That is why the Government are, in my opinion, fully justified in asking for this Bill. However, while accepting the need for it and, in general, accepting the method proposed in it, I would ask your Lordships to consider whether the method proposed is right in all respects.
As the noble and learned Lord, Lord Elwyn-Jones, pointed out, there is of course precedent for Clauses 1 and 2 because they apply generally what was applied to shipping only in the Shipping Contracts and Commercial Documents Act 1964. While bearing in mind the points made by the noble Lord, Lord Lloyd of Kilgerran, about Clauses 1 and 2—and I think they will deserve further consideration in Committee—I really do have serious doubts about the enforcement provisions contained in Clause 3. It is Clause 3 which, by applying the criminal law, is the means of enforcing what is proposed in Clauses 1 and 2.
In Clauses 1 and 2 we give powers to the Secretary of State to make certain orders, and those orders are intended to defend our business people by ordering them to give him notice of the activities of foreign courts which may adversely affect them, and so he can direct them not to comply,
578
for example, with the orders of a foreign court with regard to discovery of documents, or the provision of commercial information. But if our business people fail to do what he orders or directs them to do in their own interest—and which presumably they will want to do for their own protection—they can be made into criminals under Clause 3. Of course, I concede that there must be some way of enforcing the orders and directions of the Secretary of State. There is no doubt about that.
It may be that as a last resort criminal sanctions have to be used, but would it not normally be better to do it by means of a much more simple, more tactful and cheaper process, by going to the High Court, or in Scotland to the Court of Session—in the High Court by way of injunction and in the Court of Session, I understand, by way of interdict—a civil method of enforcement? I think this has an advantage over the criminal procedure. Certainly out of London there are some terrible delays in the hearing of cases by jury in the criminal courts. In the part of East Anglia with which I used to be associated in another place there are now delays of nine months before jury cases are heard. We do not want delays in cases of this kind; we want a much more expeditious method of enforcement.
Therefore, I suggest that between now and the Committee stage my noble and learned friend the Lord Advocate might care to do two things, first to consider how Section 3—which is the equivalent section to Clause 3 of this Bill—of the 1964 Act has worked in practice. Maybe there have not been any criminal prosecutions. I do not know and only the authorities could give us that information. It would be interesting to know how they have worked out, what the costs have been and what delays there have been in using the criminal sanctions to enforce this particular and unusual part of the law. Secondly, I would ask him to consider tabling an amendment enabling those concerned, who would be the Secretary of State or the Attorney General or any interested party, to go by way of injunction in the High Court or interdict in the Court of Session. I could not expect an answer to that today, not having given notice of the question to my noble and learned friend, but I would be grateful if he would consider it.

579
Clause 4 is a nice, neat, concise piece of drafting. Clause 5(1), (2) and (3) have been described as declaratory of the existing law, but the law was already codified in the Foreign Judgments (Reciprocal Enforcement) Act 1933. My understanding of the effect, or one of the effects, of that Act is that it resolved the doubts raised by the case mentioned by my noble and learned friend, that of Huntington v. Attrill towards the end of the last century, and strictly speaking we do not really need to have those doubts any further resolved by those subsections of Clause 5 of this Bill. I think, strictly speaking, that they are unnecessary, and they are unnecessary because our courts would tremble with rage at being asked to enforce a foreign judgment for triple damages, whether or not we pass this Bill. However, sometimes, when you have a Bill with international implications of this kind it may be desirable, some people would think necessary, to have a declaratory clause in it, but I hope it will not be too readily taken as a precedent because declaratory clauses merely confirming and insignificantly altering the previous law, in my respectful opinion, should not be encouraged.
Clause 5(4) is new and I think it is desirable as a long-stop, even though it is to some extent retrospective, but in this case the retrospection is justified because I think no injustice could possibly result from the Secretary of State making an order under it. Clause 6 has been well described already—bold, unprecedented and unpredictable—but I would respectfully doubt whether it is, as the noble and learned Lord, Lord Elwyn-Jones, suggested, necessarily ineffective. To a great extent, it is bound to be effective, but at the same time to a limited extent, an extent limited by various circumstances. It will not, for example, be possible for every aggrieved party to recover the excess of multiple damages if the defendant is out of the jurisdiction and therefore not likely to pay up and if he has no assets within the jurisdiction. But this unusual clause is essential for dealing with the situation created by the way in which the United States courts have reached out to enforce their anti-trust laws.
I wonder whether my noble and learned friend the Lord Advocate, when he replies would care to set the Bill in a European
580
context. There is no mention in the Bill of other EEC countries; they seem to be treated just as all foreign countries are. That is understandable because, unless something has been done since we joined the EEC, not all European countries have reciprocal enforcement agreements with us and therefore it may be necessary to deal with our EEC partners just as though they were any other foreign countries, but it would be helpful to have it put into that context.
In conclusion, I would say that the Bill gives some new, unusual and wide powers to the Secretary of State, and it would be of great help to our business people, to anyone affected and to their advisers if the Secretary of State could, as soon as possible after Royal Assent, which I hope will not he long delayed, indicate the extent of the area in which he envisages using his new powers—and indeed his old powers, which have not been used very much—of making orders and giving directions. It is fortunate that the Bill, which might have been regarded as controversial, has the support of both sides of both Houses. Let us hope it will achieve its purpose.
5.34 p.m.
The EARL of INCHCAPE: My Lords, perhaps I may be permitted to comment on the Bill on behalf of the United Kingdom shipping industry. I speak not only as chairman of a major shipping company but also as a past president of the General Council of British Shipping. But before doing so, I am pleased to be the first to congratulate the noble and learned Lord, Lord Renton, on his admirable and very learned maiden speech. I feel I am in a good position to do so, having waited for over 30 years to make my maiden speech, about five years ago. In view of the noble and learned Lord's 30 years' service in another place, and as an eminent barrister, clearly it was not the ordeal for him as it was for me, and we look forward to his future contributions.
While the Bill refers to overseas countries in general, it is of course primarily aimed at certain policies of the United States. This is because, as the noble and learned Lord the Lord Advocate said, of the unfortunate but nevertheless inescapable fact that for many years our relations with the United States on mari-

581
time questions have not been entirely harmonious. There are a number of reasons for that; our basic philosophy on a number of shipping policy questions is markedly different from that of the United States. We and other European nations favour self-regulation by liner conferences which involve close consultation between them and their customers, and shippers. The United States, on the other hand, believes in Government regulation as the quid pro quo for immunity for its anti-trust legislation. But unfortunately the widespread immunity originally afforded under the United States Shipping Act 1916 has been so eroded by a decade of legal cases as to make that immunity uncertain and often ephemeral.
Attempts on the part of the United States to extend its jurisdiction beyond its frontiers have naturally led to counter assertions by other countries, with inevitable conflicts. These have not been confined to legal fields. Conflicts have spilt over into the general field of shipping policy and have adversely affected normal commercial operations in the United States liner trades. As the noble and learned Lord, Lord Elwyn-Jones, said, matters were brought to a head by a lengthy grand jury investigation into certain alleged activities of British and other lines engaged in the North Atlantic trades which resulted in the imposition last year of heavy fines on certain British companies and individuals. Although these were negotiated fines, on the basis that the lines did not accept that they were at fault, let alone that they were guilty criminally, as the noble and learned Lord said, some 34 civil suits have now been filed against the British lines in the United States by shippers seeking treble damage awards against the companies involved.
I should like to stress two points. First, the activities complained of would in no way have been illegal in the United Kingdom, or for that matter in other European countries. Secondly, shipping is an international activity affecting the interests of companies at both ends of the trade. It was a recognition of this intolerable state of affairs which prompted a number of people on this side of the Atlantic, both in Government and in industry, even before the grand jury case, to make repeated efforts to achieve a long term modus vivendi with the United
582
States. Some progress was being made, but much has now been dissipated as a result of the grand jury investigation and later developments.
Perhaps the most significant feature of the investigation was not the extent of the financial burden placed on the companies, alarming though that was, but the fact that the Department of Justice was able throughout to follow its own line, irrespective of the wider consequences. There appears to be little constraint on the activities of that particular Department of the United States Government, which sees its legal duties as paramount, whatever the consequences.
The resentments and the frustrations built up as a result of all this were, I believe, in large measure responsible for the decision of Her Majesty's Government to introduce the Bill now before your Lordships' House. On behalf of the shipping industry I should like to give it a warm welcome. I well understand that there may be some nervousness that some of the provisions of the Bill go further than previous British legislation. Certainly it appears to contain some legal innovations, in particular those embodied in Clause 6, but other noble Lords who have already spoken this afternoon are better qualified than I to comment on that aspect. All I would say is that, from the point of view of the British shipping industry, these new provisions are an integral and valuable part of the Bill and it would be unfortunate if novelty of approach were to be regarded as a ground of opposition.
The important thing is that the Bill should be on the statute book as soon as possible. As the noble and learned Lord Advoate stated, the Bill repeals, and in part re-enacts, the Shipping Contracts and Commercial Documents Act 1964. This was always a useful, if not wholly successful, measure in denying documents to the American authorities in cases where there were infringements of the United Kingdom jurisdiction and where, furthermore, in the view of Her Majesty's Government the companies concerned were fully justified in withholding information.
I believe, therefore, that the Government have done the right thing in strengthening the legislation in this area

583
by making sure that effective safeguards exist in cases where the United States seeks unjustifiably to extend its jurisdiction. Anglo-American differences are not to be taken lightly, and I know that efforts to solve this problem will continue on both sides of the Atlantic. I think it is encouraging that concern over the repercussions of United States antitrust laws in the international field has also been strongly voiced by American commentators. In an editorial on 4th November 1979, which has already been quoted in another place, the Washington Post wrote:
"American anti-trust law does not travel well … Americans have worked out their rules of competition at home, and are now trying to extend them into international commerce as a sort of afterthought … The Sherman Anti-trust Act is not a suitable instrument for the regulation of world trade. Maintaining international competition is the proper business of diplomats and negotiation, not federal judges and litigation".
Unhappily, the line taken by the Washington Post, which seems to me and to many others eminently sensible, does not reflect the present official view of the United States Government.
So we in the shipping industry believe that the need for the Bill is urgent. It may be that when the Bill enters the Committee stage noble Lords will come forward with amendments designed to strengthen and clarify its content; certainly I trust that nothing will be done to weaken it. May I, in conclusion, congratulate the Government on their courage in introducing this much needed, and in part novel, legislation. It is in my view quite properly defensive, and not retaliatory, and should be supported.
Lord DAVIES of LEEK: My Lords, I should like to explain to your Lordships why, out of respect to the House, I have withdrawn my name from the list of speakers. I had to leave the Chamber and so missed some of the main speeches. Before I sit down, and in the one minute that I shall take to apologise, may I say how delighted I was to listen to the maiden speech of the noble Lord, Lord Renton, because I had intended to deal with the question of the wide powers that are to be given to the Secretary of State, and I now hope to do this at the Committee stage.
5.45 p.m.
Viscount ROCHDALE: My Lords, may I add my humble, but very sincere, congratulations to those extended to my noble friend Lord Renton upon his excellent and, if he will allow me to say so, mature maiden speech. I learnt a tremendous amount from it, and I look forward to hearing him speak in your Lordships' House in future on these and many other matters.
I am no lawyer, and I will not go into the niceties of the legal aspects of the Bill; and I shall be very brief. Your Lordships may remember that on 21st June last year I had the privilege of introducing in the House a debate on some of the major policy issues affecting the shipping industry in this country and in the other main maritime countries of the West, and in the OECD. Some of the matters we discussed were important issues which were very much to the fore at the time, and still are. There was an issue regarding the United Nations Code for Liner Conferences, and the question of the impact of Third World countries. There was also discussed the effect on shipping of the tremendous downturn in world trade. In particular, there was the question of the unfair competition from Russia and the other COMECON countries. All these were major issues, and it was quite clear that all previous efforts to solve them on any unilateral basis had been unsuccessful. It was felt therefore that it was essential that these sort of issues should be dealt with on a united basis by the main maritime countries of the West; they must work on a concerted basis if they were to have any hope of solving some of them.
At a time of world trade depression it must be possible for all the Western maritime countries to be able to argue in a united way. But how could this be easily done in the face of trouble from across the Atlantic (which we have heard so much about this afternoon) which has soured the points of view of the maritime countries? At the time of the debate to which I referred the grand jury investigations had just taken place. Penal fines had been paid, and since then the situation has developed and there has been an important aftermath, leaving still a very sour taste in the mouths of the main shipping countries. I referred then, and other noble Lords who spoke in that debate agreed, to the

585
fact that some understanding between the United States and Europe on these issues was absolutely essential; some modus vivendi. One hoped that that would emerge; and, of course, we have been told that diplomatic and other discussions have continued. One applauds these discussions very much, but, regrettably, they have seemingly been of no avail.
Therefore, my Lords, I take the view—as does, it seems, the whole House—that this Bill is now both essential and extremely urgent. But, having said that, it does, after all, provide protection—that is its purpose, protection—only for our trading interests; and the need for the maritime countries to continue to try to find a way out, so that they can go on talking together and acting in a united way to deal with these other major problems to which I have referred, still stands. I very much hope, not only that diplomatic and other discussions will go on quite apart from this Bill, but also that my noble and learned friend the Lord Advocate will be proved right in what he said towards the end of his speech; that is, that he hoped (he may have gone further than saying that he hoped, but certainly that he hoped) that these problems would not prejudice the enormous importance of continued friendly relations between ourselves and the United States, which are so essential from every point of view and not least from the shipping point of view. I hope he will be proved right, and that those relations will in no way be prejudiced. Having said that, I strongly support the Bill, and I hope it receives a very rapid passage.
5.52 p.m.
Lord MISHCON: My Lords, not for the first time is this House required to bring a cool, calm, analytical mind to the problems which arc faced in this Bill. I say that being able on this occasion—and, indeed, it is a compliment to this House—to quote from what the Secretary of State said in another place on the Second Reading of this Bill. What he said was this:
"I am not posing as a great expert on these matters. I was hoping that the Bill might start in another place, where there are men of enormous experience who would wish to debate these matters in great depth. It so happens that the Bill came first to this place".
If I may have your Lordships' leave, I should also like to quote a rather interest-
586
ing reply that was given by one honourable Member in another place to that observation. The honourable Member said:
"The Minister has told us that he would have preferred the Bill to go to another place, whose Members are more informed and able to give proper answers. That attitude does not fill me full of confidence".
I merely quote these passages in order that your Lordships may realise what I believe to be true; namely, that whereas this measure has in principle the support of all parts of this House, it is a measure which must certainly be looked at very carefully in Committee; and I would also observe that it should be carefully looked at even on Second Reading, so that one is warned in advance of certain matters which might have to be dealt with in Committee or on Report stage.
In regard to the general principles of the Bill, perhaps I may say that I think it would be an irresponsible Government and an irresponsible Opposition which did not link hands on the measure that is before us, and on the necessity for it. It is a Bill which seeks to protect our legitimate trading interests in this country, particularly against what is generally regarded as an abuse of the principles of comity and of the sovereignty of trading nations by the extra-territorial jurisdiction which is exercised by the United States especially under the Sherman Act of 1890 and the Clayton Act of 1914. It has been said before—but it should be repeated—that there can be no possible objection to their legislating for, and enforcing, their own commercial ideology. That was a point that was very clearly and calmly made by the noble Lord, Lord Renton, in what, if I may copy what other noble Lords have said, was such an admirable maiden speech. But it does become unacceptable when this ideology is translated into extra-territorial rights and extra-territorial grasp. Indeed, I believe that the noble and learned Lord the Lord Advocate used the word "unacceptable" in regard to this. I almost thought that he was going on to say that it was the unacceptable face of international capitalism, but he did not.
As I said, there can be no dispute at all about the necessity to take measures against the harmful things that have been done to our trading interests and to our industries. In particular, the shipping industry has been mentioned; and, of

587
course, there was also quoted the quite dreadful case of Rio Tinto Zinc. I am not going to detail to the House what happened in both those cases—that has already been done—but I have observed that, as yet, nobody has said what was the heinous offence of the shipping lines and the individuals concerned, who, I believe, were subjected to the very highest fines that have ever been administered under the Sherman Act. and who are now faced with civil suits for treble damages. The dreadful crime that they committed was that they in fact tried to regulate some of the freight charges on the North Atlantic routes, and they did so without consultation with the relevant American agencies. My Lords, the fines that were administered have been quoted. They were, indeed, terribly substantial, and it is little wonder that one of the officers of, I believe, the Department of Justice, following upon the imposition of the fines of some 6 billion dollars. made this observation:
"The anti-trust division is well on its way to being a profit centre for the Department of Justice".
I am not surprised at that observation. One might almost call it the Sherman Pools of America.
My Lords, I have spoken of the calm observation and analytical mind that this House, with its experts, ought to be exercising in regard to this Bill. It has been said that it might have been hoped that, especially with our ally and friend the United States of America, it would not be necessary to legislate in this form. There is no doubt about the fact that years have passed in which endeavours have been made to seek a peaceful and amicable solution of what are undoubtedly very grave problems. I would have wished it possible to exercise some concerted effort in regard to persuading the United States—not their Government departments, which I understand are endeavouring to be helpful, but their legislature—that there should he some change in their approach to these extra-territorial rights which they claim.
I would have hoped, as I have said, that pressure could be exercised by concerted action, through either the EEC or some of our trading partners who were not necessarily Members of the EEC, but who nevertheless felt as we did in regard to these matters. I have looked at the
588
Second Reading debate in another place when that question was asked. It seemed that very poor efforts had been made in this direction so far and that really the United States—and we are talking particularly about the United States this afternoon—are faced with a multiplicity of reactions in regard to their anti-trust legislation and their other attempts at extra-territorial exercise of rights. I am quoting from the Under-Secretary of State for Trade. Mr. Tebbit, who said:
"Several other European countries, for example, the Netherlands, Switzerland and Norway, have similar statutes on blocking the passing of information".
If I may say this as an interjection into that quotation. obviously, these are matters dealt with in Clauses 1 to 4 of the Bill before us.
"Australia, Canada, South Africa and some other countries also have similar laws. Australia and South Africa have provisions restricting the enforcement of triple damage judgments but on a rather more limited basis than the provisions in our Bill. We think that at least four other countries—three in Europe and one elsewhere—are considering legislation on the enforcement of judgments. However, we have no firm knowledge about how far they have gone down that road".—[Official Report, Commons, 15/4/79; col. 1583.]
I would plead with the noble and learned Lord the Lord Advocate to indicate in his reply, if he could, that the efforts at concerted action by our trading partners and our trading competitors to get some sense into this field will continue if they have been started, or will he started if they have not already commenced. It seems to me to be a so much more effective way, obviously, of bringing influence to bear on the United States rather than by having to deal with measures of this kind.
I promised that the final section of my speech will be dedicated to some, I hope, constructive observations on the Bill itself. In that connection, I shall understand completely if the noble and learned Lord the Lord Advocate wishes time to consider what I am about to say about some of the clauses; because I have not had the opportunity of giving him notice of these points and I believe that I am right in saying that they were not raised in the way in which I am going to raise them, at all events, at the Committee stage or the Report stage of the Bill in another place. Therefore, if he decides that he would like to give consideration to those points, I shall regard it as a courtesy that he is doing so and not as a discourtesy

589
that he is not replying to me directly today.
I turn first to Clause 2 of the Bill where the noble and learned Lord the Lord Advocate in his very lucid introductory speech referred to documents and information required by overseas courts and authorities which the Secretary of State—if I may use shorthand English—would be able to stop being given or accorded if he used his discretion. And in the use of his discretion in regard to inadmissible documents—and that is the only type of information he could deal with under this clause—the inadmissibility must have the requirement, if one looks at subsection (2), that
"… it infringes the jurisdiction of the United Kingdom or is otherwise prejudicial to the sovereignty of the United Kingdom"
or, if looking at subsection (2)(b):
"if compliance with the requirement would be prejudicial to the security … or to the relations of the Government of the United Kingdom with the Government of any other country".
We then find that there is a broad further description of what is inadmissible in subsection 3(b), which reads:
"if it is made wholly or mainly for the purpose of obtaining discovery of documents in any such proceedings".
And the words "any such proceedings" refer back to subsection (3)(a); namely, "civil or criminal proceedings". There is nothing in that subsection or in that clause, so far as I can see, that says in what way the Secretary of State's discretion should be exercised. It is there in Clause 2 in regard to the two categories that I have talked about, but not in Clause 3.
The result is that if you get an application to our courts under the Restriction of Evidence (Proceedings in Other Jurisdictions) Act 1975 for help by another court in another country—and this Bill relates not only to the United States—you get a situation where that court might make an order allowing the discovery that is wanted; whereas the Secretary of State, without having any limited discretion and without having any guide to his discretion, decides subsequently, under this Act, that this discovery should not be given.
As I see it, there is a conflict now between the jurisdiction of the courts and of the Secretary of State; and it is
590
not covered by Clause 4—which, I believe, the noble and learned Lord the Lord Advocate indicated was a matter of covering the Restriction of Evidence (Proceedings in Other Jurisdictions) Act—because that is a certificate given by the Secretary of State; but it is purely limited to the other matters I referred to; namely, that it was "prejudicial to the sovereignty" or otherwise interfered with our trade. It may be that the words which are in subsections (2)(a) and (b) ought to be imported into subsection (3) and they have not been so imported.
May I turn now to something very much more important. Everybody has said (and, indeed, Mr. Thomas in another place said it clearly) that without this clause the Bill is like a tigress without claws. Therefore we have to look at Clause 6 very closely indeed. We give this protection of the clawback of the triple damages under this clause (which is the first point I want to mention) under Clause 6(1)(c) to:
"a person carrying on business in the United Kingdom".
That is a very extraordinary gift to somebody who is not, in fact, a British subject, not a British trading company, not somebody who is permanently carrying out business in this country, if he happens to be a foreigner. Any person who carries on business in this country, however small the business may be, can rush over here, it seems to me, having had a triple damages award made against him and can claim the protection of Clause 6 by going to our courts. I just wonder whether that is a very sensible provision.
Next, I deal with another matter under Clause 6 because I know that in another place everybody was extremely keen to try to see that there was no way, in the very novel provisions of Clause 6, that they could allow the United States or its courts to find a way, to put it crudely, of evading our rights in this connection, or the rights given under Clause 6 to the subject or to the person carrying on business here.
In Clause 6, the right is given to recover the triple damages. It says:
"… so much of the damages paid to or obtained by him under the judgment …".
The "him" is the person who in the United States managed to get the benefit

591
of that judgment. I will not bore your Lordships with the quotation, but the Secretary of State made it absolutely clear in another place that this must be an action against the person who was the plaintiff in the other proceedings in the United States by the person who was the defendant. The defendant will bring this action against the plaintiff.
Unless I am being very foolish, there is an easy, simple and clear way of evading the whole of this clause by the American plaintiff, as soon as he has his judgment, assigning the benefit of it to a third party. In those circumstances, when the third party claims the damages against the person over here—if I can use a shorthand phrase—there is no way in which, under this clause as worded, the person over here would be able to claim the punitive part of the award, that is other than the pure compensation, because the person who was the plaintiff has not obtained the money from him and has not obtained payment from him. It would be the assignee of the plaintiff. There again, that is something that we obviously must look at.
If there were time—and if I was not intruding upon the patience which your Lordships always so generously give—I would go into another matter concerning the word "exclusively" in that clause. I shall do that, if I may be so permitted, at the Committee stage. But maybe the Secretary of State was right; maybe this House, as I said, with its usual care in looking at legislation before it, will have to exercise very great care indeed in regard to this Bill, because—and I say this without disrespect…it seems to have been looked at a little quickly and not quite deeply enough, especially in regard to the novel powers under Clause 6, in another place.
Lord MORRIS: My Lords, before the noble Lord sits down, may I ask a point of clarification specifically as a non-lawyer? Surely Clause 6(l)(c)—namely:
"a person carrying on business in the United Kingdom"—
is necessary in order to embrace a body which trades which is an unincorporated legal person?
Lord MISHCON: My Lords, I am grateful for any intervention in order that
592
I may try to make clear a point which I did not make before. It would be very valuable if this clause said that anyone who was permanently in business here, principally in business here, or anything of that kind, should have this right. The incorporated company here is clearly covered under the clause. But surely the clause as drawn—and that was the point that I was making—would by implication cover anybody who decided, having a small amount of business over here—be it as a commercial traveller embarking on some business three times a year—to claim the benefit of this right by merely travelling over here and saying: "It is perfectly true, I carry on business here."
6.15 p.m.
Lord MACKAY of CLASHFERN: My Lords, may I begin by joining with those of your Lordships who have congratulated the noble Lord, Lord Renton, on his excellent and thought-provoking maiden speech. I am particularly glad that he mentioned the recommendation of the committee (of which he was such a distinguished chairman) on the preparation of legislation some time ago in its recommendation that a Scottish law officer should be a Member of your Lordships' House. I am particularly grateful—at least on this occasion—that that recommendation has been given effect.
Before I attempt to deal with some of the more detailed matters that have been raised, may I say that Her Majesty's Government are of course most anxious to solve these problems, if possible, by negotiation. Everything that can be done to remove these problems in that way will be done. However, as the noble Lord, Lord Lloyd of Kilgerran, said, negotiations have been going on for quite a long time without as much result as one would have hoped. Therefore, it seems right not to abandon our defences but to improve them at the same time as we also seek to pursue these objectives by negotiations.
I am extremely glad that it has been possible for noble Lords in all parts of the House to join, to "link hands"—in the words of the noble Lord, Lord Mishcon—commending the principle of this Bill. The noble Lord made reference to my right honourable friend the Secretary of State for Trade and what he said about

593
himself in another place. That only reflected the genuine humility of the Secretary of State for Trade; but it certainly is not my judgment of his capabilities. He was only making clear the difficulty which his great ability appreciated exists in this particular field. The noble Lord himself pointed out how difficult the field is.
Lord MISHCON: My Lords, I am sure that the noble and learned Lord will permit me this intervention. I want to make it perfectly clear that I have every admiration for the Secretary of State and his distinct quality of humility. I was merely trying to pass on a compliment paid to this House so that the House knew about it and realised what was expected of it.
Lord MACKAY of CLASHFERN: My Lords, I am greatly obliged, and glad too, that my right honourable friend the Secretary of State, in the exercise of his great abilities, saw fit to pay tribute to this House; and leaving myself out of course, I join in it.
Now if I may turn to some of the more detailed matters, the noble and learned Lord, Lord Elwyn-Jones, asked whether Clause 6 was new. So far as I know, it is new. We are in a novel, difficult field. Therefore, the expertise of this House will be most valuable in seeking a solution to the difficulties posed by going along the Clause 6 road.
The existence of Clause 6 initially poses a problem for a company that has succeeded in a multiple damages suit if that company has assets in this country. That in itself is something useful. The clause is symbolic of our determination to do what can be done effectively to counter this particular policy so far as it is objectionable to us. In so far as it is a symbol it is a symbol of something more than the result it achieves; but I would not agree that it achieves nothing. I consider it achieves something and is a symbol of the area in which we wish to move.
The noble and learned Lord, Lord Elwyn-Jones, raised the question of whether the clause should be opened up in such a way as to permit drawing aside the corporate veil in the case of groups of companies, and possibly enabling the person against
594
whom a multiple damages award had been made to go against the property of a subsidiary or associated company directly. These are matters for consideration in Committee. There are obvious difficulties: it would have a very considerable effect if it were to be looked upon as a general principle on the whole structure of our commercial law, and therefore going in that direction has very obvious problems. However, the Government will give the most careful consideration to any proposals that noble Lords have for improving Clause 6 or, for that matter, any other part of the Bill.
If I could move now to the question raised by the noble Lord, Lord Lloyd of Kilgerran, about commercial documents, the clause which refers to those contains in subsection (6) a fairly general definition for commercial documents. I would think, although the point is perhaps one for more consideration, that the clause would be wide enough to cover the sort of document or record referred to by the noble Lord.
The noble Lord, Lord Renton, raised the question of exemplary damages and whether the Bill did anything to deal with that problem. The answer is that the Bill does not in any way affect that matter. It restricts the enforcement of foreign judgments, but does nothing to extend the scope of that enforcement, for example, to awards of exemplary damages, if they are not covered already.
It was also suggested that the criminal provisions in Clause 3 should be considered. As the noble Lord himself pointed out, this clause is based on the corresponding section of the 1964 Act and my information is that that clause has never required to be put into effect: in other words, the criminal proceedings remain on the statute book as a sanction. It would be unusual and inappropriate to enact an obligation without some sanction. The criminal sanction remains and, as I say, seems to have been effective in that, so far as I know, it has never been activated under the 1964 Act.
Lord MISHCON: My Lords, I wonder whether the noble and learned Lord would courteously give way again only for one moment to clear a very important point raised by the noble Lord, Lord Renton. I understood this provision to be in the

595
previous Act and in this Bill because otherwise, unless there were a criminal sanction, the person concerned in the litigation would not in the United States be able to plead the amendment; and that is the reason for the criminal sanction as against the civil one.
Lord MACKAY of CLASHFERN: My Lords, I am obliged. I think that that is a reason for the criminal sanction and, as I say, one would not have an effective provision with no sanction at all. So far as civil sanction is concerned, think it is at least doubtful whether an interdict or injunction would be appropriate. Certainly, so far as interdicts are concerned—I speak with great diffidence about injunctions—they are not available once the act complained of has been done. The interdict is to prevent the doing of the act and by the time the obligation had been breached, the act in question would have been done.
Lord RENTON: Yes, my Lords; but I think really the point here is that we are using a criminal sanction not after an act has been done, but in order to ensure that it gets done, by putting people in terrorem of the criminal law if they do not perform the act. If that is the position, then an injunction to compel the performance of the act would be just as good as, and much quicker than, the criminal sanction.
Lord MACKAY of CLASHFERN: My Lords, I would not want to get involved in too detailed an argument at this moment, but I think that what is provided by Clauses 1 and 2 is in the nature of a prohibition, and Clause 3 is intended to enforce that prohibition. Normally one might not get any intimation in advance that the prohibition was going to be breached until breached it was. However, this is a matter of detail which perhaps we can take up again in Committee.
The noble Lord also asked about the European context. As your Lordships will probably know, the situation is that the EEC have agreed a judgment convention for the mutual enforcement of judgments. There are presently working on the enforcement of provisions in the United Kingdom required for the enforcement of this convention committees, under Mr.
596
Justice Kerr so far as England and Wales are concerned, and under Lord Maxwell so far as Scotland is concerned, to work out the detailed provisions for the implementation of that convention which may be required in our law. However, so far as I can see, the provisions of this Bill will not conflict with that, and any power the Secretary of State had would be exercised in conformity with any restrictions the European Convention would impose upon him.
So far as extentions of the clauses to such things as patents, designs and know-how are concerned, we shall be very happy indeed to examine any proposals the noble Lord has for extensions. I venture to think that the definition of "trade" which is put into the Bill is perhaps wide enough to cover many of these. However, as I say, we shall be happy to see whether there are any other improvements the noble Lord can suggest.
If I might attempt to answer at least one particular point raised by the noble Lord, Lord Mishcon, on Clause 2, my understanding of the situation is that subsection (3) is independent of subsection (2) and that the conditions which are required for the Secretary of State's discretion to be available are that either (2) or (3) is satisfied. If one is dealing with subsection (3), the order that would be in question would be one from a foreign court, tribunal or authority; and it is that kind of requirement that the Secretary of State could block by means of the provisions of subsection (1).
Lord MISHCON: My Lords, I promise faithfully that this is the last intervention I shall make. I make it only because the noble and learned Lord—no doubt quite understandably—did not follow my point because I did not make it clear. What I was saying was that there is no fetter to the Secretary of State's discretion in regard to subsection (3) and no guidance as to how he should exercise it, whereas in the completely independent subsection (2), to which the noble and learned Lord the Lord Advocate has referred, there is a limitation and description of his discretion; namely threats to our sovereignty, threats to our trade. There is no guide whatsoever in subsection (3), and I think it may be an omission in draftsmanship and not a matter of policy.
Lord MACKAY of CLASHFERN: My Lords, with the greatest respect, I think the situation is that subsection (2) contains a basic requirement for the exercise of the discretion. Subsection (3) contains a different one, and the restrictions are contained in subsections (2) and (3) respectively for the subjects with which they deal. However, this again is a matter we can return to. I am happy to know that the principle of the Bill has such support, and therefore I invite your Lordships to give it a Second Reading.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

WEST MIDLANDS COUNTY COUNCIL BILL [H.L.]
Returned from the Commons agreed to with amendments.