Clause 3.—(OTHER PROVISIONS AS TO OPERATION OF UNITED KINGDOM AND COLONIAL LAWS IN RELATION TO REPUBLIC OF IRELAND.) (Hansard, 16 May 1949)

§ Mr. H. Strauss
I beg to move, in page 2, line 32, to leave out from the begining, to the second "the."
I think it would be convenient if we could discuss at the same time the Amendment in my name in line 46, to leave out the first "is not," and to insert "shall not be."
I shall be extremely brief, because this is a similar point to that which has been raised already, though not identical. If my Amendments were adopted, the effect would be to leave the legal operation of this Clause exactly as it is now, but it would remove a form of words which, I suggest to the right hon. and learned Gentleman, is not a proper one. A declaratory form is suitable enough when a statute has been long interpreted in one way and then doubts have been cast on the correctness of this interpretation. Then a declaratory Clause is proper. In this case, however, a very strongly held legal view and, in my submission, the correct legal view, is that what is here declared to be the law is not at the moment the law. The phraseology which I suggest would have nothing in it which the right hon. and learned Gentleman would dislike. The Clause would simply read: The following statutory provisions, that is to say … —and then follow paras. (a), (b) and (c) as they stand— shall not be affected by the fact that the Republic of Ireland is not part of His Majesty's dominions.

§ The Attorney-General
It is, I think, appropriate, if I may say so, with great respect to the hon. Members concerned, that this Amendment should stand in the names of the hon. Members in whose names it does stand. It is an Amendment which deals only with words, not with causes, not with results. The acceptance of the Amendment would not alter the effect of the Bill in the slightest degree. All that would be done would be to provide by enactment instead of by declaration that the law should be what we already think it is. That is all. I cannot think that there would be any very useful purpose in discussing at great length the subject which we have already discussed on a previous Amendment. I 204 only say this about the law: it is not an exact science. The only thing you can be sure about in the law is that you cannot be sure about anything until you get the decision of the House of Lords upon it. Although my noble Friend and I took the view that the law as it now stands is set out in the Bill, we realised that the contrary view was possible and might be right. Therefore, we thought it was proper to legislate for it now, to declare what the law is, and thus to save our courts the trouble and our citizens the expense of having to legislate the matter.

§ Mr. Strauss
The right hon. and learned Gentleman says this Amendment is only about words. So it is. But is it his doctrine that there is no principle about whether these words should be included, that it is never improper to use the words "it is declared"?

§ The Attorney-General
Certainly, if you were seeking to make what you knew was an alteration of the law, it would be improper to use the words "it is declared." If you are seeking to declare what is the law, then these are the words used, I will not say from time immemorial, but certainly in very many statutes. It is our view that we are declaring what the law is, in order to remove a possible doubt.

§ Mr. J. Foster
The Attorney-General has assumed that the same point is involved in this case as in the previous Clause. Is he right about that? He based his view on the previous Clause on the fact that in his opinion Ireland had not been a foreign country since 18th April. That does not make the Orders in Council under the Irish Free State (Consequential Provisions) Act legal since 18th April. If it is assumed that he is right, it still remains the fact that the Irish Free State is not the Republic of Ireland for the purposes of that Act. Is he really advising the Committee that the present law, before this Bill is passed, is that the Republic of Ireland comes under the definition of "Irish Free State" under the Act mentioned in Clause 3 (1, c)?

§ The Attorney-General
That paragraph is intended to remove any doubt as to the continuance of these Orders in Council, whose main purpose and effect was to adapt numerous statutes to the position arising from the establishment of 205 the Irish Free State. One of the important results of that was to ensure the continuance of the system of police arrangements between the two countries. We have taken the view in regard to these matters—and it is really the same point as the hon. and learned Member put before—that, as we have already provided by statute, as we did by the 1948 Act, that the citizens of Ireland were not foreign citizens, that country is not a foreign country, and we have applied that principle logically to this Clause.

§ Mr. Ede
I beg to move, in page 2, line 37, to leave out from the beginning, to "and," in line 42, and to insert: (b) so much of any Act, or of any Act of the Parliament of Northern Ireland, as gives effect, or enables effect to be given, to agreements or arrangements made at any time after the coming into operation of the original constitution of the Irish Free State, being agreements or arrangements made with the Government of, or otherwise affecting, the part of Ireland which now forms the Republic of Ireland, including agreements or arrangements made after the commencement of this Act. This is a drafting Amendment designed to ensure that this paragraph carries out the original intention. It has been suggested, mainly in the Press, that the primary purpose of this Amendment was to safeguard the 1925 agreement. That is not so. Clause 3 (1) is to dispose of the contention that certain statutory provisions fall automatically to the ground now that Eire has become a Republic. These statutory provisions are those giving effect to the existing agreements with the various Governments that have governed that part of the island in future to be known as the Republic of Ireland. The paragraph as it stands describes these agreements as being agreements described as being between the Government of the United Kingdom and the Government of Eire or as being between the Government of the United Kingdom and the Government of the Irish Free State. 12.45 a.m.
In point of fact, the relevant agreements are described in a number of ways and it would be arguable that some of them, for example, the agreement of 1925 which included the Government of Northern Ireland as a party, and the agreement on Income Tax in the Schedule to the Finance Act, 1926, which was described as being between the British Gov- 206 ernment and the Irish Free State, would not be covered. The Amendment removes this criticism by substituting more general words. It also makes it clear that Acts of Parliament of Northern Ireland, for example, the National Insurance (Industrial Injuries) Act (Northern Ireland, 1946, Section 84, and the National Insurance Act (Northern Ireland), 1946, Section 61, which enable effect to be given to agreements as to social services, are not affected by recent changes in Dublin. The words also remove any doubts that may otherwise be felt as to the validity of Section 1 of the Northern Ireland Act, 1947, which enabled Northern Ireland Acts to be made dealing with matters, for example, railway bridges between the two countries which may be the subject of arrangements affecting both of them. I think that this substitute paragraph makes it easier to recognise that all these agreements are covered than does the existing phraseology.

§ Mr. Ede
I beg to move, in page 2, line 43, to leave out "section," and to insert "sections five and."
The effect of this Amendment is to remove doubts as to the continued operation of Orders in Council made under Section 5 of the Irish Free State (Consequential Provisions) Act, 1922. This Section enables Orders in Council to be made granting relief in Great Britain and Northern Ireland from taxation so as to avoid double taxation as between those countries on the one hand and the Irish Free State, as it then was, on the other. Orders made under it—for example, those that relate to Legacy Duty, Succession Duty and Stamp Duty—are still in force both in Northern Ireland and Great Britain, and it is important that there should be no doubt that this state of affairs continues.

§ Mr. Ede
I beg to move, in page 2, line 47, at the end, to insert: and that, in the said provisions, and in any Act of Parliament or other enactment or instrument whatsoever, so far as it operates as part of the law of, or of any part of, the United Kingdom or any Colony, protectorate or United Kingdom trust territory, references to citizens of Eire include, on their true con- 207 struction, references to citizens of the Republic of Ireland. This Amendment removes any doubt that may still be felt that the references in existing Acts and orders, notably in the British Nationality Act, 1948, to citizens of Eire are to be construed in future as references to citizens of the Republic of Ireland. Whether the Amendment is really necessary is open to question, but we desire that there should be no doubt on this point.

§ Mr. J. Foster
May I ask the Attorney-General what is the point of the words "on their true construction"? What do they add, and why put them in?

§ The Attorney-General
As the hon. Member knows perfectly well, this is a very common form of words. I hesitate to say they add anything to the Amendment.

§ Mr. Pickthorn
I beg to move, in page 3, line 1, to leave out from the beginning, to "the," in line 2.
I put this Amendment down only to ask somebody to explain to me what is the effect of this provision. On a first view of it, it would not seem to have any very obvious effect. I think the Committee ought not to pass it without knowing the object.

§ The Attorney-General
We are really following here in substance the provisions of Section 3 (2) of the British Nationality Act, 1948. I quite agree that the words which the hon. Member has in mind "until provision is made to the contrary," which words his Amendment proposes to delete, would be unnecessary if we were dealing only with Acts of Parliament, as one Parliament may repeal what another may enact; but this Clause goes further and deals with Colonial legislatures and subordinate legislatures. The introductory words are necessary to ensure that any power of amendment vested otherwise than in the United Kingdom Parliament, that is, in a Colonial or subordinate legislature, can be exercised. These words override Clause 3 (2) of the Bill. Without this Clause Colonial legislatures would be unable so to legislate.

§ Mr. Boyd-Carpenter
Does it include also Statutory Instruments?

§ The Attorney-General
It would do so, I think. I do not know of any Statutory Instrument which is in point, but the words are apt to cover them.

§ Mr. Pickthorn
I beg to ask leave to withdraw the Amendment.

§ Mr. Hale
I put down an Amendment, Major Milner, which I did not intend to press. I was merely seeking information. I apologise for being absent when the Home Secretary opened the proceedings on the Clause. My Amendment expressed doubts about the concluding lines of the Home Secretary's Amendment. It seemed to me that the concluding words including agreements or arrangements made after the commencement of this Act involved a danger. I have no doubt that the Home Secretary has considered them carefully, but I could not see how this Parliament could give effect to these words by saying that any agreement or arrangements made in the circumstances outlined would be given effect to, or would not be given effect to, in the circumstances of the Clause as originally drafted. I should be grateful for information on that point.

§ Mr. Ede
It is desired that the arrangements which have been going on during recent years, and which were more particularly referred to in the Northern Ireland Act, 1947, whereby on matters of mutual convenience arrangements could be made between the Northern Ireland Government and whatever Government might be in power in Southern Ireland, should be continued. We were dealing with things like railway bridges and the level of one of the loughs which it was necessary to have arranged mutually. It is obviously desirable that this kind of thing should be able to go on and should not need some elaborate confirmatory machinery under this Act to ensure the validity of the arrangements. I am assured that these words enable this kind of thing to be carried on.

§ Mr. Hale
I am a little dubious how far this Committee can say that any future arrangement by the Government of North- 209 ern Ireland shall not be affected and how far we can commit ourselves to that.

§ Mr. Ede
This matter was considered. I think it was agreed when the Northern Ireland Act, 1947, was before the House that it was desirable that these arrangements should be encouraged. In fact, I may say that when we got the text of that particular Bill, it went through very quickly. We had a great deal of discussion on the Second Reading about matters which did not appear to be very closely related to the particular Sections in the Act; and further negotiations on these lines, the possibility of the two Governments in Ireland being able to get together on these things, are, I think, about the most hopeful thing that has happened in the government of Ireland; and I hope this Clause will help these negotiations.