§ (1) In the event of an International Prize Court being constituted in accordance with the said Convention or with any Convention entered into for the purpose of enabling any Power to become a party to the said Convention or for the purpose of amending the said Convention in matters subsidiary or incidental thereto (hereinafter referred to as the International Prize Court), it shall be lawful for His Majesty from time to time to appoint a judge and deputy judge of the Court.
§ (2) A person shall not be qualified to be appointed by His Majesty a judge or 1196 deputy judge of the Court unless he has been, at or before the time of his appointment, the holder, for a period of not less than two years, of some one or more of the offices described as high judicial offices by the Appellate Jurisdiction Act, 1876, as amended by any subsequent enactment.
§ Sir A. CRIPPS
I beg to move, to leave out Clause 23.
This Clause raises the question of the constitution of the Court, and that has already been dealt with so fully that I do not propose to refer to that topic again. But, in dealing with the constitution of the Court, it was pointed out that the question of the powers of the Court would arise at a subsequent stage. The question really arises upon this proposal to leave out Clause 23. I object to any judge being appointed from this country to administer a law which, according to the principles heretofore held in this country, is unjust and reactionary. In substance, I object to any judge being appointed to a Commission or Convention where the law is not only in opposition to the law of this country, but is reactionary and harsh as compared with the maritime law hitherto exercised here. I will take the illustration as regards conditional contraband. I think the question of conditional contraband, particularly in reference to foodstuffs, is a matter of vital importance to this country, and I do not want a judge of this country to administer a law which is different from the law which is now being administered in our own Prize Courts, and which, as compared with that law, is, I think, both harsh and reactionary. At the present moment the question of conditional contraband, in regard to the law of this country, depends on the destination of the cargo and on the destination of the ship. As regards conditional contraband, we have the same principle which we have with regard to absolute contraband, namely, the law of continuous voyage.
What is the result of the law to be administered by the judge under the international code? When administering the law in our own Courts, in the first instance, we have to administer a different law altogether from what we have to administer in the International Court, and that raises a most crucial question. I assume that it is admitted that the law of conditional contraband as regards foodstuffs is of vital importance to this country. I am not going into the details, but that will be accepted as a self-evident proposition.
1197 What will be the class of questions which will come before the International Court, and with reference to which I think we ought not to appoint any judge at all? Take the case of a neutral vessel bringing goods to this country. Take such a port as Glasgow to illustrate what I mean in respect of the general principle. The right hon. Gentleman the Foreign Secretary pointed out some time ago—and I think no one could dispute his dictum—that whether for instance, foodstuffs coming to Glasgow—I am speaking of a state of war—were contraband or not, would depend on the question of fact whether Glasgow came within the words "base of operations" or not. So you have a question of a most crucial kind at once. You cannot have a more crucial question than that of whether the great ports of this country—
I am afraid that the hon. and learned Member is proceeding to discuss the whole Convention, while this Clause deals with the appointment of the judges. It would not be in order on the question of the appointment of the judge to go into the merits of the whole question.
§ Sir A. CRIPPS
I do not desire to go further than to discuss the question of the powers of the Court. I quite understand the objection to my going further if I sought to discuss the Declaration of London on this Clause. But is it possible to discuss the question whether it is advisable that a judge should be appointed in this country to the International Court to consider the class of questions with which the Court will have to deal? I quite admit it would not be competent for me to raise the whole question of the Declaration of London, and I quite see the objection to that. But in dealing with the question of sending a judge from this country to this International Court it seems to me that I must refer to the powers which the Court will exercise. If I cannot do that under your ruling, Sir, I will sit down. The powers which the Court will exercise may have been defined in great part by the Declaration of London, but that happens to be a coincidence so far as my argument is concerned. If I cannot go into the question of the nature of the law to be administered by the International Court, then it will be useless to proceed further with my argument.
§ Sir R. FINLAY
I very respectfully submit that while it would be out of order to go into details in the way of discussing 1198 the Declaration of London, one element is whether it is proper that this country should join in the setting up of this Court in view of the nature of the functions which the Court has to discharge. I submit for that reason that it is open to any speaker to point out objections to our joining in the constitution of such a Court which will have functions of a certain nature to discharge, and that element cannot be excluded from consideration. Without going into details, I submit that the general duties of the Court cannot possibly be excluded.
As the hon. and learned Member said, it is a matter of degree. He is entitled to emphasise the importance of the matters the judge will have to decide, but not by way of illustration to really reargue the merits of the Declaration of London. Under cover of his illustrations he appeared to me to be attempting this.
§ Sir A. CRIPPS
I think it would be quite possible for me to submit what I wish to say within your ruling, Sir, and in fact I apologise for not having kept within it. It was not my intention to raise the general question of the Declaration, but to refer to the point whether it was advisable or not, in view of the duties of the International Court to appoint a judge. If we do not appoint one of the judges upon it, so far as we are concerned we do not come under the jurisdiction of the International Court.
§ Sir A. CRIPPS
That is necessarily so. I should be astonished if the Foreign Secretary said that, although we are to have no voice in the Court at all in the sense of appointing any judge or deputy-judge in connection with it, yet it is to have a maritime jurisdiction affecting the vital interests of this country.
§ Sir E. GREY
I do not wish to say that for a moment. All I wish to point out is that the effect of the hon. and learned Gentleman's Amendment would be to place us in that position. If this Clause goes, we are bound by the International Prize Court, but we could not have any representative upon it.
§ Sir A. CRIPPS
I do not want to argue that point further. We have been told several times that the Convention must be accepted as a whole and taken as one document. I think I am right in saying so. 1199 Therefore if this House determined to alter one of the terms of the Convention, and a very crucial term, I understand the Convention itself would fall. I do not want to argue that further at the present time, but it is incidental to my general argument, and I would ask the Foreign Secretary to explain how a vital principle of this kind can be excepted from the Convention, and yet that the Convention can stand.
If it cannot, that would appear to make the hon. Member's present Motion out of Order.
§ Sir A. CRIPPS
The same would apply to the new Clause. I desire to put this other point. What this Court would have to deal with would be some question of law of a very complex character, and some questions of fact of a very complex character, and may I illustrate what I mean as to the nature of those complex questions of fact and law in which the law administered by the international tribunal would be different, and, I think, reactionary, as regards the law as administered in this country. Suppose, for instance, you had to consider whether a neutral ship had been properly sunk, or, in the exigencies of the naval officers in naval operations. That is a question which could never come before the Supreme Court of this country, because we do not allow that as an excuse at all in connection with the sinking of the ship. Yet a point of that kind, one of the most difficult to deal with, and of great complexity, would, according to the new code—a reactionary code—come before this International Prize Court. There again I say that one of His Majesty's judges ought not to be appointed a member of a Court which has to consider a matter of that kind, and which, according to my view, is wholly reactionary and improper as regards the fair rights of neutrals. Another very important principle which is established in our Courts is the abolition of privateering. We have nothing more to do with that, as it has been abolished, but if you allow the principle of a merchant vessel being changed on the high seas into a vessel of war, then at once you begin the whole question over again. However we look at what this International Prize Court has to decide, we find not only great complexity of questions, but we find questions which are not dealt with by judges in our Courts at all, because for centuries, I might say, or at all 1200 events, for many years, we have ruled those out of our Courts and decided in the opposite direction. It comes to this, that after all this is a new tribunal, which will lay down a new maritime code of vital importance to this country, and in many respects reactionary as regards the past policy of this country. It is on that ground, as well as on the ground of the constitution of the Court, a question which I need not reargue, that I move the Amendment.
§ 3.0 P.M.
§ Mr. POLLOCK
I beg to second the Amendment. I think it very important that before this Clause is adopted by the House some fuller explanation should be made of the circumstances and the purposes of this Court. We find by Article 15 that the Judges appointed by eight Powers are always summoned to sit and that the same judge may be appointed by several of the Powers. What will be the position of the composite judge appointed under Clause 23? The decisions of the Court under Article 43 are to be arrived at by a majority of the judges present. I desire to ascertain whether or not the judge appointed by several of the Powers will have a vote for all the Powers he represents or simply one vote. The point I desire to put to the Foreign Secretary is as to a statement contained in his dispatch from the Foreign Office of 27th February, 1908, when he said:—His Majesty's Government are deeply sensible of the great advantage which would arise from the establishment of an International Prize Court, but in view of the serious divergencies which the discussion at The Hague brought to light as to many of the above topics after an agreement had practically been reached on the proposals for the creation of such a Court, it would be difficult, if not impossible, for His Majesty's Government to carry the legislation necessary to give effect to the Convention unless they could assure both Houses of the British Parliament that some more definite understanding had been reached as to the rules by which the new tribunal should be governed.I do not know that we have had that assurance given in this House or in the other House. Has that understanding been reached? If it means that the understanding is obtained by the Declaration of London then I shall ask the Foreign Secretary kindly to say whether this country has at present ratified that Declaration, and what other countries have ratified it, because his statement that it would be difficult, if not impossible to carry this legislation through the British Parliament without such definite understanding, I think gives a pledge which I am entitled to ask the right hon. Gentleman to fulfil at the present time. So far as my knowledge 1201 goes, and indeed I think that of a great many other hon. Members, we do not know whether or not this country and the other countries Which will be concerned in this Court have at the present time ratified the Convention, and so we have all the foreign countries and this country getting a Court without some more definite understanding as to the rules by which the new tribunal should be governed. The Financial Secretary to the Treasury said that many other countries had the right to a voice on that, and that this portion of the Act is intended to give us a judge who would speak for this country, and that without this Clause it would be impossible for this country to be represented. Agreed that that is so, but at the same time we want to know what is the law which shall hereafter be administered by this Court. In the past this country has, certainly under the Treaty of Washington of 1871, made more stringent Clauses in respect of its own country than many other countries have assented to. In seconding the Amendment I ask the Foreign Secretary to give the assurance which he said was absolutely essential, that by passing this Clause we are not appointing a judge to go to a Court which has not at present a real code of law which can be exercised by the Court.
Mr. McKINNON WOOD
I should like to bring the House back to the Amendment. The Clause begins with these words, "In the event of an International Prize Court being constituted in accordance with the said Convention … it shall be lawful for His Majesty to appoint a judge or deputy-judge of the Court." The Amendment is to the effect that in the event of an International Court being set up it shall not be lawful for. His Majesty to appoint a British judge. I am sure hon. Members do not want to pass that Amendment. The fact of the matter is that the object of the hon. and learned Member was entirely different. His argument was that as the Declaration of London and the Convention establishing a Prize Court must be taken as one instrument, therefore you could bring in those two instruments in discussing every Amendment on every Clause of this Bill. That is an impossible position. Though the hon. and learned Member avoided discussing these things, the whole of his argument was that, as he disapproves of the Declaration of London, it ought not to be lawful for His Majesty to appoint a 1202 British judge on this Court. I do not think it is fair to take up the time of the House at any great length discussing that. I hope the House will allow us to get to the other Amendments which really deal with the substance of the Bill. This is simply an Amendment to wreck the Bill, and there is no point in moving it on this Clause.
§ Sir R. FINLAY
It would be impossible to misunderstand the Amendment or the argument of my hon. and learned Friend more completely than the right hon. Gentleman has done. The Amendment does not provide that in the event of an International Court being set up it shall sit without an English judge. The object of my hon. and learned Friend is to prevent this International Court in its present form being set up at all. He moves to leave out the whole of Clause 23, and it would follow if that were carried that the other Sections relating to the setting up of the Court would be left out. It is really trifling with the subject to speak in that way. The right hon. Gentleman says that the argument of my hon. and learned Friend was that because he disapproved of the Declaration of London the International Court should not be set up. That was not the argument of my hon. and learned Friend at all. [An HON. MEMBER: "He admitted it."] He admitted that he disapproved of the Declaration of London. So do I. But that is not the point. What he suggested was that the questions involved were of such a nature that it was highly undesirable that there should be an International Court to which we should submit ourselves dealing with such subjects. The question is not whether or not the provisions of the Declaration of London are good, but whether it is desirable that a Court, consisting of representatives of all the nations of the world, to use the right hon. Gentleman's phrase, should be set up to deal with questions of such difficulty and delicacy. The Amendment and the argument of my hon. and learned Friend have met with absolutely no answer.
§ Sir E. GREY
The right hon. Gentleman opposite has frankly admitted that the object of this Amendment is to prevent an International Prize Court being set up—
§ Sir E. GREY
If the right hon. Gentleman had only allowed me to finish my sentence I was about to add the words "in this form." Surely that was the object 1203 of the new Clause which we discussed earlier in the afternoon. Are we to discuss that on every possible Clause? I really think that in the interests of the proper discussion of the Bill the time has been reached when we should confine ourselves in argument, as far as the Government are concerned, strictly to the operation of a particular Amendment on a particular Clause. This Clause does not set up the International Court. It simply says, if an International Court is set up, not that His Majesty should be obliged to appoint a judge, but that it should not be unlawful for him to do so. What would be the effect if the Amendment were accepted? The right hon. Gentleman says that consequentially we should not be able to go on with the International Prize Court. Yes, but that is a Second Reading point. I do not see how he can fairly ask to make that point on every particular Amendment on every particular Clause. I respectfully submit to the House that the Government are really serving the purpose of having a discussion on the details of the Bill by confining themselves to the effect of the Amendment, and by pointing out that if carried it would not prevent the setting up of an International Prize Court in this form, but simply make His Majesty powerless to appoint a representative on that Court.
§ Mr. IAN MALCOLM
I have no objection whatever to a judge being sent to take part in this International Prize Court provided the Court is of such a character that we can have any confidence in it at all. The Secretary to the Treasury has rather shaken my belief in the Prize Court by a certain remark that he made. He said in regard to these minor Powers that if they had no jurists of sufficient eminence they might appoint them from other nations. I do not know by what instrument, or whether by instrument or by international tradition, that is allowed. Herein lies a great danger which largely vitiates the composition of this Prize Court. It occurs to me that very possibly eventualities might arise by which these three minor Powers might appoint as their judges members of a nationality which by alliance or tradition was very friendly to one of the belligerent Powers. That would
§ indeed pack the bench. If I were assured that the bench could not be packed by such an operation as that, which is quite a conceivable operation, I should see no objection whatever to a British judge sitting upon the Prize Court. I invite the Government's earnest attention to that point in order to see that that danger is not allowed to continue.
§ Mr. SANDYS
If my hon. Friend goes I to a Division, I shall certainly support him, not only on the grounds that he has urged in support of this Clause being deleted, but on the other grounds brought forward by other speakers. In regard to the qualification and disqualification of the judges and deputy judges which are mentioned in Sub-section (2), as I read it I understand the judges or deputy judges of the Court shall not be appointed unless as follows:—A person shall not be qualified to be appointed by His Majesty a judge or deputy judge of the Court unless he has been at or before the time of his appointment the holder for a period of not less than two years of some one or more of the offices described as high judicial offices by the Appellate Jurisdiction Act, 1876, as amended by any subsequent, enactment.With regard to that particular restriction, the point which I wish to draw attention to is, that as far as I can see, in spite of the fact that obscure countries, such as Ecuador, Salvador, and so forth, will be represented, Colonial judges will have no opportunity of taking their place as representatives of—
§ Mr. SANDYS
Is it not the whole Clause that is to be deleted by the hon. and learned Gentleman's Amendment?
§ Question put, "That the words proposed to be left out, down to the word 'or,' stand part of the Clause."
§ The House divided: Ayes, 168; Noes, 78.1205
|Division No. 363.]||AYES.||[3.20 p.m.|
|Abraham, William (Dublin Harbour)||Baker, H. T. (Accrington)||Birrell, Rt. Hon. Augustine|
|Acland, Francis Dyke||Balfour, Sir Robert (Lanark)||Boland, John plus|
|Allen, Arthur A. (Dumbarton)||Barnes, G. N.||Bowerman, C. W.|
|Armitage, Robert||Benn, W. W. (T. H'mts., St. George)||Brocklehurst, William B.|
|Brunner, John F. L.||Horne, Charles Silvester (Ipswich)||Power, Patrick Joseph|
|Bryce, J. Annan||Howard, Hon. Geoffrey||Price, C. E. (Edinburgh, Central)|
|Burns, Rt. Hon. John||Hunter, William (Lanark, Govan)||Price, Sir Robert J. (Norfolk, E.)|
|Byles, Sir William Pollard||Jardine, Sir John (Roxburgh)||Pringle, William M. R.|
|Cameron, Robert||John, Edward Thomas||Radford, George Heynes|
|Carr-Gomm, H. W.||Jones, William (Carnarvonshire)||Raphael, Sir Herbert H.|
|Cawley, H. T. (Lancs., Heywood)||Jones, W. S. Glyn- (T. H'mts, Stepney)||Rea, Walter Russell (Scarborough)|
|Chancellor, Henry George||Jowett, Frederick William||Redmond, John E. (Waterford)|
|Chapple, Dr. William Allen||Joyce, Michael||Richardson, Albion (Peckham)|
|Collins, Godfrey P. (Greenock)||Keating, Matthew||Richardson, Thomas (Whitehaven)|
|Collins, Stephen (Lambeth)||Kelly, Edward||Roberts, Charles H. (Lincoln)|
|Compton-Rickett, Rt. Hon. Sir J.||King, Joseph (Somerset, North)||Robertson, Sir G. Scott (Bradford)|
|Condon, Thomas Joseph||Lambert, George (Devon, S. Molton)||Robertson, John M. (Tyneside)|
|Cotton, William Francis||Lambert, Richard (Wilts, Cricklade)||Robinson, Sidney|
|Craig, Herbert James (Tynemouth)||Lawson, Sir W. (Cumb'rld, Cockerm'th)||Roche, John (Galway, E.)|
|Crooks, William||Leach, Charles||Rowlands, James|
|Crumley, Patrick||Lewis, John Herbert||Samuel, Rt. Hon. H. L. (Cleveland)|
|Davies, M. Vaughan- (Cardigan)||Lundon, Thomas||Scanlan, Thomas|
|Dawes, James Arthur||Lynch, Arthur Alfred||Scott, A. MacCallum (Glas., Bridgeten)|
|Denman, Hon. R. D.||Macdonald, J. R. (Leicester)||Seely, Col. Rt. Hon. J. E. B.|
|Devlin, Joseph||Macdonald, J. M. (Falkirk Burghs)||Sherwell, Arthur James|
|Dewar, Sir J. A.||McGhee, Richard||Shortt, Edward|
|Donelan, Captain A.||Macnamara, Rt. Hon. Dr. T. J.||Simon, Sir John Allsebrook|
|Doris, William||Macpherson, James Ian||Smith, Albert (Lancs., Clitheroe)|
|Duffy, William||M'Micking, Major Gilbert||Snowden, Philip|
|Duncan, C. (Barrow-in-Furness)||Martin, Joseph||Soames, Arthur Wellesley|
|Edwards, Sir Francis (Radnor)||Mason, David M. (Coventry)||Spicer, Sir Albert|
|Ellbank, Rt. Hon. Master of||Masterman, C. F. G.||Strauss, Edward A. (Southwark, W.)|
|Falconer, James||Meagher, Michael||Sutton, John E.|
|Farrell, James Patrick||Meehan, Francis E. (Leitrim, N.)||Ure, Rt. Hon. Alexander|
|Ffrench, Peter||Menzies, Sir Walter||Verney, Sir H.|
|Flennes, Hon. Eustace Edward||Molteno, Percy Alport||Walsh, Stephen (Lancs., Ince)|
|Flavin, Michael Joseph||Mooney, John J.||Ward, John (Stoke-upon-Trent)|
|Gelder, Sir W. A.||Morgan, George Hay||Warner, Sir Thomas Courtenay|
|George, Rt. Hon. D. Lloyd||Morrell, Philip||Wason, John Cathcart (Orkney)|
|Gladstone, W. G. C.||Munro-Ferguson, Rt. Hon. R. C.||Wason, Rt. Hon. E. (Clackmannan)|
|Goldstone, Frank||Murray, Capt. Hon. Arthur C.||Watt, Henry A.|
|Greenwood, Hamar (Sunderland)||Nannetti, Joseph P.||White, Sir George (Norfolk)|
|Greig, Colonel James William||Nicholson, Charles N. (Doncaster)||White, J. Dundas (Glas., Tradeston)|
|Grey, Rt. Hon. Sir Edward||Nolan, Joseph||White, Patrick (Meath, North)|
|Guest, Major Hon. C. H. C. (Pembroke)||Norton, Captain Cecil W.||Whitehouse, John Howard|
|Guest, Hon. Frederick E. (Dorset, E.)||Nugent, Sir Walter Richard||Whyte, A. F. (Perth)|
|Hackett, John||O'Brien, Patrick (Kilkenny)||Wiles, Thomas|
|Harcourt, Robert V. (Montrose)||O'Dowd, John||Williams, John (Glamorgan)|
|Hardie, J. Keir (Merthyr Tydvil)||O'Grady, James||Wilson, W. T. (Westhoughton)|
|Harmsworth, Cecil (Luton, Beds.)||O'Shaughnessy, P. J.||Wood, Rt. Hon. T. McKinnon (Glasgow)|
|Harvey, T. E. (Leeds, W.)||Palmer, Godfrey Mark||Young, William (Perthshire, E.)|
|Haslam, Lewis (Monmouth)||Parker, James (Halifax)||Yoxall, Sir James Henry|
|Hayden, John Patrick||Pearce, Robert (Staffs, Leek)|
|Henry, Sir Charles||Pearce, William (Limehouse)|
|Herbert, Col. Sir Ivor||Philips, Col. Ivor (Southampton)||TELLERS FOR THE AYES.—|
|Hinds, John||Phillips, John (Longford, S.)||Mr. Illingworth and Mr. Gulland.|
|Hoit, Richard Durning||Ponsonby, Arthur A. W. H.|
|Archer-Shee, Major M.||Fletcher, John Samuel (Hampstead)||Mason, James F. (Windsor)|
|Arkwright, John Stanhope||Forster, Henry William||Newton, Harry Kottingham|
|Ashley, Wilfrid W.||Gastrell, Major W. Houghton||Nicholson, William G. (Petersfield)|
|Baird, J. L.||Gilmour, Captain J.||Peel, Hon. W. R. W. (Taunton)|
|Balcarres, Lord||Goldsmith, Frank||Peto, Basil Edward|
|Barrie, H. T. (Londonderry, N.)||Gretton, John||Pole-Carew, Sir R.|
|Bathurst, Charles (Wilts, Wilton)||Hall, Marshall (E. Toxteth)||Pretyman, Ernest George|
|Beach, Hon. Michael Hugh Hicks||Hambro, Angus Valdemar||Ratcliff, R. F.|
|Benn, Arthur Shirley (Plymouth)||Harris, Henry Percy||Remnant, James Farquharson|
|Bennett-Goldney, Francis||Henderson, Major H. (Berkshire)||Rolleston, Sir J.|
|Beresford, Lord Charles||Hill, Sir Clement L.||Rothschild, Lionel de|
|Bigland, Alfred||Hill-Wood, Samuel||Sandys, G. J. (Somerset, Wells)|
|Boscawen, Sir Arthur S. T. Griffith-||Hoare, Samuel John Gurney||Stanier, Beville|
|Boyton, James||Houston, Robert Paterson||Stewart, Gershom|
|Brassey, H. Leonard Campbell||Hunt, Rowland||Swift, Rigby|
|Butcher, John George||Ingleby, Holcombe||Talbot, Lord Edmund|
|Carlile, Sir Edward Hildred||Kerr-Smiley, Peter Kerr||Terrell, George (Wilts, N. W.)|
|Cooper, Richard Ashmole||Kinloch-Cooke, Sir Clement||Thomson, W. Mitchell- (Down, N.)|
|Craik, Sir Henry||Kirkwood, John H. M.||Touche, George Alexander|
|Croft, Henry Page||Locker-Lampson, O. (Ramsey)||Ward, A. S. (Herts, Watford)|
|Dairymple, Viscount||Lockwood, Rt. Hon. Lt.-Col. A. R.||Weigall, Captain A. G.|
|Dickson, Rt. Hon. C. Scott||Lonsdale, Sir John Brownlee||White, Major G. D. (Lancs., Southport)|
|Doughty, Sir George||Lyttelton, Rt. Hon. A. (S. Geo. Han. S.)||Winterton, Earl|
|Eyres-Monsell, Bolton M.||Macmaster, Donald||Yate, Col. C. E.|
|Falle, Bertram Godfray||Magnus, Sir Philip|
|Fell, Arthur||Malcolm, Ian||TELLERS FOR THE NOES.—|
|Finlay, Rt. Hon. Sir Robert||Mallaby-Deeley, Harry||Sir A. Cripps and Mr. Pollock.|
Question, "That those words be there inserted," put, and agreed to.
§ Mr. ATHERLEY-JONES
I beg to move, in Sub-section (1), to leave out the words "or for the purpose of amending the said Convention in matters subsidiary or incidental thereto."
Parliament is asked to establish a tribunal which is to be constituted under certain conditions, and what is asked is that the Crown may from time to time appoint judges and deputy-judges to exercise their functions upon this tribunal in this Court as we have knowledge of its procedure and principles and organisation as they are at present composed. This Clause, as it at present stands, enables the Crown, by a subsequent Convention, to alter entirely the constitution of the Court. What I want to point out is this: You may enter into a Convention which may entirely alter the constitution of that Court, and yet, as this Bill leaves this House, all power of Parliament over the constitution of the International Prize Court ceases, all power for the payment of judges ceases, and the power of controlling the continuance of judges. Parliament parts absolutely with all control over this international tribunal. That, to my mind, is a more serious matter, and the Amendment which I am moving, I suggest to the Foreign Secretary, is merely an attempt to protect the interests of this country against any folly or anything of that kind which the Convention may enter into, and to protect us from acquiescing having no power whatever in the appointment of judges.
Mr. McKINNON WOOD
I hope my hon. and learned Friend will see his way to withdraw this Amendment, and I will explain to him what happened in the Committee.
Mr. McKINNON WOOD
What happened in the Committee was this: When we were considering the Clause as it originally stood the point made by my hon. Friend was argued, and to meet the wishes of the critics the words were inserted in Committee, "in matters subsidiary or incidental thereto." The whole object is to provide for small Amendments. For instance, it is agreed in the Convention that the meetings should be at The Hague. Circumstances may arise to make it necessary to remove the 1208 meeting to another place. If for small changes of that sort you insist on setting up a Prize Court all over again that would be a very unsatisfactory position. I think the substantial purpose was met by the words inserted, "Amending the said Convention in matters subsidiary or incidental thereto." The Convention only lasts twelve years, and it would be very unsatisfactory if the whole matter had to be put into the melting pot any time in those twelve years so that small alterations should be made. It would render it very difficult to make small alterations which everybody may agree upon, but which are not of sufficient importance to have the trouble of dealing with the whole subject afresh.
§ Sir A. CRIPPS
In reference to what has been said by the right hon. Gentleman opposite, with a great deal of which I agree, it is as well to consider that these words would make no substantial alteration in the Bill, such as altering the way in which the various countries are represented. If it is merely incidental matter, I see no objection to the Clause as it stands, but I should like some assurance from the Solicitor-General that this would not give power to make such alteration as, for instance, would alter the proportion of representation by the various countries.
§ Sir R. FINLAY
A really important question arises from what the right hon. Gentleman has said. Who is to decide whether the alteration is merely subsidiary or incidental? What is subsidiary or incidental? A charge is made which may refer to procedure, and underlying that there may be questions as to the constitution of the Court or questions of principle, and the effect of these words is that for the period of the Convention—that is, twelve years—the House parts absolutely with all control. It not only passes this Bill for the purposes of the Convention, but for the purposes of any Convention amending it on subsidiary or incidental matter. There ought to be some means of enabling the House to see whether changes are really subsidiary or incidental.
§ Mr. BUTCHER
I think there is great force in what has been urged by the right hon. and learned Gentleman. Who is to decide whether these questions are subsidiary or incidental? Supposing an alteration is made when His Majesty's present Government axe in office. They may say, "This is a mere trifling thing; it is really subsidiary and of no importance," but 1209 others may think it is of importance, and who is to decide between them? I say the wording of this Clause is extremely unsatisfactory. The right hon. Gentleman opposite says if the Convention is altered in matters subsidiary, the control of this House need not be exercised, but what are matters subsidiary? They are not necessarily what the right hon. Gentleman calls small matters; very often they may be important matters. The main object of this Convention is to set up an International Prize Court. There are matters subsidiary to the main object which may be very important indeed, yet if we pass this Clause in this form, we lose all control by this House of the International Prize Court. Let me suggest to the Foreign Secretary that if these words are accepted, there will be no empasse whatsoever. Let us suppose the Court is constituted and then that there is an alteration in the Convention in matters subsidiary or otherwise, if legislation is necessary that this House should continue that International Prize Court, then let the Government of the day ask for it. If it is reasonable they ought to get it, and they will get it, but if it is unreasonable they will not get it; but do not let us, who are trustees of the rights of our own fellow-subjects, part with the control of this Bill and the International Prize Court Set up in subsidiary matters of which we know nothing.
§ Mr. JAMES MASON
I think the right hon. Gentleman said words were introduced on Committee limiting this provision to subsidiary or incidental matters. May I call attention to the fact that the right hon. Gentleman has an Amendment on the Paper which seems to me to bear considerably upon this point. In that Amendment he contemplates the possibility of another Convention replacing the Convention we are now speaking about. Unless I am mistaken in that altogether, it seems to me difficult to contemplate the two Amendments apart from each other. If he contemplates the possibility of a new Convention entirely replacing this, then the effect of these limiting words would be completely altered.
§ Sir E. GREY
I understand these words were inserted in Committee to meet this particular point, and were agreed to. I understand they were intended to safeguard the Convention from having substantial and material alterations made in it. The question whether the words carry out that particular intention or not is more of a legal question. If the Government 1210 join the International Prize Court Convention, and a question arises whether it is more convenient to sit at Amsterdam or The Hague, the Government would not be able to assent without coming to the House of Commons for legislation. No other country would be placed in that position. The judge appointed under this Clause would represent the Government. If that power is withdrawn and if small changes are introduced of a subsidiary and incidental character in the Convention itself, the Government would be in the position of having to come to the House every time. I think in matters of this kind the reasonable thing is that the House should remain in possession of the control which it always has over the Executive of the day. The Government has executive power to carry out acts of different kinds, and a whole treaty may be passed by them. The House trusts and has confidence in the Government of the day, and now considers it fit to be trusted with discretion in the gravest executive acts, and certainly in small matters subsidiary and incidental to a Prize Court Convention. If the Government does what the House would not approve, the House has always the opportunity of raising the question. Considering that that is the general basis on which the relations between the House and the Government rests, and on which the confidence of the House rests, even in great things, in a small matter like this I think the House ought to leave it to the discretion of the Government to deal with subsidiary or incidental matter, without giving the House an opportunity of expressing an opinion upon it. We were asked whether a change in the composition of the Court would be considered a subsidiary and incidental change. After the Debate in this House and the stress which has been laid upon the composition of the Court I will say that a change of that kind would not be one which the Government of the day ought to make without giving the House an opportunity of considering it.
§ Mr. ATHERLEY-JONES
After what has fallen from the right hon. Gentleman I am perfectly certain he will act in a right and proper sense in this matter, and I ask leave to withdraw my Amendment.
§ Mr. POLLOCK
I moved this Amendment in Committee, and the learned Solicitor-General was good enough to consider what words he could introduce in order to obviate the point I had in mind, and in order, at the same time, to preserve a 1211 right for a small Amendment which might be considered necessary in the case of certain Powers. He told the Committee that in the case of certain Powers whose time had elapsed there might be some difficulty in coming into the Convention, and the Solicitor-General offered these words in place of the Amendment which I moved, introducing "in matters subsidiary and incidental thereto." I thought at the time those words were sufficient, and I accepted the Amendment of the Solicitor-General.
May I comment upon the very remarkable statement which has just been made by the Secretary of State for Foreign Affairs. He has been challenged as to the importance of particular changes and upon one particular change, namely, the question whether an extra judge should be appointed or some alteration made in the representation of some of the Powers. The answer the Foreign Secretary gave was that there has been a great deal of discussion in the House of Commons upon this point, and that being so he said it would not be considered a subsidiary point. Now, if that point had not been raised, it is quite clear it would have been considered a subsidiary point. I want to point out that there are a great many points which, in order to save time, have not been raised this afternoon which are quite as important as that. There is the question of appeal in which the class of persons is laid down by whom appeals may be brought. Is that a subsidiary question? At any rate it is a very important question. Simply because we have not discussed this question will it be considered subsidiary? May I suggest to the Foreign Secretary that, as I have mentioned this point, he will not consider it subsidiary. After all, a question may be subsidiary and yet be an exceedingly important and substantial matter. I think the House of Commons ought to be the judge in these matters.
§ Amendment, by leave, withdrawn.
Mr. McKINNON WOOD
I beg to move, in Sub-section (1), after the word "thereto" ["subsidiary or incidental thereto"], to insert the words "or with any Convention replacing the said Convention, subject to any modifications which are subsidiary or incidental only (which court is."
This is really nothing more than a drafting Amendment. The reason it is thought desirable to add these words is that it is 1212 the practice of international conferences very often, even when they make only small alterations in a Convention, instead of passing an amending Convention to abolish the old Convention and re-enact another. Hon. Members will remember what happened at the second Peace Convention. It revised all the Conventions previous to the conference, and although some of them were altered only in matters of detail they re-enacted the whole of them in the new Convention. It is proposed to add these words in order to meet that point, and these two things really go together.
§ Question proposed: "That those words be there inserted."
§ Sir R. FINLAY
This Amendment is subject to the objection which was raised on the previous Amendment.
§ Sir A. CRIPPS
I cannot help thinking these words as they stand are exceedingly dangerous. It may be perfectly true words of this sort may be convenient for minor alterations, but at the same time as the words stand they might have the very largest and widest interpretation. Let us take the words as they are in the first instance: "or with any Convention replacing the said Convention." Of course, so far the words would be absolutely general. You might have a Convention totally distinct from the present Convention, and yet so far as Parliament is concerned we should have no voice in it at all. Then take the words, "subject to any modifications which are subsidiary or incidental only." I really do not see primâ facie how those words attach. You are to have a Convention replacing the said Convention. Presuming you had a substantially different Convention, the new Convention might again be subject to modifications which are subsidiary or incidental only. I am not disputing those words in that sense, but as it stands the Convention which replaces the said Convention might be different from top to bottom. Every single word and every single feature in it might be different. When you have got the new Convention, then you might modify it in matters which are subsidiary and incidental only. I protest in the most strongest terms against words of this kind. They would give a free hand to the Executive to tear up the Convention altogether and make an absolutely and wholly new one without any restraint by Parliament at all. I am sure the right hon Gentleman does not mean that.
§ Sir A. CRIPPS
I therefore suggest that you withdraw these words, because as they stand they carry that power, and it would be a most dangerous innovation. We have heard this afternoon about the control of this House over the Executive. That is of a very shadowy character, but I hope the House will not give the Executive a free hand, contrary to the whole spirit of our Constitution, to make a new Convention without coming to this House at all. If the Financial Secretary really only means to modify, I think he and the Solicitor-General might suggest words of a less wide character.
§ Mr. MALCOLM
I should like to support what has fallen from my hon. and learned Friend. Perhaps the Solicitor-General would explain why, after all the discussion, he has put in these words to so enormously widen the scope of Clause 23. I agree there is a great deal to be said for delegating our powers to the Executive to allow them to so arrange affairs that alterations can be made for others to become parties to the said Convention or for amending the Convention in subsidiary matters. It is, however, enormously enlarging the scope of the Bill to say, in the words of the Financial Secretary, an Amendment may be made with regard to any Convention replacing the said Convention. The House of Commons is losing very largely its control over national affairs, and, if it means to keep its control over international affairs, this Amendment cannot possibly be allowed.
§ Mr. JAMES MASON
I confess the words of the Amendment have entirely misled me. They do not seem to me in the least what the right hon. Gentleman intended, but if he altered them so as to make them read "subject to such modifications being subsidiary and incidental only," I think they would carry out what he means.
§ Sir J. SIMON
We are all at one in intention. The difficulty is one of language. I do not think it is possible at a moment's notice very prudently to choose the most apt words. This does not indicate any change of front on the part of those who proposed the Clause. An hon. Gentleman opposite in Committee pointed out that the original language of the Clause seemed dangerously wide, and we thought we had 1214 chosen words which actually brought it within reasonable limits. It is now pointed out—and we agree—that if you are going to make a trifling change in an existing arrangement you may do it in two ways. You may make a supplementary or modifying Convention or you may tear up the old one and repeat it in the same language with these trifling alterations. The object of the Amendment is simply to ensure we cover both those cases instead of confining it to one. If the hon. Member who spoke last will allow me to consider his suggestion—and I will take any others—I will certainly see before this Bill receives final consideration elsewhere that the words shall be such as to carry out the intention we all have.
§ Sir R. FINLAY
We are all at one in one sense, but we are not at one in thinking this is a good Clause. I entirely object to it, for reasons I gave on another Amendment. Would it not carry out our intention if we made the words read "or with any Convention replacing the said Convention, provided that such new Convention contains no modifications which are other than merely subsidiary or incidental."
§ Sir J. SIMON
If the right hon. Gentleman cares to move words in that form I will accept them now without pledging myself that I may not have to consider them again in another place.
§ Amendment, by leave, withdrawn.
§ Sir R. FINLAY
I beg to move, in Subsection (1), after the word "thereto" ["amending the said Convention in matters subsidiary or incidental thereto"], to insert the words "or with any Convention replacing the said Convention, provided that such Convention contains no modifications which are other than merely subsidiary or incidental."
§ Mr. SANDYS
I beg to propose to leave out Sub-section (2).
Of course, very grave matters will have to be decided by this Court, and it is evident very great care will have to be exercised in the choice and selection of the one representative of the British Empire amongst the fifteen representatives of other Powers. It seems to me that by making the very close restriction laid down 1215 by this Sub-section we are unnecessarily restricting ourselves. Have we any guarantee that similar restrictions will be exercised by other Powers in the selection of their representatives? Have we any guarantee that countries like China, Ecuador, Calvador, and Costa Rica will exercise the same care and place the same restriction on the choice of those who are to represent those countries on this International Prize Court? Again, from the terms of this Sub-section, no person is to be qualified unless he has been, at or before the time of appointment, the holder, for a period of not less than two years, of some one or more of the offices described as high judicial offices under the Appellate Jurisdiction Act of 1876. That appears to entirely prevent any great Colonial jurist being ever appointed as our representative on this Court. The high judicial offices referred to in this Clause of the Appellate Jurisdiction Act, 1876, include both the Lord Chancellor of Great Britain and Ireland, paid judges of the Judicial Committee of the Privy Council, or the judges of one of His Majesty's superior courts in Great Britain and Ireland. That seems to me to impose a complete disqualification upon any Colonial representative taking his place as a representative of the British Empire on this International Prize Court. It is a most unsatisfactory state of affairs. It is very undesirable indeed that these restrictions should be insisted upon, especially when we remember that encouragement has been given by the Government of this country to Canada and Australia to start navies, and that, in the future, they will probably take part in naval operations. Added to this there are the responsibilities of these Colonies with regard to their mercantile marine. Those responsibilities are every year increasing, and, under these circumstances, it seems most undesirable that, from this Court, there should be permanently excluded representatives of those countries from this International Prize Court. I therefore move that this Sub-section be omitted.
§ 4.0 P.M.
§ Mr. MITCHELL-THOMSON
I am very glad to Second the Amendment of my hon. Friend. I quite agree with what he said with regard to the folly of setting up a permanent bar against the inclusion in this Prize Court of Colonial jurists of reputation. It is ludicrous to talk about this Court representing the whole world. One continent 1216 is altogether excluded, so, too, is the half of another continent, and a quarter of still another continent. To talk about this being a Court representative of the world is to reduce argument to a, farce. I wish to ask the Government what is the necessity for putting in a test of this kind at all? It may be said it is done as a guarantee of good faith to other countries. But what guarantee are we getting from those other countries? Something has been said about Hayti and Venezuela. I know something about the internal economy of those places, and I venture to suggest it is perfectly ludicrous to suppose that those countries can appoint as their representative to this Court men of equal standing with our own jurists. A Court of this character, to be effective, must be composed of great international jurists. There is one great jurist in Argentine, but he is not a judge in the sense defined under this Sub-section. Again, another great international jurist is Professor Holland, than whom, we could not have a better representative for this country on the Court, but, under this Sub-section, we are absolutely precluded from appointing him as the British representative. I want the Government seriously to consider whether this Sub-section is necessary. A moment ago we were advised to trust the Government. I do not know how far that is a good maxim. I do not know how far it is possible to take action against the Government or the Executive when one does not agree with the action of that Government or Executive. But, however that may be, if we are to trust the Government at all surely we have a right to suppose that the Government will do its duty and will not appoint jurists who will disgrace the reputation of British International Law. I am sure that any Government would see to it that the British representative was a jurist of preeminent reputation, and I do not think it is necessary to have it in black and white in the Bill what shall be the status of that representative. The Government might reconsider the point as to whether it would not, be wise to leave out this Subsection.
§ Mr. HAMAR GREENWOOD
I am in complete sympathy with the Mover and Seconder of the Amendment. If it is to stand at all this Sub-section should be so widened as not to restrict the choice of any Executive to those high officers set out at the end of the Appellate Jurisdiction Act, 1876. I support the Amendment for three 1217 principal reasons. First, that all these high judicial officers referred to in that particular Statute are paid judges in the main, whose duties are clearly defined, and who ought not to be asked to give up duties, which take up all their time, to go to sit upon some international tribunal. Secondly, this Sub-section precludes the possibility of the appointment of not only Professor Holland but any other distinguished gentleman who may speak with more force, more effect, and wider knowledge of international law, and who has greater prestige among other nations than many of the higher judicial officers under the Appellate Jurisdiction Act. Thirdly, if this Sub-section is not widened, no Colonial judge can be appointed. Let us not forget that since the Alaskan Arbitration Award the Canadian Government have made it perfectly clear that never again would the interests of Canada be entrusted to any arbitrator unless that arbitrator was selected and approved by the Canadian Government. That feeling is growing, and rightly growing, in all the Overseas Dominions. At the recent arbitration at The Hague, the Canadian Government selected the Chief Justice of the Dominion, Sir Charles Fitzpatrick, to represent the Dominion. In order to meet this point, I suggest that we should add at the end of the Sub-section the words "or is a jurist of repute." That will meet the arguments advanced by the Mover and Seconder of the Amendment.
§ Sir J. SIMON
I think there has been a very useful discussion, because undoubtedly some of the considerations which have been urged by the hon. Members are considerations which we all recognise have great weight in matters of this sort. It is no part of the intention of those who framed the Bill to exclude from the great service which a distinguished jurist may render to his country in taking part in an International Court, those who come from the Dominions Overseas. If that is the effect of these words then I do not think the words are sufficient. As a Member of this House who happens to be a Law Officer, and who is supposed to be able to answer all the technical questions put to him, I am afraid I am not in a position to state with confidence whether any Amendments to the Appellate Jurisdiction Act, 1876, affect the matter. Be that as it may, I think the right course in the circumstances would be to omit the Sub-section at this stage. For my own part, I shall be 1218 sorry if we do not do what we can to show that we in this country consider the circumstance that the Court is international is no reason why those who are appointed by one or other of the Powers concerned in it should bring to the discharge of their duties a biassed mind. Inasmuch as we can set up for our own country a standard of judicial fairness, I am sure everybody will wish it to be done. Whether other people follow our own ideas in this or not is in no way under the control of this Act of Parliament. At any rate it is not undesirable that we should recognise it ourselves. Be that as it may, I feel the force of the arguments of the hon. Members opposite and my hon. Friend behind me, and I think the right course will be to accept the proposal to omit the Sub-section, it being understood that if we can find a form of words we may have to propose some limiting words to set up the standard we desire.
§ Sir R. FINLAY
I quite agree that the best course is to keep out these words altogether. If the Sub-section could impose any guarantee as to the appointments by other Powers it would be most useful. I think some such qualifying test, if it were possible to devise it and impose it, would be most useful and might mitigate the strong objection I feel, but there is no possible reason for imposing a test upon ourselves, and, moreover, looking at the definition in this Act—so far as I know it has not been amended—it does not in the least follow that because a man has held one of these offices, he has that experience in international law which is required for this purpose. Our judges in all these tribunals are much, more concerned with municipal than with international law. I think the test is not a good one, and, further, no test is required at all. Surely we can trust ourselves.
§ Mr. HOLT
This point is really dealt with in the Convention itself. Article X. stipulates that the judges must all be jurists of known efficiency and of the highest moral reputation. Surely these words, which are to guide both us and other Powers ought to be sufficient in the eyes of the Government.
§ Sir J. JARDINE
Might I suggest the propriety of including in any new list that may be made the judges of such Courts as the High Courts of India and of the great Crown Colonies like the Straits Settlements, and in very many maritime places the presiding judges of some of the great 1219 Consular Courts might be as qualified as any others which have been named or suggested.
§ Amendment agreed to.
§ Mr. ATHERLEY-JONES
Might I ask a question for the guidance of hon. Members. I gather the Amendment is out of order, because we have reached the Report stage. Would it have been competent for me to move it had it been in Committee?
§ Mr. SPEAKER
The proper place to move it would have been in Committee of the Whole House when the Resolution was first taken. Failing that, the hon. and learned Gentleman would have had an opportunity in Committee upstairs if he had been fortunate enough to have a place on it.