HC Deb 05 December 1951 vol 494 cc2442-71

Order for Second Reading read.

6.0 p.m.

The Under-Secretary of State for Commonwealth Relations (Mr. John Foster)

I beg to move, "That the Bill be now read a Second time."

The purpose of this Bill is to place the High Commissioners in London and all other self-governing Commonwealth countries and the Ambassador of the Republic of Ireland in the same position as the ambassadors of foreign Powers as regards personal immunity from suit and legal process, including inviolability of premises and archives.

In the last 10 years a good deal of progress has been made in putting these High Commissioners and these other representatives in all essential respects in the same position as that of a foreign ambassador, and the House will know that as regards taxation the Finance Acts of 1923 and 1925 placed the High Commissioners in the same position as ambassadors. The immunity arrangements have taken the same form regarding Customs Duties, and in 1948, for instance, His Majesty the King gave a grant of precedence to put them in the same position as ambassadors. The situation has now arisen that there should be legislation to give these High Commissioners and the Ambassador of the Republic of Ireland immunity from legal process and suit.

This Bill is not concerned with taxation or with the administrative exemptions from Customs Duties. The reason for the legislation is that the relationship of the countries within the Commonwealth is not that of foreign countries, and therefore the High Commissioners would not have the position of ambassadors by reason of any such relationship. Up to now the High Commissioners have been in the position that they are liable to legal process, and the Bill is designed to remove that liability.

The justification for that is that it is thought desirable, and the Commonwealth countries think it desirable, that this immunity should now be granted to them. One often has the position of a gentleman who may be the ambassador of Australia to a foreign country who, when he gets what may be regarded as the plum of his diplomatic career in London, finds himself from this point of view in an inferior position to that which he enjoyed when ambassador to a foreign country.

Mr. James McInnes (Glasgow, Central)

Does the immunity only refer to legal process?

Mr. Foster

Yes, in this Bill, and it applies to the premises—which are always associated with immunity from legal process. The hon. Member will also see that in that part of the Bill dealing with consular immunity that immunity is strictly confined to access to premises and official documents. It has nothing to do with Customs Duties and other questions which the hon. Member and I have raised previously in debates on the Diplomatic Privileges (Extension) Act, 1950. He will remember that then we were discussing an international organisation. Privileges and immunities covering things with which that Act was concerned have already been granted to the High Com- missioners either by legislation or administrative action.

Having given the reasons for the Bill and having emphasised the desire of the Commonwealth that it should be passed, I come now to its main provisions, to show the House how it is proposed to grant this immunity. But before coming to that I might say that His Majesty's Government attach importance to the fact that there should be reciprocity, and provision is made in the Bill that if reciprocity is not granted or is whittled down His Majesty's Government, by Order in Council, can take appropriate action.

All the Commonwealth countries have taken steps in varying degrees to ensure reciprocal legislation. Some have actually passed legislation, others are intending to do so. His Majesty's Government have been in touch with all these Governments and have assured themselves that the legislation is either passed or is intended to be passed as soon as this Bill receives the approval of the Legislature in this country.

I draw the attention of the House briefly to the main provisions of the Bill. Clause 1 (1) sets out who are the people who are to receive this immunity. Under Clause 1 (1) they receive it without any more ado, that is there is no Order in Council procedure applicable to them. The persons who receive diplomatic immunity are the High Commissioner, the High Commissioner and his family, the High Commissioner and his servants, the High Commissioner and his officials, and the family of the officials. It does not cover the servants of the officials.

Therefore, we have the position that the High Commissioner, his wife and children, his officials, the wife and children of the officials and the domestic servants of the High Commissioner, but not the domestic servants of the members of the staff, are covered. That approximates to the practice regarding foreign ambassadors, and throughout the Bill the object has been to make the position of the High Commissioner and his officials to approximate as far as possible to that of foreign ambassadors and to give immunity to their officials and, in the later part of the Bill, to consular officials.

I should like the House to notice the proviso in Clause 1 (1), which many hon. Members may think a wise one. It is that the immunity does not apply to a member of the official or domestic staff of the chief representative—that means the High Commissioner—who is himself or herself a citizen of the United Kingdom and Colonies. That means that where the High Commissioner has on his staff an official or has on his domestic staff somebody who is a citizen of the United Kingdom and Colonies he does not benefit from the immunities provided in the Bill.

As the House will see, Clause 1 (2) is subject to an Order in Council procedure which is set out in Clause 1 (3). The general object of Clause 1 (2) is to give consular status to various classes of persons working under the High Commissioner who correspond to consuls of a foreign Power or in other words, who perform the duties which would be performed by consuls if a Commonwealth country were a sovereign foreign Power.

Mr. Kenneth Younger (Grimsby)

I should like to ask one question about the proviso. I am afraid this is a little more than a matter of personal curiosity. I notice that it refers to …a person who…is a citizen of the United Kingdom and Colonies and is not a citizen of that country,… that is, a Commonwealth country. I was under the impression from recollection of the British Nationality Act, 1948, that that would be a rare case where a citizen of the United Kingdom and Colonies was also a citizen of some other Commonwealth country. But I presume this was put in because there are cases that could arise of dual nationality in the Commonwealth.

Mr. Foster

My impression is that it is possible to have a dual nationality. Under the British Nationality Act it was possible to opt and then renounce and then opt back again. Suppose a man was entitled to New Zealand and United Kingdom citizenship. He could have dual citizenship by being able to opt back and forth again. This was put in to take care of that case. There might be a case of somebody who had not bothered and who had been put down as a United Kingdom citizen and then, when it came to an investigation of his exact status, it was found that he was also entitled to New Zealand citizenship. In that case he should be subject to immunity as if he were entitled to New Zealand citizenship.

Clause 1 (2) is intended to give consular immunity to various classes of people defined in paragraphs (a), (b) and (c). The first paragraph confers consular immunity on persons in the service of those Commonwealth Governments who perform the duties of consul. Paragraph (b) is intended to deal with the status of the Agents-General for the Australian States and for the Provinces of Canada. As the House knows, the Agents-General for the Australian States and for the Canadian Provinces have offices in this country and are represented here. It is intended by this provision that they should be entitled to this immunity, which will be conferred by Order in Council.

Paragraph (c) provides that the same immunity should be bestowed on the members of the staff of what is called "a state representative" in the Bill, that is an Agent-General. They are also intended to have consular immunity. The rest of the Clause deals in subsection (3) with the granting of a certificate by the Secretary of State so that if there is a disputed question before the courts a certificate is issued of the facts upon which immunity is claimed.

Clause 1 (4) deals with the lists in which people can find who is and who is not entitled to both full and consular immunity under the Bill. That corresponds to what is known as the sheriffs' lists as applied to foreign Powers. Those were started under an Act in the reign of Queen Anne when certain rude tumultuous persons pulled the Russian ambassador out of his coach. An Act was then passed, not creating a new law but declaring an old law, which set out the lists which were to be communicated to the sheriffs of London and Middlesex. Clause 1 (4) is intended to set out a similar list of people entitled to immunity.

Clause 2, also subject to Order in Council procedure, allows the immunity to be extended to other Commonwealth countries when and if they arise. I have already alluded to Clause 2 (2). It allows His Majesty, by Order in Council, to deal with any question of reciprocity which either has not been granted or has been diminished.

The Order in Council procedure is of two kinds. Under Clause 3 it was thought that the negative procedure, that is that an Order in Council should be subject to annulment by Resolution of the House of Commons, would be sufficient for an Order in Council setting up consular immunity because that is really a matter of administration. No question of principle will arise probably in that case, and therefore it is thought it would not infringe the principle of Parliamentary control in any way if there were a negative procedure for the Orders in Council which decides, for instance, which of the staff of the Agents-General should be entitled to consular immunity.

It was thought, however, that an Order in Council describing a new Commonwealth country should be subject to an affirmative Resolution procedure in this House and also that any question of reciprocity which might involve relations between this country and any Commonwealth country should also be subject to the affirmative procedure.

I think I have put before the House the main features of the Bill. As I said at the beginning, it is one which is desired by Commonwealth countries and which His Majesty's Government think it proper to pass in order to approximate the position of the High Commissioners and the Ambassador of the Republic of Ireland to that of foreign ambassadors. It will mean, of course, that our own High Commissioners in those countries will receive equal immunity, and we think that immunity will be helpful to them in their functions. It is one that they should have. On all these grounds I commend this short and, I hope, non-controversial Bill to the House.

6.15 p.m.

Mr. Ernest Davies (Enfield, East)

As the hon. and learned Gentleman has pointed out, this is a non-controversial Bill. The Opposition can do nothing but approve the principle of the Bill, because it is a logical development from the raising of the status of the High Commissioners to that of Ambassadors which was done by the Labour Government at the end of 1948. I understand that the Commonwealth Governments themselves have taken a certain initiative in asking that this logical step should be taken, and we approve that it should be done.

On all these occasions when we place relations with the Commonwealth on something of a more formal basis and make our relations with them similar to those with foreign countries, we appear to detract from the family relationship which we have with the Commonwealth. There are bound to be some lingering regrets, but I feel sure that in this case there will be no lessening of the family relationship or feeling.

When the Labour Government presented various diplomatic privilege and immunity Bills to the House, on every occasion hon. Gentlemen opposite, with full justification—perhaps I should not say "with full justification," but "according to their rights"—took great pains to express concern at the extension of diplomatic privilege, and on occasions made our task a little harder. The hon. and learned Gentleman will not be surprised if we seek some further information and certain assurances from him during the Second Reading of the Bill. We seek an assurance that the way is not opened by this Measure for an extension of diplomatic immunity greater than that which is justified by the purpose of the Bill. We seek an assurance that there is ample protection against any such abuse.

As the hon. and learned Gentleman pointed out, the Bill aims to make diplomatic immunities of foreign representatives and of Commonwealth representatives similar. I am not certain—perhaps the hon. Gentleman will make it clear later—if we are now going the whole way and whether the status of the High Commissioners and the Ambassadors is completely identical or whether there are any gaps. I believe the status is identical in each case, but I have been unable to ascertain that for certain.

The Bill, of course, deals only with diplomatic and consular immunity from suit and legal process, and not with diplomatic privilege. What I seek to be assured is that in the matter of diplomatic privilege, in view of previous Measures and administrative action, the High Commissioners will now he treated on identically the same basis as are heads of missions and representatives of foreign states.

In a way, it is unfortunate that these privileges and immunities are scattered over a number of Acts. They go back to the Finance Acts of the 20's and to various administrative measures. That leads me to ask the hon. Gentleman what progress has been made with consolidation. That question was put to me when I was speaking from the Despatch Box opposite, and we gave assurances that consolidation of the various diplomatic privilege and immunity Measures was going forward as fast as possible. I should be interested to know if the process is continuing, how far it has gone and whether, when consolidation takes place, this Measure, together with the previous Measures which give privileges and immunities to the representatives of the Commonwealth will be included. It is desirable that that should be so.

As the Bill grants immunity only, I should like to know if it extends that immunity or whether this simply confirms the position which has existed up to the present. I believe that up to the present the High Commissioners have been treated as though they had this immunity from suit and legal process, and that the Bill only puts into legal effect a state of affairs which has existed for some time. Does the Bill extend that immunity at all?

I am not sure that there is not some danger of a possibility of the extension of consular immunity. I say that because the Bill introduces a new category of persons to whom consular immunity is to be extended. The hon. and learned Gentleman referred to the Trade Commissioners and to the Agents-General who are to receive consular immunities. I am a little concerned here lest there should be an opening for an extension of consular immunity to those who might not be fully entitled to it. Some of the representatives of the States of Australia and the Provinces of Canada have rather large offices here. I believe they use them for trading purposes or for trading representatives, and in some cases there are even State-owned banks. One wonders whether the Measure as it is now framed might enable immunity to be extended to representatives of such organisations within those offices who perhaps come under the Agents-General and Trade commissioners and could be considered as their staff.

Clause 1 (2, c) states that the immunity extends to: …members of the staff of a state representative holding such classes of offices… Is that not rather a wide definition, and may it not enable such persons to be given this consular immunity? I know that it is sometimes very difficult to separate State organisations from corporate independent concerns. If one can refer to the Tass case, in which the Tass

Agency claimed that it was a State department, an organisation of the State, and was therefore entitled to immunity, I just have some fear that in this case a similar situation could arise, although I obviously do not want to compare with the Tass Agency anything which goes on in the Commonwealth offices here.

The hon. and learned Gentleman pointed out that in the cases where concular immunity is to be extended the Order in Council would be subject only to annulment in this House. I recall that on another occasion when we were discussing diplomatic privileges and immunities there was a very vigorous fight, in which, I believe, the hon. and learned Gentleman took part—at any rate, his hon. Friends did—and hon. Gentlemen opposed urged us—we met them in it—to substitute an affirmative Resolution for a negative one. I consider that it would be possible to make out a case for an affirmative Resolution to be required in this case rather than for the negative procedure to be followed. I consider this so because of the possibility of these provisions being extended somewhat beyond what is intended by the Measure in its original drafting.

I note that provision is made for the waiving of immunity by those to whom the Bill would grant it. I understand that in the case of foreign missions this immunity is waived as a matter of form in certain cases. I hope that in the case of High Commissioners' offices it will be understood that they too will waive immunity in those cases where it is waived by foreign missions.

There is some confusion on the question of the special status of Commonwealth citizenship. Representatives of the Commonwealth have heretofore had a special position, having common status as British subjects and sharing the status of British subjects, and they still do. I take it that nothing in the Bill will change that position in regard to those to whom it extends. I also take it that the Bill does not in any way deprive these Commonwealth citizens of any of the full rights and privileges which are extended to them if they are also United Kingdom citizens, as quite a few might well be that is to say, many will be citizens of the United Kingdom and the Colonies as well as being citizens of a Commonwealth country.

Mr. Beverley Baxter (Southgate)

Will the hon. Gentleman elucidate that? As I understand it, one might have been born in one of the Colonies and had British citizenship until the passing of the British Nationality Act three or four years ago, when one had to choose between one's citizenships. I had to. I ceased to be a British subject two years ago.

Mr. J. Foster

My hon. Friend means "a United Kingdom subject."

Mr. Baxter

I meant to say "a United Kingdom citizen." I had to revert to my Canadian status. The hon. Gentleman was speaking about the possibility of there being a citizen of two different parts of the Empire at the present time, a United Kingdom citizen or a colonial or something else. Is that possible?

Mr. Davies

Yes, it is possible, and when the hon. and learned Gentleman was moving the Second Reading the point was put to him by my right hon. Friend the Member for Grimsby (Mr. Younger), and the Minister confirmed that that position could arise under the British Nationality Act. The hon. Member for Southgate (Mr. Baxter) referred to colonials, but he meant to refer to "members of the Commonwealth." As far as the Colonies are concerned one is a citizen of the United Kingdom and of the Colonies. The hon. Member for Southgate will agree that there is that difference.

I want to be sure not only that these people are not deprived of any of the privileges which they would normally have as British citizens, but that at the same time the advantages which this special status confers upon them remain. Up to the present there has been a certain greater freedom between representatives of the Commonwealth in London, and no doubt in other capitals; they have enjoyed a special status one to the other. There has been a greater freedom in official and military collaboration, and there is a freedom from many legal and administrative difficulties which arise in relations between foreign States. We want to be sure that in changing this status as we are doing those advantages will remain.

The Foreign Office has accepted for a very long time the principle of not putting United Kingdom citizens in a privileged position in the United Kingdom except as is required for the purpose of their duty. That applies in the case of foreign missions here, except in the case of servants of the head of the mission. It is accepted by the Foreign Office that it does not accept for diplomatic immunity citizens of the United Kingdom and Colonies except in the case of servants; that is to say, special privileges are not given to citizens of the United Kingdom who are employed in foreign embassies in London unless they are on the domestic staff of the head of a mission. Immunity is then extended to them.

Incidentally, there has been a regrettable increase in the number classed as on the domestic staffs of heads of missions. Figures were given me in reply to a Question today to the effect that between 1945 and the present time the numbers of those classified by foreign missions in London as being domestics have risen from 537 to 861. I sometimes have a slight suspicion that some of these people might be wrongly classified with the purpose of obtaining that diplomatic immunity.

In this Bill in this respect there is a commendable advance—that is to say, staff employed by the High Commissioner, even if they are employed as domestic staff, will receive immunity only in respect of their official capacity—in respect of actions performed in an official capacity. Furthermore, immunity is not granted to their families. This is a commendable advance, and I hope that it foreshadows the intention of the Government to extend this proviso to foreign missions. We were told today that the inter-Departmental Committee, under the chairmanship of Lord Justice Somervell, has issued its Report. I hope that Report makes the recommendation I suggest and that its recommendation will be acted upon.

There are one or two smaller points I want to bring to the hon. and learned Gentleman's attention which, perhaps, he can elucidate when he replies to the debate. First, there is the question of the inclusion in the Bill of the Republic of Ireland. I take it that the Republic of Ireland is included because of the Ireland Act. Under the Ireland Act, the Republic of Ireland is not treated as a foreign country. As far as diplomatic representation in the capital is concerned, it is treated as though the head of mission were a High Commissioner, with all the measures which apply to the High Commissioner applying to the Irish ambassador. It is perhaps somewhat Irish that at this stage the Irish representative here is an ambassador. He calls himself an ambassador and sits in the Ambassadors' Gallery.

He has now been raised to the status of an ambassador, similarly with the High Commissioners, but it seems that in order to obtain the privilege of being an ambassador, the ambassador of Ireland is to be treated as a High Commissioner. As I say, it seems somewhat Irish, but the ultimate result is to his benefit. Of course, the Agents-General or Trade Commissioners or High Commissioners, or whoever may represent Northern Ireland in this country, are excluded from the Bill, and we have no complications there.

A small point arises about Southern Rhodesia. That State is included but I understand that the representative of Southern Rhodesia today is not considered of ambassadorial rank. I know that when one encounters him one does not address him as "Your Excellency" I should like to know why the privilege should be extended in the Bill, why if he has a different rank the Bill applies to him.

The Bill does not seem to extend to the Colonies. Is it proposed that the Colonies themselves should take action in this regard, or what is the position? It means that any representative of the Commonwealth today in any of the British Colonies would apparently not receive the immunity to which he would normally be entitled and which he would receive in this country, or which his colleagues representing other countries would receive. It is also necessary to suggest that reciprocity should be granted, and I was glad to hear the hon. and learned Gentleman say that Commonwealth countries are taking action to introduce similar Measures in their countries. I hope they will proceed with as much speed as possible.

Those are the points I wish to put before the hon. and learned Gentleman, in no controversial spirit but simply with a view to elucidating certain matters which have occurred to me. We will, of course, support the Bill, and if anything arises from the explanations he gives which we consider calls for amendment, that can be dealt with on the Committee stage.

6.35 p.m.

Mr. J. Enoch Powell (Wolverhampton, South-West)

I think it would be wrong if this Bill were to receive a Second Reading without at least one voice being raised from this side of the House to point to the underlying meaning of what is being done and to give expression to a sense—I shall use a stronger word than that used by the hon. Member for Enfield, East (Mr. Ernest Davies)—of grief that another step, however short, has been taken in a direction which some of us deplore.

In presenting the Bill to the House, the Government cannot shelter behind the real or alleged wishes of what is called the Commonwealth. We do not have before us a Bill for the amendment of the British North America Act—the type of Bill which this House necessarily and logically passes automatically, being governed in that matter by the wishes of the only country concerned. We are here legislating for what is going to be done or not done in this country.

We are exercising our own responsibility as the Legislature of the United Kingdom and, while the wishes of the territories who send High Commissioners to this country are relevant, they cannot be an over-riding or decisive factor. I must add that personally I doubt either whether there is satisfactory machinery for ascertaining whether such a change in the law is generally desired or, whether, in fact, in this case a lively desire that this Measure should go through exists even outside this country.

The Bill is one of the progeny—one of the smallest of the progeny, but still one of the progeny—of that most evil Statute, the British Nationality Act, 1948. It is not the first and I fear it will not be the last. As soon as the dragon's teeth of that Act had been sown, the crop of armed men was not long in springing up. It bore its ill fruit first in the Ireland Act, 1949, and then in the India (Consequential Provisions) Act of the same year, as it was euphemistically described. Now we have one more in the series of Acts which follow from the principal Act.

That statute effected a complete revolution in the basis of British subject-hood. It substituted for the old basis, which was our duty of allegiance to our common Sovereign, an entirely new basis. From 1st January, 1949, the whole body of British subjects have been not those persons owing allegiance to His Majesty but the sum total of a series of citizenships created by the various legislatures and able to be altered by legislative acts of those bodies. It was perhaps the most serious and revolutionary change that has taken place in the constitution of the Empire.

As I have said, in this Bill we are seeing one of its consequences; for if that Act had not been passed, this Bill would have been impossible. The Bill confers immunity upon a particular category of British subjects in this country. It makes a differentiation in the eyes of the law between two categories of British subjects, between those who are what is called "citizens of the United Kingdom and Colonies" and those who are not; for a person to whom the description of High Commissioner or any of the servants of a High Commissioner applies, who is also a citizen of the United King-don and Colonies, is placed in a different legal position from that of a similar person who is not such a citizen. It therefore effects a distinction in this country in the eyes of the law between the rights of two British subjects.

The fact that that consequence might flow from the 1948 Act was apprehended at the time and was one of the grounds upon which many of my hon. Friends opposed the passing of that Act in the form which, in the event, it took. I am sorry that my right hon. and learned Friend the Home Secretary has left the Chamber for a moment, because he put this particularly well on 13th July, 1948. When referring to the Act of 1948, then a Bill, he said: Why should we invent the machinery of discrimination?…If it is intended to mean nothing, as the Home Secretary and the Attorney-General have said—if it is not intended to put the new citizen in any better position—that is an excellent reason for not having that machinery…"—[OFFICIAL REPORT, 13th July, 1948; Vol. 453, c. 1029-1030.] Inevitably, the power to distinguish in this country in the eyes of the law be- tween different categories of British subjects will be used. This is the first case where it has come into use. This is the first case where that discriminatory machinery has been used which the then Attorney-General was at pains to assure the House would, he hoped, never be used, although, as he said, he could not bind a future Parliament.

I do not think that is either necessary or desirable. It is a consequence which hon. Members, and particularly those on this side of the House, should hesitate and be reluctant to draw from the 1948 Act. After all, we have said as a party in our "Imperial Policy" statement of 1949, that we hold ourselves: …free to return to the old conception of common citizenship, if this should be the wish of the other Dominions and member States. That is a quotation from the document. I suggest that the Government would be better occupied, with their fellow Ministers in the other parts of His Majesty's Dominions, in seeking to obtain the basis of agreement for a new Nationality Act to replace that of 1948 than in working out the consequences of the 1948 Act.

In 1949, when referring to the first of the consequential Acts, the Ireland Act, the same Conservative document said about Ireland: Her position is unique, and it must certainly not be regarded as a precedent. Within a few months it had been taken as a precedent in the case of India. Make no mistake, as long as the 1948 Act remains on the Statute Book it will continue to operate to tear asunder the component parts of the British Empire. It will continue to operate to create in this country legal distinctions between different categories of British subjects—a thing which for centuries we have been proud did not and could not exist under our law.

I have based my argument against the Bill so far upon the special conditions of our relations with our fellow subjects in the rest of the Empire. But there is a general reason why this Bill should be looked at very critically. Nothing that my hon. Friend said indicated that inconveniences or undesirable consequences have arisen or been apprehended from the lack of any such provisions. He did not say that, in fact, the High Commissioners have suffered and been impeded in their duties by lack of this diplomatic immunity.

It is a general principle that legislation should not be resorted to except to obtain a definite and clearly desirable result—that we should not alter the law on the ground that it might be a good idea if the law were different, or that it might come in handy some time, if the law were changed. We should alter our laws only when there is a clear and evident necessity for doing so to meet an existing need. That existing need has not been made out. There has been no attempt to show that we need to make this alteration.

I recollect—and the hon. Member for Enfield East, has reminded us of them —the speeches which were made by hon. Friends of mine and by me on the occasion of the passing of the Diplomatic Privileges (Extension) Act of last year. We then strongly argued that until it could be shown that the various international bodies concerned had suffered, and had been impeded in their work, by a lack of the privileges we were proposing to confer, we ought not to confer those privileges. The same argument exactly applies in the present case. Therefore, I hope that, since my hon. Friend has a nine weeks—or seven weeks, is it?—locus poenitentiae, he will employ that time in reconsidering whether it is necessary or desirable to put this new legislation on the Statute Book, and whether, instead of working out the consequences of the 1948 Act, he and the Secretary of State should not be devoting themselves rather to attempting to undo the harm which was then done.

6.47 p.m.

Lieut.-Colonel Marcus Lipton (Brixton)

The hon. Member for Wolverhampton, South-West (Mr. Powell) has rendered a useful service to the House in reminding us of the discussions that took place when the 1948 British Nationality Act was being discussed. It is quite true that this Bill is a consequence of the 1948 Act. I cannot help but feel, however, that his reference to the discussions that took place in 1948 may possibly have caused some embarrassment to the Under-Secretary of State who is in charge of this Bill. My recollection is that he played a valiant part in the discussions that took place then and added to the weight of the legal arguments that were adduced on that occasion.

I recall that the then Attorney-General, my right hon. and learned Friend the Member for St. Helens (Sir H. Shaw-cross), dealing in particular with the position of the citizens of the Irish Republic said: Although you are, and remain, a citizen of Eire, if you come to this country we will give you all the advantages and all the privileges that we would confer on one of our own subjects and citizens.' "—[OFFICIAL REPORT, 13th July, 1948; Vol. 453, c. 1098.] That leads me to the point that I should like to make in connection with this Bill, which, of course, in addition to conferring diplomatic immunities upon representatives of Commonwealth countries, also confers diplomatic immunities on the representatives of the Republic of Ireland who are, according to this Bill, put in a slightly different category, for reasons into which it is unnecessary to go now, from Commonwealth countries generally. If this Bill had come before the House two or three weeks ago I should have had very grave doubts as to the desirability of bracketing with the Commonwealth countries the Republic of Ireland. I say that for this reason.

Among the many nauseating circumstances surrounding the peculiar transaction which led to the departure of a 15-month old child, Thomas Kavanagh, from this country a few weeks ago in association with an American film star, was the action of a member of the staff of the Irish Embassy here in London. The Irish Embassy played a not unimportant part in connection with the whole business. What happened was that the Irish Embassy granted a passport to this 15-month old child. This 15-month old child had been born in London, in the Metropolitan Borough of Lambeth.

Mr. Speaker

The hon. and gallant Gentleman is straying a little beyond the confines of this Bill in bringing up the case he mentioned. I hope that he will relate his remarks to what is in the Bill.

Lieut.-Colonel Lipton

Yes, Sir. But I was endeavouring to quote this particular example as an instance of what can happen if a diplomatic representative, sheltering behind diplomatic immunity, which is to be conferred by this Bill, takes action of the kind I have described, which either sidesteps or runs completely contrary to the adoption laws that we in our wisdom have contrived for the protection of children born in this country.

Mr. Speaker

But I think the action to which the hon. and gallant Gentleman alludes took place before there was any question of this diplomatic immunity. I do not see how it is related to the change proposed in this Bill.

Lieut.-Colonel Lipton

It relates to the change proposed in this Bill to this extent, Mr. Speaker, that if this Bill is put upon the Statute Book action of the kind that I have described becomes immune to any action that the courts in this country may otherwise be entitled to take for the protection of children born in this country. As a result of the 1948 Act, to which the hon. Gentleman the Member for Wolverhampton, South-West, referred, it is possible—and it is a curious anomaly, not unusual, of course, in connection with anything relating to Ireland—for a child to be an Irish citizen notwithstanding the fact that the child is born here in this country, and is a British subject, therefore, by birth. That is one of the anomalies that arise from the 1948 Act, to which the hon. Member for Wolverhampton, South-West, referred.

As a result of this duality it was possible for the Irish Embassy here in London to grant an Irish passport to this infant, who, though born in London, was therefore, presumably also a British subject by birth. It enabled his transfer to the United States of America for what was said to be a three months' holiday under the surveillance of an American film star. That, I suggest, opens out an undesirable possibility—and more than a possibility in the case of the Irish Republic, because of the geographical proximity of the Irish Republic to this country. It opens out the prospect of an export in babies being conducted, protected from the law of this land, by one or another of these diplomatic representatives upon whom this Bill is seeking to confer immunity.

As you, Mr. Speaker, rightly pointed out, this particular case is not one upon which it would be right for me now to enlarge. I merely mention it because it is a very topical example of the kind of thing that may happen if this Bill goes on to the Statute Book. It is true that during the last war—and it will be within the recollection of many of us—some generous people in the United States of America started a "Bundles for Britain" movement, which was very much appreciated by many people living in this country. But I should not like to see the beginning of a "Bundles from Britain" movement protected by diplomatic immunity here in London, either in the Irish Embassy or in any other of the diplomatic establishments that are to be covered by this Bill.

Fortunately, however, my doubts have, to some extent, been allayed so far as the action of the official in the Irish Embassy here in London is concerned, because, naturally enough, as a result of the public outcry over the matter, Questions were asked not only in this House but in the Irish Parliament in Dublin, and the matter was brought to the notice of the Minister for External Affairs.

Mr. Speaker

This has nothing to do with diplomatic immunity. The hon. and gallant Gentleman has done very well, but he must realise that this is outside the scope of the Bill and out of order.

Lieut.-Colonel Lipton

I was just about to conclude, Sir, with the remark that I do not think we need have any fear in accepting this Bill in view of an explicit statement that has been made by the Irish Minister for External Affairs, who is, of course, the responsible head of all the Irish diplomatic representatives not only in London but in other parts of the world; and he has expressed the official view that it was most regrettable that the passport had been granted in the case to which I have referred. In those circumstances, I have very much pleasure in saying that I can safely ask the House to adopt this Bill.

6.58 p.m.

Lieut.-Colonel Sir Walter Smiles (Down, North)

I shall not follow the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) in this question of the movement of babies. I would only point out that this is not the first baby who has been born in London who has been registered under a different nationality. After all, in India today, or in Persia and many foreign countries, there are plenty of babies born British subjects who are registered as United Kingdom citizens.

With my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), I certainly agree that it seems nowadays that there are a great many too many Acts passed by this Parliament affecting nationality. However, I think—and I hope it will be agreed generally—that this Bill should have general acceptance on all sides of the House. My hon. Friend deplored the fact that now one could be a British subject and not declare allegiance to the King. To us, of course, and especially to those of us from Northern Ireland, this is most regrettable.

However, now that we live in 1951, and not in 1851 or even 1901, things have changed. I am inclined to think that the last Act relating to the Republic of Ireland has possibly done good rather than harm. If people—and hon. Members opposite—would not try to sow discord between the North and the South of Ireland, I believe things would be very much better. Even today, we are giving the Second Reading to a Bill which, I believe, will be inclined to do good. I believe that if people would refrain from trying to throw the apple of discord between Northern and Southern Ireland, we would get on very much better.

I think that some of the Acts that have been passed, especially in relation to the Government of Northern Ireland, have been generous and liberal, and I myself do not dissent that the Ambassador from the Republic of Ireland in London should enjoy these diplomatic privileges in the same way as do the High Commissioners of Canada, Australia, New Zealand, and South Africa. I think it would be inclined to do good rather than harm. The question I would ask the Parliamentary Secretary is: Is reciprocity really going to be given in these Dominions overseas and in the Republic of Ireland?

The hon. Member for Enfield, East (Mr. Ernest Davies) mentioned the question of Southern Rhodesia. We all realise that Southern Rhodesia is probably growing as fast as any part of the British Empire at the present moment, and I think it would be an insult which would be resented in Southern Rhodesia if similar privileges and rights were not given to the Commissioners of Rhodesia in London as are given to other parts of the British Commonwealth. I wel- come this Bill; I hope it will be passed, and I hope, especially, that it will do good in relations between the Republic of Ireland, this country and Northern Ireland itself.

7.2 p.m.

Captain J. A. L. Duncan (South Angus)

My view of this Bill is somewhat mixed. I entirely agree with what was said by my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), but, as that primarily affects an Act passed in 1948, I think we have, for the moment, at any rate, to accept that Act as it is and work on it. If that is so, we must welcome this Bill as extending privileges and immunities to people who are now placed in positions equivalent to those of the diplomatic representatives of foreign Powers.

I took some interest in the Diplomatic Privileges (Extension) Act of 1944 and, in the previous Parliament I regretted some of the alterations that were made in that Act. I recognise, however, that the 1946 Act was based on an international convention—or, at any rate on a convention passed by the first General Assembly of the United Nations. The idea underlying it was that there should be reciprocity so far as possible of privilege and immunity between all the nations of the world, and I think that I am right in saying that all the nations mentioned in Clause 1 (6) are themselves members of the United Nations—or nearly all of them —and, therefore, they have to be treated as being on the same level as all the other members of the United Nations.

I should like to ask my hon. Friend whether there is to be reciprocity if we pass this Bill, in the other countries concerned. Are they taking legislative steps, as we are today, to give to our represensentatives in those countries the equivalent rights and immunities that we are giving to their representatives?

I echo what has been said by the hon. Member for Enfield, East (Mr. Edward Davies), who talked about consolidation. As one who has recently been sitting on the Consolidation Joint Committee, I think that it would be a valuable addition to our work if this somewhat tangled structure of Acts, dating back, I think, to 1920, could be shortly consolidated as soon as this Bill is passed, because, looking at the various Acts, it is not always easy to follow what are exactly the diplomatic privileges and immunities.

I am not absolutely certain—and I should like to ask my hon. Friend this—whether this Bill is on all-fours with the 1946 Act, which did convey certain immunities—not privileges, but immunities —to the staffs of missions. Looking through the Acts I could not find any reference to members of domestic staffs, but I may be wrong in this, and they may have been covered under another name.

I was somewhat surprised to hear from the hon. Member for Enfield, East that no fewer than 800 domestics are now covered by immunities. These immunities are freedom from Income Tax and other British taxes and freedom from legal suit. I do not mind a few people being freed from Income Tax, but 800 seems to me to be a rather large number, because the effect is that the rest of us have to pay more. I hope that this Departmental Committee, under the chairmanship of Lord Justice Somervell, will look into the whole question of domestic staffs to see whether it cannot be, at any rate, limited, if not eliminated.

There is another angle to this domestic staff question. Let me put a supposition before the House. Supposing the chauffeur of one of these consuls or high commissioners—it does not matter whether he is on duty or not—knocks down somebody. He need not have a driving licence; he need not have passed a driving test, because, being free from legal suit, he cannot be sued for not having a driving licence, nor can he be sued for having driven without having passed a driving test, and he cannot be sued for the consequences of any damage he does to a British citizen in the streets.

In these days of mounting road accidents that seems to me to be a very unsatisfactory position. I agree that there is provision in Clause 1 (5) that a chief representative may waive immunity conferred on him or his servants for any purpose, and naturally I echo the hope expressed by the hon. Member for Enfield, East, that in practice the chief representative will, in fact, waive diplomatic immunity in cases such as that; but there is no certainty about it, and in the case of some foreign missions, at any rate, they may refuse to waive immunity.

I think this is one of these questions in which we ought to be very careful before we give extended immunity—as I believe it is—to minor officials of embassies or missions of various kinds which does extend down to consuls who may be living in some provincial city.

Therefore, while I do not wish to oppose the Bill, I regard British citizenship and British privileges and immunities as something that should be granted very grudgingly. I agree that there should be national courtesies between foreign countries and, for the purpose of this Bill, we have to consider our Empire countries as foreign countries because we are treating them alike; but, at the same time, I think that there should be some reasonable limit on these international courtesies, and that we should have some regard for the rights of the people of our own country.

7.12 p.m.

Mr. Bernard Braine (Billericay)

I rise to intervene for only a few moments. I must confess that I, too, have some mixed feelings about this particular Measure, arising from the fact that so far no evidence has been placed before the House that this Bill is desired by any one of his Majesty's Dominions.

My hon. and gallant Friend the Member for Down, North (Sir W. Smiles), said that he hoped that the Measure would do good. The hon. Member for Enfield, East (Mr. Ernest Davies), described it as a welcome advance, but I think it is a doubtful proposition that this Measure is a welcome advance. I dislike the Bill, in the first place, because it is surely undesirable. Indeed, the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton), made a powerful case, showing how undesirable it was to enlarge the numbers of those enjoying diplomatic immunity and privileges.

In the second place, it seems to me to be utterly wrong to assume that such privileges are desired by all the member nations of the Commonwealth. There seems to be some sort of idea—if I understood the hon. Member for Enfield, East, aright—that by granting High Commissioners these privileges one is in fact elevating them to ambassadorial rank. I am not at all sure that Australians and New Zealanders would regard themselves as being particularly privileged by being accorded the privileges extended to foreigners.

Mr. Ernest Davies

The hon. Member perhaps overlooked that on 23rd December, 1948, it was announced that the rank of High Commissioner in this country had been raised to the status of ambassador, so they do have this status of ambassadorial rank, and that is the reason for this Bill.

Mr. Braine

I do not follow that argument at all. The High Commissioners have always been ambassadors of their countries—ever since the High Commissioner system was introduced. The fact is that the sovereign States of the Commonwealth are not regarded either here or elsewhere in the Commonwealth as foreign States. I see no particular reason why present distinctions between the ambassadors of foreign States and the High Commissioners for Commonwealth countries should be ironed out. I know that the hon. Member for Enfield, East, does not attach too much importance to the relationship which has always existed between this country and the Dominions, but that relationship is totally different from that obtaining between this country and foreign countries.

There has always been an intimate relationship between this country and the Dominions, animated by trust and confidence. We speak the same language. We instinctively react in the same sort of way. We do not find it necessary to embody our formal agreements in the form of treaties. Indeed, there appears in recent years to have been something in the nature of a conspiracy to weaken the ancient ties of sentiment and interest which have hitherto bound us together. It is quite right, as the hon. Member reminded us, that this Measure flows from the British Nationality Act of 1948. That does not make it satisfactory.

I agree with my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), that the Act of 1948, which created a whole series of separate citizenships in place of the well understood and proud distinction of a British subject was a retrogressive Act. Since then the position of the Crown has been weakened. We have loosened the ties of Imperial Preference. External policies such as the recognition of China, have not taken into account the solidarity which has always existed between Commonwealth countries.

All these things have combined to weaken the ties between the Common- wealth countries and ourselves. Now it is proposed in this particular Measure to treat the High Commissioners of Commonwealth countries as though they were representatives of foreign States. In the absence of any evidence that this Measure is desired by Commonwealth countries, I must record my disappointment that the Government have seen fit to introduce it.

7.17 p.m.

Mr. J. Foster

I should like to answer the points raised from all sides of the House, but I can only do so by leave of the House. I think it would be useful if I started off with the speech of the hon. Member for Enfield, East (Mr. Ernest Davies). He asked a question about further information as to consolidation. I am not in a position to answer him, for the consolidation which I believe to be going on is undertaken under the ægis of the Foreign Office. My impression—it is only an impression—is that this consolidation is going forward, and I think the hon. Member is probably more aware of the facts of that consolidation than I am.

Mr. Ernest Davies

What I particularly wanted to know was whether this Measure will be consolidated with the Diplomatic Immunity and Privileges Acts?

Mr. Foster

I will bear in mind what the hon. Gentleman has stated and take counsel with the Foreign Office as to whether this is going to be consolidated with those Acts. It seems to me that there are arguments for consolidation with this as well as other Measures.

I can assure the hon. Member that there is no question here of extending the privilege which has been granted in the past to High Commissioners by administrative action or by contact with officials. It is quite clear that some officials are performing duties which correspond to those which consuls would perform on behalf of foreign Powers, and I, therefore, think that the House will agree that it would be right for those officials to have the same immunity. It is, of course, clear that there may be some borderline cases and that is why this Order in Council procedure has been used instead of what is in Clause 1 (1).

The reason why the Republic of Ireland is included under the Act mentioned by the hon. Member for Enfield, East, and also referred to by my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), is that Ireland is not a foreign country from the point of view of the law of this country. Therefore, the representative of that Republic is being afforded the immunity which would be afforded to the ambassador of a foreign country. The reason he is not now accorded that immunity by legislation is that he is not the ambassador of a foreign country. That necessarily flows from the Ireland Act, 1949, which in terms, states that Ireland is not to be regarded as a foreign country.

This immunity has been extended to Southern Rhodesia, because it is felt that the present state of the development of Southern Rhodesia as a self-governing Colony is such that its representatives in this country should have diplomatic immunity, and, as my hon. and gallant Friend the Member for Down, North (Sir W. Smiles), said, the people of Southern Rhodesia would wish their representative to have that immunity.

The hon. Member for Enfield, East, asked a question about the Colonies. It is intended, if this Bill is passed, that legislation in the various Colonies should follow on the same lines, so that the Australian representative, for instance, in Malaya should benefit from similar immunity to that accorded to the Agents-General for Australian States in this country.

The speech of my hon. Friend the Member for Wolverhampton, South-West, was founded on the premise that this Bill is necessarily the result of the British Nationality Act, the principles of which he deplored. I would submit for his consideration that this Bill is not the result of that Act; it is only using its machinery. If the British Nationality Act had not been passed it would have been possible, and, in fact, it would have been the course which would have had to be adopted, to distinguish the High Commissioners and their officials and staffs by using some such expression as "ordinarily resident in Australia, "or" belonging to Australia, "or some expression of that sort.

But the British Nationality Act having been passed it is only natural and, indeed, logical, in that sense that the machinery used in this Bill must be founded on the provisions of the law which existed in the British Nationality Act. What I am putting forward for my hon. Friend's consideration is that this Bill is not the result of that Act; it only uses the machinery which is imposed by that Act. In other words, there is this distinction between the citizens of the various parts of the Commonwealth which necessarily must enter into this Bill, because the proper way of describing persons who previously might have been described as "belonging to or ordinarily resident in" is to describe them as "citizens of" Ceylon, Australia, or New Zealand as the case may be.

My hon. Friend's statement that the British Nationality Act made this Bill possible is not, in my submission, exactly accurate. It made this Bill follow a certain pattern. It followed the pattern of British Nationality laid down in the British Nationality Act, but, as I have said, it would have been quite possible, if the British Nationality Act never had been passed, for this Measure to have been introduced. We would have had to use other patterns and other machinery.

Mr. Powell

I quite appreciate my hon. and learned Friend's argument that it is a use of the machinery of the 1948 Act rather than a consequence of the 1948 Act. But I am sure he will agree that in the case of the Republic of Ireland, what is done in this Bill would actually have been impossible apart from the 1949 Act, which, in turn, derives from the 1948 Act.

Mr. Foster

If the other alternative would have been that Ireland would be regarded as a foreign country, the Bill would have been unnecessary, because it would have followed inevitably that the ambassador of the Republic of Ireland would be the ambassador of a foreign country and therefore would have been entitled to immunity. He not being the ambassador of a foreign country, it was thought necessary that he should be included in the Bill.

The Bill can hardly be described as operating to tear asunder the component parts of the British Empire and to make legal distinctions between British subjects. What, in fact, it is doing is equating the position of High Commissioners, their officials, their staffs and their domestic servants to the position of the foreign ambassador and his staff. That is only recognising a fact which was enshrined in the Statute of Westminster, and which had already become a fact in 1919 when the component nations of the Commonwealth signed the Treaty of Versailles and became members of the League of Nations. The Bill gives the representatives of those countries the status to which their existence as sovereign States entitles them.

Perhaps my hon. Friend the Member for Billericay (Mr. Braine) would see some justification for the Bill in that it is not regarding the countries of the Commonwealth as foreign, but gives them the status due to sovereign States. It is held that if the countries of the Commonwealth are sovereign States their representatives in this country should have the immunities accorded to sovereign States.

The legal relationship among members of the British Commonwealth is founded on their not being foreign States; that is the reason for the Bill. Far from enshrining them as foreign. States the Bill is made necessary because those countries are sovereign States and it is desired to give them the immunity accorded to representatives of sovereign States.

Mr. Braine

I thank my hon. and learned Friend for giving me that explanation. Can he say whether the concessions made in this Measure are at the request of all the sovereign States of the Commonwealth? If the answer is in the affirmative will he say whether similar concessions are to be made to British High Commissioners?

Mr. Foster

The answer to the first part of my hon. Friend's question is "Yes" He can be reassured that these measures are taken at the wish of the countries of the Commonwealth and that reciprocal treatment will be given.

I was asked about reciprocity. It might be a good opportunity to state, in a little more detail, the arrangements which have been made about reciprocity. The reciprocal action which has been either undertaken or promised by the members of the Commonwealth and Southern Rhodesia, and including, of course, the Republic of Ireland, is very important. I shall not give the whole of the details because it would take up too much of the time of the House, but I will summarise them in this way. All the members of the Commonwealth, and Southern Rhodesia, have expressed the intention of passing reciprocal legislation where required. A comprehensive Act has already been passed by South Africa, and the Indian Government have covered the part dealing with civil litigation.

I have here the details of each Commonwealth country, bearing out the statement I have just made. Let me take one at random. New Zealand has agreed to grant reciprocity, and a draft is being worked out in terms similar to the United Kingdom legislation. The position in other Commonwealth countries is comparable. The hon. and gallant Member for Down, North, and my hon. Friend the Member for Billericay can be assured, when this legislation is brought forward, that it conforms with the expressed wishes of the Commonwealth countries.

I was asked by my hon. Friend the Member for Wolverhampton, South-West, about the need for this legislation. I can assure him that there has been some need. There was a writ served on one of the High Commissioners which would not have been served on a foreign ambassador, and it was certainly embarrassing. The position is always possible where some prosecution or malicious act might involve these representatives of sovereign States in difficulties. Therefore, His Majesty's Government have felt, although no serious incidents have occurred, that it is always possible that they might, and that this Measure is desirable.

I will not follow the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) into the intricacies of his speech about the export of babies. I gather that he did resile a bit at the end of his speech from his statement that if we passed the Bill it would make possible, or even likely, the export of babies by one or other of these diplomatic representatives; but at the end I think he gave his general blessing to the Bill. The other part was probably just a rhetorical expression.

To the questions of principle which were raised, the answer is this: it is not a reason against diplomatic immunity that it may be abused in individual cases. There are two safeguards. One is that it is the practice of the Foreign Office, and it will also be the practice with regard to Commonwealth countries in civil litigation, that the immunity should be waived or the dispute be submitted to arbitration, and in criminal cases that the immunity should be lifted. Diplomatic immunity is not the immunity of the individual, but of the ambassador or representative. It is like a curtain which he puts in front of his officials or servants, and he can lift it.

The second safeguard is that in the extreme case where immunity was not lifted, and where the Foreign Office or the appropriate Government Department thought that it should be, the person in question could be declared persona non grata. A hypothetical instance was given by the hon. and gallant Member for Brixton that this immunity could be abused, but in the hypothetical case there was no diplomatic immunity at that time. The instance which was given could have been met by those two safeguards.

I think I have answered all the questions, and I hope that the House will now give the Bill a fair passage to its next stage.

Question put, and agreed to.

Bill accordingly read a Second time.

Committed to a Committee of the whole House for Tomorrow.—[Mr. Oakshott.]