Clause 6.—(SHORT TITLE, INTERPRETATION AND COMMENCEMENT.) (Hansard, 16 May 1949)

§ Sir Hugh Lucas-Tooth (Hendon, South)
I beg to move, in page 5, line 16, to leave out subsection (3).
It is with some diffidence that I rush into this wrangle on constitutional law, grammar and Irish politics at this time of the night, but my Amendment is rather different from those which we have just been discussing. It is a paving Amendment for my proposed new Clause [Commencement and Indemnity.]
1.15 a.m.
With your permission, Major Milner, it would be convenient if the two could be discussed together.
My purpose in moving this Amendment is by no means to prevent the Bill 215 from taking retrospective effect from 18th April this year. On the contrary, what I want to do is to ensure that the retrospection is adequate for the purpose which I think is common to all parts of the House. The Committee has had some considerable discussion this evening as to what is the state of the law which is to be either amended or declared by the Bill. I think it will at least be common ground that there is some chance that as the law now stands an Irishman is not only a citizen of a Republic outside the Commonwealth but is, in fact, a foreigner and an alien, and it is because of that risk that this Bill has been introduced.
If it becomes law the Bill will take effect from the date when all such people might have become aliens and in the ordinary way their position will be that they remain at all times not foreigners for the purpose of English law. If, of course, the Bill should not be passed and if it were held that the Attorney-General was wrong in the view which he expressed, then these people would, in fact, be aliens. If any of them happened to be hon. Members of this House I apprehend that the result would be that any action they might have taken in this House would have been taken by them not as Members of Parliament but as individuals who had ceased to be Members of Parliament.
Two results might flow from that. In the first place, I think they would be open to proceedings at the suit of an informer who could recover £500 for every time they had voted, and as the hon. Member for Fermanagh and Tyrone (Mr. Mulvey), I think, admitted that his home is Connaught, there was the rather extraordinary state of affairs that he would be voting against a Bill passing through this House upon the passage of which he depended to save him not only from this penalty which might be hanging over his head but upon which he actually depended for the validation of his acts here.
I think the position is that if a person who is a Member of this House becomes an alien, then he cannot act as a Member of this House. I was tempted at the conclusion of the Second Reading proceedings of this Bill to put a point of Order to Mr. Speaker to ask him whether, in view of the doubts of the position of a 216 person who was an Irishman, it was in order for such a person not only to move an Amendment but to tell in the Division. I think that would have put Mr. Speaker in some difficulty because he would, of course, have had to decide that very problem which the right hon. and learned Attorney-General has himself stated to be a matter of acute difference of opinion between learned lawyers in another place. It was not altogether Mr. Speaker's feelings for which I had regard, for it also seemed to me that it would be wrong if we were to seek to appear here to wish to put those among our colleagues who were Irishmen outside this House until this Bill becomes an Act.
It is necessary, in view of these circumstances, that we should be explicit in the Bill as to the position of those who have helped to make the Bill by sitting, voting and moving Amendments here. The form of words my new Clause follows has been used on previous occasions, in particular, in the case of the President of the Board of Trade Act, 1934, when a somewhat similar situation had to be dealt with. I should have thought it was necessary to follow that valuable precedent in this case.

§ The Attorney-General
I think the hon. Member has misapprehended the effect of the Bill. He has referred to the situation which would arise if it were not passed. But if the Bill were not passed, both the Amendment and the new Clause associated with it would, of course, be of no effect and would afford no protection to the citizen of the Republic of Ireland who had sat and voted in this House in the belief that the British Nationality Act, 1948, entitled him—as in my view it does—so to sit. If this Bill is passed into law, the position is amply covered by the provisions of Section 3 (2) of the British Nationality Act, which are expressly preserved and carried into the scheme of this Bill. That provision gives the citizens of Eire, as they then were, or of the Republic of Ireland, as they now become, all the rights of British subjects under the existing law, and they would therefore be fully covered as from 18th April if and when this Bill receives the Royal Assent.
In any event, the hon. Member's proposed new Clause is defective, since it is apparently limited to giving indemnity to Members of this 217 House. But there are other people, members of local authorities, and others, who would require indemnity if the position were as he had supposed it to be. I hope he will be reassured that the provisions of the British Nationality Act as carried into this Bill are sufficient to provide the protection he has in mind.

§ Mr. Gage
It would be churlish for me not to support the Amendment, since it is designed to regularise my own position. I am appalled at the tremendous penalties I have amassed if the hon. Member is right and he does not get his new Clause. It does raise a matter that is very real in the minds of a great number of Irishmen, which I think the Attorney-General can deal with. I have had letters from people who appear to have been born in the most complicated circumstances, all of whom are exceedingly anxious to know what their position is, and whether they are in fact citizens of the United Kingdom. I have explained that I do not give free advice—it is contrary to my principles and to the rules of my trade union—but I see no reason why the Attorney-General should not assist.
I always understood that the British Nationality Act laid down that those people who, at the passing of the Act, were British subjects should remain British subjects provided they were not resident in Eire or in one of the Dominions. Acting on that, I had assumed that "resident in Eire" meant resident in Eire at the passing of the Act. To take my own case, I was born in Southern Ireland and was domiciled there until 1922, when I went to the North. I assumed that I was a person who was a British subject and did not require to apply to the Home Secretary. Then, on Second Reading, the Prime Minister rather upset that, because he proceeded to define "resident in Eire" as people born after 1922 in Eire or people who, if they were born before 1922 in Eire, were resident there in 1922. That covered my case. I would like some assistance from the learned Attorney-General on that. Is that his view?
It seems to me it would be rather astonishing that people living in this country, who had abandoned completely their residence in Eire for some ten years or so before the British Nationality Act was passed, should now find themselves 218 not citizens of the United Kingdom and Colonies but citizens of the Eire Republic. This is a question which has worried many Irish people born in Ireland and living over here, and I hope the right hon. and learned Gentleman will give us his view as to the effect of the British Nationality Act on people who happen to have been born in Ireland but are now living in this country.

§ Mr. Boyd-Carpenter
I do not think the position is quite as clear as the right hon. and learned Gentleman has led the Committee to believe. In any event, I am sure I shall carry him with me when I say that if there is doubt at all about this matter it is highly undesirable to leave any hon. Member who may be affected labouring under the possibility of a common informer action because he sat and voted in this House while incapacitated from so doing. We have heard so much today from the right hon. and learned Gentleman about the need for avoiding doubts, and of declaring to be the law of this country what he says it is and not what the Lord President says it is, that one would have thought he would have welcomed the assistance the hon. baronet the Member for South Hendon (Sir H. Lucas-Tooth) gave him.
But I do not think he applied his mind to the study of what the hon. baronet said and, in particular, to the view that a Measure's subsequent regularising of a Member's position does not necessarily exclude a common informer action. He seemed to think that if this Bill becomes law with retrospective effect to 18th April, it would necessarily exclude common informer actions. There is the view to the contrary, that in order to prevent such an action and to deprive the common informer of his rights, a specific provision to this effect must be inserted.
In support of that I would invite the right hon. and learned Gentleman's attention to the Act which was referred to in another connection by the hon. Member for South Hendon. It is an Act to remove the incapacity of the President of the Board of Trade—another example of what the Senior Burgess for Cambridge (Mr. Pickthorn) calls the "omnicompetence of Parliament." But it does deal with indemnity against common informer actions which may be brought against all Presidents of the Board of Trade since 1909 on the ground that they sat while 219 incapacitated. In view of the advice of the Law Officers of that day, it not only provides that it should be deemed to have effect from the operation of the Act of 1909—comparable to the retrospective effect of this Bill to 18th April—but it goes on to provide specifically for indemnity. It is also clear that the view taken at that time was that the mere retrospective provisions of the Act did not exclude the possibility of common informer actions.
1.30 a.m.
It was for that reason that a specific indemnity provision was inserted in substantially the same words as are contained in the hon. Baronet's Amendment. I feel that the Attorney-General is running some risk in not accepting that Amendment. If he accepts the Amendment he eliminates that risk. I do not know how many hon. Members might be affected. My hon. Friend behind has indicated that he might be. Certainly other hon. Members who have taken part in the Debate tonight in their speeches have indicated that they might be. It seems unwise to run the slightest risk of humiliating occurrences; of so expensive occurrences. The Attorney-General said that others than hon. Members might be affected; for instance, members of local authorities. That is not an argument against this Amendment; it is an argument for the Government introducing further Amendments to cover them. If there is any risk, the learned Attorney-General has no argument against this Amendment.

§ The Attorney-General
So far as the case raised by the hon. Member for South Belfast (Mr. Gage) is concerned, I must invite his attention to Sections 2 and 6 of the British Nationality Act of 1948. I think that he will find that his question is answered there. Quite shortly, under Section 2 of that Act, a citizen of Eire is entitled to retain the status of a British subject by making a claim, in certain circumstances, to the Home Secretary. Under Section 6, a citizen of Eire resident in the U.K., is entitled to be registered as a citizen of the U.K., and the Colonies. I have no doubt that by one move or the other the hon. Member or his friend, I am not sure which it was, will be able to protect his position. So far as the ob- 220 servations of the hon. Member for Kingston (Mr. Boyd-Carpenter) are concerned it is, as the hon. Member knows better than I do, always unsafe to argue from different words in a different statute.
To accept the Amendment would be to cast grave doubts upon Section 3 (2) of the British Nationality Act of 1948, as preserved in Clause 3 (1) of this Bill. It would make nonsense of the provision in this Bill for preserving that effect. I am confident, as confident as one can be about any matter of law—and I never attempt to lay down the law as a matter of certainty—that the provisions of Section 3 (2) of the British Nationality Act and of Clause 3 (1) of this Bill are sufficient to ensure that no proceedings can be taken against any citizen of the Republic of Ireland for doing things which only a British subject is permitted to do.