HC Deb 14 November 1947 vol 444 cc712-27
The Chairman

If convenient, I think we can have a general discussion on Clause 2 and discuss all the matters together.

Mr. Manningham-Buller

I was going to suggest that we should discuss all the Amendments put down to page 2 as far as line 43 together.

The Chairman

If the suggestion meets with the convenience of the Committee, this might be done.

Mr. Manningham-Buller

I beg to move, in page 2, line 9, to leave out from "person," to "is," in line 10. and to insert: to whom subsection (1) of this section would but for the provisions of this subsection apply who. The Amendments are a little complicated but raise a point which, I think is of considerable importance and worthy of careful consideration. Before discussing the effect of these Amendments, I would just like to point out, as far as I can remember, the meaning contained in Subsections (1) and (2) of Clause 2 as that Clause now stands. Under Subsection (1), speaking generally, if one looks also at paragraph 1 of the First Schedule, persons who were born in Burma, or whose father or paternal grandfather was born in Burma, are deprived by this Subsection of British nationality. I do not need for the purpose of my argument to refer to the provision contained in the Schedule, but the broad purpose of Subsection (1) of Clause 2 is to say that those who were born in Burma, or whose father or paternal grandfather was born in Burma, should be deprived of British nationality.

We now come to Subsection (3) which states that those persons deprived of British nationality under Subsection (1) may have to comply with certain conditions, to retain their British nationality. The Committee will see that a person born in Burma, or whose father or paternal grandfather was born in Burma, but who is domiciled or ordinarily resident in any part of the United Kingdom, Channel Islands, Isle of Man, etc., can elect to remain a British subject. Reducing it to a simple proposition one finds that a gentleman who was born in Burma, but who is now domiciled or ordinarily resident in Newfoundland—that is his home—is by this Measure, although he may have been absent from Burma for years, deprived automatically of British nationality. I think that is clear from the content of the Clause. It then rests with him, if he so desires, to elect, but just let us consider the terms under which he can exercise that election. He is to make a declaration, before the expiration of two years—in line 31—to such person and in such a manner as may be prescribed, to remain a British subject. I am wondering whether the conditions under which that election must be exercised will become known to the individual whom I have taken for the purpose of my argument, resident in Newfoundland or any territory other than Burma, so as to enable him to exercise that election.

That is not enough. He has to do it only in the manner that may he prescribed to the person who may be prescribed. It may be that he does not know what conditions will be prescribed, or how many persons, and, also, if we look a little further, we see a proviso that a declaration made by him— shall be of no effect unless it is registered in the prescribed manner in pursuance of an application made within, or within the prescribed period after the expiration of, the two years. So that the individual is, first of all, deprived of his British nationality, and is then given the right of contracting in again and, being a British subject, if he complies with certain conditions, which no one in this Committee knows, and one wonders whether they would be communicated to him within the two years. It seems to me that this Subsection has been put the wrong way round.

I believe it will be right to say that a man born in Burma, or whose father or parental grandfather was born in Burma and whose home is now outside Burma—and that is the category which is covered by Subsection (2)—should retain his British nationality unless he elects to give it up. That it seems to me, would be perfectly simple to operate. I can see no reason why the Burmese man born in Burma, but who is resident and has his home outside Burma, should not retain his British nationality, and have the right, if he so desires, to give it up. I see no reason why it should be compulsorily taken away from him. It is with the object of providing that these individuals should have the right of contracting out of British nationality, rather than being forced to contract in to retain it, that I have put down these Amendments. I should like to make it perfectly clear that the only category affected by these Amendments now under discussion are those individuals who were born in Burma, whose father or parental grandfather were born in Burma, and who are now domiciled or ordinarily resident outside the confines of that country.

Mr. Wyatt

I can see the objective of the hon. and learned Gentleman in these Amendments, but I respectfully suggest to him that all his arguments apply with equal force the other way round. Suppose we alter the Subsection in the way in which he would like. If it is going to apply to a gentleman now in, say, Newfoundland, who now lives there, and who has to find out about these elections, if he wishes to remain a British subject, then there will be a large number of people, possibly in India and scattered all over the world—people working as coolies, people working in ships, and all that kind of thing—and a large number of illiterates, who have to find out if they want to be Burmese subjects instead of British. They have to go through all this paraphernalia of making declarations, and so on. I should have thought that the weight of evidence and argument would have been that there would be far more people—Burmese outside Burma—who wished to be Burmese subjects, than there would be Burmese outside Burma who wished to become or remain British subjects, and at any rate those who wish to remain British subjects would, presumably, be able to establish this, and would be people of a certain educational standing who had followed events in their own country and who could very readily find out how their position was affected. I think that the arrangement proposed would be preferable to what the hon. and learned Gentleman has suggested.

12.45 p.m.

The Solicitor-General (Sir Frank Soskice)

The Committee has listened to two very closely reasoned speeches. The hon. and learned Gentleman opposite has put one side, so far as the balance of convenience is concerned, and my hon. Friend the Member for Aston (Mr. Wyatt) has put the other side. The question thus resolves itself, in the circumstances with which we have to deal, as to which will best conduce to the general convenience and well-being, and I ask the Committee to say that we have hit upon the right method. The hon. and learned Gentleman takes the case of a Burmese man living in Newfoundland.

Mr. Manningham-Buller

This was only a hypothetical example of category (d).

The Solicitor-General

The hon. and learned Gentleman based his case upon Subsection (2) and took as a hypothetical example a person born in Burma and resident in Newfoundland. I think the Committee will be able to agree that that sort of person is a very real person, but the way in which this nationality condition is framed is this. Persons who are, in every sense of the word Burmese, by the first paragraph of the Schedule, lose their British nationality, but there is an exception to that in favour of anybody who has any claim, apart from his Burmese connections, to be British. In other words, supposing a man were born in Burma but had afterwards gone to America, he would lose his British nationality. Any claim through his purely Burmese affinities to be a British subject will rescue him from losing his British nationality by virtue of Clause 2 (1). The result will be that the persons to whom the hon. and learned Gentleman referred will be very few in number. The great majority of people will be able to prove their British affinity, which will take them out of the provisions of the first paragraph of the Schedule. If there were likely to be a considerable number, there would be much more force in the hon. and learned Gentleman's argument.

My hon. Friend mentioned the case of illiterate persons, and said they might well predominate. I agree entirely, except that I think they would be already Burmese in the sense that they would have no non-Burmese British affinities. Starting from the supposition that this will apply to very few people and that there will be an election only in isolated and unusual cases, in the case of a Burmese who has made his home in Newfoundland, or, it may be, in South Africa, that real person is given an election.

Supposing the position were the other way round, what would the consequences be? It would be very inconvenient in this sense. When Burma is independent, representatives of the new Government of Burma, in the various parts of the Empire, would remain British subjects unless, under the Amendments of the hon. and learned Gentleman, they elected not to do so. That would lead to confusion, and they would be far more numerous. We should have a great many people, who were purely Burmese and were only abroad as representatives of their country, possessing a dual nationality which they did not desire and which did not, in any sense, belong to them, since they were Burmese in every sense of the word. We should have an anomalous position, as, if they did not contract out, they would find themselves with a nationality which they had no reason or desire to possess. I ask the Committee to say that that is a good reason for leaving the Clause as it is, since the suggested alteration would lead to a great deal of confusion. They might contract out, but it is quite likely that that might be overlooked.

There is a further consideration, which I think has weight, even in the case of a person living in Newfoundland and being Burmese in origin. If the Amendment is adopted, that person's British nationality will depend upon pure chance. For example, the question of fact is whether, on the night of 3rd January, he had gone over the border into Malaya. The way in which we have drafted the Clause will result in the question of his nationality being decided by a positive and specific act of election, registered—

Mr. Manningham-Buller

When the hon. and learned Gentleman gives the instance of a man going over the border on the night of 3rd January, surely that individual would not be regarded as domiciled or ordinarily resident in Burma?

The Solicitor-General

It depends what is meant by "resident." After all, even the spending of a few days in a hotel may be considered as being resident. There are a number of people on the border-line, and the very point which the hon. and learned Gentleman makes shows how undesirable it would be that the nationality of such persons should depend on the question, aye or nay, whether, at the crucial time, they were resident inside or outside Burma. The question of their nationality might arise 10, 20 or 30 or 50 years hence, and instead of its being determined by a specific act of election, registered and easily ascertainable, it would have to be determined on whether the particular date—

Mr. Manningham-Buller indicated dissent.

The Solicitor-General

I see the hon. and learned Gentleman shakes his head. But the question would be, are these people British subjects or not, and the answer would be, they are British subjects if on the night of 3rd January, they were resident not in Burma but outside. Take the case of a person who frequently had to pass from one side of the boundaries of Burma to the other. It might be extremely difficult to say whether he was resident inside or not. He might have two residences. In 50 years' time one might have to think back on that event and determine, aye or nay, whether it could be said that that man, on that night, had a residence outside Burma. That would be a most inconvenient and unsatisfactory state of affairs. Not only that, but that man might have property, and the question might arise 100 years hence, if his sons or grandsons desired to establish that he was a British subject. They could establish it by saying that his election was made by a public action which was registered and easily ascertainable. Then the position could be easily ascertained. But it would be most inconvenient, in the case of the very people whom the hon. and learned Gentleman wants to help, and their descendants, if questions of nationality of particular individuals depended upon a doubtful question of fact of that sort.

The hon. and learned Gentleman put his case on the balance of fairness, convenience and justice. In all cases where the changing of nationality is concerned, this kind of anomaly and difficult position is bound to arise. We have very carefully considered the arguments of the hon. and learned Gentleman which he has put forward very cogently, but, taking into account the position of Bur-man representatives in the Empire, the small numbers that would be affected, and the possible consequence in years hence of their nationality depending on the doubtful facts of residence outside Burma and elsewhere in the Dominions, we feel that the more convenient course to follow, as a matter of justice to the individual concerned, and as a matter of general regularity and good order, would be to say that such persons, if they want to remain British subjects, must elect to do so.

The hon. and learned Gentleman says that they might not realise how they were supposed to do things like that. But, after all, this is a Measure of great public importance, and anybody affected by it would be acutely interested in it. Therefore, it is in the highest degree likely that a person affected by it will know that, if he wishes to retain his British nationality, there is a provision in the Measure which deals with that point. It is unlikely that a person, such as the gentleman resident in Newfoundland, will not have taken the trouble to look at the Measure and find out that, if he wishes to remain British, he must take the step of registering his election. I hope the Committee will agree, having given full weight to the arguments of the hon. and learned Gentleman, and accepting the sincerity of his arguments and the desire he has to reach a solution, that he cannot really displace the arguments which I have put forward, and that the balance of convenience and justice does fall down on the side that we have chosen, and that, therefore, the Clause should remain as it is.

Mr. Nicholson

To the mind of a layman like myself, this is a thick legal jungle through whose tortuous paths we have been ably led by experts. I hope I shall not lay myself open to the gibes of the denizens of the jungle if I try, as an ordinary man in the street, to apply myself to this problem. As I understand the hon. and learned Solicitor-General, people who are what we might call 100 per cent. Burmese, with no British affinities either by residence or descent, are automatically deprived of their British nationality by this Bill, and that the people—

The Solicitor-General

If I may interrupt the hon. Gentleman, I would say that they are automatically deprived, subject to the election in Subsection (2) and subject to the election in Subsection (3), but that, otherwise, the hon. Gentleman is correct.

Mr. Nicholson

The point I want to make is quite clear. If they have no British affinity, are 100 per cent. Burmese, and are resident in Burma, but, at the same time, wish to retain their British nationality, what remedy have they? Could the hon. and learned Gentleman answer that question?

The Solicitor-General

They cannot retain their British nationality unless they have, shall I say, a non-Burmese British affinity. If they are resident outside Burma and were British subjects because they were Burmese when this Bill becomes an Act on the appointed day, then they remain British subjects. If under Subsection (3) of the Clause there is some doubt as to where they get their Burmese nationality, because, for example, they may not have the requisite indigenous blood in their veins, and if, therefore, there is a doubt whether they qualify to become Burmese citizens, they then also get the right to retain their British nationality. It is only if they are Burmese in every sense of the word, and not British in any sense of the word, that they do not get the right to choose.

Mr. Nicholson

I am very grateful to the hon. and learned Gentleman; he has made the extent of the dilemma quite clear in my own mind. I can imagine that there may be many 100 per cent. Burmese, with no claim to British citizenship by reason of British affinity, who may yet be proud of their association with British nationality. Therefore, I doubt whether we are quite right in depriving them of any opportunity of election for British nationality. After all, it is not a little thing to say that one is the subject of the King of England. It has been a proud boast in the past to say that one is able to obtain British protection wherever one goes. At one time it was the proud boast to say civis Romanus sum, and then, later, a prouder boast to say civis Britannicus sum. I rather wonder whether we are doing right in depriving these Burmese, who may have been proud to be subjects of King George, of the opportunity to remain British subjects.

1.0 p.m.

Mr. Turner-Samuels (Gloucester)

I have considerable sympathy with the Amendment which has been moved by the hon. and learned Member for Daventry (Mr. Manningham-Buller), but, unless he can correct me on this, I see a constitutional difficulty in applying the method which he seeks to adopt. The reason why I say I am sympathetic towards his view is because, ordinarily, where there is a person who is born in a British Dominion and becomes a British subject, it may very well be that, notwithstanding that fact, he is subject to the law of a foreign State. It is because of that fact that our law provides that, after his minority, he may make a declaration of alienage whereby he elects to which State he desires to belong—in other words, what nationality he wishes to have.

In the present case, however, it seems to me, we are in this constitutional difficulty, and as it seems to me fundamental difficulty. In the Burma Constitution it is clearly provided that every person born of parents or grand parents as there defined, in any of the territories included within the Union shall be a citizen of the Union. If that is so, in my submission there is great difficulty in seeking to provide in this particular Bill before the Committee something which is quite contrary to the Burma Constitution. It seems very inauspicious to start off in circumstances of this kind where we have conferred the right on the Burmese people to enact a free constitution of their own, to do something in this Bill which runs counter to the Constitution and to that right. That does not seem to be proper at all. That is why I say there is a very formidable difficulty in doing what the hon. and learned Member for Daventry proposes by his Amendment. The learned Solicitor-General has said in an interjection that this is not a Burmese Bill, but our Bill. With great respect to him, I do not think that is the way to treat or to approach the matter. The Burmese have already established a Constitution, and to follow that up immediately with a Bill that runs counter to that Constitution does not seem to be right at all.

The hon. and learned Gentleman the Member for Daventry says we should follow the normal rule, and that where you have a person who is once a British subject he should remain a British subject until he elects to be otherwise. Of course, that is in a case where the person is born either in Britain or in the British Dominions, but is under the law of a foreign State a subject also of that State. Here, however, we are dealing with the specific case of a person born in Burma. There is really a profound distinction here. In the light of all the facts in this particular context it seems to me to be right, now that we are converting Burma into a. State with a free Constitution of its own, all people who have been born in Burma ought automatically to become Burmese subjects. They are, however, not clamped down to that. They are given an opportunity, in certain cases, within a period of two years, where they are not residing in Burma but residing either in this country or in some part of the Dominions, and if they satisfy the conditions referred to in Clause 2 (2) of making a declaration stating that they desire to be British subjects. I think that that does sufficiently cover any conditions or questions of justice or of fairness that ought to be provided for and satisfied. That being, in my submission, practical, and there being this further constitutional—or, international—point because of what is contained in the Burma Constitution, I think that the Bill as it stands should be supported.

Mr. Manningham-Buller

I should like to say a word in answer to what the hon. and learned Member for Gloucester (Mr. Turner-Samuels) has said and what the hon. and learned Gentleman the Solicitor-General has said. On this occasion, perhaps a somewhat unusual occasion, the hon. and learned Solicitor-General has been strongly supported by the hon. and learned Member for Gloucester. I doubt if I made my point absolutely clear in moving this Amendment, and I should like, in answer to the Solicitor-General and the hon. and learned Member for Gloucester, to put a specific case—and not, perhaps, so hypothetical a case as that of a Burman living in Newfoundland, who, as the Solicitor-General says, would be a very rare bird, indeed.

Let us imagine for a moment a person of Burmese origin living in Tanganyika or Rhodesia. I imagine that there are a good many people of Burmese origin living in East Africa. Let us suppose that he has lived there throughout the whole of his life; that he was born there; that his father was born there, and lived there throughout the whole of his life; but that his paternal grandfather was born in Burma. The effect of this Bill will be, if I understand it correctly, that that gentleman will automatically in the first place be deprived of the advantage of being a British subject.

The Solicitor-General

No. If I may be allowed to intervene? I am sorry to interrupt. I understand that the hon. and learned Gentleman is citing an instance of a person living in Tanganyika, whose father had been born in Tanganyika but whose grandfather had been born in Burma. A person of that sort would be saved by paragraph 2 of the First Schedule from losing his British nationality.

Mr. Manningham-Buller

I must admit that it is not at all easy to read the First Schedule with Clause 2 (2). Am I right in saying that Clause 2 (2) applies only and can apply only to persons who were themselves born in Burma, but who are not now ordinarily resident or domiciled outside Burma?

The Solicitor-General

I am sorry to keep on interrupting, but that is not quite accurate, either. If a person is born in Burma, before he loses his British nationality, the question has to be asked about him, "Can we say that his father or his grandfather was born within the British Dominions outside Burma?" If that is the case, he does not lose his British nationality.

Mr. Manningham-Buller

Subject to that exception—I think I am right about this—let me put the point this way. Assume that his father and paternal grandfather were born both in Burma—I am leaving out that one excepted class—am I right in saying that Clause 2 (2) will apply only to the individual whose grandparent and parent were born in Burma, who was born in Burma himself, and who is now ordinarily resident and domiciled outside?

The Solicitor-General

That is right.

Mr. Manningham-Buller

I should be inclined to agree that the persons affected by Clause 2 (2) are likely to be few, indeed. But what is being done to them? "Ordinarily resident" is something very different, really, as the hon. and learned Gentleman will agree, from moving across a boundary in a railway train and coming back again. He and I are, I think, fairly familiar with the meaning of the word "domiciled." That does not mean that someone is a bird of passage. Consider a man who has been living in this circumstance for 30 or 40 years in Tanganyika. Does the hon. and learned Gentleman really say that that individual will be taking such an interest in this Measure and the regulations under it that he is likely to be aware of the fact that by this Measure he is being deprived of the advantages of being a British subject? I do not believe there is any truth in that at all. I believe that we could find quite a number of this small number of people who are affected who will be totally unaware of what the Burma Independence Bill is doing to them—when they are living and have made their homes in other parts of the British Commonwealth or Colonial Empire. That being so, I would ask the hon. and learned Gentleman the Solicitor-General, How is he going to bring to their notice their position in this matter?

They are being deprived of their British nationality by Act of Parliament. If this election is to mean anything, some steps must be taken to bring to their attention the fact that they have the right of election, and the conditions with which they have to comply to exercise it. The hon. and learned Gentleman did not say anything about that either. He talked about the balance of convenience and about Burmese representatives. But Burmese representatives abroad, I should have thought, would have found it not at all difficult to contract out of British nationality if they so desired, whereas, viewing the matter quite dispasionately, I think that the Burmese gentleman ordinarily resident for 40 years in East Africa may find it very difficult indeed to be informed of his rights and to be informed that his present status as a British subject is being affected. He may also find it extremely difficult to exercise his right of election. There is a point of principle here and, although it may affect very few, I cannot see that any disadvantage could possibly ensue from adopting these Amendments, and so protecting, as I think he should be protected, the man of Burmese origin who has made his permanent home outside Burma.

I do not wish to take up any more time on this point, but I will be glad to discuss it with the hon. and learned Gentleman at any time. I ask him to look at this point again so that perhaps, on reconsideration, it may be possible to make an alteration in another place. There is no great point of substance between us, but there is a point of principle. The persons whom I wish to protect and not deprive of their British nationality by Act of Parliament are Burmese people of Burmese origin who have left Burma and have now become permanent residents in other countries.

Mr. Bramall (Bexley)

I feel that some answer should be given to the hon. Member for Farnham (Mr. Nicholson) who allowed his emotions to lead him slightly further astray in the jungle than we were already. It is true to say—and it has been pointed out quite clearly by my hon. and learned Friend the Solicitor- General—that neither the formulation which is in the Bill nor the Amendment moved by the hon. and learned Member for Daventry (Mr. Manningham-Buller) has any effect on the ordinary Burman living in Burma, with no other British connections. Neither side of the Committee is proposing that such a person should have any election. It may or it may not be a pity that he is not able to assert his right to be a British subject, but that is not in question in this Amendment. Nobody is proposing anything for the ordinary Burman who was born in Burma and who lives in Burma.

The only thing we have to consider is this balance of convenience between two types of people. On the one hand, we have the type of person referred to by the hon. and learned Member for Daventry, and on the other hand we have the type referred to by my hon. Friend the Member for Aston (Mr. Wyatt)—the Burman who has perhaps moved to one of the Indian parts of the British Empire—to Malaya or Ceylon, for instance—and who may be ordinarily resident there. I do not think we need limit it to the hypothetical case of the man who merely goes there in a railway train. Clearly he is not domiciled there. But there are people who may well be domiciled there. I have no figures, and I doubt whether any other hon. Member has, but I should imagine there would be a considerable number of Burmese ordinarily resident in Malaya or Ceylon, but who are Burmese in every sense of the word and who would want to retain their connection with Burma and have Burmese nationality.

1.15 p.m.

Taking the only test we can have, which is the balance of convenience, I should have thought that obviously one of these two types of people is going to be placed in the inconvenient position—it is no greater than that—of having to find out about this right of election, and of having to deal with certain forms of declaration. I should have thought that on balance it is far more probable that there would be a comparatively large number of Burmese ordinarily resident in Burma, and having every connection with Burma, who would want to retain their Burmese nationality, but who are living outside Burma, than there would be people who have abandoned their ties with Burma, whose fathers and grandfathers were born in Burma, who do not qualify by birth for any other form of British nationality, but who live permanently in some other part of the British Commonwealth, and therefore, desire to retain British nationality. I should think there is bound to be an extraordinarily small number of the latter people.

I agree that the British Government should take every step in their power to see that this matter is brought to the notice of the people, and ensure that nobody loses his British nationality through any fault of the British Government; but I believe we have no right to deprive people of Burmese nationality if they wish to retain it, any more than we have the right to deprive people of British nationality if they wish to retain it. Under the Amendment which has been moved, that danger is far greater for a much larger number of people than it is under the Bill as drafted. Therefore, the only satisfactory action that the Government can take it to see that this is brought to people's notice.

The Solicitor-General

I do not think I could put my case any better than it has been put by my hon. Friend the Member for Bexley (Mr. Bramall). The hon. and learned Member for Daventry (Mr. Manningham-Buller) asked me to reconsider the matter. Any closely reasoned argument such as his will always be considered, but I do not think that so far we can see any reason to depart from the view which we have adopted. I can assure the hon. and learned Gentleman of two things. I have inquired, and I have been informed, that there are very few people of the sort that he has instanced. There are far more people of the sort described by my hon. Friend—those migrants between Burma and India. His Majesty's Government will see that all reasonable steps are taken, by way of adequate publicity, to bring to the notice of any such persons as the hon. and learned Gentleman mentioned the necessity for exercising their right to elect, in so far as they are concerned, for the purpose of preserving their British nationality. As I say, his was a carefully reasoned argument, but I do not feel that it has shown any ground for departing from the point of view that we have adopted, and therefore, I hope the Committee will reject this Amendment.

Amendment negatived.

Mr. Manningham-Buller

I do not think it is necessary to move the other two Amendments to this Clause, in line 4, to leave out from "day" to the end of line 5, and to leave out lines 9 and 10 and insert the words on the Order Paper. Those Amendments deal with much the same point, and we have already had a full discussion on it.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

Mr. Manningham-Buller

I wish to make two observations. First, I hope that the Debate we have just had will assist in the task of informing people of their rights under this Measure. Secondly, I hope the Government may at this stage be able to give us some indication of what steps will be taken to provide assistance and the usual services to those who are resident in Burma and who, by virtue of this Measure, remain British subjects. I do not know whether the hon. and learned Gentleman is in a position to do so, but I should have thought that in connection with this question of nationality, it would be of some importance to the people affected to know what provision for British Consular services, etc., are contemplated throughout Burma in the immediate future.

Clause ordered to stand part of the Bill.