§ The High Court and every Prize Court in a British Possession shall enforce within its jurisdiction all orders and decrees of the International Prize Court in appeals and cases transferred to the Court under this Part of this Act.
§ Mr. ATHERLEY-JONES
I beg to move, to leave out Clause 28. Although I cannot expect the Government to accept the Amendment in that form, yet I hope in the later and equally effective form which it takes in a subsequent Amendment of mine, it will receive acceptance at the hands of the Government. I must apologise to the House for the necessity upon my part of dealing with matters which are undoubtedly of a somewhat technical character. The question would really be very much better dealt with upstairs in Committee. To address on this subject a body of men who are unhappily not all lawyers, renders one's task extremely difficult, but I shall endeavour to state as shortly and as clearly as I can the propositions I advance in support of my Amendment. In doing so, I shall avoid all references except what is immediately pertinent to the Declaration of London. In common with many of my Friends on both sides of the House, I regard the Declaration of London as an impolitic measure, disadvantageous to the maritime and general commercial and naval interests of this country; but I shall not attempt to enter upon, nor would it be right for me to do so, those general grounds in support of my Amendment. It is a cardinal principle of the constitutional law of this country which has never received invasion, that the Crown cannot by a treaty interfere with the private rights of citizens, unless the sanction of Parliament is obtained to that treaty. That is a principle which not only has received the sanction of every jurist of authority, but has never been seriously assailed, and obviously it is a principle which must be regarded as reasonable. If the Crown could, by treaty with a foreign Power, impinge upon the rights of its own citizens, there would be an exaltation of the prerogative of the Crown which would override Parliament; and our settled laws, both common law and patent law, might be dispensed with at the 1598 will of the Crown through the machinery of a treaty.
My charge in the first place against the Declaration of London is that it does by its provisions, both potentially and actually, interfere with the private rights of citizens. If I establish that proposition, I think the law officers of the Crown will agree with me that it is an unconstitutional proceeding that the provisions of that treaty should not have been laid before Parliament and the subject of them sanctioned. If that is conceded, as it must be for the very obvious reason which I have already stated, we come to consider the next point, which is in what way can the Government evade the responsibility of submitting to Parliament those matters in which the right of citizens are affected, and on which ex hypothesi the judgment of Parliament is requisite. The Government have done it in this Bill by Clause 28. By that Clause they assert that whatever the decree of the International Court may be, that, as a purely Ministerial function, the Municipal Court of this country, the Court of Admiralty, shall enforce such decree, order or judgment. So that whatever order, judgment, or decree may be brought by the Crown, or if not by the Crown, by any other vicarious authority, for enforcement by the High Court of this country against the interests of the private citizen, and contrary to our own municipal law—I emphasise that point—that decree, judgment, or order must be, as a purely Ministerial Act, enforced by the High Court of this country.
Suppose, ultra vires, the International Court makes a decree which affects the right of a private citizen in this country. The High Court of this country—that is, the Court of Admiralty—cannot go behind that decree. It cannot inquire whether or no it clashes or coincides with the municipal law of this country. It will be obliged to enforce that decree under the terms of the Clause. That has hitherto been uncontroverted, and I venture to think will be an uncontrovertable proposition. It may be asked when the Crown has made a treaty does not that treaty bind a State? It does not bind the private citizen in respect of his private rights. Supposing—I put the matter hypothetically—this International Court were, apart from this Clause with which I am dealing, to found a judgment or make a decree which prejudicially affected the interests of the private citizens of this country. The Courts of 1599 this country would not enforce it, and ought not to enforce it. I do not want to be too technical, but that matter was discussed in 1893—I agree at not very great length—before one of the most distinguished judges, whose personal friendship I had the honour to enjoy, the late Lord Herschell. The case is one with which my hon. and learned Friend is no doubt familiar. It was "Baird v. Walker," and was discussed by the Privy Council.
Lord Herschell laid down the proposition, which he suggested was an absolutely uncontroversial one, that the Crown could not by treaty interfere with private rights. He made a reservation, and a very proper reservation, in the case of a treaty of peace. Ex suprema lex it might very well be in the interests of the nation at large that it might be necessary in the case of a treaty of peace to interfere with the private rights of citizens. But, with that single exception, Lord Herschell laid it down authoritatively that it would be impossible, unconstitutional, and illegal for the Crown, by means of a treaty, to interfere with the private rights of the citizen. If I have made myself intelligible in what I may describe as the major proposition of my case, I come to examine whether, firstly, this treaty does actually, and, secondly, potentially, interfere with the rights of private citizens. I say it does. I will give one or two illustrations as to where the private rights of the citizen are interfered with. If the House interferes with the rights of private citizens, the particular matters upon which it so interferes ought to be submitted to the House for the House to consider whether it is right or wrong, desirable or undesirable, that the private rights of the citizen should be infringed upon. It is not enough by an omnibus Clause to say: "You shall enforce the decree of an International Tribunal." You must go a step further. You must say in what respect those private rights of the citizen are to be interfered with. My contention can be simplified, perhaps, to satiety, by illustrations.
I have expressed in this House, and also in the pages of Reviews and Journals, very strong opposition before to that article of the treaty, which alters the conditions under which conditional contraband is taken to an enemy's territories. I have submitted to this House and elsewhere that that is a very complete alteration in International law, with regard to conditional contraband and antithetical to the 1600 interests of this country. The municipal law of England has always said that you may convey conditional contraband to the enemy's territory; that is to say, a neutral may convey conditional contraband—for instance, foodstuffs—to an enemy's territory, so long as it does not convey it for the armed forces of the enemy or to a port of military or naval equipment. The alteration, I will not say the law, but the conventional alteration, made by my right hon. Friend says as regards a port that it shall be a place that may, according to its relevance, be "a base of supply." We have contended that that covers commercial ports like Hull, Liverpool, or Bristol. The right hon. Gentleman the Secretary of State for Foreign Affairs, in a letter which he addressed to the Glasgow Chamber of Commerce, admitted that it was impossible to predicate whether or no the International Court would take the view that a place like Liverpool, Bristol, or Hull was or was not "a base of supply." We stand, therefore, in this position: that one of our neutral vessels carrying corn, other foodstuffs, or any other article of conditional contraband to a commercial port of Germany or France which might be a belligerent, and not to a port of naval or military equipment, might be captured and condemned by the Municipal Courts of the nations. So far no great mischief has been done. So far we have not had a violation of the principles of International law which has hitherto obtained in this country, and we might appeal to diplomatic action to rectify that mischief.
Diplomatic action is suspended for a period of twelve years until notice is given to terminate the treaty. A British merchant ship has been seized upon the high seas, carrying, in accordance with the law of England as it is now and as it has ever been, innocuously conditional contraband to a commercial port—it has been seized and condemned by the Municipal Court of the belligerent country, and the only remedy afforded to the shipowner, the shipper, or the merchant is to appeal to the International Court. So far the treaty has made no inroad upon the rights of the private citizen. The aggrieved shipowner, shipper, or merchant carries his case to the International Court of Appeal. I make no comment whatever upon the ridiculous composition of the International Court. The International Court confirms the judgment of the Municipal Court of the belligerent. Still, no harm is done. The British merchant must lose his cargo, and the British shipowner must lose his 1601 ship. But the Court proceeds to do something more. It proceeds to do that which under present International law you cannot do, but which there is, I say, no power effectively to do. It can order the merchant who appeals to pay the costs of the trial, to pay what is called, I think, in the treaty, a tax for the maintenance of the Municipal Court which decided the case. The judgment of the International Court is then brought down to our High Court of Admiralty. The judges there are asked to execute this judgment, and make this unhappy British merchant pay the tax. The members of the High Court of Admiralty have before them some representative of the aggrieved shipowner or merchant. Counsel for the aggrieved shipowner or merchant says, "You are asked to enforce a law which is directly in conflict with the Prize Law of this country: you are asked to say that the ship is ex concesso, has gone into a commercial port, is liable to capture and condemnation, and you are asking to recognise the decisions of the International Court and to make a private citizen pay the cost of a proceeding upon a judgment which is wholly in conflict with the principle of British International law. The Court of Admiralty will say, it is bound to say, "We are not in a position to inquire into the matter; we are here merely to perform an administrative function under the terms of Clause 28," and a British merchantman must pay costs and also pay a tax, for I can call it by no other name, which is imposed by one important Clause in the Treaty of London. The result is that while a British merchantman at the present moment is absolutely free from all obligation to pay—he may lose his ship or he may lose his cargo, but he is not liable to pay costs by the laws of this country—yet under this Section he is to be compelled to pay such costs. I rely, not only upon my own judgment, but upon the judgment of many jurists in this and other countries when I say that that is an infringement of the rights of private citizens. You are imposing upon British merchants the necessity of obeying the orders of this Court without having an opportunity of defining any of the conditions on which a ship may be seized, and in doing that you are in conflict with well-established principles from the time of Stowell downwards to the Court of Admiralty. I will give another illustration; hon. Members who are not lawyers, but who may be shipowners, know the doctrine of salvage. I am stating the present 1602 law. Assuming we are a neutral Power, and that a British ship—that is to say, a neutral ship—is captured by the enemy on the ground that it is carrying contraband to a port of the enemy which the International Court regards as an unlawful operation on its part, and assume that that ship is recaptured by a British warship, the British warship is entitled to salvage, if that ship has been lawfully captured, but only in the event of its having been lawfully captured.
§ Mr. ATHERLEY-JONES
I am assuming that a British ship carrying contraband may be captured, and it may escape, or it may be rescued by a British ship; but perhaps it would be better to take a case where we are in a state of belligerency and of a ship being captured under these circumstances. I am obliged to my hon. Friend for his interruption. Supposing we are belligerents and that a ship has been captured by the enemy and that that ship has been recaptured by a British ship—and there are cases in which the question of recapture has been discussed in the Courts—then a man-of-war can proceed against a British merchant ship for salvage but it can only recover salvage in the event of the ship having been legally captured; that is to say, that the ship was going according to the principle of the International law to a port to which it ought not to go. But supposing according to the municipal law of this country that that ship was not going on an illegal voyage but was going on a perfectly legal voyage, then the doctrine of salvage does not apply and the salvor will not be entitled to salvage. What takes place then? The British Court says, "According to the principle of our law this ship was going upon a perfectly legal voyage and therefore you are not entitled to salvage," but, on the other hand, the International Prize Court holds that it was an illegal proceeding for the ship to have gone to this particular commercial port of a foreign country and thereupon the National Court is bound by the decision as it must be of the International Prize Court, and is bound to give salvage against a British merchant in respect of the saving of that ship. If I have made myself intelligible, hon. Members will agree with me that here is another invasion of the rights of private citizens. These are two illustrations; I 1603 could give many others, but I will only give one other, which probably is the most forcible of all.
This International Prize Court is not merely a Court to interpret judicial decisions made, or to administer the provisions of the Treaty of London, it is something more; it is a legislative body; because one of the provisions of the treaty is that if there is no provision in the treaty which provides for a case brought before it, the Court has to deal with the question according to general principles of justice and equity. What docs that mean? It means nothing less than this, that the Court is to be able to legislate itself. It is to be able to lay down general rules which it may record in accordance with the principles of justice and equity, and which the Admiralty Court of this country will be bound to enforce. Nay, more than that; it may vary and give decisions, not only contrary to the National law of this country, but the International law of every other civilised country. It is hypothetically true to say that it is within the power of the Court to give decisions absolutely in conflict with the law of nations and with all our preconceived notions and rules with regard to International law in relation to prizes. If a Court so does, it legislates, and it may inflict grievious wrong upon British subjects. This Court has no restraint put upon it except its own sense of right and wrong. The result is that the High Courts of Justice in this country may be compelled to execute the orders and judgments of the International Court which are in conflict with every principle of our law. I have endeavoured to put in intelligible form the proposition which I started with in the first instance, namely, that you are, contrary to sound, beneficent constitutional principle, interfering with the private rights of citizens and allowing these rights to be interfered with without seeking Parliamentary sanction.
Lord Herschell, in the judgment to which I have already referred, said that any such proposition that the rights of private citizens could be interfered with, without Parliamentary sanction, except in the possible exception of a Treaty of Peace, was wholly illegal. I think my right hon. Friend the Foreign Secretary might very well consider the desirability of finding some words which would meet the grave difficulty which I anticipate with regard to the possible results that may follow 1604 from the enforcement of this Clause. I do not conceal the fact that I regard the Treaty of London with the greatest hostility, but even if I regarded it with feelings of commendation, if I thought the general purpose and results of the treaty would be to the advantage of this country, I could not, as a constitutional lawyer, support the invasion of elementary principles of constitutional government in this country by this Government which may lead to the most extravagant and extraordinary results. I have not attempted to burden my arguments with efforts at exaggeration nor with any imaginary difficulties. I have dealt with two cases which must arise, and with one case which may arise, and I submit, unless we get an assurance from the Government that some mitigation of the obligations of this novel and extravagant doctrine is assented to by the Government it will be our duty to resist on constitutional ground and constitutional ground alone, the passing of Clause 28.
§ Mr. JAMES MASON
I beg leave to second this Amendment. The hon. and learned Member opposite has used sound arguments from the legal point of view why this Clause should be rejected. It has been pointed out very clearly that it would be specially objectionable when the decrees of the International Prize Courts clash with the hitherto accepted view of our own Prize Courts as laid down by the Prize Law. The objection seems to me to be that the liability to which we are throwing ourselves open by this Clause is, to a certain extent, an unknown one. We undertake to enforce the decrees of the International Prize Court even when those decrees are held, and have been held by us for generations, to be contrary to what we believe to be legal and right. There are many matters in which we in this country differ from other nations in respect to International law. There are matters in which we have maintained for centuries that a certain act is illegal, while some of the other signatories to this agreement maintain that those acts are legal. There is the question of the conversion of merchantmen upon which we have arrived at no sort of agreement. It is clear that even within the law as laid down by the Declaration of London we may be called upon to enforce decrees which we in this country have always maintained were illegitimate, and necessitated doing something which we believe to be illegal and wrong. Besides that we have also the fact that we may be 1605 called upon to enforce decrees on some matter about which we at present know nothing. The fact that the International Prize Court has to administer the law which is not declared and not laid down in the Declaration of London lays us open to a liability which we at the present moment must regard as unreasonable.
It is obvious that the International Prize Court may gradually make law for itself which is wholly incompatible with all the views we have contended for, and which we have always maintained were proper laws to guide international arrangements. There is the difficulty of matters extraneous to the Declaration of London, and I have an Amendment later which proposes to exclude from the jurisdiction, of the International Prize Court matters which are not definitely dealt with in the Declaration of London. This Clause is also objectionable because there is no provision by which we seek to enforce that other nations shall reciprocate and accept the same burdens which we accept under this agreement. We propose here to enforce the decrees of the International Prize Court quite irrespective of whether the other signatories to the Convention will also undertake to enforce those same decrees. [An HON. MEMBER: "No."] On the Committee stage I moved an Amendment which endeavoured to overcome this difficulty, and it sought to suggest that the Clause should be made subject to all the other signatories to the Convention undertaking to carry through legislation by which they would undertake the same responsibilities which we were undertaking. The answer of the Solicitor-General to that was that it would be quite possible for some small Power, by delay or other means, to prevent us carrying out the obligations which we now undertook; but it seems to me if an Amendment of that kind is unacceptable I do think it is most necessary that some Amendment should be accepted which would, at any rate, give effect to this undertaking of ours only as regards other nations who have undertaken a like responsibility towards ourselves. Otherwise it is quite obvious we may undertake to enforce the decrees of the Interntional Prize Court only for the benefit of some of the inhabitants of some country which country is at the same time refusing to enforce the decrees of that same International Prize Court for the benefit of British citizens. For these reasons I think this Clause has a great many objections, and it is justifiable to move its omission.
§ The SOLICITOR-GENERAL (Sir John Simon)
I am sure everyone will realise that my hon. and learned Friend (Mr. Atherley - Jones) has spoken with great moderation and great learning, and I wish to assure him that the inability of the Government to accept his proposal does not proceed from any want of recognition of the tone and the temper in which he puts his arguments before the House. I must point out to my hon. and learned Friend and the hon. Gentleman who seconded this proposal that what they are really doing is asking this House, which has now reached the twenty-eighth Clause of this Bill on Report, to proceed upon the basis that it has not for the time being accepted as a principle an International Prize Court. Really, the whole thread and chain of reasons involved in the argument used by the hon. Member would be entirely relevant to the Second Reading discussion raising the point as to whether we were to have an International Prize Court or not, but if we are to have an International Prize Court, surely one consequence of that must be some machinery by which its decrees are not to be made mere waste paper in the different countries which they concern. The House will be good enough to observe that we have already entered upon Part III. of the Bill, which consists of a bundle of some seven Clauses. We have dealt with five of them, and we have two more to deal with. There are seven of them altogether, and the whole of Part III. is concerned with the International Prize Court. We have already had a discussion as to whether or not there should be an International Prize Court. I know that my hon. and learned Friend the Member for Durham takes the view which he has always maintained with great ability and straightforwardness that there should not be an International Prize Court, and, so far, he is perfectly entitled to his view.
The right hon. and learned Gentleman opposite (Sir R. Finlay) and others who have taken part in the earlier stages of this Debate have criticised the composition of an International Prize Court. They say, "That is all very well, but what we object to is the composition of this International Prize Court. That question we have already discussed, and while I am far from saying that the fact that we have discussed it and arrived at a conclusion upon it proves that it is right, it certainly proves that we cannot expect on Clause 28 to discuss the whole question all over again. Really, the question raised by my 1607 hon. and learned Friend is comparatively a narrow question, and I think I put the matter fairly when I say, it being granted for the purpose of the present discussion that there ought to be an International Prize Court, and that it should be composed, as this one is, having already passed the Clause which provides for our representatives upon that Prize Court, and having already enacted a Clause dealing with the payment of a contribution towards its expenses and arranging for the transfer of cases to it; having done all that upon that basis, are we really now going to say when the International Prize Court has given its decision the country involved in the matter is to have no machinery and refuse to produce any machinery by which we are going to carry out that decree. I submit that whatever may be the view of hon. Members on this large and important question which for the present purpose we must treat as having been disposed of, if the answer to this question is the answer which we must take up, we must take it for the present discussion that there is really no answer to the proposition that we must have some such Clause as this in the Bill. May I ask the House to turn for a moment to Article 9 of the Convention in which they will see that the parties to this Convention undertake as follows:—The contracting Powers undertake to submit in good faith to the decisions of the International Prize Court and to carry them out with the least possible delay.It is partly because of that undertaking that some such Clause as this is proper and desirable, and if we in the British House of Commons refuse to put in our Naval Prize Bill such a provision as this, and at the same time render lip service to the establishment of this International Prize Court how does anybody suppose the other parties to this Convention are going to regard such a shifty position as that. My hon. and learned Friend will appreciate, whether that be so or not, that we have already passed Clauses 23 to 27, and unless we are going to discuss the same things over and over again on every Clause, I think we are entitled to say that Clause 28 should remain in the Bill. I will take the special instances which my hon. and learned Friend put forward as matters of special hardship, and deserving of special consideration. As I understand him, he says, that in view of the constitutional principle that the Crown by treaty ought not to give away the private rights of its own citizens, but ought to come to Parliament 1608 before it does so, he objects to this Clause. May I point out that this Clause has come to Parliament to that extent for that purpose, and it is just because some such Parliamentary sanction as this is needed that we are endeavouring to enact Clause 28. The ordinary practice of the Foreign Office is that before an agreement is entered into it should be ratified by Parliament.
§ Mr. ATHERLEY-JONES
My contention is that the matters upon which the rights of private citizens are interfered with should per se be the subject of discussion in Parliament, and you should not by a general provision put upon a Court of law the old obligation of enforcing the matters which have never been subject to Parliamentary sanction.
§ Sir JOHN SIMON
The practice which the Foreign Office has followed, not under one, but under all administrations, is that of refraining from ratifying an agreement until it has received sufficient Parliamentary sanction to put it into effect, and, until that is done, ratification does not take place. I hope my hon. and learned Friend is able to follow me for the moment, because I am anxious to do justice to one of the principal cases put forward by him by way of illustration. As I understood him he told the House that the effect of this Clause would be that the British subject might find himself as the result of being the loser before the International Prize Court condemned in costs before that Court, and that thereupon it would fall under this Clause to the High Court of this country or the Prize Court in any other part of the British Empire to enforce that order for costs. I understand from my hon. and learned Friend that I have correctly stated his intentions. This, if I may say so, with great respect to so learned an authority, is only one more illustration of the complete inability under which those who oppose this Convention seem to labour, to understand to what extent its real operation proceeds. Let me point out one instance. If a British subject is going to be a party in the International Prize Court, is this country going to be neutral or hostile? This country, if it is neutral, has got no Prize Court established of its own, and, therefore, the British subject is not appealing from this country's Prize Court at all. The hon. Gentleman spoke as though the British subject was going to be deprived of the benefit of International Prize law as understood and administered in this country. He cannot be deprived 1609 of anything of the kind, for the very single reason that if he appeals from the decision of a National Prize Court it certainly cannot be from a British Prize Court, because before there could be a British Prize Court this country must be at war, and then the British subject is not a neutral. Therefore, if he appeals at all, he does not appeal from a British Prize Court, but from a Foreign Prize Court, and, if he appeals from a Foreign Prize Court, he chooses to take the advantage, if he thinks it is an advantage, which this Declaration of London and the consequential legislation confer upon him. What is his position to-day? He is a British subject, the owner, it may be, of a British ship. He complains that ship has been sunk or captured by the forces of some foreign Power which is at war with some third Power. To-day the only refuge which he has, if he thinks he has been wrongly treated, is to go, not to an English Prize Court, but to the Prize Court which that enemy Power has set up. If, indeed, he has the exceptional good fortune of convincing that enemy Prize Court that the enemy is wrong, and he, the British subject, is right, then he gets his damages and away he goes. If he does not experience that satisfaction, then he is under no obligation to appeal, but, if he appeals, he appeals under the provisions of this Convention, Article 46, of which provides as follows:—Each party pays its own costs.The party against whom the Court decides bears, in addition, the costs of the trial, and also pays 1 per cent. of the value of the subject-matter of the case as a contribution to the general expenses of the International Court. The amount of these payments is fixed in the judgment of the Court.If the appeal is brought by an individual—That is the case of my hon. and learned Friend,he will furnish the International Bureau with security to an amount fixed by the Court, for the purpose of guaranteeing the eventual fulfilment of the two obligations mentioned in the preceding paragraph.The House will observe, therefore, this British subject, in whose interests my hon. and learned Friend I know is most candidly and most sincerely concerned, if he appeals is appealing not from a British Prize Court to some tribunal which is going to over- 1610 throw the law which he has hitherto enjoyed in his own domestic tribunal; he is not appealing from a place which administers what my hon. and learned Friend calls the municipal prize law in this country; he is appealing from a foreign tribunal. He either appeals or he does not. He does as he likes. If he does appeal, and if he loses and is condemned in costs, his security has to be lodged, there to pay those costs. Is there really any great injustice or unfairness in saying that a British subject who, up to date, has had to be content with the small mercies which a Foreign Prize Court gives him, if he chooses to go from a Foreign Prize Court to the International Prize Court, should go there with the responsibility of knowing, what every other litigant in the world knows, that, supposing he loses his appeal, and an order for costs is made against him, he ought to pay. How is he going to be made to pay? Is the International Prize Court going to have their own bailiff. Are they going to institute some new kind of International distress? Not at all. Under Article 9 the different parties agree in good faith to see the decrees of the International Prize Court are observed, and What we propose is what we expect every other Power concerned to see to, namely, that so far as their own subjects are concerned, if there be any cases—I find it very difficult to anticipate any such—which are not covered by the security given in Article 46, to which I have referred, then they shall see the decrees of the International Prize Court are carried out.
§ Mr. ATHERLEY-JONES
My hon. and learned Friend must not forgot the belligerent Government might also appeal in the not at all unusual circumstances of the Municipal Court having found in favour of the neutral individual.
§ Sir J. SIMON
I do not forget it at all. I took the instance my hon. and learned Friend gave as being the instance of the depravity and recklessness of those who advised the Government in this matter, and I pointed out to him it is not the fact that in the instance he gave the British subject is either being deprived of the protection of whatever is meant by the English Municipal Prize law, nor is it the fact that for that purpose such a Clause as this is needed, since in the nature of things he has given security for costs. So much for the neutral individual who appeals. There is another side. So far 1611 as British neutrals are concerned they can only appeal when this country is neutral, and whether they appeal from a foreign tribunal or not is entirely for them to choose. Take the other side. There are two parties to this litigation, and, though a British merchant may be on one side, a foreign Government may be on the other. That is exactly the injustice which my hon. and learned Friend thinks will follow if we endeavour to set up this principle of each country seeing the other party to the litigation pays those costs which the International Tribunal when it decides the appeal thinks proper. What is the other party to the litigation? The other party to the litigation is not a belligerent Government. I do not understand my hon. and learned Friend to suggest a belligerent Government would appeal?
§ Sir J. SIMON
I am very sorry my hon. and learned Friend should say that, because I really thought he had taken some trouble to study his subject. Would he be so good as to turn to the list of those persons who can appeal under Article 4? It really is a sad thing, when so much indignation has been exerted over the Declaration of London, that one of its principal opponents, speaking with special authority and great gravity and knowledge, should be under the impression that a belligerent Government could appeal to the International Prize Court. Article 4 provides that an appeal may be brought by three main kinds of persons: first, by a neutral Power. That is not a belligerent Government. Secondly, by a neutral individual. That is not a belligerent Government. Thirdly, by an individual subject or citizen of an enemy Power in a very limited number of cases mentioned. That is not a belligerent Government.
§ Mr. ATHERLEY-JONES
I am sure my hon. and learned Friend will not do me the injustice of misunderstanding me. The belligerent Power would really, as was pointed out in the discussion at the conference, be the effective appellant.
§ Sir J. SIMON
I am the last person to desire to do an injustice to my hon. and learned Friend, but for one who has such an admirable command of English his answer, which I did not invite him to make, was unfortunate. We are agreed then that all those who have spent five minutes in really considering this subject, instead of reading pamphlets about it, 1612 know that a belligerent Government cannot appeal. Therefore, if a belligerent Government comes before the International Prize Court it comes before that Court, not as an appellant, but as a respondent; that is to say, it has won in its own Court. The only other case we have to deal with is the case where in the National Prize Court the belligerent has won and the neutral individual who complains of the capture has lost. In that case it is the neutral individual or the neutral Government that appeals. Suppose the appeal is allowed and a decision is given different from the decision of the Court below, the belligerent Government succeeds. If the belligerent Government succeeds I should not have thought it very likely there would be any order for costs made against them. If, on the other hand, the belligerent Government does not succeed, but fails, is there really anything very improper in saying, "You, the belligerent Government, being one of the parties to this Treaty, and having agreed that the decision in your favour may be taken on appeal to an International Prize Court, must see to it that the decree of that International Prize Court is carried out? If you have got the ship give it up. If you have not, see compensation is paid in accordance with the order." Is there anything very wrong in that?
I have taken every case, so far as I can follow it, which arises under this Treaty. My hon. and learned Friend will agree with me that on examination his chief instance—the instance of the British subject being done out of his rights in the shape of municipal Prize Law—disappears; and, as regards the second case, we understand it was not the belligerent Government that appealed, but the belligerent, who was the respondent, and lost the appeal, and had therefore, quite properly, got to be made to hand over that which he wrongly detained. I trust I have shown to the House that really the case of my hon. and learned Friend is not a case which would stand on its merits. It is a case which can very easily be made, and very sincerely believed by those hon. Gentlemen who object to the whole tiling. Of course, if you do not want an International Prize Court, and if you are convinced the Declaration of London is a very bad thing, any stick will do to beat the Bill; but you could hardly have a weaker stick than the suggestion that, after we have passed Clauses 23 to 27, we should stultify the whole proceeding by refusing to pass Clause 28.
§ 5.0 P.M.
§ Mr. PETO
I think the best possible proof that the case of the hon. and learned Member for North-West Durham (Mr. Atherley-Jones) was clearly put before the House is that persons of humble intellect like myself could understand his objection and why he wanted the Clause omitted from the Bill. My objection to this Clause is based upon the position of the Prize Courts in what are termed British possessions. I assume in my objection that we are and they are belligerent Powers and that it will be in the case of an appeal to the International Prize Court the appeal of one of the parties who, under Article 4, can appeal to that Court. I only make that observation in order to show to the House that I am not going to contravene any of the objections to which the Solicitor-General referred. If I may, I will try and make my case clear.
I will refer first to the terms of Clause 28,That every Prize Court in a British possession shall enforce within its jurisdiction all orders and decrees of the International Prize Court in appeals and cases transferred to the Court under this part of this Act.The House is aware that Clause 3 provides for the setting up of these Prize Courts in British possessions. They are to be Vice-Admiralty or Colonial Courts of Admiralty within the meaning of the Colonial Courts of Admiralty Act of 1890. I turned up the Act of 1890 so as to be perfectly clear upon what sort of Court it is that under this Bill we are going to impose the obligation of enforcing a decree of the International Prize Court in British dominions which have no representative on it whatever. Clause 1 says,This Act may be cited as the Colonial Courts of Admiralty Act, 1890.Clause 2—the very forefront of the Bill—starts off with saying that,Every Court of Law in British possessions which is for the time being declared to be a Court of Admiralty or which if no such declaration is in force in the possession has therein original unlimited civil jurisdiction shall be a Court of Admiralty.In Clause 6 it states what is the appeal that can be made against their decisions. Section (1) says,The appeal from a judgment of any Court in a British possession in the exercise of jurisdiction conferred by this Act, either where there is as of right no local 1614 appeal or after a decision on local appeal, lies to Her Majesty the Queen in Council.I want to make it perfectly clear what the position of these Courts is under the Act. I should like the House seriously to consider what is the position in the case of a Court which may be the highest Court in any of our dominions. I should like the House to consider what will be its position under the Naval Prize Bill. We must remember that in Clause 23, as it is drawn, no jurist from dominions, no matter how eminent, can possibly act as the representative of the British Empire on the International Prize Court. Clauses 25 and 26 provide for the appeals against the judgment of these Prize Courts to the International Court, and Clause 28 orders them to enforce the decrees of the International Prize Court. I will not attempt to deal with the phraseology of the Bill. I suppose it is the usual phraseology used. I do not want to refer at any length to the constitution of the International Prize Court, but I would just remind the House what is the position of those parts of the Empire which are called British possessions. We must remember in considering the enforcement of the decrees of this International Prize Court another fact. We are saying, for instance, that Canada, although Panama is worthy of having a deputy judge, shall not be represented even by a deputy judge on the International Prize Court. Again, Australia may not, while such places as Hayti and San Domingo may, be represented. I think this House ought to know that it is perfectly clear that in the Articles it is laid down that each of the Powers will do all they can to get the decrees of the International Prize Court enforced. I want to know why we, the largest Colonial Empire in the world, should be the first to impose what I regard as an ignominious condition on the different parts of our Empire. Are we quite sure that the other signatories of this Convention of London are going to follow suit, and that they will impose the same conditions on their Colonial Courts as we are asked to impose on our Colonial Courts?
I do not claim to speak with any knowledge of Admiralty affairs, but it will be agreed by all hon. Members that we have not only invited, but we have welcomed the co-operation of our dominions in the naval defence of the Empire. We are perfectly aware that Australia, New Zealand, and Canada are doing their best to co-operate 1615 with us in the naval defence of the Empire. From the nature of the geographical position of the dominions their navies will be at the other end of our great trade routes. Therefore it seems to me the greatest use of these navies will be, will be in helping us to do that which we are doing less well than any other of our naval obligations of looking after our British trade routes, and especially those which terminate in Australia, New Zealand, and Canada. It is obvious that in any naval operation undertaken to assist this country when at war, the navies of the Dominions will naturally come in contact with the very questions which will have to be decided in the Prize Courts in British possessions. I will give one simple illustration. Take the case of a neutral merchantman laden or partly laden with some cargo which a Prize Court in Canada holds to be contraband, that decision means that it is a lawful prize of war. It is quite possible that the International Court may decide in an exactly opposite sense. But here, in this Clause, we say in effect that, although it may be the highest Court in the Dominions, although it may give a decision with which we are entirely in agreement, and which we believe ought to be agreed to by any Court so far as international law as it now stands is concerned, we say, although the appeal is to a Court on which they have no representative, yet the order of that Court is to be enforced within its jurisdiction, whatever the decision of the International Prize Court may be.
I ask the House to consider, in connection with Clause 28, not only the wording of the Clause, but its spirit and purpose. Is it likely to promote that sympathy between the Dominions of this country, of which Lord Haldane, speaking in another place, said, on the 18th May, "we are going to leave the British Empire to hold together by bonds of sympathy." Is it likely that this Clause will promote sympathy? Will the passing of such a Bill as this into an Act of Parliament assure the Dominions that the Imperial Parliament protects the interests of these great, growing nations. I also ask the House to consider what was the great cause of most of our troubles in the eighteenth century. Undoubtedly, so far as the North American Continent was concerned, it was the principle of taxation without representation. I say that that touches the pocket, it injures the pocket, it injures the sense of justice, but this clause injures 1616 the pride and honour of our great Dominions and destroys their confidence in the Imperial Parliament. The phraseology of the Clause may have been perfectly correct in 1890 so far as the term British possessions is concerned, but I do think that in conjunction with this mandatory Clause, which says that they must enforce the orders of an alien Court, it is an anachronism redolent of the stupid antagonism and air of superiority which caused so much disaster 150 years ago. Practically I consider that this Clause is an insult to our Dominions particularly, apart from any question of law, and I hope it will not be allowed to stain our Statute Book.
§ Sir A. CRIPPS
I entirely agree with what has fallen from the hon. Member who has just spoken as regards the operation of this Clause in its wider sense. I regard our Dominions as all important, and I only rise to reply to what has been said by the Solicitor-General. I do not disagree with what he said, but as a lawyer I want to be careful of the view I put forward. Clause 58 should be criticised. The hon. and learned Member for North-West Durham (Mr. Atherley-Jones) said, "you cannot alter the rights of individuals in this country merely by treaty." The Solicitor-General said he realised that this Bill has to get Statutory sanction or otherwise it could not be done merely under treaty rights. I think the Solicitor-General overlooked the real point of the argument, although perhaps in words he is right, in truth and in substance he is wrong. I think the hon. Member for North-West Durham was perfectly justified in saying it is really entirely out of court, and contrary to constitutional practice, to give general powers of this kind, which depend ultimately on what is done by the Court. If the Solicitor-General will look at Article 7 he will see that there is nothing to interfere with the rights of this country in the International Prize Court. The expression "International Law" in Article 7, I assume means the Declaration of London. If we want to go outside International law, as generally understood, is it to be a Court to do anything it likes? It merely says what the Court thinks to be right and equitable in any particular case. Although I am not going into the constitution of this Court, if we take a Court constituted like this Court will be, having more like the functions of partisan representatives, it is impossible to say that you ought to impose upon the 1617 subjects of this country, against their existing rights, what a Court of that kind, of its own free will, considers to be just and equitable. I understood that to be the gravamen of the charge made by the hon. and learned Member for North-West Durham (Mr. Atherley-Jones). It is an extremely important point. I do not deny that you must have some method of enforcing the decrees of the International Court. I am not going to deny that for one moment, but I think the hon. and learned Member's point, and the point I want to make is, that you ought to make that subject to the paramount right which the municipal prize law gives to the subjects of this country, and not only to the subjects of this country, but, as was pointed out by the last speaker, to the subjects of all our Dominions wherever situated. It is an entirely novel constitutional principle to put all these rights at the mere will and pleasure of an outside International Court, and then to say, as is said in Clause 28, that whatever the effect of that may be, the Courts here have no discretion whatever, but must enforce those decrees as a Ministerial and administrative duty.
I do not think any precedent can be found for any such Clause. I have looked some way back, and since the Papal jurisdiction was destroyed in this country I cannot find any analogy to a power of this kind being given at all. We have always resented any foreign jurisdiction in this country being applied merely in a ministerial and administrative manner. It is unconstitutional, as the hon. and learned Member for North-West Durham pointed out, on a very critical point indeed. May I show how it would operate? No one would be more desirous than the Solicitor-General, on a legal matter, to put the question quite clearly to the House, and I am sure he will believe that I desire to do the same, because we want to get at a truthful solution of the matter. I will take the two cases the Solicitor-General took. I assume that we are in the position of neutrals. It is perfectly true, as the Solicitor-General pointed out, that a decision will be given in the Court of a belligerent, and that it will give the decision against an English subject. Under the law as it exists, what is our position? That decision could not be enforced in any way in this country. Our real remedy has been, and I was going to say will be, dependent upon diplomatic action, and when diplomatic action has the British Fleet behind it, it has very often 1618 been a very strong remedy indeed. What is the change going to be? I assume that the neutral does not like the decision given against him in the belligerent Court, and that he appeals to the International Tribunal.
§ Sir J. SIMON
I pointed out that there was no obligation on him to appeal unless he chose, and if he appeals he knows from what decision he appeals.
§ Sir A. CRIPPS
I do not think that is an answer to the proposition I am going to put. I assume that feeling he has been wrongly treated and that he cannot rely on diplomatic action, he thinks the best chance is to appeal. I assume that he has the right to appeal, and that he does appeal, whether wisely or not, with the result that the decision is confirmed.
§ Sir A. CRIPPS
I am assuming that the British subject is a neutral. I assume that he has appealed, and that the decision is given against him. What is the position? I agree with the Solicitor-General that there are not probably many cases in which the question would arise of enforcing the decision in this country, but it may arise and, of course, unless you have decisions of that kind, Clause 28 has no application at all. Let us consider, if a case does arise, what is the result? The Courts in this country would have to enforce against a subject of this country the principle of legal wrongs, a principle which has never hitherto been acknowledged in this country, the result always having been considered by us as a legal wrong. I ask the Solicitor-General what answer is there to that? It is a fair way to put the proposition. A neutral, and English subject, gets condemned in a foreign belligerent Court. He appeals to the Court of Appeal, and the decision is confirmed. What is the result? That, as against him, for the first time in the history of this country our Courts will, or may be, called upon to enforce a decree which, according to our own doctrines, is at once unjust and unrighteous. That is an entirely new position, and we ought to be protected against the possibility of a position of that kind I do not think what I have said can be controverted. I want to be careful in a matter of this kind not to exaggerate the position. It is of extreme importance in a Bill of this kind that our treaty rights should be properly respected, 1619 but nothing should be done that is inconsistent with the principle of law in this country that our Courts should not be called upon to enforce decrees and orders which, according to our view, are at once unjust and inequitable.
§ Sir J. SIMON
Will the hon. and learned Gentleman state, since he assures us that he wishes the International Court's decisions should be enforced, how they would be enforced unless they were enforced by the Courts of this country?
§ Sir A. CRIPPS
In a moment I will say what I think the limitations ought to be. When I say that I think they ought to be enforced, the Solicitor-General will recollect this, I did not say per fas or per nefas. I do not object to their being enforced if they are in accordance with our views. According to my view, and according to the view of the Solicitor-General, it is an extremely serious matter and of the very deepest import, either as regards our Prize Courts or as regards the Prize Courts in our dominions, to ask them to put in force the principles contrary to anything heretofore held in this country, and which, according to our view, are unjust and unfair. Let me take the other proposition the Solicitor-General dealt with. I do not want to controvert much that he has said, because a great deal of it was perfectly sound and right. I want to take the position where we are belligerents, and where as regards some other neutral the rights between the belligerent and the neutral are determined in the Courts of this country and, as so determined, give a certain decision as regards the rights of the neutral. I presume it will be given in the first instance in accordance with the principles we have always advocated and adhered to in our Courts. I assume that the neutral appeals against that, and that the appeal is allowed. Then, of course, the law as laid down by the appellate tribunal would have to be enforced in this country. That is absolutely clear. That would be the effect of this Clause. There, again, you might have exactly the same result, namely, that the Courts of this country, merely as a ministerial or administrative matter, would have to put in force the law which, according to our views, might be at once unjust and unfair. To my mind that is a very serious position, and it is a position which we ought very carefully to consider in dealing with what is a new code and a new procedure as regards International law.
1620 Let me point out to the Solicitor-General how, in my view, a matter of this kind might be reasonably met. If we are to be met reasonably upon a matter of this kind, I think that on this side of the House we should do all we could to bring about a reasonable and proper solution. Is the Solicitor-General or any occupant of the Front Bench prepared to say this: that supposing a law which is sought to be enforced as an administrative Act in this country is inconsistent with the law we have considered to be just and fair, will he say that in these circumstances we are not be called upon to enforce it? That is where we come to the crux of the matter. I am not going into matters which would be properly matters for Second Reading or Third Reading. It appears to me that, given an International Court, and given a proper system of enforcing the decrees of that Court in this country, yet we ought to protect ourselves, our Courts and the Courts of our British Dominions—to which I attach great importance—from being put in the unenviable and almost impracticable position of being compelled, whether they wish it or not, to put in force against our subjects that which they think to be unfair and unjust. That is how we stand. That is the broad matter with which I want to deal, and it is with that broad matter that I think the argument of the Solicitor-General did not deal satisfactorily. I am not going into some of the questions which the hon. and learned Member for North-West Durham raised as regards municipal law and Prize Courts. It is sufficient for my purpose to deal with the prize laws. The rules dealing with the municipal laws are altogether different matters from the prize laws. I am taking our law as it is. I am taking a different decision by the International Tribunal, it being out of accord with our views as to what is fair and just. Are we, in these circumstances, to be called upon to enforce what we think is an inequitable thing? One of the reasons why I think this is of great importance—without going into the terms of the Declaration of London—is that it is the view of some of us that the effect of the Declaration will act harshly against neutrals. It has been a credit to our administration, although we have our interests as belligerents, that we have interpreted the law as regards neutrals more favourably to neutrals than has been the case in any other country. What will be the result, it having been our policy to do all we can to protect nentral 1621 trade? I go to the extent of thinking that as regards foodstuffs, neutral trade ought certainly to be protected absolutely. Heretofore we have gone in the direction of doing all we can to protect neutral trade. What would be the possible effect of a decree of the International Court? We should have to go against the whole of our liberal policy in the past in order to enforce what is, in our view, an unrighteous and reactionary law. I do not think there is any precedent for such a proposition I agree it is one of the difficulties of the case. It is not for me to deal with the difficulties which arise on a Bill of this kind, but it is a difficulty and, at any rate speaking for myself, without I can see in anything that is said that the difficulty is removed or satisfactorily explained I shall follow the hon. and learned Gentleman (Mr. Atherley-Jones) into the Division Lobby if he goes to a Division upon this, not upon the grounds that there must be some power of enforcing decisions, but on the ground that it ought to be so safeguarded that our views of justice and right should not be superseded and, above all, that you shall not put the obligation upon our Courts to do what they think is wrong in principle and unjust to the subjects of this country.
§ Mr. DEPUTY-SPEAKER (Mr. Whitley)
Before the Debate proceeds further I think I ought to point out that hon. Members are not entitled, on the Motion to leave out the Clause, really to review the whole Bill. That is a matter for Third Reading. The discussion seems to be running on the proviso standing in the name of the hon. and learned Gentleman (Mr. Atherley-Jones), but practically on a Motion to leave out the Clause the discussion ought, to run on the effect on the Bill of this Clause not being in—some reasons to show that the Bill would be workable without the Clause.
§ Mr. BUTCHER
Would it be in order to go into these matters upon the Clause if the Government announced their intention not to accept any such Amendment as is lower down on the Paper?
§ Mr. DEPUTY-SPEAKER
It would be in order to deal with the matters raised in the Amendment, but, of course, they cannot be discussed a second time.
§ The FINANCIAL SECRETARY to the TREASURY (Mr. McKinnon Wood)
It is with great hesitation that I intervene in the Debate, which has been conducted by 1622 some of the most distinguished lawyers in the House, because I cannot pretend to deal with it in any degree from the point of view of a lawyer. But the proposition of the hon. and learned Gentleman (Sir A. Cripps) appeals to me in quite a different sense—not in the legal sense, but from the point of view of elementary fair ness. The proposition that is put before us by the hon. and learned Gentleman is that if we get a decision from the Inter national Prize Court, which agrees with our views of what is just and right, we are to accept it and enforce that decision; but he actually asked His Majesty's Government to declare that if that decision does not agree with our views of what is right and just, and what my hon. and learned Friend (Mr. Atherley-Jones) called—and I was astonished at the phrase—municipal prize law—what he meant was British prize law——
§ Mr. McKINNON WOOD
I accept the correction. Possibly my hon. and learned Friend is right. What the Government is asked to say is that if the decision of the International Court agrees with the view of the British Government as to what is British law, then it is to be enforced; but if it does not agree with that view it is not to be enforced. Surely you cannot put that proposition before other nations without admitting that other nations will adopt the same principle; and if we appeal against the decision of a Russian Prize Court, as in the case of the "Oldhamia," which is still agitating Lancashire, where British subjects think they were wrongfully deprived of £60,000 worth of property in regard to which at the present moment they have no remedy whatever, and the International Court gave a decision which in Russia was not considered to be a proper decision, is Russia not to enforce the decision? The whole proposition renders utterly absurd the whole idea of an International Prize Court. I think that is the object of it. I do not think my hon. and learned Friend would deny that his object is to destroy the principle of an International Prize Court, of which he disapproves. But let him do it directly, and not by suggesting that the British Government should put an utterly preposterous proposition before other nations, the proposition that after we have gone to the Court of Appeal we should be judges in our own cause. Let me take the case of 1623 the hon. and learned Gentleman (Sir A. Cripps), that we are the belligerent interested. Does he say that if the Court of Appeal gives the case against us, we are not to take steps to enforce the decree of the Court, and that the British Government is not to give the remedy which the Court has decided they ought to give, nor to restore the property of the neutral if he has succeeded in his appeal? If, on the other hand, it is a question of a British neutral appealing to this Court, after all when you come to look at it as a business proposition what is the risk he runs? My hon. and learned Friend (Mr. Atherley-Jones) made a good deal of that. Take a case which appeals to me as a business man. I am a shipowner. My ship is taken and burnt like the "Oldhamia." I appeal. I lose. I cannot lose my ship. That has gone. My hon. and learned Friend seemed to think I stood to lose a great deal. I cannot find anything I am likely to lose. Of course I should have heard the opinion of lawyers on the point. I only throw this out as a plain business man. The only thing I think I can lose is costs. I might be cast in costs. I might have to pay that 1 per cent. Even that statement has to be modified, because the appellant has to give security for costs. Therefore the only thing that the British Court will have to recover from me will be the difference between the costs which the Court of Appeal says I must pay and the costs I paid into Court. Is it an unreasonable proposition that if we accept the Court of Appeal and a neutral foreigner appeals against us, if the Court decides against us we should obey the decree of the Court? Is it an unreasonable thing if a British subject chooses to appeal—because he need not appeal unless he likes—that he should pay the costs of the action he loses? I should be delighted if I were a litigant if I could do it on the lines of the hon. and learned Gentleman (Sir A. Cripps), that if the verdict is in my favour I will accept it, and if it is not I will reject it. But how you can expect any nation in its senses to agree to a Court of Appeal set up on those principles I fail to understand.
§ Sir R. FINLAY
I wish to put before the Government the effect of this Clause 28 upon a question which was raised by the Foreign Secretary on the last discussion on this Bill as to the law laid down in the International Prize Court as to the conversion of merchantmen on the high seas into men-of-war. Everyone agrees 1624 that is one of the most important points which could possibly be raised for this country and it has been left open as no agreement could be arrived at so far as the Declaration of London is concerned. The answer made by the Foreign Secretary was, as I understood it, that this country would not, as a belligerent, recognise the law laid down by the International Prize Court on any appeal by a neutral which turned upon the conversion of a merchant vessel upon the high seas into a man-of-war. Just see how that contention is affected by this Clause. I take a case where two foreign Powers, I will call them A and B, are at war. Great Britain is a neutral. The British vessel is captured by a merchantman which was converted on the high seas belonging to A. The owner of the neutral vessel, in the Prize Court of the country whose converted merchantman captured the vessel, finds that his vessel is condemned on the ground that his objection to the validity of the capture, as being by a merchantman converted upon the high seas, is unsound. He afterwards appeals to the International Prize Court, which adopts the same view as to the validity of the conversion of a merchantman upon the high seas. We bind ourselves by Clause 28 to enforce that decision in our Dominions. I wish to ask the Foreign Secretary how in reference to that Clause we could possibly say that when in our turn we were the belligerents we were not bound by the principles of law established by the International Prize Court.
§ The SECRETARY of STATE for FOREIGN AFFAIRS (Sir E. Grey)
I will answer that point very shortly. I was dealing the other day with the statement that the decision of the International Prize Court might bind our action when we were a belligerent in dealing with a belligerent. I contended that it will not bind our action as belligerents in dealing with belligerents, and I adhere to that statement. We are belligerents and we are dealing with belligerents and the belligerents opposed to us choose to convert on the high seas. We retain, and we cannot be prevented by any decision of the International Prize Court dealing solely with questions between belligerents and neutrals from retaining, our liberty of action to deal with a belligerent, when we are a belligerent, as we please, and I cannot see how the question arises on this Clause, which deals with the High Court enforcing the decisions of the International Prize Court in British Dominions, 1625 nor how it can have any bearing on our action as belligerents against belligerents. When we are belligerents against belligerents obviously no question on Clause 28 would arise here at all.
§ Sir R. FINLAY
The decision as to the conversion of a merchantman into a man-of-war proceeds on a principle of law. By Clause 28 we bind ourselves to enforce that decision in our dominions, and we do enforce it against a British subject the owner of a neutral vessel. How could we, when we come to be belligerents, say that we repudiate the principles of law upon which the decision which we had bound ourselves to enforce, and do enforce, is based, and say that because we are no longer belligerents we throw what is declared to be International law by the highest tribunal, that set up by this Court, to the winds?
§ Mr. BUTCHER
I still fail entirely to comprehend the attitude of the Foreign Secretary. As the law stands at present if a merchantman is converted into an armed cruiser on the high sea and is capturing our ships——
§ Mr. DEPUTY-SPEAKER
I really cannot allow that matter to come further into the discussion. As a matter of question and answer I permitted it, but it now appears to be becoming the subject of Debate. It does not appear to be relevant in any way to the Clause.
§ Mr. BUTCHER
I am quite content to leave the matter to the judgment of the House upon the statement of my right hon. Friend as contrasted with the statement of the Foreign Secretary. Now upon the general question, if I may summarise the way in which the matter occurs to me, it is this. Clause 28 compels all Prize Courts throughout the British Dominions to enforce every decision of the International Prize Court. What is that International Prize Court? It is a new Court, and what I may call an alien Court, not known in our jurisprudence. It is a new law which in many respects entirely conflicts with the existing law as declared by our Prize Courts. The next point I make is that new law must necessarily interfere with the private rights of British subjects as declared by our Prize Courts. The question is really in a nutshell. Can the Declaration of London, which is merely a treaty proposed to be ratified by Act of Parliament, but which has never come before Parliament, and which is never intended 1626 to come before Parliament, and I presume will never be sanctioned by Parliament when so ratified, be used to alter the private rights of British subjects? That is the real question. If you pass this Clause, you will enable this foreign Court to give decisions founded upon an alteration of private rights, and you will compel our Courts to give effect to these decisions. I venture to say that this Clause ought not to pass until a law dealing with our private rights has been sanctioned by Parliament. Therefore the Government are premature in asking us to pass this Clause. I understood the Solicitor-General to say, in answer to my hon. Friend—he will correct me if I am wrong—that the effect of the Declaration of London is to alter private rights which British citizens enjoy at present under the decisions of British Prize Courts.
§ Mr. BUTCHER
That is the answer I have often heard a witness make when he does not wish to answer a question. I understood that in his speech the Solicitor-General did not controvert the proposition of my learned Friend—namely, that the Declaration of London does alter private rights which British subjects enjoy by virtue of the decisions of our Prize Courts. Nor has he controverted the proposition under constitutional law which my hon. Friend laid down, namely, that you cannot by treaty made in time of peace, and not sanctioned by Parliament, alter private rights. By this Clause you give effect to decisions of the Tribunal which is to administer the law by which private rights are affected and which is to administer the law contained in a treaty which has never been sanctioned by Parliament. If that be so, one conclusion necessarily follows, namely, that this Clause must be left out, because it violates constitutional usage and gives effect to a treaty which has not been sanctioned by Parliament. That is really the inherent effect of this Clause. If the Declaration of London had been brought before Parliament and sanctioned specifically by Parliament, then the objection to this Clause would have gone. The learned Solicitor-General, in effect, asked for the sanction of Parliament, and I hope I do not misrepresent his argument when I say that I understood him to state, "We are in effect asking the sanction of Parliament to an alteration in the law made by the Declaration of London." If 1627 I may say so, with profound respect to my hon. and learned Friend, I cannot imagine a more delusive argument. You do not do anything of the kind by the Clause. What you do is to give effect to the decisions, whatever they may be, but you do not say what law they are founded upon.
My hon. Friend has stated that if you want to alter these private rights of British subjects, you must come and ask for the sanction of Parliament to the terms of the treaty itself, in order that they may be considered one by one, and that we may know how far existing private rights, as laid down by our Courts, are interfered with, and if Parliament is of opinion that existing private rights declared by our Courts should be altered, then it is quite fair to ask Parliament to alter them. But if you do not come to Parliament for sanction, if you do not ask specifically for approval of the alteration proposed, then I say it is perfectly idle to come to this House and say, "We ask impliedly for an alteration of the law on which these decrees will be founded, because we are going to enforce the decrees." I say that would be an unconstitutional act. The true proceeding for us here is first to obtain the sanction of Parliament to the alteration of the law, and then ask the Courts to enforce the law. I wish to say a word as to the mode of the application of this Declaration of London as it affects Parliament. I venture to say that there is a good deal to be reconsidered as regards the exercise of the prerogative——
§ Mr. DEPUTY-SPEAKER
I really must enter another protest against this line of argument. It appears to me the hon. Member is not confining himself to the question now before the House.
§ Mr. BUTCHER
I would only urge that the Government should consider what I have said, namely, that if they want our Courts to enforce these decrees founded upon a new law, it is their constitutional duty to put that new law before Parliament in order that Parliament may say whether they will sanction it or not.
§ Mr. MARTIN
As to the words "British possessions" in the Clause, I think it would have been better if the Government had used the words "British dominions." I cannot myself discriminate between British possessions and British dominions, but if there is any difference I have no doubt the Government would be willing to put in the word "dominions." 1628 The hon. Gentleman complained that great injury would be done to the Colonies by this provision. He must have forgotten that at the Colonial Conference this Bill and the Declaration of London were before the delegates representing the different Colonies, and that they agreed unanimously to accept this Convention made by the Government here, and also the necessary legislation to carry it out. Sir Wilfrid Laurier and his colleagues at that Conference offered no criticism of Canada's action in this respect.
If the delegates at that Conference had been the new Premier of Canada and some of his Ministers, they would have taken precisely the same view in regard to this matter as Sir Wilfrid Laurier did. Whether Section 28 does or does not affect Canada and the other Colonies in any way in being called upon to carry out the judgments of the International Court, they have no interests in a question of this kind separate from the United Kingdom. The United Kingdom has the onus of looking after the foreign affairs of the Empire. It has the onus and expense of defending the whole Empire as regards foreign nations. I know that in Canada—and I think it must be so in the other Colonies—the people are anxious not to be troubled in matters of this kind, and are quite prepared to accept loyally and to carry out any arrangement or convention or treaty that may be made by the United Kingdom with regard to a question of this kind. I feel certain that Canada when ordered by the International Court will carry out the decisions most loyally. There can be no possible injury whatever in doing so. At present the Colonies have an appeal to the Privy Council, and the Colonial Courts do not feel in any way put about by having their decisions reversed. Several speakers have referred to this International Court as an alien Court. It will be a Court constituted by Act of Parliament, and, having been so constituted, it will deal with affairs which affect the Empire. I am sure that every Colony will be most glad to carry out its decisions.
§ Mr. MACMASTER
The divergence of opinion manifested during the Debate only demonstrates the impracticability of administering a Court of the character referred to here. The hon. Gentleman opposite (Mr. Martin) has given his opinion, as he was perfectly entitled to do, as to how this Court would be viewed in the Dominions overseas. For my own 1629 part, I must say that in a great, prosperous, and comparatively wealthy country like Canada, I think the proposal to establish a Court of this character, on which Great Britain will only have one representative in fifteen, and on which all the great Dominions overseas belonging to this country will have no representatives whatever, will be looked upon as somewhat anomalous.
Is the argument which the hon. Gentleman is advancing germane to the Amendment now before the House?
§ Mr. DEPUTY-SPEAKER
I think the hon. Gentleman was not in the House earlier in the discussion, when it was stated that we must take the Prize Court as having been constituted by the previous Clauses in the Bill. The only question raised by this Clause is the power of enforcing certain decisions.
§ 6.0 P.M.
§ Mr. MACMASTER
I was simply answering the argument advanced from the opposite side of the House. With regard to the orders authorising the enforcing of decrees of this Court, I submit that it is relevant to consider what would be the character of those decrees. What sort of jurisprudence are you to expect will be established in a Court of this character, in which fifteen jurisdictions will be represented, and in which each jurist probably will follow his own view of the law of his own country? This Clause seems to me to be the pith of the whole Bill, because without it the Bill would be ineffective.
§ Mr. DEPUTY-SPEAKER
That is exactly the point. The argument is, therefore, one that should be brought forward on the Third Reading.
§ Mr. W. PEEL
I only wish to ask a question to see exactly where one does stand in regard to the argument? I understood that the Solicitor-General for the Government told us that you cannot by treaty alter private rights. Then we are told that our Courts are to enforce the decrees of the International Prize Court in this country, whether they are or are not consistent with the law of this country. How am I to know what that law is? We are told by the Government that you have got to infer what the law is from the decisions in force in the Courts of this country. It seems to me an astounding proposition to try to force on us to say: Here are laws which we have to submit to, which we have never made at all, or had any part in 1630 making. It is entirely done under the prerogative. We are not to know what they are. We are only to know them by their effects when they are enforced in the Courts of this country. That is a very back-handed way of getting to know what the law is. Where does the distinction come in? We know perfectly well that in the case of these treaties which do affect the rights of individuals, where duties have to be put on or taken off, you have to pass an Act of Parliament; and you also have to do so in the case of treaties of extradition. But in this case nothing of that kind is going to be done. You are left ex post facto, to the discovery of what the law is, to a knowledge of which by some hypothetical method you are supposed to have ascended if the case has not before been tried in the Courts, and in the last resort you are to have the decisions of this Court enforced in the Courts of our country. If that is really the doctrine it seems to me extraordinarily unsuited to the democratic conditions of the day, and that some time or other the prerogative will have to be limited by Statute more than it is at present.
§ Colonel GREIG
If the hon. Member who has just spoken had looked at Article 7 of the Convention, which is appended to the Bill, he would see that it states quite clearly what the law is that the Court is to enforce, and that it has nothing at all to do with the Declaration of London, which is not mentioned in the Act from beginning to end. It says:—If a question of law to be decided is covered by a treaty in force between the belligerent captor and a Power which is itself, or the subject or citizen of which is, a party to the proceedings, the Court is governed by the provisions of the said treaty.In the absence of such provisions, the Court shall apply the rules of International law. If no generally recognised rule exists, the Court shall give judgment in accordance with the general principles of justice and equity.One word more on the effect of the omission of this Clause which is the sole question before the House. Part III. constitutes an International Prize Court, and Section 28 gives power to enforce the orders of this Court. Omit that Section and you have no power of enforcing, except as specified in Section 29, which says:This Part of this Act shall apply only to such cases and during such period as may for the time being be directed by 1631 Order in Council, and His Majesty may by the same or any other Order in Council apply this Part of this Act subject to such conditions, exceptions, and qualifications as may be deemed expedient.So even if you left out Clause 28 hon. Members opposite, if they assent to Clause 29, would propose that His Majesty in Council should have the power of carrying these out by specific regulations in these conditions. I may point out that Clause 29 has met a great many objections raised on the other side, because if the Government of this country, whichever party is in power, desires to reserve any of these questions upon which nothing has been said in the Declaration, or referred to, they can do so by putting into the Order in Council such qualifications and exceptions and conditions that the Order in Council shall apply to Part in as they like.
§ Mr. POLLOCK
The observations of the last speaker show how misunderstood this Bill has been by hon. Members who have not looked into it carefully. The hon. Member does not understand apparently that the action of Article 7, which deals with a code of law, is the enforcing of an International law, and for that purpose the Declaration of London is gone into, in order to have what this, code of International law is. It is for the very reason of the uncertainty of the law to be enforced in this Court, that my hon. Friend moved his Amendment. What we say is do directly what you are really endeavouring to do indirectly. The Financial Secretary to the Treasury (Mr. McKinnon Wood) taunted the hon. Member for North-West Durham (Mr. Atherley-Jones) with the suggestion that this was an attempt by a side wind to defeat the purposes of the
§ Bill. That is not so. What we really point out is this, that if you want to do what you intend to do, and must do by this Clause 28, you ought to have the courage of your opinions, and do it directly, and say you are prepared to alter the private rights of citizens and persons who will be litigants in the International Court. That is what in effect you are doing by reason of the reflex action of this section upon the municipal law of this country. That is exactly why we object to this Clause. In carrying out the decrees of the International Court, those decrees must necessarily have a reflex effect upon the law of our country, and to the extent to which those decrees modify the law of our country to that extent our law, which obtains between citizens, will be modified and altered. We say rather than have that done indirectly by the enforcement of decrees that we do not know, founded on law that we do not know, let us have some statement which will make it plain to citizens that their rights are altered. We are giving authority to this Court to have its decrees enforced in our Courts. We are bringing in a new system of law, and new changes by the decisions of a new Court which must necessarily have a very wide and far reaching effect. It is because we complain of the operation of Clause 28 and say that it is not fully understood by persons who have not studied the Bill, and by I dare say a number of persons in our Colonies who have not fully appreciated the effect of it, that we say that without some modifications and limitations there ought not to be given any power to enforce the decree of the International Court, and that we ought in some way to safeguard our own municipal law.
§ Question put, "That the words proposed to be left out stand part of the Bill."
§ The House divided: Ayes, 212; Noes, 115.1635
|Division No. 432.]||AYES.||[6.15 p.m.|
|Abraham, William (Dublin Harbour)||Boland, John Plus||Clough, William|
|Acland, Francis Dyke||Booth, Frederick Handel||Clynes, John R.|
|Adamson, William||Bowerman, Charles W.||Collins, Godfrey P. (Greenock)|
|Agnew, Sir George William||Brady, Patrick Joseph||Collins, Stephen (Lambeth)|
|Ainsworth, John Stirling||Brocklehurst, William B.||Compton-Rickett, Rt. Hon. Sir J.|
|Alden, Percy||Brunner, John F. L.||Condon, Thomas Joseph|
|Allen, Arthur A. (Dumbarton)||Bryce, John Annan||Cowan, William Henry|
|Allen, Charles Peter (Stroud)||Buckmaster, Stanley O.||Crawshay-Williams, Eliot|
|Asquith, Rt. Hon. Herbert Henry||Burke, E. Haviland-||Crumley, Patrick|
|Baker, Harold T. (Accrington)||Burns, Rt. Hon. John||Davies, Timothy (Lincs., Louth)|
|Baker, Joseph Allen (Finsbury, E.)||Burt, Rt. Hon. Thomas||Davies, Sir W. Howell (Bristol, S.)|
|Baring, Sir Godfrey (Barnstaple)||Buxton, Noel (Norfolk, N.)||Dawes, James Arthur|
|Barlow, Sir John Emmott (Somerset)||Buxton, Rt. Hon. S. C. (Poplar)||Denman, Hon. Richard Douglas|
|Barton, William||Carr-Gomm, H. W.||Devlin, Joseph|
|Beck, Arthur Cecil||Cawley, H. T. (Lancs., Heywood)||Dillon, John|
|Benn, W. W. (Tower Hamlets, St. Geo.)||Chancellor, Henry George||Doris, William|
|Bentham, George Jackson||Chapple, Dr. William Allen||Duncan, C. (Barrow-in-Furness)|
|Bethell, Sir John Henry||Churchill, Rt. Hon. Winston S.||Duncan, J. Hastings (York, Otley)|
|Birrell, Rt. Hon. Augustine||Clancy, John Joseph||Edwards, Clement (Glamorgan, E.)|
|Edwards, Enoch (Hanley)||Lardner, James Carrige Rushe||Rea, Walter Russell (Scarborough)|
|Edwards, John Hugh (Glamorgan, Mid.)||Levy, Sir Maurice||Reddy, Michael|
|Elibank, Rt. Hon. Master of||Lewis, John Herbert||Redmond, John E. (Waterford)|
|Elverston, Sir Harold||Lough, Rt. Hon. Thomas||Redmond, William (Clare, E.)|
|Esslemont, George Birnie||Lundon, Thomas||Rendall, Athelstan|
|Falconer, James||Lyell, Charles Henry||Richardson, Thomas (Whitehaven)|
|Ffrench, Peter||Lynch, Arthur Alfred||Roberts, Charles H. (Lincoln)|
|France, Gerald Ashburner||Macdonald, J. R. (Leicester)||Robertson, Sir G. Scott (Bradford)|
|Furness, Stephen||Macdonald, J. M. (Falkirk Burghs)||Robertson, John M. (Tyneside)|
|George, Rt. Hon. David Lloyd||Macnamara, Rt. Hon. Dr. T. J.||Robinson, Sidney|
|Gibson, Sir James Puckering||M'Callum, John M.||Roch, Walter F. (Pembroke)|
|Gill, Alfred Henry||M'Curdy, Charles Albert||Roche, Augustine (Louth)|
|Gladstone, W. G. C.||McKenna, Rt. Hon. Reginald||Roe, Sir Thomas|
|Clanville, Harold James||M'Laren, F. W. S. (Lincs., Spalding)||Rowlands, James|
|Goddard, Sir Daniel Ford||M'Micking, Major Gilbert||Rowntree, Arnold|
|Goldstone, Frank||Marshall, Arthur Harold||Runciman, Rt. Hon. Walter|
|Greenwood, Granville G. (Peterborough)||Martin, Joseph||Samuel, Rt. Hon. H. L. (Cleveland)|
|Greig, Colonel James William||Mason, David M. (Coventry)||Scanlan, Thomas|
|Grey, Rt. Hon. Sir Edward||Meehan, Francis E. (Leitrim, N.)||Scott, A. MacCallum (Glas., Bridgeton)|
|Guest, Hon. Frederick E. (Dorset, E.)||Meehan, Patrick A. (Queen's Co.)||Seely, Col. Rt. Hon. J. E. B.|
|Hackett, John||Menzies, Sir Walter||Sheehy, David|
|Hancock, John George||Mond, Sir Alfred M.||Sherwell, Arthur James|
|Harcourt, Robert V. (Montrose)||Montagu, Hon. E. S.||Simon, Sir John Allsebrook|
|Harmsworth, Cecil (Luton, Beds.)||Mooney, John J.||Smith, Albert (Lancs., Clitheroe)|
|Harvey, T. E. (Leeds, West)||Morrell, Philip||Smyth, Thomas F. (Leitrim, S.)|
|Harvey, W. E. (Derbyshire, N. E.)||Morton, Alpheus Cleophas||Snowden, Philip|
|Haslam, James (Derbyshire)||Munro, Robert||Spicer, Sir Albert|
|Havelock-Allan, Sir Henry||Murray, Capt. Hon. Arthur C.||Stanley, Albert (Staffs, N. W.)|
|Hayden, John Patrick||Nannetti, Joseph P.||Sutton, John E.|
|Hayward, Evan||Nolan, Joseph||Tennant, Harold John|
|Helme, Norval Watson||Norton, Captain Cecil W.||Thomas, Abel (Carmarthen, E.)|
|Henderson, Arthur (Durham)||O'Brien, Patrick (Kilkenny)||Thorne, G. R. (Wolverhampton)|
|Henderson, J. M. (Aberdeen, W.)||O'Connor, John (Kildare, N.)||Toulmin, Sir George|
|Henry, Sir Charles||O'Connor, T. P. (Liverpool)||Ure, Rt. Hon. Alexander|
|Higham, John Sharp||O'Doherty, Philip||Wadsworth, John|
|Hinds, John||O'Dowd, John||Walsh, Stephen (Lancs., Ince)|
|Hobhouse, Rt. Hon. Charles E. H.||O'Grady, James||Ward, John (Stoke-upon-Trent)|
|Hodge, John||O'Kelly, Edward P. (Wicklow, W.)||Ward, W. Dudley (Southampton)|
|Holt, Richard Durning||O'Shee, James John||Wardle, George J.|
|Hudson, Walter||O'Sullivan, Timothy||Wason, Rt. Hon. E. (Clackmannan)|
|Isaacs, Rt. Hon. Sir Rufus||Palmer, Godfrey Mark||Wason, John Cathcart (Orkney)|
|John, Edward Thomas||Parker, James (Halifax)||Webb, H.|
|Johnson, William||Pearce, Robert (Staffs, Leek)||Wedgwood, Josiah C.|
|Jones, Edgar R. (Merthyr Tydvil)||Pearce, William (Limehouse)||Whittaker, Rt. Hon. Sir Thomas P.|
|Jones, William (Carnarvonshire)||Pirie, Duncan V.||Wiles, Thomas|
|Jones, W. S. Glyn- (T. H'mts., Stepney)||Pointer, Joseph||Wilson, John (Durham, Mid)|
|Jowett, Frederick William||Pollard, Sir George H.||Wilson, W. T. (Westhoughton)|
|Keating, Matthew||Ponsonby, Arthur A. W. H.||Wood, Rt. Hon. T. McKinnon (Glas.)|
|Kelly, Edward||Power, Patrick Joseph||Yoxall, Sir James Henry|
|Kennedy, Vincent Paul||Price, C. E. (Edinburgh, Central)|
|King, Joseph (Somerset, North)||Price, Sir Robert J. (Norfolk, E.)||TELLERS FOR THE AYES.—Mr. Illingworth and Mr. Gulland.|
|Lambert, George (Devon, Molton)||Radford, George Heynes|
|Lansbury, George||Raffan, Peter Wilson|
|Anstruther-Gray, Major William||Cripps, Sir Charles Alfred||Horner, Andrew Long|
|Ashley, Wilfrid W.||Denniss, E. R. B.||Hume-Williams, William Ellis|
|Baird, John Lawrence||Eyres-Monsell, Bolton M.||Hunt, Rowland|
|Balcarres, Lord||Faber, Captain W. V. (Hants, W.)||Jardine, Ernest (Somerset, East)|
|Banbury, Sir Frederick George||Falle, Bertram Godfray||Jessel, Captain Herbert M.|
|Banner, John S. Harmood-||Fell, Arthur||Kerry, Earl of|
|Beach, Hon. Michael Hugh Hicks||Finlay, Rt. Hon. Sir Robert||Kinloch-Cooke, Sir Clement|
|Beckett, Hon. W. Gervase||Fisher, Rt. Hon. W. Hayes||Kirkwood, John H. M.|
|Benn, Arthur Shirley (Plymouth)||Flannery, Sir J. Fortescue||Kyffin-Taylor, G.|
|Benn, Ian Hamilton (Greenwich)||Fletcher, John Samuel (Hampstead)||Larmor, Sir J.|
|Bennett-Goldney, Francis||Gardner, Ernest||Lonsdale, Sir John Brownlee|
|Bigland, Alfred||Gibbs, George Abraham||Macmaster, Donald|
|Boscawen, Sir Arthur S. T. Griffith-||Gilmour, Captain John||McNeill, Ronald (Kent, St. Augustine)|
|Boyle, W. Lewis (Norfolk, Mid.)||Gordon, John (Londonderry, South)||Magnus, Sir Philip|
|Bridgeman, William Clive||Grant, James Augustus||Mason, James F. (Windsor)|
|Bull, Sir William James||Greene, W. R.||Meysey-Thompson, E. C.|
|Burn, Colonel C. R.||Guinness, Hon. Walter Edward||Mildmay, Francis Bingham|
|Butcher, John George||Hall, D. B. (Isle of Wight)||Neville, Reginald J. N.|
|Campbell, Rt. Hon. J. H. M.||Hall, Fred (Dulwich)||Newdegate, F. A.|
|Carlile, Sir Edward Hildred||Hambro, Angus Valdemar||Newman, John R. P.|
|Cassel, Felix||Hamilton, Lord C. J. (Kensington)||O'Neill, Hon. A. E. B. (Antrim, Mid)|
|Cator, John||Hamilton, Marquess of (Londonderry)||Orde-Powlett, Hon. W. G. A.|
|Cave, George||Harris, Henry Percy||Parkes, Ebenezer|
|Chaloner, Col. R. G. W.||Harrison-Broadley, H. B.||Pease, Herbert Pike (Darlington)|
|Clive, Captain Percy Archer||Helmsley, Viscount||Peel, Hon. W. R. W. (Taunton)|
|Coates, Major Sir Edward Feetham||Herbert, Hon. A. (Somerset, S.)||Pole-Carew, Sir R.|
|Cooper, Richard Ashmole||Hill, Sir Clement L. (Shrewsbury)||Pollock, Ernest Murray|
|Craig, Captain James (Down, E.)||Hills, John Waller||Pretyman, Ernest George|
|Craik, Sir Henry||Hoare, Samuel John Gurney||Pryce-Jones, Col. E.|
|Remnant, James Farquharson||Sykes, Mark (Hull, Central)||Willoughby, Major Hon. Claud|
|Roberts, S. (Sheffield, Ecclesall)||Talbot, Lord Edmund||Wolmer, Viscount|
|Rolleston, Sir John||Terrell, Henry (Gloucester)||Wood, John (Stalybridge)|
|Rothschild, Lionel de||Thompson, Robert (Belfast, North)||Wortley, Rt. Hon. C. B. Stuart-|
|Royds, Edmund||Touche, George Alexander||Yate, Col. C. E.|
|Samuel, Sir Harry (Norwood)||Tryon, Capt. George Clement||Yerburgh, Robert|
|Sanders, Robert A.||Valentia, Viscount||Younger, Sir George|
|Sanderson, Lancelot||Ward, A. S. (Herts, Watford)|
|Spear, Sir John Ward||White, Major G. D. (Lancs., Southport)||TELLERS FOR THE NOES.—Mr. Atherley-Jones and Mr. Peto.|
|Staveley-Hill, Henry||Williams, Col. R. (Dorset, W.)|
§ Mr. BUTCHER
I beg to move, at the end of the Clause, to add the words, "Provided that this Section shall not take effect until the other Powers mentioned in Article 15 of the Convention set out in the First Schedule to this Act have likewise made provision to secure within their several jurisdictions the enforcement of all orders and decrees of the said Court in the matter of appeals and transfers from the several Prize Courts."
The object of this Amendment is plain on the face of it. It is to secure that there shall be some reciprocity in enforcing the decrees of this International Prize Court. In other words, we should have to enforce decrees in favour of a Power that never intended and never has taken power to itself to enforce the decrees. I understand the Government may insert some Amendment in Clause 29 in order to meet this point, and I therefore only formally move the Amendment.
§ Mr. McKINNON WOOD
Of course, I entirely sympathise with and understand the object of the hon. and learned Member that if this Clause 28 is to be applied to Great Britain, some similar provision should be made in the other countries which ratify the Declaration of London. I think we have provided for that, and if the hon. and learned Gentleman thinks it advisable, I would suggest that he should add certain words to his Amendment, which would be more appropriate to Clause 20 than to this Clause. If the House looks at Section 29 they will see it provides that "this part of the Act should apply only to such cases and during such period as may for the time being be directed by Order in Council." It is provided that power should be given to the executive Government to see that provisions for enforcing the decrees of the International Prize Court are made in other countries as well as in this country. By Article 9 of the Convention "the contracting Powers undertake to submit in good faith to the decisions of the International Prize Court, and to carry them out with the least possible delay."
§ Mr. McKINNON WOOD
Any Power which ratifies the Prize Court Convention is bound by this Article 9. I think we secure all the objects which the hon. and learned Gentleman has in view.
§ Mr. BUTCHER
I would point out that the Article referred to in the Convention is really of no good at all. What we want is to secure that the other contracting parties shall have a similar Clause in their legislation.
§ Mr. McKINNON WOOD
It is not necessary in all foreign countries to have that provision, because the procedure would be different in other countries. I do not, however, want to go into legal questions; it would depend upon the constitution of the Prize Court; but if the hon. and learned Gentleman is not satisfied with the explanation, I think we might meet his view by adding similar words with a similar object, and the words we suggest are that the parties referred to should be parties to the Convention. If we add those words to Clause 29, with some other slight modifications of the hon. Gentleman's proposal, the object he has in view, I think, would then be attained. Of course, the difficulty about the whole thing is this: I am afraid that even in the modified form I have suggested there would be a little difficulty as to who is to begin. Somebody must begin to ratify the Declaration. The ratifying of the Declaration, of course, does not carry out the decrees of the International Prize Court, and an Order in Council would be required. If foreign Powers do not provide for carrying out the decrees of the Prize Court, we should not like the Order in Council. The question arises, therefore, who is to begin.
§ Mr. BUTCHER
I am much obliged to the right hon. Gentleman for his explanation, and as the matter is to be dealt with on Clause 29, I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.1637
§ Mr. ATHERLEY-JONES
I have an Amendment on the Paper which I do not intend to move, after the decision given by the House on the first Amendment. The Amendment that I have on the Paper is, "Provided that such Courts shall not enforce any order or decree of the International Prize Court so far as such order or decree may be inconsistent with or contrary to the municipal prize law of Great Britain." I do not want to recapitulate the arguments which have been advanced, but I think it is very much to be regretted that you should give this Prize Court the power, in pursuance of the terms of a Treaty, to give judgments that may seriously affect the rights of private citizens. May I ask whether some provision could not be made in another place to meet my object?