HC Deb 05 February 1958 vol 581 cc1206-20

4.10 p.m.

Mr. A. G. Bottomley (Rochester and Chatham)

I beg to move, in page 1, line 13, at the end to insert: This subsection does not affect the status of protected persons of Northern Rhodesia or Nyasaland. The purpose of the Amendment is to ensure that the protected persons of Northern Rhodesia and Nyasaland are not deprived of any of their rights. Under the Citizenship Bill of the Federation, a protected person becomes a federal citizen if, and only if, he makes application and subscribes to an oath of allegiance. Persons previously Southern Rhodesian citizens or British subjects in the Northern Territories automatically become Federal citizens. However, the Minister of Law, when introducing the Citizenship Bill into the Federal Parliament, showed that he was as anxious that they should retain their rights as we are, as I expressed it on Second Reading, because he said that to compel British-protected persons to become British subjects or to confer that status on their children by law would be a back-door way of annexing the Protectorates. With this, we agree; but, as I said on Second Reading, there have been differences; Ministers have resigned, and the Minister of Law may not have the same backing now as he had when he made that statement in the Federal Parliament.

The Joint Under-Secretary of State for the Home Department said that British-protected persons remain protected under the Federal Citizenship Act by taking no action at all. In columns 281–2 of the OFFICIAL REPORT of 28th January, the Under-Secretary is reported as suggesting that Section 1 (1, b) was necessary because a decision had to be made as to whether the two Protectorates were to be treated as Protectorates or as parts of a country with a separate citizenship.

In saying that the exclusion of Northern Rhodesia and Nyasaland from the definition of "Protectorates" deals with this point, the hon. and learned Gentleman is, in effect, saying that it has been decided to treat the Federation as one country with separate citizenship. The hon. and learned Gentleman went on to say: Nevertheless, I am advised that, in law, the net result will be that these two territories will retain their general status of Protectorates, in spite of being within the Federation, and that their inhabitants will not be deprived against their will of their cherished status as British protected persons. I do not understand on what basis the Under-Secretary can make this statement. We have to remember that, when court decisions have been made in the past, the courts have refused to take into account statements made in the Houses of Parliaments. The courts have said that they can be concerned only with an Act of Parliament as such. It appears to me and to my hon. Friends that the Bill does not give the assurance which it should.

4.15 p.m.

Subsection (1, b), this provides that the protectorates of Northern Rhodesia and Nyasaland shall be excepted from the operation of any reference in the principal Act to a protectorate. In Clause 1 (3) of the Bill, it is provided that subsection (1, b) does not affect the meaning of the term "British Protected person" nor does it affect the right of Her Majesty to declare by Order in Council which States and territories are Protectorates and which are protected states for the purposes of the Statute. In this connection, I refer to Section 30 of the British Nationality Act, 1948.

As I see it, the exclusion of Northern Rhodesia and Nyasaland from any reference in the principal Act to a Protectorate implies, despite subsection (3), that these territories are no longer Protectorates. Subsection (3) seems to me merely to ensure that protected persons from other Protectorates are not affected; in other words, it is the meaning of the word which is unchanged but the connotation, is I see it, is different. It implies also that, regardless of the passing of the Bill, the British Government can declare Northern Rhodesia and Nyasaland to be Protectorates. I understand that it will need an Order in Council to ensure the future protected status of the persons who, until the Bill becomes law, are protected persons.

The one thing which is certain is that there is much confusion here, because of Clause 1 (1, b), which could quite easily leave the way open for the annexation by back-door methods of the Protectorates.

I have moved the Amendment because I consider that, if it were accepted, its effect would be quite certain in giving protected persons their rights. Unless something of this kind is done, there is, at the very least, a danger that people at present classified as protected persons in the two territories could, under Section 3 of the 1948 Act, be classified as aliens. Alternatively, they may become, in law, stateless persons. I am not suggesting that these results follow inevitably, but there is a danger that they will. As there is a doubt, I cannot see why the Government should object to giving the protected persons of the two territories the benefit of the doubt by accepting the Amendment.

The Joint Under-Secretary said that the position of British-protected persons in Ghana is covered by the Ghana Independence Act, in which, he said, it was provided that they should continue to enjoy the status of British-protected citizens until becoming citizens of Ghana."—[OFFICIAL REPORT, 28th January, 1958; Vol. 581, c. 281–4.] He then said that Clause 2 does not affect these people, and there is certainly no subsection excluding them, as there appears to be in the case of protected persons of Northern Rhodesia.

It appears to me that, if we are to prevent the Government of the Federation doing away with the status of protected persons so far as the domestic law is concerned, it would be advisable to accept the Amendment. I cannot see why there should be any distinction made between protected persons of Ghana and the protected persons of Northern Rhodesia. It is true that Ghana can now pass legislation affecting the Protectorate status of protected persons from her territory.

What I and my hon. Friends are seeking to do is to ensure that, by an Amendment, we can prevent the Federation putting itself in a similar position. I believe that the best way we can ensure—I think it is the common desire of all hon. Members—that these protected persons have their rights in the future is to accept the Amendment which I have had the privilege of moving.

Mr. Elwyn Jones (West Ham, South)

I am very glad that my right hon. Friend the Member for Rochester and Chatham (Mr. Bottomley) has moved this Amendment, and I hope that it will result in more explicit assurances coming from the Government Front Bench in reply to the points that he has raised.

The unhappy fact is that the British citizen can no longer, to use the famous words of Lord Palmerston, hold himself free from indignity, as the Roman in days of old could hold himself free from indignity, when he could say civis romanus sum. Nor, unfortunately, can it be safely said today that a British subject, again to use Lord Palmerston's words, in whatever land he may be shall feel confident that the watchful eye and strong arm of England will protect him against injustice and wrong. If he happens to be a British citizen residing, for instance, in South Africa, although that fact may automatically confer upon him the status of a British subject or Commonwealth citizen it does not protect him from the lowest of indignities, from being segregated, from being expelled into a ghetto, and from being treated as an inferior citizen—to use the words of Lord Palmerston, subjected to injustice and wrong. Having said that, I think it gives significance to the questions that my right hon. Friend has asked and really underlines our anxiety about this matter, because there is, I assure the Front Bench opposite, deep interest in this issue in the minds of those citizens of the Federation who will be affected by this legislation. They presently enjoy the status of British-protected persons. What difference there is between that in terms of obligations and privileges from the status of British citizen, I am not entirely clear. I asked for enlightenment upon that matter on Second Reading, but, unfortunately, it was not forthcoming. It would have been welcomed then and will be welcomed today, and I trust that we shall receive it.

I further asked on Second Reading for a specific assurance that the Government of the Federation could not, between now and 1960, by its domestic or federal legislation, do away with this status of protected persons so far as the law of the Federation was concerned. When I asked that question, I received this reply, which, presumably, was a considered reply by the Under-Secretary, because it came after the speech of the Joint Under-Secretary for the Home Department, who very rightly said that the matter would receive consideration. This is as far as the Under-Secretary of State for Commonwealth Relations was able to go: It is natural that I should like to give more consideration to the answer in due course, but my preliminary answer is that it could not, because such legislation would not be within the powers of the Federal Parliament as set out in the Federal Constitution. If a Federal Act were passed with that object, it would be ultra vires and could be declared so by the courts. This is a complicated problem, and possibly this is a matter which we will have a further opportunity of considering when we come to the Committee stage."—[OFFICIAL REPORT, 28th January, 1958; Vol. 581, c. 311.] The answer of the Under-Secretary was good so far as it went, but it does bear that qualification at the end. I am bound to say that when I rose to congratulate the hon. Gentleman upon what I thought was a specific assurance, I had not appreciated the sting in the tail of his assurance. I ask now for it to be stated in more specific terms: otherwise, it will be our duty on this side of the Committee to divide on this Amendment, if I may say so.

Surely it is clear—this should be stated by the Government in clear terms—that if the Federal Government purports to enact laws conferring citizenship status on present British-protected persons contrary to that status or different from the status conferred upon them by the law in the United Kingdom, such federal law would either be disallowed or be invalid as repugnant to the United Kingdom law applying to the Federation territory—for example, the British Nationality Act or the relevant Orders in Council applying to the two Protectorates. There is no room for doubt about that proposition of law. If it is left in a state of uncertainty, it may well cause alarm and despondency among British-protected persons in the Federation and may well lead the Government of the Federation into thinking that it has powers which this Parliament and this Government should declare quite clearly the Federation Government has not.

Accordingly, I hope that we shall have an unqualified assurance on that matter before the end of the discussion on this Amendment.

The Under-Secretary of State for Commonwealth Relations (Mr. C. J. M. Alport)

I will start by dealing with some of the points which were raised by the right hon. Gentleman the Member for Rochester and Chatham (Mr. Bottomley). First, to dispatch one of the smaller points, he asked what was the difference or relationship between the position of protected persons in Ghana and the position of protected persons in Nyasaland and Northern Rhodesia. The difference is that whereas under the present status of the Federation for Northern Rhodesia and Nyasaland the protected status is retained, under the Ghana Independence Act the protected status for the Protectorates, which are the Northern Territories, is abolished. In fact, the situation of these two countries is not in any way similar, and the problem surrounding nationality and citizenship in Ghana is not the same as it is for the present British-protected person in Northern Rhodesia and Nyasaland.

The right hon. Gentleman, in moving his Amendment, said that his party was anxious to see it incorporated in the Bill to make it clear that there would be no question in the future of the British-protected persons in Northern Rhodesia and Nyasaland losing their special status as a result of the passage of this legislation. Clause 1 (3) covers the right hon. Gentleman's Amendment. I remember that on Second Reading he chided the Government upon the somewhat complicated nature of the drafting of the legislation which we were considering. It is true that it is complicated, but the method used in drafting this particular type of legislation is the principle of excluding whole classes from the operation of particular legislation and then putting back that section in respect of which it is desired that previous legislation or previous status shall still apply. In this Bill, Clause 1 (1, b) takes out all those persons affected in Northern Rhodesia and Nyasaland from the operation of the original Act, whereas subsection (3) puts them back again to all intents and purposes.

During the Second Reading debate, I explained that the status of British-protected persons in Northern Rhodesia and Nyasaland will not be affected by the passing of this Bill owing to the existence of safeguards provided in subsection (3). There is only one exception. To become a British subject a British-protected person in either of those territories will in future do so through registration as a federal citizen instead of, as previously, by the very complicated and difficult system of naturalisation through the Government of the Protectorate concerned. Therefore, it will be easier for a British-protected person in Northern Rhodesia or Nyasaland to become a British subject in future than it has been up to now.

4.30 p.m.

This might be an appropriate time to deal with a matter raised by the hon. and learned Member for West Ham, South (Mr. Elwyn Jones). He asked me to define a British citizen, and his relationship to a British subject. At present, there is no such term as "British citizen". There is the British subject or Commonwealth citizen, referred to in Section 1 of the British Nationality Act, 1948, and there is the citizen of the United Kingdom and Colonies, just as there is a citizen of the Republic of India—the difference being that a citizen of the Republic of India is also a Commonwealth citizen, whereas a citizen of Canada, for example, is also a British subject.

I do not know whether I have made the point clear to the hon. and learned Member.

Mr. Elwyn Jones

My question was; what is the difference between the rights and liabilities of a British-protected person as distinct from a British subject? That is a far more difficult question.

Mr. Alport

The hon. and learned Member certainly asked that question subsequently, but I have a quite clear recollection of his putting the other question earlier.

The difference between the position of a British-protected person and a British subject, in the law of the United Kingdom, is that a British subject, on coming to the United Kingdom, can obtain nearly all the rights of a citizen of the United Kingdom in the United Kingdom, whereas a British-protected person does not have a similar status in the United Kingdom. So far as I am aware there is also a difference in their status within the domestic laws of other members of the Commonwealth and other countries.

I have been asked a number of questions as to the likely position of a British-protected person in the Federation in future. Again, following the point made by the hon. and learned Member for West Ham, South, after having given mature thought to a difficult subject, I can now confirm that any legislation passed within the Federation by the Federal Parliament which is designed to abolish the status of a British-protected person, in respect of British-protected persons in Nyasaland and Northern Rhodesia, would be ultra vices and could be brought before the courts for determination.

The hon. and learned Member also asked me whether it would be possible for the Federal Parliament to give to a British-protected person from Northern Rhodesia or Nyasaland, within the Federation, a status in addition to that which he enjoyed at the present time as a result of his being a British-protected person. The answer is that whereas the Federal Parliament would not be able to withdraw the status of British-protected person it would be possible theoretically for it to add to that status a second status of Federal citizen and British subject.

The right hon. Member for Rochester and Chatham referred to a statement made by the Minister of Law in the Federation, in which he made it quite clear that, quite apart from any constitutional or legal aspects of the problem, to compel British protected persons to become British subjects would have political repercussions of a major character. According to what the right hon. Gentleman said, the Minister of Law said that it would amount to annexation by the backdoor. It is quite clear that it is not the intention of the Government of the Federation or of the United Kingdom that any such action should take place. The truth is that a completely new situation would arise in that case, but that in any case it would not be possible for the Federal Government to withdraw the status of British-protected person from those who enjoy it at present.

As I have said, the inclusion of the Amendment would not make any difference to the Bill. It would not do anything which is not already done by subsection (3) and it would not achieve what the right hon. Gentleman wishes. Any Amendment of this kind which we included in the Bill would be effective only in United Kingdom law and not in the law of the Federation or of any other Commonwealth country. In those circumstances, and with the assurances which I have given—which are of a very practical and effective nature—I hope that the right hon. Gentleman will withdraw the Amendment.

Mr. R. T. Paget (Northampton)

I do not know whether I entirely followed the hon. Member's explanation but, as understand him, subsection (1, b) takes certain people out, and they are promptly put in again by subsection (3). If we have a subsection which is promptly cancelled by one almost immediately following, might it not be simpler to do without both?

Mr. Alport

The hon. and learned Member is raising a drafting point. I was trying to explain that there is a certain process of dealing with this kind of problem which entails withdrawing the whole of a class from the operation of the Bill in order to clear the decks for action, and then to replace such a proportion of that class to whom it is required that the Bill or the original Act shall still apply. This is matter of drafting. I am assured that, compared with the form of the Amendment, it is a far more effective and cast-iron way of accomplishing what the right hon. Gentleman wishes.

Mr. Paget

It is not a question of taking out some and then putting back part. It is a question of putting back the whole.

Mr. A. Fenner Brockway (Eton and Slough)

I understand that the Under-Secretary has given us an assurance that the condition of protected persons in Nyasaland and Northern Rhodesia is unaffected by this new Bill, with one exception. That exception was stated in precise terms by the Home Secretary in reply to a Written Question which appears in HANSARD today. It is paragraph (d) of a long reply. I propose to read this statement in order to define the issue clearly. It reads as follows: (d) British protected persons belonging to Northern Rhodesia and Nyasaland, although retaining their status as British protected persons, will not be able to apply to the Governors of those territories for naturalisation by virtue of residence there, though under the citizenship law of the Federation of Rhodesia and Nyasaland they will be able to acquire. British nationality by the simple process of registration as Federal citizens.—[OFFICIAL REPORT, 4th February, 1958; Vol. 581, c. 165.] The Under-Secretary said that this process would be easier than the process of applying to the Governors of the respective Protectorates, but the issue is not whether it is easier or not. The real issue here is that large numbers of those who are protected persons in Nyasaland and Northern Rhodesia do not wish, on principle, to register as citizens of the Federation. The hon. Gentleman may say that this is a comparatively small exception, but this exception raises the princple of the issue which we had in mind when we tabled the Amendment.

Under present conditions a protected person can become a citizen of the United Kingdom through naturalisation by direct application to the Governor of one or other of those territories. In future, he can only become naturalised by a process of registration as a federal citizen. During the Second Reading I pointed out that some of us would not be committed because this Bill recognised the Federation. The Federation must be reviewed in 1960, and in our view it is undesirable that we should be entirely committed to it before then. There are thousands of Africans in Nyasaland and in Northern Rhodesia who are opposed to the political Federation. These will not become registered citizens of the Federation, and because they will not become citizens of the Federation they will lose their rights under this Measure to be naturalised as British citizens.

This may appear, in the view of the hon. Gentleman, to be a minor exception, but it raises the principle we have brought forward in putting down the Amendment. I hope, therefore, that unless this exception can be removed from the Bill, we shall express our protest against this principle by going into the Division Lobby.

4.45 p.m.

Mr. James Johnson (Rugby)

I want to ask the Minister a simple question which, I hope, he will answer, not in lawyers' jargon, but in a way that will satisfy a layman like myself. Would the hon. Gentleman tell us the exact position of a protected person at the moment in this context in the Federation? I ask this because during the last year or two we have seen the erosion of the status of protected persons elsewhere. In Africa today there are many places where people are in doubt. I mention the Northern Territories of Ghana, through Ashanti to the Somalis, the dispute with Ethiopia, and the Nyasa chiefs who came here for the Federation talks seven years ago.

In talking to Africans overseas one finds that they are puzzled as to their position and their guarantee as protected persons. I hope that the hon. Gentleman will be explicit on this point, because Africans say, "We are protected persons, but what does that mean, particularly in the Federation? When we wish to claim our 'protection' in this particular context, what does it mean? It seems to mean very little." These questions can arise not only in the Northern Territories of Ghana, but also in other places where there are pieces of paper signed in the last century, in the time of Queen Victoria, to which Africans in the bush and in their own tribal society attach great importance. I hope, therefore, that the Minister will answer definitely the last question put by my hon. Friend the Member for Eton and Slough (Mr. Brockway).

Mr. Alport

I will try to answer the further points that have been put to me. After the passing of this Bill the position of the protected person will not be altered. The alteration that may take place in his status is one which will be due to legislation in the Federation itself. It will enable him to qualify for a vote in circumstances which would not be open to him as a British protected person in the Federation at the present time. Broadly speaking, however, there will be no change.

The hon. Gentleman the Member for Eton and Slough (Mr. Brockway), speaking presumably for himself, said that he did not recognise the Federation. Yet his party, at the time of the Third Reading of the Bill setting up the Federation, clearly accepted it. Indeed, both sides of the House have accepted the existence of the Federation. It is logical, therefore, that we should wish to deal with the Federation in accordance with the principles laid down for the stage to which the Constitution has developed and which the Federation has reached.

The hon. Gentleman also said that there was a disadvantage as regards the British-protected person in that in future, as my right hon. Friend the Home Secretary said, the British-protected person would not be able to become a British subject and citizen of the United Kingdom and Colonies by naturalisation through the Governor, but would become a British subject by registration as a federal citizen.

The hon. Gentleman said there were thousands of Africans in the Protectorates who would not wish to become federal citizens, but we must be just as clear that there are thousands of Africans who do not wish to become British subjects and citizens of the United Kingdom and Colonies, because the facility for being naturalised has been in existence since the 1948 Act was passed. As I said during the Second Reading debate, there have been only 21 in Northern Rhodesia and three in Nyasaland who have taken advantage of it.

In those circumstances, the hon. Gentleman the Member for Rugby (Mr. J. Johnson) can be assured that the position of the British-protected person is properly safeguarded, and that his status will not be changed as a result of the passing of this Bill. Also, the hon. Member for Eton and Slough can be assured that there is no appreciable reduction in the status of the British-protected person following from this Bill, as a result of the technical change which involves becoming a British subject through becoming a federal citizen, rather than being naturalised through the Governor as a citizen of the United Kingdom and Colonies and a British subject at the same time.

Mr. Brockway

I wish to correct something that the hon. Gentleman said. I did not say that I did not recognise the Federation. What I said was that I did not recognise it in a permanent form before the review of the Constitution in 1960.

Mr. Paget

I recognise that the Bill, as explained by the Minister, has exactly the same effect as our Amendment. If that be so, since our Amendment contains a dozen words and the Bill contains 120 words and both sets of words do exactly the same thing, and the words in the Bill are totally incomprehensible to a layman and would be comprehensible to a lawyer only after very extensive research whereas our dozen words are comprehensible to even the simplest African, why should we not have our dozen words instead of the hon. Gentleman's 120?

Mr. Elwyn Jones

I am faintly disturbed by a phrase used by the Under-Secretary towards the end of his speech. I was happy until then. He said that the Bill would not effect an appreciable reduction in the status of the British protected person—

Mr. Alport

In interrupting the hon. and learned Gentleman, I merely want to prevent him from using an expression of mine to follow an argument which I do not think should necessarily arise from that expression. All that I have been trying to show in my explanation of the legal aspects is that the position of the British-protected person is not changed except in the one respect that we have recently been discussing following the intervention of the hon. Member for Eton and Slough. In saying "appreciably", I was referring merely to that very minor aspect.

Mr. Elwyn Jones

Does it mean that additional rights will be conferred upon such a person rather than that he will he deprived of rights in regard to his responsibilities and privileges as a resident in the Federation?

Mr. Alport

Yes, that is so.

Mr. Elwyn Jones

If that is agreed, I am reasonably happy.

Mr. Malcolm MacPherson (Stirling and Falkirk Burghs)

In spite of the hon. Gentleman's careful explanation, two points still remain obscure to me.

As to the rights of the protected person, I am not quite clear just what happens. I understand that the protected person now has an additional right, but I also understand that his rights are abated in one way, in that he can no longer apply to the Governor for naturalisation. The hon. Gentleman may say that, on balance, the protected person is gaining or that there is no appreciable change, but I should like it to be made clear that a right has been abated in that the person no longer has the right to apply to the Governor for naturalisation.

The other point relates to the status of the protected person who has applied for Federal citizenship. When I first came across this concept it seemed fairly clear. I understood that the protected person applied for registration as a federal citizen, and if he was accepted he was registered, and then he ceased to be a protected person and becomes a federal citizen. I gathered from the Under-Secretary's first intervention that that was not the case and that the protected person would remain a protected person and would add to his status that of a citizen of the Federation. Will the hon. Gentleman make clear which of those two readings of the situation is correct?

Mr. Alport

If a British-protected person applies for federal citizenship and the status of a British subject by registration, he will cease to be a British-protected person and will become a federal citizen, with all the rights and privileges that apply. That assumes that the person does it, as no doubt many will in due course, as a result of a voluntary application.

Mr. Ede (South Shields)

Then he will be a British subject, and if he comes to this country he will have the same rights as every other British subject? Are we to understand that that is so and that he could not be deported by the Home Secretary if, being a federal citizen, he has become a British subject?

Mr. Alport

I confirm to the right hon. Gentleman that if the person becomes a British subject and a federal citizen and comes to the United Kingdom he will enjoy precisely the same status as any other British subject coming to the United Kingdom, such as a British subject who is a citizen of Canada or of New Zealand.

Mr. Bottomley

The last thing that I want to do is to create doubt where doubt does not exist. We are concerned with the well-being of the peoples of Northern Rhodesia and Nyasaland, and I am assured by my hon. and learned Friends, who understand this matter much better than I do—although the Under-Secretary's explanation was quite clear to me—that the subsection does not affect the status of protected persons in Northern Rhodesia and Nyasaland. In those circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.