§ Sir GERALD HURST
I beg to move, in page 3, line 3, at the end, to add the words:Provided that such laws do not conflict in their terms with laws prevailing in the United Kingdom or in other Dominions which have extra-territorial operation or with international law.May I, at the beginning, make two observations which, I think, can fairly be made, not only on my own behalf, but also on behalf of my hon. Friends whose names are attached to this Amendment? The first is, that in moving this Amendment there is not the slightest idea of making any cave or revolt against the National Government. That suggestion has been made, but, of course, we are all loyal supporters of the National Government. It is not, however, in the interest of the National Government, or of the nation, or of any of the Dominions to pass a Measure which is full of obscurities, and which is not based upon the very best methods possible to achieve the end which the Government have in view. Secondly, in moving this Amendment, there is not the slightest idea of combating or challenging in any way the famous formula as to equality of status laid down by the late Lord Balfour in 1926. No doubt this House is committed to that formula, but it does not follow in the least that the House is committed to every word in the Measure now before it. The aim of the draftsmen of the Measure has been to give effect to the formula, but draftsmen are fallible men, like ourselves. No sanctity attaches to the exact words used by them. We, as a House of Commons, are entitled to ask: "Where are we going?" and I cannot think that any representative of the Government will really urge that this House is committed to every sentence in this Bill, and is disqualified from examining every Clause on its merits, and arriving at a fair and free decision as to whether those Clauses are in the best form.
This Amendment deals with Clause 3 of the Measure, which declares thatthe Parliament of a Dominion has full power to make laws having extra-territorial operation.At the present time, the Dominions do not enjoy such power, except the very limited power of dealing with coastal 247 trade and matters of that sort when dealing with what goes on in territorial waters. There has been, and there is to-day, a range of law outside the jurisdiction of the Dominion Legislatures. That range is described very roughly in paragraph 38 of the Report of the Conference on the Operation of Dominion Legislation, in which it alludes to questions concerning fisheries, taxation, shipping, air navigation, marriage, criminal law, deportation, and the enforcement of laws against smuggling and unlawful immigration. But there are other branches of law also which are not touched by Dominion legislation—Imperial British nationality, naturalisation, the status of married women and allegiance. The reason why this range of jurisdiction has not been exercised by Dominion Legislatures is not because of any alleged or imputed inferiority of the States. The reason has been that it has been universally recognised that, upon all these matters of world-wide importance and world-wide interest it is desirable, from the point of view not only of this Kingdom but from the point of view of every Dominion, to have as much uniformity of law as possible. These are not subjects in which the historical and racial differences which divide the members of the British Empire to some extent from one another apply at all. They are matters in which the greatest possible uniformity is desirable.
These matters of jurisdiction have passed through three stages in the history of English law. There was a time when our Parliament legislated for British subjects all over the world without regard to the self-governing Dominions. The second stage was arrived at when this country passed legislation leaving it within the power of Dominion Legislatures to adopt the same legislation, and that course has been followed with regard to copyright law in 1911, and with regard to the British Nationality Act, 1914, which was adopted with, I think, very slight modifications by Australia and New Zealand. In later years, since 1926, the third stage has been reached in which legislation on those lines has been proposed, but subject to consultations and agreements first with the Dominions. These stages have all made towards unity and uniformity, be- 248 cause it is not in the interest of the Empire that there should be seven complete systems of law. There are anomalies in the present system with regard to naturalisation, uncertainties and doubts; at the same time, British citizenship has been so interpreted, and the extra-territorial jurisdiction of this Parliament has been so exercised, as to render the ambit of those anomalies as small as possible.
What is the effect of Clause 3? It really means that, apart from the invaluable personal link of the common Sovereign, there is a liability to a conflict of laws with regard to extra-territorial legislation between seven self-governing countries, and I hope that whoever speaks on behalf of the Government on this Amendment will deal with that point. Is it not a fact that Clause 3 in its present form opens the door to a specific conflict of laws with regard to a great range of legislation between the seven parties to this Statute? This must mean very great inconvenience and very uncomfortable clashes not only between members of the British Commonwealth, but also the greatest uncertainty among individuals as to what the law is. Take the ease of nationality. Under the law of the Irish Free State anybody who had been resident in Ireland for seven years, in 1922 became automatically an Irish citizen who may be, and probably will be, a British national from our point of view, and if this Clause is passed, and you really get the idea of two nationalities within the common Commonwealth, a man may be in point of law an Irish national and an English national at the same time. He may be subject to two conflicting systems of law. It is very difficult to know what would be right in that case. If such a man died in Italy, what would be his power of testation? We refer this question to the law of the domicile, but that law refers it back to the law of the man's nationality. What is that man's nationality? Is it English or Irish?
There are countless questions such as those relating to marriage, to the capacity to make 'a will, and to the devolution of property on intestacy. Then, again, there is the very difficult question which is raised in paragraph 44 of the Report, and which is ignored in the Bill. Paragraph 44 says: 249In connection with the exercise of extraterritorial legislative powers, we consider that provision should be made for the customary extra-territorial immunities with regard to internal discipline enjoyed by the armed forces of one Government when present in the territory of another Government with the consent of the latter.In other words, some specific provision was recommended by this Committee to be inserted in the Statute to meet the case of a British garrison sent to a Dominion, or kept on garrison duty within the frontiers of a Dominion. That recommendation has not been acted upon, and no such provision is made. If this Clause is passed in its present form, with no such provision made, it will mean that the arm of British law will not be long enough to maintain discipline in a British Army garrisoned, say, in a port in Ireland, and the garrison will be subject to the local law. That would be the result of the non-observance of paragraph 44.
I only mention what might be regarded as of minor detail, resulting from the conflict of laws. I do not wish to raise the graver questions of conflict of laws which may very readily suggest themselves to the imaginations of hon. Members, such as may arise from conflicting advice being given to the Crown by the Governments of different members of the British Commonwealth of Nations and will raise infinite difficulties. If, in addition to conflicting advice, you have a conflict in extra-territorial legislation, the result will be positively disastrous. It may be said, on behalf of the Bill, that clashes of this sort are impossible, and that we have to rely upon a reasonable understanding, forbearance and intelligence in those who govern the countries, and who are not likely to encourage clashes of this sort. That is what we rely upon at the present time. That; reliance upon mutual forbearance and understanding has been the cement which has kept the Empire so loyally together.
We have regarded the Empire, just as we regard the State, as a living organism that grows, and where changes of the very greatest importance can be made without being incorporated in any written or rigid constitution, but which will be recognised by those who are responsible for the government of the Dominions. That is the present system. By this Bill we are substituting, for the system which is based upon mutual 250 understanding, a written constitution, and those questions in the future will not be simply questions of conduct and policy, but will become also questions of law. They are to be interpreted, not by the wishes and the sentiments of those who are, for the time being, governing the different members of the Empire, but as legal matters, according to the true construction of the Statute.
We have put forward this Amendment as a Proviso that such laws do not conflict in their terms with laws prevailing in the United Kingdom, or in other Dominions which have extra-territoriality, or with international law. The aim of that Proviso is to leave, over and above the obvious functions of a municipal legislature legislating for its own internal affairs, a margin where we can have uniformity, so far as it is possible to have uniformity, and where what has been agreed upon by the United Kingdom and the Dominions can be given free play, along with those practical rules and principles, which are so recognised as international law that they form part of our common law. An Amendment of this type need not be a permanent part of the law of the Empire, because if advantage is taken of the next Imperial Conference, it may be possible to give effect to the spirit of the third Amendment, which you, Sir, are not going to call, but which provides that the Section shall not come into operationuntil a convention has been ratified by the Parliament of the United Kingdom and every Dominion Parliament establishing uniformity with regard to laws having extraterritorial operation throughout the Empire.If the Proviso which I am moving were incorporated in the Statute, it would be possible, at the next Imperial Conference, to make an appeal to arrive at uniformity, in general Imperial matters as to which there is no conflict of opinion between the Dominions and this country. It is of the first importance to establish the closest possible uniformity of spirit and of outlook. I know that it is not your intention to call that Amendment which stands in the name of the hon. Member for Cardigan (Mr. Hopkin Morris), but the spirit of that Amendment is in the Amendment which I am moving. I feel that all hon. Members must realise the need for having a 251 common law of the Empire or Commonwealth, in those non-contentious, non-national but Imperial matters, as to which a conflict of law would be of the gravest disadvantage to the British Commonwealth of Nations.
I should like to ask the learned Solicitor-General if it is not a fact that Clause 3 opens the door to a greatly increased conflict of law. There is a conflict of law, here and there, at the present time, between the United Kingdom and the Dominions, but is it not a fact that the introduction of seven extraterritorial systems of law, in place of one, must lead to an increased conflict of law I Secondly, does the learned Solicitor-General not think that conflict of laws is in itself a bad thing, and that it should he the object of Imperial statesmanship to lessen that conflict of laws? That is a view which I am sure will commend itself to anybody who has at heart the true interests, not only of our nation, but of the Dominions as well. The present law is not the result of any arrogation of supremacy or superiority by the Mother Country, but is simply the result of the deep-felt need for uniformity of nationality and citizenship, and of law, among the members of the same Commonwealth throughout the world.
I suggest that this Proviso deserves very serious consideration by the Committee. We were told that we must not criticise this Bill too much, and that it is a good thing to make a leap in the dark. What is the good of a leap in the dark? We are entitled on these matters to be guided by the best opinion and the best experience that we can get, and my object in moving this Amendment is that, if we have to take this plunge and walk in darkness, at any rate we may try to preserve as many rays of light as possible, to lead our footsteps amid the encircling gloom.
§ Mr. ATKINSON
This is one of the matters, in relation to the Bill, which deserves full consideration. Every hon. Member must have been struck by the extraordinarily wide language of the Clause. A Dominion is to be given full power to make laws having extra-terri-torial operation. There is not a single nation in the world which has full powers 252 to make laws of extra-territorial operation. Normally, a nation can only legislate in respect of its own territory and its own people, and with regard to foreigners can only legislate in so far as they come within the jurisdiction of that nation. The most complicated and difficult questions are constantly arising when one nation attempts to make laws to bind foreigners outside its own territory, questions which we come up against where attempts are made to create fishery offences outside territorial waters, and in conflict of law with regard to marriage and divorce. All sorts of difficulties arise once a nation attempts to legislate for other than its own nationals. The principle, which you will find laid down by the authorities, can be put in these words: That, in general, one nation cannot assume jurisdiction which goes beyond the limits established by the common consent of nations. In other words, they cannot attempt to infringe what has come to be recognised as international law.
With regard to our Empire, one thing I should have thought everybody would agree upon, and that is, that it is tremendously desirable that there should be uniformity with regard to an international or Empire code of law, dealing with extra-territorial questions. One would have thought that uniformity was essential, yet it is here proposed to set up seven or eight different legislatures, and to give them all power to legislate differently in regard to matters which must overlap. Let me give you an illustration to show how it would work out. Suppose that Canada proceeded to pass legislation prohibiting anybody fishing, in waters which they chose to regard as Canadian waters, beyond the three-mile limit? Suppose that Newfoundland thought the same thing, and did the same thing, passing similar legislation in respect of the same waters. Nothing in this Bill can give Canada any right to legislate with regard to foreigners, but this question does not affect the rights of foreigners at all. What we do in this Bill may affect the rights of our own subjects, and of members of other Dominions. Suppose that Canada passed legislation of that sort, and proceeded to arrest British fishermen for fishing in waters reserved for themselves, and that we set up the argument: "You have no 253 right to go in for extra-territorial legislation of that kind." They would say: "Look at Section 3 of the Statute of Westminster, which gives us full powers" —not the powers which they usually exercise and which are exercised by international law—"You have given us full power to make laws having extra-territoriality. What effect is to be given to the word 'full'." There would be very good arguments on their part to say, so far as our own subjects and the nationals of other Dominions are concerned, that we have given them rights against us and against those nationals, to a wider extent than they possessed against nationals of other countries.
Take a very complicated branch of law, that of copyright. Suppose that Canada choose to say that anyone who in any country infringed the Canadian law of copyright should be liable to a fine. Suppose that there was an infringement here, and that it was an infringement according to Canadian law but not according to our own law. Of course they could not possibly fine a man here. But suppose that the man here had property in Canada. He could be proceeded against and fined there; there could be service outside the jurisdiction and a fine levied on his property. One can imagine all sorts of questions arising in connection with merchant shipping law. We may have our own regulations, as we have, relating to merchant shipping. Canada may choose to have different regulations regarding the employment of Canadian seamen. Let me give an illustration which may perhaps seem silly. Suppose that Canada said that no Canadian should be employed on any ship throughout the world for less than five dollars a day. Suppose that a Canadian joined a ship in Liverpool at four dollars a day, and sailed to Canada. The Captain could be arrested for breaking the Canadian law by employing a Canadian seaman at less than five dollars a day. The moment we protested and said to Canada, "You cannot legislate with regard to matters of that sort," they would reply, "Why not? You have given us full power to make laws with extra-territorial operation. Cannot we legislate with regard to Canadian subjects throughout the world? What do you mean when you say that you have 254 given us full power to make laws of that kind?"
I raise the points that I have in my mind. It seems to me that the use of this word "full" may lead to all sorts of difficulties. This is a Bill which will regulate the relations of the Dominions for hundreds of years, for all we know. No one can tell what questions will arise. With regard to Ireland all sorts of disputes may arise as to the territorial waters of the two countries. Ire land may have one view of territorial waters and we may take another. I do not know who is to settle the conflict between the two countries. It is quite clear that if this Bill is passed there will not be much left of the right of appeal to the Privy Council of this country. Once that appeal has gone who is to settle how far the power given by this Clause has been legally exercised? It becomes a matter of discussion and dispute and someone has to give way. I support the Amendment, because I hold that we ought not to be put in a worse position than that in which we would be under international law if the Dominions were foreign countries. Under the Bill we would be in a worse position, and no one can complain of the proposed limitations being added to the Clause. I understood that there was no intention to give any Dominion power to infringe what is the recognised international law. It is important that we should try to secure uniformity of extra-territorial law so far as the Empire is concerned. Therefore, the first Amendment is fully justified in providing that nothing shall be done which is in conflict with the law of this country.
§ Mr. MARJORIBANKS
I think it is convenient, at the outset of these Committee proceedings, to remind the Government of the pledges that they have given with regard to this matter. I hope that the right hon. Gentleman the Secretary of State for Dominion Affairs and the right hon. Gentleman the Lord President of the Council will remember that the learned Solicitor-General promised us, in the most generous terms, consideration of any Amendment that might be brought forward. He said:I am not giving a promise to accept any particular Amendment, but I am undertaking—and I hope the House will accept it on behalf of my right hon. Friend—that, with the opportunities for consideration 255 which, no doubt, will be given to all these important matters, every single Amendment shall be considered on its merits without any desire to compel the House to a particular course of action."—[OFFICIAL REPORT, 20th November, 1931; col. 1248, Vol. 259.]There are a great many of us in this House who take all these legal Amendments, without reference to the specific question of Ireland, extraordinarily seriously. We regard this as the first charter for the future of our great Empire. We think that it is only in harmony with our duty that we as a Committee of the Whole House should consider everything honourably and conscientiously to the best of our ability. Hon. Members must realise how hopelessly inadequate and hopelessly unsuitable this tribunal is for the discussion of these matters. We have beard and we will hear learned speeches from eminent lawyers discussing what they in their learning know and can judge about a Statute of this kind, not matters of interest to the general body of the House, not matters upon which the general body of the House would wish or feel it proper to base an opinion. But this is the tribunal which has been chosen by the Government to discuss the first Statute that is to give a constitution to the Empire.
Of course, the Bill should have gone to a committee of experts. It makes me feel miserable and ashamed to think that this moment should have been chosen by the Government for the discussion of this Statute. It ought to have been sent to a joint committee of Lords and Commons, as was suggested by the right hon. Member for Epping (Mr. Churchill). Such a committee would have been able to thrash it out month by month and perhaps year by year. [Laughter.] Hon. Members laugh. They do not realise that the Dominions have had years to consider this matter. Hon. Members may not have read the learned speeches of Imperial statesmen like Mr. Latham, who has made great contributions to the subject. I do not know whether those speeches have been read by the Secretary of State for Dominion Affairs. The right hon. Gentlemen would realise at once that the Parliament of Australia is second in no degree in Imperial maters to this House, and that it has given far greater and more careful consideration to this ques- 256 tion than the National Government proposes that the House of Commons should be able to do. The Bill has been discussed throughout the Empire; on a number of occasions it has come up and has been examined with care. The Dominions look to this House to consider it and amend it.
I have reminded the right hon. Gentleman of the pledge given by the Solicitor-General. I would remind him again of the pledges given to-day by the Parliamentary Secretary to the Treasury. He was asked specifically whether he proposed to take a vote on the Irish question after eleven o'clock at night. He gave an answer with which I at any rate was satisfied, that the Government had no intention of taking a vote at a late stage on so important a matter. I regard that as a pledge of honour. I regard all the Amendments on the Paper as Amendments which we must argue and thrash out and try to get the Government to accept. We are not wedded to any particular form of words, as the Government arc, but we ask the Government to discuss this matter seriously like men of honour.
§ The CHAIRMAN
The hon. Member is now making a speech which is more appropriate to the Second Reading. He has been speaking for nearly five minutes without having come to the Amendment.
§ Mr. MARJORIBANKS
I will immediately expedite my approach to the Amendment. I gather that your Ruling does not rule out any arguments which I may found upon the third Amendment on the Paper, at the end of the Clause to add the words:Provided that this Section shall not come into operation in any Dominion until a convention has been ratified by the Parliament of the United Kingdom and every Dominion Parliament establishing uniformity with regard to laws having extraterritorial operation throughout the Empire.
§ The CHAIRMAN
I am prepared to allow reasonable latitude in the discussion of the first Amendment as there is a principle involved in it; and, of course, it would be in order to make reference to the third Amendment.
§ Mr. MARJORIBANKS
The Bill is described as a BillTo give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930.257 This is a subject which I wish to clear up at the very outset. I read in the report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929, the following on page 9, paragraph (b):The practicability and most convenient method of giving effect to the principle that each Dominion Parliament should have powe0r to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order and good government of the Dominion.It is clear that there was a wise Conservative Government in power, or at any rate that some of them were wise enough to put that important proviso upon any extra-territorial powers which were given to the Dominions. It is interesting to see that this was agreed to by the other Dominions; at any rate there is no record on the proceedings that that safeguard in regard to peace, order and good government by the Dominion should not be reserved. I my-self, perhaps, think that that would have been the best way to have moved this Amendment, except that it would have been so vague and would have led to a greater conflict of law than it was in- tended to avoid. However, it was a wise reservation, but difficult to work out. Now we find, according to the latest re- commendation, which was the result of a hopelessly discredited Government, the last Socialist Administration, who were responsible for this report now being laid before Parliament, that that safeguard and reservation with regard to peace, order and good government of the Empire is withdrawn—a safeguard which might have preserved some semblance of unity. We read on page 16, at the bottom:With regard to the extent of the powers so to be declared [on extra-territorial matters] we are of opinion that the recognition of the powers of a Dominion to legislate with extra-territorial effect should not be limited either by reference to any particular class of persons, or by any reference to laws ancillary to provision for the peace, order and good government of the Dominion.'That shows a very strange falling off from the original safeguards given by the Conference of 1927, a falling off which is utterly to be deplored. It is difficult, of course, to work out a conservative safeguard. The way in which it has been worked out is simply to cut it away. In the first place, some explanation should 258 be given by the Solicitor-General of that change of front, which was a most important change of front. The third Amendment on the Paper certainly expresses the true intentions of even the last Imperial Conference. You will find, if you look through these documents, that there is again and again embodied in these reports the principle that you should have uniformity of laws pertaining to extra-territorial matters throughout the Empire. Indeed, on certain matters, merchant shipping especially, there has been machinery set up to create uniformity. But there is nothing about it in this Bill.
In the three Amendments which we are to propose we ask the Government to suspend the operation of this Bill until they can get a convention of the British Empire set up to create uniformity. As regards merchant shipping, there has been a convention already agreed, and it only awaits ratification. Why make confusion worse confounded by passing this Bill and destroying that uniformity before you build up a new uniformity? I am prepared to subscribe to the principle that the old order has passed, and that a new order has come into being, upon which you can make Imperial laws only by agreement between the Dominions. I take that step reluctantly but with conviction. But before we destroy the uniformity of the old we must build up the new.
I ask the right hon. Gentleman the Lord President of the Council to consider whether this is not an inopportune stage at which to destroy the old uniformity. I ask him to consider the statesmen of Dominion statesmen on this matter. I know that he would respect and honour the opinion of Mr. Latham in the Parliament of the Commonwealth of Australia. Mr. Latham said:I believe that if an Imperial Statute declares that a Parliament of the Dominion has full power to make laws having extraterritorial operations, and this were recognised as putting the Dominions and Great Britain on the same footing, serious confusion might arise. I suggest that it is unnecessary, and indeed impossible, to put the Dominion Legislatures in the same position as the British Legislature in this regard, and that it would be unwise to endeavour to do so.That is the opinion which he, as an Australian statesman, held. I go further and I think that this Committee is en- 259 titled to go further than that. Let us build up the new uniformity, but not destroy the old uniformity. You are destroying the old uniformity if you pass this Statute word for word. Those who put forward these Amendments are not committed to any form of words. We are not like the Government in that respect. We have had this Statute hurled in our faces at the last minute. We have had no power or opportunity to consult expert draftsmen, as the Government have had for years past. Those of us who have been keenly interested in this matter, whose feelings of Imperial patriotism have been aroused sufficiently for them to take an interest in this Statute at all, have had to sit down and work the matter out and try to get the best Amendments we could in the time at our disposal, and I assure the Committee that we have done our best. But, as I say, we are not committed to any form of words. These two Amendments, the first and the third, embody a most important practical safeguard. I believe that you would find agreement with them in this country, if only the issue became well known, and, not only in this country, but in every part of the Empire.
Why should we paralyse ourselves in these times when the gales of world corn-petition are blowing in upon us from every quarter—it is madness to do so—in order to pass a Statute to which apparently everybody is committed, but which nobody likes? We are asked to approve of the Staute in this Committee because of reasons of policy in the past in regard to which we are not committed. The proper position and importance of this Statute have not yet been appreciated in this country or explained by those organs of public opinion whose duty it is to explain to the people what is happening in such matters. I am, perhaps, transgressing on more general lines again, but I wish to emphasise the fact that this point about extra-territoriality is one of extreme importance to the British Empire. When I read in the "Times" that no agreement made between the various Governments at the Conference could deprive Parliament of the right to discuss the Statute as fully as it pleased, and make any amendment it desired, I was delighted because I thought that this question of extra-territoriality might be thrashed out and that there might be 260 some opportunity for people to understand it and for Members of the House of Commons to understand it. But of course in the following week I read in the "Times" that some Members of the House of Commons were asking that two days should be devoted to discussing the Bill in Committee and were threatening to propose nearly a score of Amendments. I am amazed at the strange changes which take place in the life of a great newspaper. They are beyond the intelligence of a poor private individual who holds the same opinion sometimes for weeks, sometimes for months, sometimes even for years on end.
What we have been fighting for in this matter is to have the Statute properly understood. We wish that its technical aspects should be properly explained. We hold that a Committee of the Whole House is an unsuitable tribunal to discuss extra-territoriality. It is a question which ought to be submitted to the finest lawyers in the world, who are collected along the passage there. Everybody knows that. You, Sir Dennis, will perhaps forgive me if I conclude on the same note of irrelevance as that with which I began. I repeat that the House of Commons is an unsuitable tribunal to discuss this technical question of law and that the responsibility lies on the Government for having taken the course which they have taken.
§ The SOLICITOR-GENERAL (Sir Thomas Inskip)
The hon. Member for Eastbourne (Mr. Marjoribanks) in his concluding observations, has suggested that the House of Commons is not fit to discuss this important Statute and that it had better be sent to another place where there are more eminent persons who are better fitted to take part in such a discussion. May I beg his assistance in sending this Bill to that place where he says it will he discussed to better advantage than it can be discussed here? The hon. Member invited us, I am sure sincerely, to treat the Amendments on the Paper seriously. I think it is a little hard to suggest that they are not receiving serious consideration. At any rate, we should not be reproached with failing to give them serious consideration.
§ Mr. MARJORIBANKS
May I ask the hon. and learned Gentleman with 261 great respect not to suggest that I said that without reason? There was very good reason why I made that observation.
§ The SOLICITOR-GENERAL
I do not think I suggested that the hon. Gentleman said so without reason, but let me assure him that my right hon. Friend and I and others who speak from this Bench are giving and have given the most serious consideration to these Amendments, and in the examination of this difficult and intricate question, I hope that Members upon all sides will approach the subject with the seriousness which it deserves. My hon. and learned Friend the Member for Moss Side (Sir G. Hurst) suggested that we ought not to take a leap in the dark or at any rate, if we were going to take a leap in the dark, that we should preserve as many rays of light as possible. I have never invited this Committee to take a leap in the dark. I am anxious for as much elucidation of this Bill as possible, because the more the history of this Bill is understood, the more will hon. Members appreciate what is proposed in it. I am not saying that everybody in this Committee will be more likely to agree whole-heartedly with what is proposed. We all have our prejudices and our affections for ancient forms, even of the Constitution, but I say that the more light is thrown on the Bill, the more likely will the Committee be to come to the conclusion that in substance it is desirable that it should be passed into law at the earliest moment. That is the conclusion to which I believe hon. Members are coming, increasingly, in all parts of the Committee. Of course, that view does not preclude the anxious consideration of every Amendment before the Committee.
The Amendment proposed by my hon. and learned Friend the Member for Moss Side is, I understand, intended to provide that the area within which there may be a conflict of laws within the Dominions shall be restricted as much as possible. I am bound, however, to ask the Committee to observe that neither the first nor the third Amendment seems to be framed in such a way as to promote the objects which the promoters of those Amendments have in view. I am not going to base my reply upon a mere form of words. As my hon. Friend has 262 just said, it is always difficult to draft Amendments to give effect to one's meaning, and that is particularly so in this case, but I ask hon. Members to observe that the form of my hon. and learned Friend's Amendment is of a curious character. The first part of the Amendment is to provide that:Such laws"—that is laws which will have extraterritorial operation—do not conflict in their terms with laws prevailing in the United Kingdom or in other Dominions which have extra-territorial operation.That is to say, suppose that a Dominion passes a law which is to have extraterritorial operation, if it be found that that law conflicts with an existing law which also has extra-territorial operation, the law which was in existence first shall prevail and the law which came into existence subsequently shall be of no effect. That seems to amount to a declaration that whoever comes first is to hold possession of the field, because it is only the second law when it is inconsistent with the first law which is to become nugatory. I cannot think that that is a very convenient method or principle upon which to parcel out the legislative authority of the Empire—to provide that the Dominion which gets its word in first is to be the Dominion whose word is to prevail. But the last part of the Amendment provides thatsuch laws do not conflict … with international law,There is not a lawyer, let alone a layman in this Committee who does not know that if there is anything vague in this uncertain world, it is the area and scope of international law. Everybody who has dabbled in that region of the law knows that of the many text books on the subject, scarcely one writer will agree with another upon the state of international law with regard to any subject at all. Take prize law alone, which is part of international law. Every country has its own prize law. I do not believe that any Amendment would be more likely to provoke that conflict and that discord which my hon. Friends are so anxious to avoid than a proposal that the laws passed by the Dominions shall always be judged on some imaginary standard which international law provides. I do not know who is to consider 263 discrepancies between the laws in question and international law, but I am bound to make those observations on the form of the Amendment.
My hon. Friends quite rightly say in regard to the Amendments: "This is the best that we have been able to do, and we put before you the suggestion that you shall in some way seek uniformity within the Commonwealth of Nations." I understood that my hon. and learned Friend the Member for Moss Side expressed the opinion of those associated with him best, when he said that it was very unsatisfactory to have seven different systems of law prevailing in the Empire. [HON. Members: "Hear, hear!"] I am glad to have my hon. and learned Friend's assent that that proposition is the one which best expresses his apprehensions. That view seems to me, and I say it with all respect, to proceed on a complete misconception as to the operation and the extra-territorial operation of laws. Suppose that two countries like Great Britain and France each pass legislation which is extra-territorial by reason of the sovereignty of the nations concerned. We have the power of legislating extra-territorially and so has France, but that does not mean that we may legislate so as to make municipal law in France as administered by the French courts in respect of persons who come within the jurisdiction of the French courts. It simply means that each nation has the capacity to legislate outside the three-miles limit of its own territory, in respect of its own subjects, in such a way as to make them amenable to the law, as administered in its own courts, when they come within its jurisdiction.
Does anybody suggest that because we have the power of extra-territorial legislation and France also has that power, that that fact has produced the inconvenience of two systems of law prevailing both in Great Britain and France? Of course, questions of conflicting laws arise in certain regions of law such as in connection with marriage —for instance, whether a person is a divorced person in one country by reason of the fact that he or she has been a divorced person in another country. Everybody knows that these 264 conflicts, as the hon. and learned Member for Altrincham (Mr. Atkinson) has said, constitute a difficult branch of the law in themselves, but, broadly speaking, the capacity to legislate extra-territorially is a power to legislate for persons who come within the jurisdiction of the courts of the legislating nation.
Let us apply that principle to the Empire. If this Clause is passed without the proposed Amendment, there will not be seven systems of law operating in all the Dominions. It is quite likely that there may be a different state of the law in each Dominion upon particular subjects, but those laws would only be administered as regards any particular Dominion in the courts of that Dominion with respect to persons who come within the jurisdiction of those courts. That seems to me not merely necessary, if you are to have the equality of status implicit in the Balfour Declaration, but it seems to me not inconvenient, because it is to be expected that a British law, a law of the Imperial Parliament, will not be suitable for people who dwell in different Dominions under radically different conditions. You would expect different systems of law to exist in each of the Dominions themselves.
An hon. Member may ask: What are you talking about when you are giving power to legislate extra-territorially? Let me give an illustration. As everybody knows, there are many Conventions regulating the way in which aeroplanes shall be used. They may not fly over certain territory; they may not fly under certain conditions. It is the subject of an international Convention or of many Conventions. Suppose that Canada wants to legislate so as to make it a crime for a Canadin citizen not to fly a Canadian aeroplane, in breach of that international Convention, the capacity of Canada to regulate the conduct of its own citizens stops strictly at the end of the three-miles limit outside Canadian territory. An effect of Clause 3 in its present form will be to allow Canada to legislate in such a way that if a Canadian citizen has offended against a Convention which has been recognised by the Canadian law, when he comes back to his own country he shall 265 be amenable to the Canadian courts administering Canadian law, even though the offence was committed extra-territorially, as we say, or outside the three miles' limit.
I do not think it is right to trouble the Committee with further illustrations of the same operation of extra-territorial law, but I want to deal quite shortly with one or two points that have been raised, in order to show that I think they proceed under a misapprehension. My hon. Friend the Member for Eastbourne has asked why there has been a departure from the form of the proposal to permit extra-territorial legislation only for the peace, order, and good government of the Dominion concerned. If the hon. Gentleman, who has complained that not enough ventilation has been given to this interesting subject, would refer to one book where the subject has been exhaustively ventilated, written by Professor Berriedale Keith, for the express purpose of dealing with the Report of the Conference on the Operation of Dominion Legislation, he will find a volume of nearly 500 pages, dealing with this report. He points out that if this Clause had been passed with that addendum, referring to the peace, order, and good government of the Dominion concerned, it would have afforded abundant opportunities for the exercise of the lawyer s art, because it would be very difficult to discover whether or not a particular law was related to the peace, order, and good government of the Dominion. The omission of that qualifying sentence is a pure question of convenience.
One of my hon. and learned Friends asked what had happened to the recommendation in paragraph 44 of the Report on the Operation of Dominion Legislation as to providing fur the discipline of the armed forces of one Government when in the territory of another Government. The position as to that is that a Convention is now under discussion to enable that subject to be satisfactorily dealt with. It has been already agreed to by South Africa. It is in processs of finding agreement 'with the other Dominions, but obviously the Convention as to that matter must come after the passage of this Statute of Westminster, because this Statute will enable the different Dominions to give legislative effect to the Convention which is in process of being agreed, upon this limited subject. That, 266 I hope, will answer the question put by, I think, my hon. and learned Friend the Member for Altrincham (Mr. Atkinson).
I hope that, while the Committee considers that this Clause has nothing at all in it which is likely to increase the possibility of a conflict of laws between the Dominions, it will see that neither the Amendment on the Paper nor any Amendment designed for the same purpose is necessary. Indeed, my own opinion is that if you are going to try to bring all the laws of the Empire, these widely differing territories, into the compass of some text-book, some volume of legislation, so as to see that no part conflicts with some other part, you will have a task which indeed will engage the attention of the Committee which, I think, the hon. Member for Eastbourne visualised as sitting for months and months and years and years. I cannot imagine a more fruitful subject of discord and discussion.
After all, we do belong to a nation which has Shown a little capacity to order the Government of its different parts; we do credit ourselves with some common sense, with a capacity on the part of even the layman of the Empire to understand the fundamental principles of English law; and I respectfully suggest to the Committee that rather than attempt here to regulate the legislation of all the Dominions, let us give them this power which they have sought and which we have promised them in the Imperial Conferences, and trust that they will, by subsequent co-operation with us, see that it is made a boon to the Empire instead of that Tower of Babel which my hon. and learned Friends appear to contemplate.
§ Mr. MARJORIBANKS
Before my hon. and learned Friend resumes his seat, could he deal with the third Amendment on the Paper, which does not go very much farther than, but really embodies, his peroration? All that we want is that the Convention already agreed upon should be ratified.
§ The SOLICITOR-GENERAL
My hon. Friend with great impartiality has put his name to both Amendments. My criticism of the second Amendment is that he will have to get this Convention establishing uniformity, whatever that may mean, before this Statute of Westminster 267 comes into operation. It is exactly the calling of a conference which is to carry out that rather difficult and, I think, impossible task which I should view with some apprehension. For those reasons, I hope the Committee will not accept the Amendment.
§ Mr. WILLIAM STEWART
It may be strange for one who is not a lawyer to talk about a subject which apparently exhausts the minds and brains of the distinguished lawyers who have spoken already, but I want to approach this matter from a common sense point of view. No one here wants to interfere with the Dominions doing exactly as they Like, but we do want to prevent our own right to do as we like being interfered with. My hon. and learned Friend the Solicitor-General refers to extra-territoriality law as only legislating for their own subjects. I would like to ask whether this Bill does not make us liable to be subject to two different Dominions. If that is so, are we not liable to be interfered with when we go to a Dominion which has a different law from the law in the Dominion to which we think we are subject?
I belong to Northern Ireland, and we have different opinions about religion and about politics, as compared with our friends in the Irish Free State. Those carry us a very long way. Take the question of divorce, which has been referred to by my hon. and learned Friend the Member for Altrincham (Mr. Atkinson). If I go to the Free State, as I very often do—I have considerable business there, and I like the Free State, and I like Dublin—it might be that if this Statute is passed, the Free State might call me an Irish Free State subject. [Interruption.] They might not want me, but they might make me that by law, which is quite a different matter. I would like the Solicitor-General to tell me, if that is possible, whether I would be liable to be interfered with in the Free State as a Free State subject under their law. That is all that we want to know. If this subject is as clear as the Solicitor-General makes out, why is there this division of opinion among hon. and learned Members in this House? I cannot understand why these hon. and learned Gentlemen cannot give us something that is quite clear.
268 The question of different laws in different Dominions is surely a very important and a very interesting question to discuss in a business manner. Almost every business man to-day has interests outside the United Kingdom. Re has interests in Canada, and, we will say, in Ireland, and when you come to a business matter it is possible that the law in one Dominion may be different from the law in another Dominion. If a conflict is to arise in regard to nationality, surely then a conflict arises right away as to the law to which you are subject. I would impress upon the Government that we do not want to interfere with the passing of this Bill at all, but that we want to try to avoid trouble. We have had enough trouble, and we want to avoid it. Why then can we not, when we have a, chance, if this matter is as easy as the Government tell us, make it quite clear and plain?
§ Mr. CHARLES WILLIAMS
There is some confusion in the minds of some of us as to what these extra-territorial laws are. Suppose the Parliament of Canada passed a law requiring a Canadian miner to work nine hours a day, would that law enable a Canadian miner in a country where there was only an eight hours day to work the full nine hours a day? Again, you might have exactly the reverse of that situation, which would be equally difficult to decide. You might have a Canadian who was only permitted to work seven hours. Would he be compelled in another country, where eight hours were allowed, to work for only seven hours? As I understand, the law of the country where they were actually working would prevail, and not the law of the Dominion or country from which they came; but I would like to be quite clear on the point.
§ The SOLICITOR-GENERAL
I am happy to say that my hon. Friend has perfectly correctly understood the position. It is the law of the country in which the miner is working that would govern the conditions under which he might work. I hope that answers that point.
§ Mr. WILLIAMS
May I put it in this way? Suppose that a miner worked an hour longer than he was permitted by the law in his own country, and then came back to his own country, 269 would he then be liable to be prosecuted? The Solicitor-General said that you have a law as far as flying is concerned in Canada, and that if it is broken the man responsible is liable when he comes back. Suppose he breaks these other laws, is he liable when he comes back?
§ The SOLICITOR-GENERAL
My hon. Friend puts a slightly different question from that which was included in the last two sentences of his speech. He is supposing the case of Canada saying that one of its citizens may not work more than five hours a day; so that it would be a crime in England, according to Canadian law, and the hon. Gentleman supposes that a man would be prosecuted in Canada for the crime he had committed by working in England more than five hours a day. All I can say is that that is a case which it does little credit to the Canadian Government or people to suggest is a possible one. [Interruption.] I hear an hon. Friend say that that is not an answer. The answer to the question is that strictly legally no doubt that might happen, but when my hon. Friends suggest that it is possible that a sensible legislature would pass an Act of that sort they are not doing full credit to the intelligence and good will of our fellow British subjects. Do let us understand that, although my hon. Friend the Member for Eastbourne (Mr. Marjoribanks) seemed to think that this Bill was a product of a hole-and-corner committee, there were on the two bodies that drafted it representatives of the most eminent lawyers in all parts of the Empire. Every single part of the Empire contributed its wealth of learning and good sense to the fabrication of this Measure.
§ The SOLICITOR-GENERAL
That is not a comment that I should like to make. My hon. Friend the Member for South Belfast (Mr. W. Stewart) asked a question which was similar to that of my hon. Friend the Member for Torquay (Mr. C. Williams). He said that one Dominion might make a particular act a crime if committed by somebody who might come within the jurisdiction of the courts, shall I say, of the Irish Free State.
§ The SOLICITOR-GENERAL
Let me take any Dominion the hon. Member likes. I can only give the answer that has been given. It is possible to imagine many absurd situations. It is true that if any Dominion were to take that course —and I agree that it is theoretically possible to imagine it—the whole scheme would be likely to break down; but all I can say is that I do not believe any Dominion would legislate in that fashion. Let me also add that if they were minded to make crimes for which they would punish people when they came within their jurisdiction in the manner suggested, they could do it to-day and nobody could prevent them. If a Dominion cared to take a fantastic course, saying, "We will make it a crime for a member of another Dominion to do something in his own country, and we will punish him as soon as we can catch him when he lands on our shores," there is no power on earth to prevent that Dominion putting my hon. Friend in gaol.
§ The SOLICITOR-GENERAL
It will not comfort my hon. Friend when he is in gaol to say, "You have done it illegally." The point is that the Amendment will not prevent people doing foolish things if they are minded to do them.
§ Mr. STEWART
That is no answer to my question. Can they do it legally today? That is my whole point.
§ Mr. AMERY
I want to make one or two observations on this Amendment, not from the point of view of a lawyer, but from that of an ordinary person who has watched the development of this matter to some extent from inside, and who has listened to the Debate. Judging from the course of the Debate, one would imagine that all extra-territorial legislation must be mischievous. As a matter of fact, that power is enjoyed in the ordinary way by every sovereign State. All the nations of Europe exercise it, and they exercise it apparently without creating any serious friction among each other. I do not think that anything has ever arisen in which Geneva has been interested or which has led to 271 acute controversy between different nations of the Continent because they have that power, nor has any controversy arisen between them and ourselves. More than that, the same power is enjoyed by one of the Dominions; the United Kingdom enjoys it towards both the foreign world and the rest of the Empire, and I do not believe that any serious trouble has arisen out of it. Is there any reason why these powers should not also be exercised by the other Dominions now that they have acquired their present status and now that their external interests are so much greater than they used to be?
In the original development of the Empire, the Dominions were largely remote from the world outside, and their external affairs were naturally conducted for them by the British Government. Now they are much more in the world than they were before. Over 4,000 miles Canada adjoins one of the greatest industrial countries in the world. Along that frontier there is a continual going and coming between Canadians and Americans. The United States enjoy certain extra-territorial rights over their citizens when they cross the Canadian border. Canada cannot make similar legislation at present, except by certain devious subterfuges, with regard to Canadian citizens crossing the American border. It is largely in their frontier relations with foreign countries that this question will arise. South Africa may want to make regulations with regard to her subjects crossing the Portuguese border. Is there any reason why, on an issue eminently to be decided by local considerations, as for instance, what happens to South African labourers when they go into Portuguese East Africa, that only should be susceptible to legislation by us here in this Parliament?
On the matter of uniformity, this is one of the cases where over a large part of the field uniformity is not desirable. The legislation that Canada passes with regard to bootleggers in America is not legislation that the South Africans would wish to pass with regard to absconding natives taking out diamonds or gold dust. Yet if this Amendment were accepted, then, if the terms of a law dealing with native runaways in South 272 Africa conflicted with the terms of a bootlegging ordinance in Canada, whichever was the later in the field would become invalid. This is a matter where over a very large part of the field it is essentially a matter for the local legislature and for differentiation, not for uniformity. There is a, very important part of the field, including such subjects as merchant shipping, where uniformity is desirable, but when that question is dealt with, you have to face the further question as to who is to enforce the uniformity. Are we in this Parliament to be the only Parliament in the Empire which has the right to legislate for all the other Dominions and to enforce uniformity upon them?
I can assure hon. Members who have spoken that every one of the points they have made was discussed fully in 1926. It was then decided that, in view of the principles which govern the relations of the Empire, uniformity has to be sought by other means than the arbitrary imposition of it by one Parliament. This conclusion was confirmed after months of discussion between experts, who were the best legal minds from every part of the Empire. These results were published in this country; we all knew about them. The actual terms of this particular Bill are mostly in italics in the report of the Conference of 1929. They were again fully and anxiously considered in 1930, and, as a result of that consideration and of a definite undertaking given to the Imperial Conference, they are now presented to this House. I agree that it would be unfortunate if on some of these matters, like merchant shipping, there was a gap during which inconsistent legislation were introduced. We have been informed, as regards this instance, that the Governments of the Empire have agreed upon a convention securing uniformity, and that they intend to put it into force as soon as the Statute of Westminster goes through. Are we to say that, though they have given this assurance, there may be a few weeks during which they may run amok and pass all sorts of diverse legislation and destroy that uniformity? I admit that it is undesirable that the old uniformity should disappear before the new uniformity is secured, but you will not do that by saying, "We will not take away 273 our arbitrary powers of control until you have made a new uniformity that suits us." You cannot bargain in that way. You have to accept the position that uniformity by dictation is no longer possible, but you will find very little difficulty in arriving at uniformity by agreement in those matters in which uniformity is desirable.
This discussion has seemed to proceed on a basis which, I should have thought on reflection, we could not sustain, even in this proud and ancient House of Commons, that is, that all wisdom is with us alone, that we alone have a sense of Imperial responsibility, and that if we give to other parts of the Empire the same licence and power they are bound to abuse them. We must accept the position that they, like ourselves, are reasonable in their outlook and are not mischievous children who have been prematurely sent out into the world, but that they are Imperial nations which have risen gradually to a position and a sense of Imperial responsibility like ourselves. Is it beyond hope that in matters that are eminently local they will legislate sanely for their own purposes, and that in matters where common uniformity is desirable they will approach that problem of uniformity in the same spirit of good will and with the same desire to serve the common weal that we possess?
§ 5.30 p.m.
§ Sir JOHN WITHERS
I regret the attitude of mind of the right hon. Gentleman the Member for Sparkbrook (Mr. Amery). This is one of the most important matters that has come before Parliament for many years, and it is destined to regulate the British Empire for centuries. It is the duty of every Member to put before the Committee his views, if he thinks he ought to do so. Although I did not put my name to this Amendment, I thoroughly appreciate the reasons of the hon. Members who have done so. The Solicitor-General says there may be absurd anomalies created in theory but that in practice they will not occur; but here we are making a Statute which is to last for years, and surely it is our duty, if we can, to remove such anomalies. We may be told that there is no time to do it, and that may be so, owing to this Statute of Westminster having been brought be- 274 fore the House at a time of unexampled trouble and anxiety, and after a General Election in which the matter was never mentioned. Personally, I feel that it is very wrong of right hon. Gentlemen, however learned they may be, to impute motives and reasons to hon. Members who are trying to do their duty.
§ Mr. C. WILLIAMS
I should not have intervened again but for the spirit of the reply of the Solicitor-General. I asked only a simple question, refraining from making a speech because I did not want to hold up business. The question was on a purely technical point, a legal point, and it was put with no desire to try to make out, as the Solicitor-General inferred, that we should get absurd legislation in the Dominions. I repudiate the idea that any Member on the Treasury Bench can ride off in that way from a question which is too difficult. I know that the hon. and learned Gentleman did not intend that, hut, after all, he said it, and that being so the least I can do is to get up and tell him that I have no intention of casting any reflection on Dominion legislation. May I remind the hon. and learned Gentleman, also, that perhaps the Dominions have better lawyers than we have here. At any rate we have passed innumerable silly and stupid laws, such as the legislation dealing with the sale of sweets, and the like. I will not take up the time of the Committee any longer, except to express the hope that the ordinary private Member who puts a question will not be treated as though he wished to cast reflections on the Dominions, although I am sure that was not intended.
§ Amendment negatived.
§ Colonel GRETTON
I beg to move, in page 3, line 3, at the end, to add the words:Provided that nothing in this Act shall deprive any subject in any Dominion of British nationality.I had not intended to introduce this Amendment myself, but in the absence of my hon. Friends whose names are also attached to it, I ask the House to listen while I submit some reasons why this proviso should be inserted. It will be agreed on all hands that no one should, by inadvertence, be deprived of the status of British nationality through the operations of this Measure. British 275 nationality is one of the bonds of the Empire, or, as this Statute proposes to call it, "The British Commonwealth." Something was said on this matter at the Conference which apparently has escaped the attention of those who drafted this Bill. No definite proposals were made dealing with the question of nationality, but the report of the Conference on the operation of Dominion legislation said:It is important to maintain the common status, though there may be reasons for variation in some cases.In the final conclusion it is said:The possession of a common status… in any part of the Commonwealth ought to carry with it the recognition of that status by the law of every other part of the Commonwealth.What else can that mean except British nationality? Clearly there has been some oversight in the drafting of the Bill, because if it passes in its present form that most important question will be left unprovided for, and there is ground for confusion and misunderstanding. We all value our British nationality, and it is especially valuable to those who are in the more distant parts of the world. If any subject born in a Dominion, whether it be New Zealand or whether it he the new Dominion of the Irish Free State, were to be deprived of British nationality, then the Government of every other Dominion would be precluded from taking action if that person were aggrieved by the subjects or the Government of any other Power. This bond of nationality is one of the most important of those which keeps the Empire together. We should provide against action which may arise either through inadvertence or by the deliberate intent of persons elsewhere. I am not a lawyer, but it appears to me as a. layman that it is only clear common sense that the omission to which attention has been drawn should be repaired by the proviso which I now move.
The SECRETARY of STATE for DOMINION AFFAIRS (Mr. J. H. Thomas)
If there were any prospect of the fears of the right hon. and gallant Gentleman being realised I should take my stand with him in refusing to agree to any Act of Parliament which might deprive me of my nationality. I hasten to assure him straight away, on the autho- 276 rity of all the best legal advice, that that is the real answer to his suggestion. I would also point out that our fellow subjects in the Dominions of Australia, Canada and South Africa are very jealous of their British nationality, and I am sure it will occur to him that their representatives, who were responsible for these words, would feel equally jealous. Obviously, he was not aware that the Law Officers of Canada, Australia, South Africa, New Zealand and the Irish Free State, who are as jealous on this point as any Member of this House, were themselves unanimously responsible for the drafting of this Clause. The only answer I can give to my right hon. Friend is that, as we are at present advised by all the competent legal authorities in the British Commonwealth, as well as our Law. Officers of the Crown, there is nothing whatever in this Clause as it stands that would deprive anyone of his British nationality.
May I say with very great respect that I, at any rate, propose to express a different view of the law from that which has been set forth by the Secretary of State for Dominion Affairs? The right hon. Gentleman said that all competent legal opinion was on the side of the Government, but he knows perfectly well that all competent legal opinion is not on his side.
I did not say anything of the kind. I made the specific statement that the Law Officers of all the Dominions were parties to this, and I assume that they would be as jealous about this particular point as we are. That is the point I made.
§ Mr. MARJORIBANKS
I am very sorry if I misrepresented the right hon. Gentleman, because I should hate to do that, but there is eminent legal opinion which is not on his side. If the point is argued, I think it will be seen that there is a danger to British nationality. Up to the passing of this Measure everybody in the British Empire, excepting Great Britain, has been entitled to two kinds of nationality. Everybody born in His Majesty's British Dominions and Colonies was entitled to Imperial nationality. In 1914 that was put into statute form by the British Nationality Act of that year. In that Act it was provided 277 that the following persons should be deemed to be natural-born British subjects:Any person horn within His Majesty's Dominions and allegiance.That is a matter of statute law, and by this Bill we shall enable any Dominion to repeal that statute law. Therefore, as a mere matter of repeal, that right may go. It is as clear as day that the British Nationality Act, so far as it applies to the Dominions, may be repealed by them. That, of course, is the very subject matter of this Bill—that such an Act may be repealed. When the right hon. Gentleman said that every Law Officer in the Dominions was satisfied that this Bill would not affect Imperial nationality he ought to have considered the provisions of the Act of 1914 which, like every other Imperial Act, will be subject to repeal. Apart from Imperial citizenship, which, as I said the other day, was the proudest boast which anybody of any race or any colour could make since the days of the Roman Empire, each Dominion of the Empire can give to its citizens Dominion nationality, a local nationality, but it is that, and that only, which will survive as the result of this Bill, so far as I can see. If this Amendment be not inserted it may he that this Bill will abolish Imperial citizenship altogether, and that no safeguard will survive. At any rate, it will make it possible for another Act to be passed which will deprive the citizens of a Dominion of their Imperial nationality.
An hon. Member sitting above the Gangway mentioned the case of Ireland. Suppose it should occur to the Government of the Free State to repeal the British Nationality Act and to abrogate the right of its citizens to Imperial British citizenship. Has the right hon. Gentleman considered what would happen then? He could not even help the Irish loyalists by diplomatic representations, because ipso facto they would cease to be subjects of the British Crown. All these questions are not easy to answer, and they cannot he dismissed by quoting authorities which are not given or by producing the opinion of Law Officers. These are matters which must be considered on their merits.
Mr. J. H. THOMAS
The Amendment reads:Provided that nothing in this Act shall deprive any subject in any Dominion of British nationality.I answer the hon. Member by saying that there is nothing in this. Act which does what is complained of.
§ Mr. MARJORIBANKS
I must ask the right hon. Gentleman to take a broader view. The whole weight and depth of the opposition is in regard to what will happen on 1st December, and we believe that innumerable results will follow throughout the Empire as a result of this provision. It is a mere legal quibble to say that there is nothing in this Act which would not be affected by a repeal of the British Nationality Act of 1914 by any of the Dominions. That argument is quite unworthy of the Secretary of State for Dominion Affairs. I want an answer, "aye" or "no," from the right hon. Gentleman to my question as to whether it is possible for the Irish Free State to repeal the Nationality Act of 1914, and if he says it is possible to do that let me remind him that that would take away the whole protection of the British Foreign Office to the tiny minority in the Irish Free State to whom we owe many obligations.
Does the right hon. Gentleman not realise how terrible it will be for people in Ireland suddenly to find themselves in a hostile atmosphere, separated from the Crown which they served so faithfully for so many years in the past? The right hon. Gentleman says that there is nothing in this Bill to deprive, those people of British nationality, but of course he cannot answer for every Act that may follow this Bill. This Measure is so crowded with possibilities in regard to other Acts that we are obliged to oppose it, and this is not a question that you can get rid of in one day. The Measure which we are now considering is one which may vitally affect the unity of the British Empire.
In reply to what the hon. Member for Eastbourne (Mr. Marjoribanks) has just said, I would like to remind him that all that I did was to call his attention to the words of the Amendment. I respectfully submit that I was dealing with the Amendment before 279 the House. The wording is not the wording of the Government, but the wording of the Amendment, which says:Provided that nothing in this Act shall deprive any subject in any Dominion of British nationality.If that is the Amendment, all I say is that there is nothing in this Bill that will do what is suggested in the Amendment. I was not called upon to say what will happen in the future, but I was dealing with the Amendment before the House.
§ Amendment negatived.