HC Deb 16 May 1949 vol 465 cc190-202
Mr. Pickthorn

I beg to move, in page 2, line 9, to leave out "declared," and to insert "provided."

I am a little diffident about this because it is a legal question on which I am conscious of having no professional, and possibly no other, competence. But it seems possible that there is a matter of considerable principle involved here, and if there is, then I feel sure that there is a considerable matter of practical importance arising out of this point. Subsection (1), leaving out the draftsman's necessary verbiage, is in effect as follows: "It is hereby declared that the Republic of Ireland is not a foreign country, nor are Irishmen foreigners." That is putting it rather in drawing room than law court language, but I think it is putting it fairly.

I ask the Committee to consider some of the things said on Second Reading on this point. The Prime Minister said: If we had had to attempt to make all the citizens of Eire aliens, it would have involved a great expenditure of men and money."— And again a little later: Clause 2 (1) declares that the Republic of Ireland shall not be a foreign country."—(OFFICIAL REPORT, 11th May, 1949; Vol. 464, c. 1861–4.) He slips, in the second instance, into using words not really appropriate if what is being done is declaratory—not "is not" a foreign country, but "shall not be" a foreign country. Later in the same paragraph he does the same thing, and in col. 1868 says: It is retrospective to 18th April, 1949"— —"it is," this is a declaratory Bill.

12 m.

The Lord President of the Council is even plainer in his declaration that Ireland is not a foreign country and Irishmen are not foreigners. He says it over and over again. In Column 1962 he says: Ireland without this Bill is a foreign state. In column 1965: Ireland is a foreign State and Irish folk are foreigners. In 1966, though this is irrelevant to my argument, it is slightly humorous, he says: They vote heavily for Labour candidates. Nor was it only the principal Government spokesman who continually assumed that at this moment and without this Bill Ireland is a foreign country and Irishmen are foreigners; it was also assumed by the principle spokesmen on the Opposition Front Bench and my more than one back bencher on the Government side.

I hope I have made plain the contrast between the apparent declaratory purpose of the Bill and the fact that on the arguments on which the Bill has been presented to us declaration would not be enough, and it would be necessary to alter the law. I say this is carrying the doctrine of Parliamentary omnicompetence far beyond the point of logical completeness to where it topples over into the merest nonsense. However much the Prime Minister may begin with the usual English self-flattery of how we are all far too clever to be logical and all the better for that, I think it is not certainly true that logic is made for man rather than man for logic, nor is it even certainly true that law is made for man—rather than man for law. It may well be debated that the difference between men and beasts is that men regard Law and logic as having a higher and more real existence even than themselves.

I speak with great deference and if the learned Attorney-General tells me that I am deviating into complete nonsense, I am willing to take his word for it, but it seems to me that this is maybe the most important effect of this. Though here we are legislating only for people within the purview of Parliament, yet that legislation must have effects upon foreigners. I should like to be told, if there is a certain plain answer, is it plainly certain that the Hague Court or the United Nations would, as a matter of course and without the possibility of dispute, hold that where the English Parliament has declared something to be law, which was admitted during the process of that declaration not to be law, foreign and international courts would hold that that was effective to make law? I hope the point is plain. I know it is slightly complicated and may seem slightly theoretical. I fully understand that when Parliament declares something is law, then it is law. I fully understand that when Parliament declares that something always has been the law, then for the purpose of the law courts it always has been law, though historians may be able to demonstrate that in fact it was not so. It is not so plain that it is morally or intellectually tolerable that we should purport to declare what should be the law when we have said in the debates on the passing of the Bill it is not the law.

With great deference to people professionally qualified, I am not certain that a statute so passed in such terms for such reasons would necessarily be held outside this country, perhaps even in the Dominions, to have the effect of altering the law where it purports to declare the law, and plainly on the face of it would not truly do what it was purporting to do. I do not assume that all of my argument is true; but I think that I might fairly say that if there is any considerable amount of truth in my argument, I think that either this Amendment to substitute for the word "declared," the word "provide," or some Amendment of similar effect preferred either by the Treasury Bench or by the draftsmen, ought to be accepted by the Committee.

The Attorney-General

I am not sure, Mr. Bowles, whether I am right in thinking that we are discussing with this Amendment also the Amendment at line 11.

The Deputy-Chairman indicated assent.

The Attorney-General

I am much obliged. That being so, I am sure that you will be gratified to know that the senior Burgess for Cambridge University (Mr. Pickthorn) agrees with you. We move now from the stormy seas of politics to the placid but pedantic backwater of legal phraseology. The effect of the Amendment is to turn subsection (1) of Clause 2 from the declaratory form into an enactment which sets out deliberately to change the law. The aptness of that depends upon the view taken of what the existing law may be. The view of the Government's present advisers on that matter is that the provisions of the British Nationality Act of 1948 in any event prevent citizens of the Republic of Ireland from being aliens in our law. That being our view, the declaratory form of words, rather than the enacting form, is the more appropriate.

The hon. Member who moved this Amendment was at some pains to refer to observations made during the Second Reading Debate; but on a matter of the drafting involving a question of law the Committee will not wish to take too literally the phrases which were used not in this precise context, on the Second Reading. That will be particularly the view of the Committee since the Lord Chancellor, not once but three times, made clear in another place his view about the law in regard to this matter. Our view is that this subsection correctly declares what the existing law in fact is.

The hon. Member asked me if I would give any guarantee as to what the Hague Court or some other foreign court might say on this matter. I have been in practice at the Bar a little too long to guaran- tee what any court might say about anything. I would not attempt now to give a guarantee as to the view that the Hague Court or any other foreign court might take.

Mr. Pickthorn

With apologies, may I say since the right hon. and learned Gentleman is referring specifically to something which I said, that I made no use of the word "guarantee." I asked whether he could say what he thought might, or might not, be the view on this matter if it came before a foreign court.

The Attorney-General

If the hon. Member will read tomorrow what he has said, and it will be a melancholy task which I do not really commend to him, he will find that he put it much more strongly. Although he did not use the word "guarantee," he asked me to assure the Committee that the Hague Court would take a particular view. I can only say that I am not prepared to commit myself to the view that the Hague Court might take. These matters are arguable, and different views might be taken about them. The House of Commons cannot legislate for the Hague Court. All it can do is to legislate for our own courts. Even these powers have been a matter about which doubt was felt, because although the Lord Chancellor took one view, another learned and noble Lord took another. As this is a matter on which doubt is felt, the appropriate course, it seemed to us, was to legislate for it in this Bill by means of a declaration. That is the course which Parliament commonly follows when it desires to remove doubts about a matter which has hitherto been in dispute.

Mr. J. Foster

I gather that the view of the right hon. and learned Gentleman is based on the British Nationality Act; if that be the case, I would remind him that there is there reference to foreign built ships and aircraft, but that does not depend on the Nationality Act. Does he really ask the Committee to take the view that a ship or aircraft built in the Republic of Ireland is not a foreign built ship?

The Attorney-General

If all the citizens of a particular territory are not aliens, then that territory is not an alien territory. That view may be wrong; but that is the view which we take. I am always prepared to admit that there will be on this, as on all other legal matters, other lawyers who take a different view.

I venture to add this. Strictly legalistic reasons are not really the ones which lead us to think that the existing form of words are the more attractive. We feel that it is the facts, and the historical associations between the two countries; the innumerable relations between our respective citizens; our geographical contiguity; our ties of business and a hundred and one other ties of a non-legal nature, which ought to lead us to think of the Republic of Ireland as different from a foreign country. That is the theory on which we have proceeded; it is based on what is a continuing state of affairs and is, we think, better enunciated in a declaration rather than by a deliberate enactment and a change in the law.

I would say to the senior Burgess for Cambridge University that, from an international point of view, it would no doubt be better that the matter should be expressed in our statutes in a declaratory form. If we had made a deliberate change in the law, our argument before an international court might be more difficult than otherwise it would be. We have adopted this typically English solution for a typically Irish problem and, in any event—although this might well be corrected—the Amendments in the form in which they have been put by the senior Burgess are defective. They indicate an inaccurate view of history, I think, in suggesting, as the second Amendment suggests, that the Republic of Ireland shall not be regarded as having ever been foreign. What he teaches the undergraduates about the position of Ireland before the Plantagenet kings, for example, I do not know, but I am afraid I cannot accept his Amendments.

Mr. Boyd-Carpenter

If the right hon. and learned Gentleman's statement of the existing law is correct, I consider that the declaratory form is right; but what, to my mind, is astonishing, is that the advice he has just given differs not only from that given to this House on the Second Reading by the Lord President of the Council (Mr. Morrison) and, therefore, presumably from the advice which the Law Officers tendered to His Majesty's Government at an earlier stage. It is no use the Attorney-General throwing his senior officer overboard.

The Attorney-General

The Lord Chancellor, many months ago, gave advice, and I hope the hon. Gentleman is not challenging the accuracy of what I have said.

12.15 a.m.

Mr. Boyd-Carpenter

Whatever the Lord Chancellor might have said in another place, if he said it some months ago it was before the Dublin Government produced their Measure which is the cause of this Measure, and before discussion of this Bill which has not yet been to another place. In his winding-up speech on Second Reading, the Lord President of the Council said this: Indeed it raised the most grave issues because without this Bill, the Republic of Ireland would be a foreign State with all the consequences that that involves, both there and to Irish folk in this country."—[OFFICIAL REPORT, 11th May, 1949; Vol. 464, c. 1962.] One is entitled to ask, when that statement has been given to this House by the Leader of the House in winding-up for the Government on a major Bill, if that statement is made after advice has been tendered to the Government by the responsible Law Officers of the Crown? It is really intolerable that this House should be asked to give a Second Reading to this Bill which is of high constitutional importance, and that it should transpire on the Committee stage that the advice given to this House on behalf of the Government was completely inaccurate. Indeed, as I understand it, the very reason that this Committee is sitting at this late hour to discuss this highly important constitutional question is that it was believed that there was urgency in the matter, because Irish nationals had become foreigners since Easter Monday.

If the right hon. and learned Gentleman's view is that these Irishmen are not foreigners, I would respectfully ask him what is the urgency of this Measure? Why is it necessary for this Committee to be sitting at 12.15, with the prospect of sitting for a considerable time, to discuss these highly important matters? I think we are entitled to be told that, because if the learned Attorney-General's advice is right, the one sound and reasonable argument for the urgency of getting this Measure into law before Whitsun has disappeared.

I would not, as I know the learned Attorney-General's professional qualities, venture to challenge the proposition that he made were it not for the fact that it is now a new proposition so far as the Government are concerned. It therefore raised the question as to whether adequate consideration has been given to this matter. Can the Attorney-General tell me whether he has studied the situation which arose after the departure of the United States from the then British Empire? The advice which was then tendered to the Government of that day was given by the Law Officers of the Crown who included, as he knows, the very distinguished lawyer who later became better known as Lord Lyndhurst. Has he studied that too? It would seem that at that time lawyers of no less erudution than the right hon. and learned Gentleman took a different view.

It does seem therefore that we are placed in a highly unsatisfactory position. We are faced with a complete reversal of the Government's point of view within a week. We are given no opportunity to consider and ourselves to seek advice and authority on this matter. Certainly I and other hon. Members had entered upon this Debate and had tabled Amendments on the understanding that the Government would at least stick to the proposition which they put to the House of Commons last week. We are naturally therefore at some disadvantage when we are called upon to controvert a diametrically opposite proposition of law. I ask for a re-assurance that the authorities have been consulted relating to the very similar situation which arose when the United States parted company from this country.

I think that at the end of the Attorney-General's speech the true reason leaked out for the use of this declaratory form. I believe the need of this form is the desire to bluff the Hague Court or the courts of other foreign countries on this matter, to try to persuade them that the House has not enacted a new and interesting expedient, in which a new international status is created, neither foreigner nor citizen—a sort of political hermaphrodite.

This is an interesting and arguable proposition of great constitutional importance. An attempt is being made to escape responsibility for putting forward a novel doctrine by the blatant pretence that it has existed all along by reason of the close association existing between the two islands over many centuries. The right hon. and learned Gentleman has had experience of the Hague Court. It may be that as a result of this experience he rates its intelligence very low, but its intelligence surely is not so low that it will be taken in by a device of this kind. Surely he appreciates that that kind of trick, which might possibly work in a police court in some of the remoter parts of this country, is not going to carry great weight with some of the greatest jurists in the world. Surely he appreciates that the kind of expedient which it is admitted the Government have had in mind, is one unworthy of the principal Law Officer of the Crown and unworthy of any British Government.

Mr. J. Foster

I want to prolong the argument I had with the right hon. and learned Gentleman on a question which I put to him earlier. He says his advice at present is that a foreign-built ship or aircraft does not include a ship or aircraft built in the Republic of Ireland since 18th April. The Clause says: The Republic of Ireland is not part of His Majesty's Dominions. In order to make it part of the Dominions he has to advance the interesting and novel theory that anybody in a certain part of the world is a British subject it becomes British territory. Imagine five British subjects at the North Pole. Therefore, the North Pole is British territory, and a ship or aircraft built at the North Pole is not a foreign-built ship or aircraft. The right hon. and learned Gentleman knows very well that during the 19th century there were many places where there were nothing but British subjects, where His Majesty's laws had vigour and these people were subject to the laws of the United Kingdom. It is expressly declared in the Foreign Jurisdiction Act, 1890, that these places were not British territories. Where does the right hon. and learned Gentleman get his theory from?

Assuming that all persons born in Eire, or present in Eire, on 18th April are British subjects, where does the right hon. and learned Gentleman get his theory that Ireland is part of the British Dominions when the Clause says that it is not part. He has got himself into a difficulty, and he will have to say, of course, that the object of the British Nationality Act is not that two and two make four but that the British genius is to disregard this theory because they have indulged in a spirit of compromise and not of logic for so long. I do not think he ought to tell the House that the Republic of Ireland was not a foreign country on 18th April by basing it on the fact that everybody in Eire was a British subject under the British Nationality Act.

The Attorney-General

I have never suggested they were British subjects under the Act, and if the hon. Gentleman looks at the Act he will see that is not so.

Mr. C. Williams

To an ordinary person not a lawyer our position in this Committee has become perfectly intolerable. Only a few days ago the Lord President of the Council laid down quite clearly who were foreigners and who were not. Now we have the Attorney-General apparently contradicting him absolutely flatly. This is not a matter in which the Government ought to have presented any form of legislation to the House until, at any rate, the Cabinet understood what the Law Officer meant and until the Law Officer had seen that the Cabinet understood the real position, especially the Lord President. This is an extremely serious matter when we are dealing with constitutional points. This is not a question on which the Attorney-General ought to come here and say, "We cannot say what this, that or the other court is responsible for or what they will do." This is a matter on which the best legal authorities which the Government can get ought to have made their position perfectly clear.

We are used to this Government contradicting itself, but when they go into high matters of great importance, it is absolutely and utterly wrong that they should come to the House and try to force through legislation of this kind at this time of night when there can be no doubt whatever from what my hon. Friend said just now that they themselves really have not given anything like adequate discussion and consideration to the legal side of this matter. Whenever in the past we have had to deal with important legal matters, almost invariably the Law Officer of the day has taken much more pains than the Attorney-General has tonight to see that the Government spoke with one mind on the subject and also that they were perfectly clear that the matter had been worked out in the best way. I very much regret that we are being called on to do these things without proper consideration at a time of night when, quite clearly, the House should not be considering a matter of such very great importance.

Mr. Manningham-Buller

The Attorney-General has done his utmost to resist the Amendment by trying to assert that this Clause does nothing but declare that which exists at the present moment. What the right hon. and learned Gentleman has not done is to explain, if that is right, why only five days ago the Lord President of the Council, presumably acting on legal advice, told this Committee quite the opposite, because then he said: It must be remembered that at the moment legally the Republic of Ireland is a foreign State and Irish folk in this country are foreigners."—[OFFICIAL REPORT, 11th May, 1949; Vol. 464, c. 1964.] If that is right then, it is not easily reconcilable with what the right hon. and learned Gentleman has told this House tonight. Before we part from this Clause, we should have the matter put completely beyond doubt. I should have thought that there could be no harm at all in accepting the Amendment. It would put the matter beyond doubt, instead of leaving it as it is, with a patent conflict between what the Lord President told the House on Second Reading and what the Attorney-General told the Committee tonight. I would ask him whether we would not make more progress by accepting this and the subsequent Amendment.

12.30 a.m.

The Attorney-General

I shall first deal with the point raised by the hon. Member for Northwich (Mr. J. Foster). If the North Pole was occupied—I mean "occupied" in the legal sense—and its occupants were not aliens, I would certainly say that the North Pole, being the territory belonging to those non-aliens, was non-alien territory. I should have thought that the contrary view was quite unarguable.

Mr. J. Foster

Surely occupation must be in the light of the sovereign Power? If five British people occupied the North Pole and hoisted the flag, it would be occupied by Great Britain, but if five U.K. citizens who belong to a foreign country—which is the assumption here—go to the North Pole, they are not occupying it on behalf of the United Kingdom and it is foreign territory.

The Attorney-General

That is not the assumption here. We are not concerned with U.K. citizens but with citizens who are not citizens of the U.K. but at the same time are by definition not foreigners, and not aliens. That being so, if they have occupied territory in the legal sense and that territory belongs to them, that is not an alien territory.

Mr. Mikardo (Reading)

Do not the Attorney-General and the hon. Member for Northwich (Mr. J. Foster) think they are very unwise in pursuing this argument about five British citizens who have occupied the North Pole, because that is bound to result in tomorrow's edition of "Pravda" giving this as evidence of renewed British aggression?

The Attorney-General

Then I come to the observations of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter). I must confess that I have not studied in great detail the opinion given by Lord Lyndhurst in regard to the situation which arose when America ceased to be a British Dominion. On that occasion there had not been, as there has been on this occasion, a British Nationality Act in the terms of the Act which we passed last year, and the opinion which may have been taken by Lord Lyndhurst on the matter at that time would therefore be of little assistance to us in the present matter.

Our view is based entirely on the terms of the British Nationality Act, 1948. We may be wrong about it. I conceded that; that is quite possible. In any matter of law there is always a lawyer on one side who takes one view and a lawyer on the other side who takes the opposite view. It is fortunate that that is so. One of them is wrong. I am quite content to believe that my noble Friend the Lord Chancellor and I may be wrong. We know that one noble and learned Lord and one of His Majesty's counsel took the opposite view.

It is because we have realised that we may be wrong and that the matter is one which may be in doubt, that we have felt it urgently necessary to remove the doubt. That is the answer to the question put by the hon. Member for Kingston-upon-Thames. I do not presume to lay down the law in this House and certainly still less in the country, and where matters of law are in doubt, one seeks to remove the doubt by having a declaratory provision in a statute. That is the usual Parliamentary procedure to remove doubts.

The hon. and learned Member for Daventry (Mr. Manningham-Buller) asked about the speech of my right hon. Friend the Lord President. All I can think is that the Lord President had come fresh from reading the view of the noble and learned Lord who, as we know, differed from my noble Friend in another place, but he was not seeking to give legal advice to the House. Had I noticed what he said at the time, I might have taken the opportunity of correcting it, but——[HON. MEMBERS: "He was wrong."] I was about to say that in my respectful view he was wrong. The Government had been advised—this appears in the OFFICIAL REPORT in another place on a number of occasions—in exactly the opposite sense. It is because we believe on the whole, that our view is the correct one, although quite possibly it may not be, that we seek to remove doubts by this declaratory provision.

Mr. Boyd-Carpenter

Will the right hon. and learned Gentleman deal with this point? If he is right and the Lord President is wrong on this matter, why is it urgently necessary to push this Bill through in the middle of the night?

The Attorney-General

Because when the law is in doubt in matters of this kind it is most necessary that the doubt should be removed. It would be most unfortunate if we had litigation going through the courts before the doubts have been resolved. The proper thing is to have a declaratory provision, and that is what we seek to do.

Amendment negatived.

Clause ordered to stand part of the Bill.