§ Mr. J. S. C. ReidI beg to move, in page 27, line 8, to leave out from "may," to the end of the Clause, and to add:
by order make regulations defining for all or any of the purposes of this Act—The Committee will see that Clause 41 (2) provides:No order shall be made under this Section unless a draft of the Order has been laid before Parliament and has been approved by a resolution of each House of Parliament.
- (a) the circumstances in which a person shall be treated as being resident in the United Kingdom;
- (b) the circumstances in which a person shall be treated as being resident outside the United Kingdom;
- (c) the circumstances in which a person shall be treated as being resident in such territories as may be specified in the order.
The Treasury may give directions declaring that for all or any of the purposes of this Act a person is to be treated as resident or not resident in such territories as may be specified in the directions.This question of residence is vital to almost every Clause in the Bill. Almost every Clause affects persons who are in, or resident in, the United Kingdom. There is, generally, a pretty substantial criminal penalty attached to a breach of any of these Clauses. Therefore, in accordance with our ordinary—or, perhaps, I ought now to say our former—practice, it was always thought desirable that, when a criminal offence was created, the law which created it ought to be tolerably plain for all to see. I agree that during the war breaches were inevitably made in that salutary old principle, but I have never seen one quite so flagrant as this. Not only is there no definition, but every case is to be a law unto itself. The Treasury is entitled, without reason given, to say to one man, "You are resident, here," and to another man, in precisely the same circumstances, "You are resident there." There is nothing to provide for any rule of law or for any series of precedents laying down a principle, as has happened in the common law from time immemorial, because no reasons need be given. Worse than that, the decision may not be given until after the event has happened, as I read the Clause. This is the only definition of residence in the Bill.856 8.15 p.m.
Supposing I think that I am not resident in the United Kingdom, according to the ordinary canons of residence, and I do something which concerns, let us say the Income Tax Acts; and then, after I have done this thing in all innocence, knowing that I am not resident in any ordinary sense of the word, the Treasury choose to say, "We say you were resident in the United Kingdom on that date, and, therefore, you are guilty of a criminal offence," that is a complete denial of justice. But there is nothing in this Bill to exclude it. Of course, we shall be told the old story, that the Treasury intend to act reasonably. There is something to be said for giving discretion when dealing with controls or prohibitions or matters of that kind, but there is nothing to be said for giving a discretion when imposing a criminal penalty on a man who could not be expected to know about it at the time when he committed the offence. I shall be interested to hear the answer of the learned Solicitor-General to my question.
Is this direction retrospective or not? Are the Treasury entitled to say today, "We say that yesterday you were resident in the United Kingdom," or can they only say, "We say that today, and so long as present circumstances continue unaltered, you are resident in the United Kingdom"? I think the hon. and learned Gentleman is in a dilemma here, because if he says the Treasury cannot make a retrospective finding and that a direction under Clause 41 (2) can only apply to today and the future, then I think the greater part of the importance of this point is lost. But if, on the other hand, the hon. and learned Gentleman is going to say, "The Treasury can today say that yesterday you were resident in the United Kingdom," then I say that is retrospective legislation of the worst possible kind. It is imposing criminal liability on a man who could not know when he committed the action whether he was guilty or not, because he could not know what the Treasury would say tomorrow about his place of residence when he committed the act. There is no limitation laid down here, there is no principle. This is pure administrative despotism, and on those grounds, unless we can be assured that some considerable alteration will be made, I hope the Committee will divide against this monstrous proposal.
The Solicitor-GeneralI do not think this Clause is nearly as fierce as the right hon. and learned Member for Hillhead (Mr. J. S. C. Reid) would have us think. The gravamen of his charge against it—and it was quite definitely a charge against it—lay in the assertion that it enabled the Treasury ex post facto to render a person liable in criminal proceedings. The right hon. and learned Gentleman contended that under its terms, properly construed, the Treasury could say to any person, "You shall be deemed to have been resident at a particular place or in any particular territory at some date in the past." If the right hon. and learned Gentleman will look at the Clause more closely, he will see that the relevant words are:
is to be treated as resident or not.It does not say, "is to be treated as resident or as having been resident or not." If it contained words like, "or having been resident," I would at once concede that it would have to be construed as conferring upon the Treasury a power to say with regard to any person that he had at some anterior date been resident in a particular territory. Those words, however, are absent, and that is crucial. That is why the whole foundation of the argument adduced by the hon. and learned Gentleman goes. What the Clause, upon its true construction, does is this. It enables the Treasury to say, "You are to be deemed resident, or not resident, in a particular territory."Now, in point of fact, the Clause will be used, not so much in relation to criminal proceedings as for the convenience of bankers, and for the convenience of persons who come within its purview. After all, the circumstances with which we are dealing are circumstances in which a great many people who will come within the purview of the Bill are people who transfer regularly from one country to another, and with regard to whom it is extremely difficult to predicate in what country they are resident Although a definition is used for the purpose of establishing residence, it is very difficult to say with regard to such persons who have no definable home, or who have homes in many countries, whether they are resident, for the purposes of the Bill, in one country or the other.
That difficulty being present, bankers will not know in relation to the accounts 858 of such persons whether they can pass money through those accounts or not. Take one example under the Bill. Stockbrokers, anybody concerned with the transfer of securities, registrars and so on, will all be in the dilemma that, unless there is some machinery for declaring with regard to persons of that sort that they are deemed to be resident in this, that or the other country, they will not know how they are to proceed in relation to the transfer of securities to or from persons of that sort, and they will not know how to proceed in relation to the passing of money in relation to the bankers; nor will authorised dealers or authorised depositories be in any better position.
It is essential for the working of the scheme that there should be some machinery where, in cases of doubt of that sort, an ad hoc decision will be given. It will not be given retrospectively, and upon the true construction of the Clause it cannot be. I am not talking about criminal proceedings. It would be a great help to bankers, and to the people themselves, if it could be said in relation to past transfers, "We are going to treat this one as valid, or invalid." The Clause does not do that It would be difficult to do that, to give them retrospective power, without giving the power to create retrospective criminal offences. It is desired to give power to declare, as from the moment of the declaration, that so long as the circumstances persist the person concerned shall be deemed to be resident, or not resident, in a particular territory. It is for the convenience of everybody. It is not, as the right hon. and learned Gentleman seemed to think, for the purpose of simply setting up criminal offences. It would be a precedent if the Treasury tried to say ex post facto "You were guilty of a criminal offence, though you did not know it." This Bill does not seek to repose that power on the Treasury I hope the right hon. and learned Gentleman is satisfied about that.
§ Mr. J. S. C. ReidI would like to know, if the hon. and learned Gentleman's interpretation is right, how it is determined where the person was resident before the direction was given, because this is the only machinery, that I can see, in the Bill for interpreting residence, or for determining where he was resident What is the machinery for determining where he was resident and what are the tests?
The Solicitor-GeneralIs the right hon. and learned Gentleman now suggesting the Clause should act retrospectively?
The Solicitor-GeneralThere is no such power in the Bill. It simply has to be determined by a court as a question of fact, if the matter arises. It would be of great administrative convenience if it were possible to declare retrospectively with regard to any individual that he was resident in such and such a country. It would be to everybody's great convenience. But if one enabled the Treasury to do that, one would automatically be enabling them ex post facto to create retrospective criminal offences, which would be an intolerable precedent. They are not given power to do that. If it were possible, it would be a great boon to bankers, stockbrokers and everybody else. The Treasury do not seek to take the power for the very same reason that the right hon. and learned Gentleman would, in that case, have addressed against the Clause.
The Clause does not do that. It limits their powers, unfortunately. Therefore, the only way in which residence, ex post facto, can be determined is in the ordinary way in which it is determined in every court—if the matter should ever go before a court—as a question of fact, on taking the evidence and deducing it from the evidence. In the future, as from the time a declaration is made, anybody can know. Individuals themselves will probably want to know, and want to know badly, whether they are to be treated as resident. Once an individual knows, he knows he can travel between London and New York, or wherever his business is taking him, knowing he can or cannot do certain things in the transfer of his shares, in acquiring foreign currency, and so on. He will be in a great dilemma if, before he can engage in any transaction, he has got to wait until his residence is determined by a court, or take a guess himself what the proper legal conclusion is, in doubtful circumstances. I am quite sure everybody would be very sorry if this particular Subsection were left out. It would cause great inconvenience to a very large number of persons. I hope the right hon. and learned Gentleman, with that explanation, will agree to withdraw his Amendment, if the Committee gives him leave to do so. The Clause, as I say, is simply designed for 860 that purpose, and the whole of the, argument which has been addressed against it is drawn from a completely false hypothesis.
§ Mr. J. FosterThis is a very serious Clause, and I should like to draw the attention of the Committee to the seriousness of this Clause from another point of view.
§ Mr. FosterThe object of the Amendment is to provide machinery by which the residence of somebody under this Clause may be determined. The serious part of the Clause is that, as my right hon. and learned Friend pointed out, nowhere in this Bill is any machinery provided for determining residence. That has very serious consequences for those who have to advise people as to their position, and has serious consequences for persons whose residence may be wrongly determined, either by the Treasury or in a court of law. The residence of a person is vital under this Bill. There are certain things non-residents cannot do, and there are certain things residents cannot do. Nowhere in this Bill are there any tests. The Amendment asks that certain tests should be laid down. In the Income Tax Acts distinction between residence and non-residence is made; but there it is not so vital as it is here. In the Income Tax Acts certain well known rules and tests are laid down, and then a tribunal is nominated for residence to be decided. In the Income Tax Acts we have "every six months"; and we have fixed places of residence in this country; or we have a regular visit to this country at stated times in successive tax years.
What is needed in this Bill are certain tests, which this Amendment invites the Treasury to lay down, to decide where residence lies. As the learned Solicitor-General said himself, there is nowhere in the Bill any machinery for deciding what residence is except, so far as I can see, the machinery of the police court where the man is prosecuted. Some of us are in the position of having to advise people as to where they stand. Suppose a man comes and says, "Am I resident or nonresident? What can I do?" Until a body of case law grows up nobody can 861 tell. It may be very well for the lawyers—and the hon. and learned Member for Gloucester (Mr. Turner-Samuels) may agree with me that it would be very nice for us—if a body of case law arose as to what residence was; if gradually, with the years, from decisions of the courts, appeals from magistrates' courts to quarter sessions, and appeals by way of cases stated, a great body of case law arose, saying that a man who left this country only for a week was not non-resident. It might be decided that the man who left for a week but intended to stay abroad for a longer time, was a non-resident. There could be various permutations and combinations, making a large number of definitions of what constituted residence, but in my submission the proper way would be to have it stated in the Bill, as this Amendment suggests, that the Treasury could lay down the test of what constitutes residence.
8.30 p.m.
There is another serious flaw which this Amendment is designed to meet. Let us assume, as the Solicitor-General said, that a man is very anxious to know whether he is a resident or a non-resident. A lot hangs on the answer to that question. He wants to know whether he can make certain payments inside or outside the scheduled territories, and he asks the Treasury for a direction under this Clause, as it stands now without the Amendment. Let us assume that the Treasury say he is resident in the scheduled territories whereas, in his opinion, they are wrong and he is resident outside. Or it may be the reverse; the Treasury may decide that he is resident outside when he thinks he is resident inside. Both cases could arise. He may genuinely think that he is resident in the country where the Treasury says he is not resident. There is no machinery in the Bill to decide which is right. Under the Income Tax Acts it would be a question of fact for the Special Commissioners, but here there is nothing. Suppose the man says he will not agree with the Treasury and prefers to let the courts of law decide to decide the question later; as the Clause is now worded, he cannot do that, but must be treated according to the directions of the Treasury.
A man who lives nine months in the United States and three months here may be advised, and may believe, that he is resident in the United States. But if, 862 during the three months he is here, he has a flat which he keeps for the rest of the year and sublets, under the Income Tax rules he may be resident in both countries, and he may get a direction from the Treasury saying that he is resident in the United Kingdom. Surely in a case much more important than any Income Tax case there should be some tribunal to which he could appeal, there should be some way in which he could contest the direction of the Treasury, but there is not. The next best thing is for some test to be laid down with a certain amount of definiteness in the regulations, so that the man may have advice. If this Amendment were accepted, the best persons to advise him would be his bankers, who would know, more or less, whether he was resident inside or outside the United Kingdom.
I do not think the Government have realised the difficulties which will arise in advising people as to their position in the cases of persons who have not got a direction from the Treasury, and in the cases of persons who have got directions but who have been wrongly described. In the first type of case they do not know where they are; and in the second type of case they have no redress. At the present moment there is a definition of residence in this country in the Defence Regulations, and there are definitions of residence also in the Income Tax Acts. There is a body of law dealing with residence for voting, a whole mass of authority ranging over the 18th and 19th centuries to decide what residence for the purpose of voting is. It has led to a lot of expensive litigation and perhaps I should not be opposing that, but I do because, joking apart, it is too serious a matter in which to leave the definition of residence to be worked out, slowly and not too surely, by the courts of this land, with appeals ranging all the way up—that is in the case of people who have not had direction, and people who have had direction.
I cannot see anything in the Bill which allows a man the slightest appeal. If there is a body of regulations which sets out the circumstances under which a person may be treated, he has something to look to. He could see how he would be treated if he had been a resident for a certain time in this country, or if he had been an agent of a foreign corporation and had a place of business. There 863 is some test in these cases. It seems that the Treasury are not bound to apply these tests in directing him, and maybe the courts of law will evolve such tests through case law. In the case of a person who gets a direction, there is no reference to the Treasury having to pay regard to any such circumstances, and no one knows how the Treasury are to decide the question of residence, and to which points they are to give attention.
In my submission, the Government are making a grave mistake, and it is a mistake which will be fundamental in the working of this Bill, because most of the Clauses start off with ''where a person is resident," or "where a person is not resident." These people are to be left entirely in the dark when this Bill becomes an Act—and apparently it is to be in operation for a very long time—if an Amendment is not made. It seems to me nothing short of a scandal that persons should be unable to tell how they are to be deemed to be resident where there is to be no direction, and that where there is direction they should be left entirely without appeal. I seriously ask the Solicitor-General, if he thinks there is any merit in what I have said, to consider this matter very carefully and give these people a safeguard, that is in the case of people who have been given a direction who think a genuine mistake has been made and that the Treasury have paid consideration to what they think should not have been considered. They should have the opportunity to appeal to some impartial person or body, like the Special or General Commissioners, to decide. For these reasons, I support this Amendment.
§ Mr. Turner-Samuels (Gloucester)Two objections have been levelled against this Clause, the second of which, I think, was the stronger of the two, although I do not agree with either. The first was that this particular Subsection was probably retrospective and that that was objectionable, and the second was that there ought to be tests adumbrated and defined with regard to the question of residence. Let me deal with the first objection. I was rather surprised to hear the right hon. and learned Member for Hillhead (Mr. J. S. C. Reid) suggest that this Clause might be of a retrospective character. There is a very well known rule, with regard to legislation, that a provision is not to be construed as retrospective unless it deals with 864 some procedural machinery. Where there are rights that have been previously vested, rights of any character at all, they cannot be retrospective unless it expressly says so. This would particularly apply to a case where a crime or a penalty was involved. The position in our law is beyond doubt: this sort of legislation cannot be retrospective unless it expressly says so. That is an absolute rule of construction, and I was, therefore, very surprised to hear what the right hon. and learned Gentleman opposite said. After all, he is a very eminent lawyer. I think we can put this question of retrospectivity entirely out of our minds, because I do not think the contention is at all valid.
I now answer the second objection to the Clause. I agree that, prima facie, when you are making the question of residence or not a condition on which criminal charges are to succeed or not, then the question of having some test is a very serious matter. In the ordinary way, say in the case of Income Tax, it is a comparatively easy matter because, geographically, you have it in your own country. I can see that in the permutations and ramifications of this Bill it may well be that you may get residence even where the person is not in this country. It would be most difficult to try and exhaust the illustrations or categories under which the question of residence is to be established or defined. That would mean that if you attempted a definition or stated tests the very person or persons you are after would be provided with the loophole you are anxious to avoid. That would defeat one of the main purposes of the Bill.
I agree that this is a serious and important matter, but the only practical thing that we can do is that which is prescribed by this Clause. It states that in any case where it is intended to determine the question of residence of a particular person the Treasury will issue directions saying whether, in the particular circumstances, that person is to be regarded as being resident or non-resident here. That seems reasonable and sensible. It seeks to set out and deal with the specific circumstances of the case which is before the Treasury, who will say, "Looking at these circumstances it is clear that this case is within purpose of the Act. If they are not so determined, this man would be defeating the Act." Therefore, the Treasury make a direction 865 which will embrace and satisfy the conditions of residence and, in those circumstances, that is the only practical provision that can be made in a matter of this kind.
§ Mr. J. FosterWould the hon. and learned Gentleman assume for a moment that the Treasury are wrong, that they give a wrong direction, that they are wrong in saying that a man is resident in this country when he is, in fact, resident in the United States? Will he assume (a) that he is prosecuted, and (b) that he is trying to do something which only a nonresident should do? Will the hon. and learned Gentleman say what will happen?
§ 8.45 p.m.
§ Mr. Turner-SamuelsI am not going to presume that the present occupants of the Treasury Bench could possibly be wrong. But for the sake of argument, supposing this were so, then of course a man would have such rights as he is entitled to in the particular circumstances.
§ Mr. Turner-SamuelsI do not accept that. In my submission, a man can make an application to court. He may be arrested and by a writ of habeas corpus, or by some remedy of that kind, he may make an application to the courts. It is clear to my mind that if a direction were given that this man was resident abroad, in obviously unsustainable circumstances, for the purpose of this Bill, he certainly would have his remedy in that respect. Whether that is so or not, is beside the point for which. I was contending, namely, that unless there is a provision of this kind in the Bill, it is absolutely impossible to exhaust by definition or stated tests the whole of the categories under which you can say a man was resident here or not resident. There may be exceptional circumstances, which may occur in only one particular case, and I say that it is impossible, if that is so, to do what this Amendment says and define the whole circumstances in the way indicated. In those circumstances, the only practical thing to do is what has been done
§ Mr. H. StraussIt is difficult, I know, for lawyers who have studied this subject to make quite clear to those who have not. 866 exactly how shocking this Clause is, as it now stands. The learned Solicitor-General deals with this matter with so much apparent reason, and so much charm and courtesy, that when he is talking what is very nearly nonsense that fact is overlooked. The hon. Member for Northwich (Mr. Foster), as has been said by the hon. and learned Member for Gloucester (Mr. Turner-Samuels), is a great authority on the subject on which he has just been addressing the Committee. But let us look at what this Clause does. It enables the Treasury to decide controversial questions of fact and of law and to decide them finally on their own ipse dixit. The hon. and learned Member for Gloucester was, in my submission, wholly wrong in his reply to my hon. Friend when he suggested that, if the Treasury made a complete mistake, and said that a man was resident somewhere where he was clearly not resident, there would be some remedy for the person wrongly dealt with. I thought it proper, when Clause 35 was before the Committee to draw the Solicitor-General's attention to the Clause which we are now considering, because I thought that it affected his argument even there. I see nothing impossible, under this Clause as it now stands, in the Treasury making a declaration that the whole of the Australian Cabinet are resident in England. I should be interested to know from whoever is to reply for the Government, where one finds any prohibition against such an action being taken, which would quite clearly affect the Statute of Westminster.
A question has been raised on which I, as a lawyer, should have some hesitation in expressing an opinion, namely, whether this Clause is retrospective or not The Solicitor-General says that, in his opinion, it is not; and my right hon. and learned Friend the Member for Hillhead (Mr. Reid) thought that it was at least arguable that it is For my own part, in dealing with two such eminent authorities, I shall not express any view, but I will assume that the Solicitor-General is right. I am going to assume in his favour that this Clause is not retrospective; but the direction of the Treasury, even if it is not retrospective, acts presumably from the moment it is given, whether anybody is aware of it or not I wonder whether the hon. and learned Gentleman the Solicitor- General has considered how that would affect a 867 gentleman giving legal advice on a matter under Clause 29. Under that Clause, which deals with settlements and with residence at the time of the making of the settlement, how on earth is anybody to give any advice with any confidence if he is ignorant of what directions the Treasury may just have given, even if the Solicitor-General is right and the directions are not retrospective?
Of course, everybody who has practised in the courts knows well that the question of residence is a matter that the courts often have to consider, both as regards fact and as regards law. I remember in my own experience once having been sent to Berlin to cross-examine a gentleman on commission to find out where he was resident on 10th January, 1920, the date on which the peace treaty came into force, because that was the great question at issue. The courts frequently under past treaties, and quite possibly under the treaties that will result from the late war, have to consider questions of residence. Are we really to take entirely out of the purview of our courts both the principles on which residence has to be decided, and also the facts of the individual case? Residence is, of course, different from domicile. I believe the generally accepted definition, if my memory is correct, is that residence means habitual presence; but that involves questions of fact, and is it really to be said that the Treasury should be entitled to take arbitrary and unfettered action?
I venture to make a prophecy—I may be wrong. If the Government Front Bench are adamant in this Committee, they may find themselves thrown over in another place, when the Lord Chancellor brings his legal acumen to bear on this subject. I am sure that right hon. Gentlemen, if they consider the matter, will realise that the principle should be made certain and declared in the Bill, and that some tribunal should decide whether an individual man does or does not come within the description. Unless that is done, clearly injustice may be caused. The only argument of the Solicitor-General is that what has been put in the Bill is administratively convenient. Tyranny is often convenient, and arbitrary tyranny may be most convenient, but the point is that it is monstrous, and unworthy of a civilised country.
The Solicitor-GeneralWhen I spoke before on this Amendment, I was endeavouring to meet the argument which had been adduced by the right hon. and learned Gentleman the Member for Hill-head (Mr. J. S. C. Reid), that this was a monstrous Clause because it was retrospective. That position I now perceive has been abandoned by hon. Gentlemen opposite, so that the door can be closed on that type of argument. The hon. Member for Northwich (Mr. J. Foster) adduced quite different arguments. He asked me whether I thought there was any merit in them, and if I may say so without any presumption, I thought there was great merit in many of his arguments. I think he made a strong case for the Clause as it stands. In the Clause as it stands, as has been pointed out, there is a difficulty of defining whether any individual is resident or not. It is, however, for the convenience of persons affected, and to denounce it as a kind of tyranny is so wide of the mark that it seems to me to approach the description that the hon. and learned Member for the Combined English Universities (Mr. H. Strauss) applied to my own argument.
The hon. Member for Northwich asked was there any provision in the Bill to define residence at a date anterior to that, on which the declaration is made. I replied there was not, and he said that there would be difficulty over that. That is a point in which there is some substance, but it is not so forcible as it appears at first sight, because the Defence Regulations had almost a precisely similar provision in them. I am not using it as an argument that because it was in the Defence Regulations, it should be in this Bill, but I am using it to show, in point of fact, a great many people—I do not know whether numerically they comprise a greater part of the number concerned—have already had their accounts classified by reference to their residence under this Defence Regulation. So, with regard to the point made by the hon. Member for Northwich, a great many of these persons have banking accounts and have classifications as to residence because of those banking accounts. That will lessen considerably the force of his argument but I do not want to brush it aside with disrespect.
He went on to say that at least there should be something in the nature of a 869 definition of residence. He told us that residence was a term difficult to define, and he said it might be understood in different ways and under different connotations. In fact, it is a term well understood in the commercial world. It is used constantly, and it has a generally accepted meaning, which all businessmen would readily understand. It is a question, therefore—and I do not want to be dogmatic or pigheaded about it—whether it is not better to leave it as it is, rather than define it.
The Amendment does not suggest a definition. If it had, we should have considered it. I would readily now consider a definition, and if it seemed to my untutored judgment, an improvement on the Clause, I would be prepared to consider whether it ought to be accepted. However, my own feeling about it—and I ask the Committee to say that it is not an unreasonable view—is that there has been difficulty in regard to definition and "residence" being a term readily understood in the commercial world, it is better to leave it as it stands in the Bill. That is the conclusion we arrived at in preparing the Bill to be submitted to this House. Having regard to the difficulty of combining in a definition all that goes to make up the meaning of the word "residence" it was thought better not to attempt a definition. It has already worked under a Defence Regulation. I quite agree that those were wartime regulations—
§ Mr. StanleyWas there a definition under those regulations?
§ 9.0 p.m.
The Solicitor-GeneralNo, there was no definition, but the provision was used in the Defence Regulation. I do not want to press that argument further, except to say that there is a case in which it worked, on the whole satisfactorily during the six years that the regulations were in force. In all the circumstances, we felt it better to leave it as it is, but as I say, we do not want to be pigheaded or dogmatic about it. We would listen with attention to arguments from the opposite side of the Committee, as well as from my hon. Friends, on any definition that was proposed. None has been proposed, but if one were put forward we would consider it—I do not say that we would accept it—and see if we could, by using it, improve the wording of the Clause. But, 870 having heard the arguments I, personally, feel convinced, and I urge upon the Committee the view, that a definition would not improve the subparagraph and that as it stands it will serve a more useful purpose.
The very doubt which a number of people will feel with regard to their residence can be resolved for them by a simple administrative act. The hon. Member for Northwich says there will be no appeal against the declaration made by the Treasury. That is true, but on the other hand I would remind the Committee that in all cases which go to arbitration there is, on a question of fact, ho appeal. The arbitrator's decision on a question of fact, so long as he does not misdirect himself in law, is final and conclusive. Here the circumstances are not the same but they are not so wholly different as to make them unworthy to be taken into account. The Treasury, in a case of doubt, can declare that a person who has not hitherto had his residence declared may ask that it should be declared for them. Admittedly, there is no appeal, but on the other hand, Clause 37 gives power to the Treasury to revoke, alter or vary their decision at any moment, and they will not behave as unreasonably as all that, if a person whose residence has been declared, comes to them and says that it is a mistake. They have full power to admit their mistake and alter the declaration. The matter should not remain in the air to be declared ultimately by some court or other. The thing has worked perfectly well, and is designed to advance the convenience of those concerned. I hope I have dispelled the argument based upon the view that this was oppressive and ex post facto. I still have an open mind on the point, but I have heard no case made out for a definition; no definition is suggested in the Amendment, and for those reasons, I ask the Committee to say that the Clause had better stand as it is.
§ Mr. J. S. C. ReidAny doubt which I had as to whether we ought to press this Amendment has been removed by the Solicitor-General's last speech. I have seldom heard such a curious argument from a lawyer. The hon. and learned Gentleman says that the word "residence" is readily understood, but can be neither defined nor interpreted. Coming from a lawyer, that does seem to me to be very curious. Then he says that 871 if there is to be a definition, it is the duty of the Opposition to draft Bills for His Majesty's Government because they cannot do it themselves. I am not going to press the point about retrospective effect, since I am not altogether clear about it, but the Solicitor-General has not tried to meet any of the other points which were raised. A system is to be built up here under which there is nothing said in advance of the grounds on which judgment will be given. When judgment is given no reason is advanced and no appeal can be taken. Anything more remote from our idea of everyone being equal before the law, and know-
| Division No. 32. | AYES | 9.5 p.m. |
| Adams, Richard (Balham) | Davies, Edward (Burslem) | Hoy, J. |
| Adams, W. T. (Hammersmith, South) | Davies, Ernest (Enfield) | Hughes, Hector (Aberdeen, N.) |
| Allen, A. C. (Bosworth) | Oaviet, Harold (Leek) | Hughes, H. D. (Wolverhampton, W.) |
| Allen, Scholefield (Crewe) | Davies, Hadyn (St. Pancras, S.W.) | Hutchinson, H. L. (Rusholme) |
| Alpass, J. H. | Davies, R. J. (Westhoughton) | Hynd, H. (Hackney, C.) |
| Anderson, F. (Whitehaven) | Davies, S. O. (Merthyr) | Hynd, J. D. (Attercliffe) |
| Attewell, H. C. | Deer, G. | Irving, W. J. |
| Austin, H. L. | Diamond, J | Isaacs, Rt. Hon. G. A. |
| Awbery, S. S. | Dobbie, W. | Jay, D. P. T. |
| Ayles, W. H. | Dodds, N. N. | Jeger, G. (Winchester) |
| Ayrton Gould, Mrs. B. | Donovan, T. | Jones, D T. (Hartlepools) |
| Bacon, Miss A. | Driberg, T. E. N. | Jones, J. H. (Bolton) |
| Baird, J. | Dugdale, J. (W Bromwich) | Jones, P Asterley (Hitchin) |
| Balfour, A. | Dye, S. | Keenan, W. |
| Barstow, P. G. | Ede, Rt. Hon. J. C. | Kenyon, C |
| Barton, C. | Edwards, A. (Middlesbrough, E.) | Key, C. W. |
| Battley, J. R. | Edwards, John (Blackburn) | Kingdom, Sqn.-Ldr. E. |
| Bechervaise, A. E. | Edwards, N. (Caerphilly) | Kinley, J. |
| Bellinger, Rt. Hon. F. J. | Edwards, W. J. (Whitechapel) | Kirby, B. V. |
| Benson, G. | Evans, E. (Lowestoft) | Lang, G. |
| Berry, H. | Evans, S. N. (Wednesbury) | Layers, S. |
| Bing, G. H. C. | Ewart, R. | Lawson, Rt. Hon. J. J. |
| Binns, J. | Farthing, W. J. | Leslie, J. R. |
| Blackburn, A. R. | Fletcher, E. G. M. (Islington, E.) | Levy, B. W. |
| Blenkinsop, A. | Follick, M. | Lewis, J. (Bolton) |
| Blyton, W. R. | Foot, M. M. | Lindgren, G. S. |
| Boardman, H. | Fraser, T. (Hamilton) | Lipson, D. L |
| Bowden, Flg.-Offr. H. W. | Gaitskell, H. T. N. | Lipton, Lt.-Col. M. |
| Bowles, F. G. (Nuneaton) | Ganley, Mrs. C. S. | Longden, F. |
| Braddook, Mrs. E. M. (L'pl, Exch'ge) | Gibson, C. W. | Lyne, A. W. |
| Braddock, T. (Mitcham) | Gilzean, A. | McAdam, W. |
| Bramall, Major E A. | Glanville, J. E (consett) | McEntee, V. La T |
| Brook, D. (Halifax) | Gooch, E. G. | McGhee, H. G. |
| Brown, T. J. (Ince) | Goodrich, H. E. | Mack, J. D. |
| Bruce Maj. D. W. T. | Gordon-Walker, P. C. | McKay, J. (Wallsend) |
| Burke, W. A. | Greenwood, A. W. J. (Heywood) | Mackay, R. W. G. (Hull, N.W.) |
| Callaghan, James | Grenfell, D. R | McLeavy, F. |
| Castle, Mrs. B. A. | Grey, C. F. | MacMillan, M. K. (Western Isles) |
| Chamberlain, R. A | Grierson, E. | McNeil, Rt. Hon. H. |
| Champion, A. J. | Griffiths, D (Rolher Valley) | Macpherson, T. (Romford) |
| Chater, D. | Gunter, R. J. | Mainwaring, W. H |
| Chetwynd, G. R. | Guy, W. H. | Mallalieu, J. P. W. |
| Clitherow, Dr. R | Haire, John E. (Wycombe) | Manning, Mrs. L. (Epping) |
| Cluse, W. S. | Hale, Leslie | Marquand, H. A. |
| Cobb, F. A. | Hall, W. G. | Mathers, G |
| Cocks, F. S. | Hamilton, Lieut.-Col. R | Mayhew, C. P |
| Coldrick, W. | Hannan, W. (Haryhill) | Medland, H. M. |
| Collick, P. | Hardy, E. A. | Mellish, R. J. |
| Colman, Miss G. M. | Harrison, J. | Messer, F |
| Comyns, Dr. L. | Hastings, Dr. Somerville | Middleton, Mrs. L |
| Cooper, Wing-Comdr. G. | Henderson, A. (Kingswinford) | Mitchison, Maj. G. R. |
| Corbet, Mrs. F. K. (Camb'well, N.W) | Henderson, Joseph (Ardwick) | Monslow, W |
| Corlett, Dr. J. | Hewitson, Capt M. | Moody, A. S. |
| Cove, W. G. | Hobson, C. R. | Morgan, Dr. H. B. |
| Crossman, R H. S. | Holman, P. | Morris, P. (Swansea, W.) |
| Daggar, G. | Holmes, H. E. (Hemsworth) | Morrison, Rt. Hon. H. (Lewisham, E.) |
| Daines, P. | Horabin, T. L. | Mort, D. L |
| Dalton, Rt. Hon. H. | House, G. | Moyle, A. |
§ ing what the law is, I find hard to imagine. This is pure administration—decisions taken not necessarily in the light of the circumstances but in the light of what the Treasury would like to see with regard to a particular person's financial transactions. We cannot possibly accept criteria of that sort for the administration of an Act of Parliament, and I feel that we must therefore support our Amendment in the Division Lobby.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided: Ayes, 272; Noes, 101.
| Naylor, T. E. | Sargood, R. | Ungoed-Thomas, L. |
| Nichol, Mrs. M. E. (Bradford, N.) | Scollan, T. | Usborne, Henry |
| Nicholls, H. R. (Stratford) | Scott-Elliot, W. | Viant, S. P. |
| Noel-Baker, Capt. F. E. (Brentford) | Shackleton, Wing-Cdr. E. A. A. | Walkden, E. |
| Noel-Baker, Rt. Hon. P. J. (Derby) | Sharp, Granville | Walker, G. H. |
| Noel-Buxton, Lady. | Shurmer, P. | Wallace, G. D. (Chislehurst) |
| Oldfield, W. H. | Silverman, J. (Erdington) | Wallace, H. W. (Walthamstow, E.) |
| Oliver, G H. | Silverman, S. S. (Nelson) | Webb, M. (Bradford, C.) |
| Paget, R. T. | Simmons, C. J. | Weitzman, D. |
| Paling, Rt. Hon. Wilfred (Wentworth) | Skeffington-Lodge, T. C. | Wells, W. T. (Walsall) |
| Pargiter, G. A. | Smith, C. (Colchester) | West, D. G. |
| Parker, J. | Smith, H. N. (Nottingham, S.) | Westwood, Rt. Hon. J. |
| Parkin, B. T. | Smith, S. H. (Hull, S.W.) | White, C. F. (Derbyshire, W.) |
| Paton, Mrs. F. (Rushcliffe) | Snow, Capt. J. W. | White, H. (Derbyshire, N.E.) |
| Paton, J. (Norwich) | Solley, L. J. | Whiteley, Rt. Hon. W. |
| Pearson, A | Sorensen, R. W. | Wigg, Col. G. E. |
| Peart, Capt. T. F. | Soskice, Maj. Sir F. | Wilkes, L. |
| Perrins, W. | Sparks, J. A. | Wilkins, W. A. |
| Poole, Major Cecil (Lichfield) | Stamford, W. | Willey, O. G. (Cleveland) |
| Porter, E. (Warrington) | Steele, T. | Williams, D. J. (Neath) |
| Porter, G. (Leeds) | Stephen, C. | Williams, J. L. (Kelvingrove) |
| Proctor, W. T. | Stewart, Capt. Michael (Fulham, E.) | Williams, W. R. (Heston) |
| Pursey, Cmdr. H. | Strauss, G. R. (Lambeth, N.) | Willis, E. |
| Randall, H. E. | Stubbs, A. E. | Wills, Mrs. E. A. |
| Ranger, J. | Symonds, A. L. | Wise, Major F. J. |
| Rankin, J. | Taylor, H. B. (Mansfield) | Woods, G. S. |
| Rees-Williams, D. R. | Taylor, R. J. (Morpeth) | Wyatt, W. |
| Reeves, J. | Taylor, Dr. S. (Barnet) | Yates, V. F. |
| Reid, T. (Swindon) | Thomas, John R. (Dover) | Young, Sir R. (Newton) |
| Rhodes, H. | Thomas, George (Cardiff) | Zilliacus, K. |
| Robens, A. | Thorneycroft, Harry (Clayton) | |
| Roberts, Goronwy (Caernarvonshire) | Tiffany, S. | TELLERS FOR THE AYES: |
| Robertson, J. J. (Berwick) | Tolley, L. | Mr. Collindridge and |
| Royle, C. | Turner-Samuels, M. | Mr. Popplewell. |
| NOES. | ||
| Agnew, Cmdr. P. G. | Gage, C. | Peto, Brig. C. H. M. |
| Assheton, Rt. Hon. R. | George, Maj. Rt. Hon. G. Lloyd (P'ke) | Pitman, I. J. |
| Astor, Hon. M. | Gomme-Duncan, Col. A. G. | Prescott, Stanley |
| Baldwin, A. E. | Grant, Lady | Price-White, Lt.-Col. D. |
| Barlow, Sir J. | Gridley, Sir A. | Prior-Palmer, Brig. O. |
| Beamish, Maj. T, V. H. | Hare, Hon. J. H. (Woodbridge) | Rayner, Brig. R. |
| Beechman, N. A. | Harvey, Air-Comdre. A. V. | Reed, Sir S. (Aylesbury) |
| Birch, Nigel | Hinchingbrooke, Viscount | Reid, Rt. Hon. J. S. C. (Hillhead) |
| Boles, Lt.-Col. D. C. (Wells) | Holmes, Sir J. Stanley (Harwich) | Roberts, H. (Handsworth) |
| Boyd-Carpenter, J. A. | Hope, Lord J. | Robinson, Wing-Comdr. Roland |
| Braithwaite, Lt.-Comdr. J. G. | Hudson, Rt. Hon. R. S. (Southport) | Salter, Rt. Hon. Sir J. A. |
| Bromley-Davenport, Lt.-Col. W. | Hulbert, Wing-Cdr. N. J. | Sanderson, Sir F. |
| Buchan-Hepburn, P. G. T. | Hurd, A. | Shepherd, W. S. (Bucklow) |
| Butcher, H. W. | Jennings, R. | Spearman, A. C. M. |
| Carson, E. | Joynson-Hicks, Lt.-Cdr. Hon. L. W. | Stanley, Rt. Hon. O. |
| Channon, H. | Lambert, Hon. G. | Stoddart-Scott, Col. M |
| Clifton-Brown, Lt.-Col. G. | Legge-Bourke, Maj. E. A. H. | Strauss, H. G. (English Universities) |
| Conant, Maj. R. J. E. | Lindsay, M. (Solihull) | Sutcliffe, H. |
| Cooper-Key, E. M. | MacAndrew, Col. Sir C. | Taylor, C. S. (Eastbourne) |
| Corbett, Lieut.-Col. U. (Ludlow) | Macdonald, Sir P. (Isle of Wight) | Taylor, Vice-Adm. E. A. (P'dd't'n, S.) |
| Crookshank, Capt. Rt. Hon. H. F. C | Mackeson, Brig. H. R. | Teeling, William |
| Crosthwaite-Eyre, Col. O. E. | Maclean, Brig. F. H. R. (Lancaster) | Thomas, J. P. L. (Hereford) |
| Cuthbert, W. N. | Macmillan, Rt. Hon. Harold (Bromley) | Thornton-Kemsley, C. N. |
| Davidson, Viscountess | Maitland, Comdr. J. W. | Touche, G. C. |
| De la Bère, R. | Manningham-Buller, R. E. | Turton, R. H. |
| Digby, S. W. | Marlowe, A. A. H. | Walker-Smith, D. |
| Dodds-Parker, A. D. | Marshall, D. (Bodmin) | Watt, Sir G. S. Harvie |
| Dower, Lt.-Col. A. V. G. (Penrith) | Marshall, S. H. (Sutton) | Wheatley, Colonel M. J. |
| Drewe, C. | Mellor, Sir J. | White, J. B. (Canterbury) |
| Eccles, D. M. | Morris-Jones, Sir H. | Willoughby de Eresby, Lord |
| Erroll, F. J. | Morrison, Rt. Hon. W. S. (Cirencester) | Winterton, Rt. Hon. Earl |
| Fletcher, W. (Bury) | Mott-Radclyffe, Maj. C. E. | |
| Foster, J. G. (Northwich) | Neven-Spence, Sir B. | TELLERS FOR THE NOES |
| Fraser, Sir I. (Lonsdale) | Nield, B. (Chester) | Sir Arthur Young and |
| Fyfe, Rt. Hon. Sir D. P. M. | Noble, Comdr. A. H. P. | Major Ramsay. |
§ Clause ordered to stand part of the Bill.