§ The Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Anthony Kershaw)
I beg to move,That the Consular Relations (Privileges and Immunities) (Federal Republic of Germany) Order 1970, a draft of which was laid before this House on 13th November, be approved.
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
I gather that it would be for the convenience of the House if, with that Order, we were to take the subsequent Orders, down to and including item No. 23 on the Order Paper.
§ Mr. Kershaw
The purpose of the nineteen draft Orders which have been laid before the House is to give effect to privileges and immunities above the scale set out in the Vienna Convention on Consular Relations. The Consular Relations Act, 1968, will come into force on the 1st January, 1971, and will give effect, in regard to all consular posts in the United Kingdom, to the privileges and immunities contained in the Vienna Convention. These provisions, however, are not sufficient to enable us to give effect fully to certain bilateral Consular Conventions and other international agreements with foreign States which the United Kingdom has signed. Each of the Orders before the House is intended to give effect to our international obligations towards a particular foreign State.
The agreements, and consequently the Orders, fall into two distinct groups. Different considerations of policy apply to the two groups, and I shall therefore try to explain them separately.
In the first place there is a group of fifteen Orders which, for convenience, I shall refer to as the "Western European" group. These Orders relate to countries which are mostly in Western Europe, but including also the United States, Mexico and Japan. All these countries have consular establishments here, and we maintain substantial consular establishments in each of the counties. All the Orders have two features in common. First, the international agreements with those countries were all in force before 1968, and in fact they were all under negotiation before 1963 when the Vienna Convention on Consular Relations was drawn up. The earliest is the Consular Convention 330 with the United States of America, which was signed in June, 1951. These Conventions were laid before Parliament in the ordinary way before they were ratified by the United Kingdom.
With the exception of some provisions which can only be brought into operation as a result of the Consular Relations Act, 1968, effect was given to these Conventions in part under the common law, in part by Orders in Council under the Consular Conventions Act, 1949, and certain tax legislation, and in part by administrative means. The Consular Relations Act, however, is intended to place on a proper legislative basis the privileges and immunities to be accorded to consular posts in the United Kingdom, and it is proposed that Section 3(1) of the Act should be used to enable us by means of these fifteen Orders in Council to continue to give effect to obligations contained in our existing bilateral agreements.
The second feature which these fifteen "Western European" Orders have in common is that they accord privileges only and not immunities from jurisdiction. None of the relevant agreements requires any greater immunity from the jurisdiction of our courts or any greater inviolability for premises or residences than is conferred by the ordinary provisions of the Consular Relations Act. In fact, although the details of each of the Orders now before the House are different, because of variations in the terms of the relevant agreements, only four privileges are accorded under these Orders—namely, rating relief for residences of certain members of consular posts, additional exemptions from customs duty and from taxation, and additional protection for consular bags.
The second group of Orders may be described as the "Eastern European" group. The Orders in this group relate to the Soviet Union, Bulgaria, Poland and Romania. These Orders accord immunities from jurisdiction on a diplomatic scale to some or, in the case of the Soviet Union, all of the staff of consulates in the United Kingdom. But in contrast to the other group of Orders, which will affect three-quarters of the consular posts and consular staff in this country, the practical effect of the "Eastern European" Orders will be very limited in 331 terms of the number of persons concerned. To be precise, they will in the immediate future extend the provisions of the Order only to a further eight officers and seven employees of the two Polish consulates in this country.
The Conventions with Eastern European countries accord immunities which are greater than those accorded by the Vienna Convention. It is important to emphasise that these immunities are accorded on a basis of reciprocity. We thought it essential when negotiating these Conventions to seek the highest obtainable degree of immunity and inviolability for our consulates in those countries and for our consular officers and staff working there. This was explained to the House during debate on the Consular Relations Bill, and the House may recall that it is also the position under the Diplomatic Privileges Act that in order to give effect to special agreements with certain countries in Eastern Europe—the Soviet Union, Bulgaria and Czechoslovakia—additional immunities are accorded to staff employed in the embassies of those countries.
If these 19 Orders are approved by both Houses, it is proposed that they should be brought into operation on 1st January, 1971. Only Sections 7 to 11 of the Consular Relations Act came into force when the Act became law. On 11th November an Order was made which provided that the remainder of the Act, including Section 3(1) under which the 19 Orders will be made, will come into force on 1st January, which from the fiscal point of view is an obviously convenient date. Although privileges under the Consular Conventions already in force have been accorded administratively to the consular posts concerned for some years, there is some doubt about whether it is legally permissible or desirable to continue to rely on administrative cover after the entry into force of a statute designed to place all the relevant privileges, exemptions and reliefs on a proper legislative basis. In order to avoid an awkward hiatus during which we would be running the risk of being in breach of our obligations, we have suspended until now the entry into force of the Consular Relations Act and propose to bring the Act and the Orders under it, which form part of 332 a single coherent scheme, into force simultaneously on the 1st January. The package of Orders which it is thus proposed to bring into force will include 18 Orders relating to merchant shipping which will be made under Sections 4, 5 and 6 of the Consular Relations Act but which do not have to be laid before Parliament in draft.
I am aware that questions have been made whether or not this procedure of making Orders in advance of entry into force of the relevant statutory provision is ultra vires.
Section 37 of the Interpretation Act of 1889 gives powers to make Orders before an Act comes into force so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof.
If it were only a matter of mere administrative convenience to have all the Orders and the Act come into force at the same time and on the same day, it might well be argued that this was improper use of Section 37, but this is not the position here.
With regard to the Western European group of Orders the privileges conferred on consuls of these countries are recorded under the Royal Prerogative. The Act makes the basis of these privileges legislative and not prerogative. If, therefore, the Act were to come into force before the draft affirmative Orders were made, there would be a substantial doubt about the continuing power to grant the privileges now accorded under the prerogative during the interim period. It is, of course, most undesirable that there should be any doubt whatever about our ability to comply with our international obligations.
With regard to the second group of Orders which I have called the "Eastern European" group, the question of giving effect to continuing obligations does not arise in the same way. The argument that it is expedient to make these orders in advance of the coming into force of the Act rests on four separate considerations.
The first is that the Orders form part of a single coherent package and it is therefore desirable that the House should have the chance to consider them at the same time as the others. The second, that 333 to do so would be a saving in Parliamentary time. Third, that it is expedient because until the Order is made we are not in a position to give full effect to the provisions of the Convention with the Soviet Union and Bulgaria, which have after all already been ratified. And fourth that we wish to ratify the Polish and Romanian Conventions in order to obtain our reciprocal rights and if these Orders had not been laid until the 1st of January next our ratification would have been delayed by two months during which time we would not be able to claim the benefits of the Convention for British subjects.
Looking at the position as a whole, therefore, we found that all but four of the Orders need to be made to come into effect on the same day as the 1968 Act and that the remaining four are in themselves urgent. I have, of course, consulted my right hon. and learned Friend the Attorney-General and I am advised that not only on the grounds of convenience but also for legal reasons, our use of Section 37 of the Interpretation Act of 1889, is not only desirable but necessary. But my right hon. and learned Friend will be able to reply on any further points.
I hope that these explanations will satisfy the House that the unusually large number of these Orders does not in fact signify any alarming extension of privileges or immunities to foreign consuls in this country. We believe that our bilateral Conventions, with their inevitably differing provisions, are of great importance to the functioning of our consular posts abroad. I hope that the House will accept this and approve these draft Orders accordingly.
I now turn to the draft Order No. 23, the European Commission and Court of Human Rights (Immunities and Privileges) Order. It is made under the International Organisations Act, 1968, and confers immunities and privileges in respect of European organisations of which the United Kingdom is a member. The European Commission and Court of Human Rights Order is the first to be made under Section 5 of the International Organisations Act and will enable Her Majesty's Government to ratify and give effect to the Fourth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe and the European Agreement relating to persons participating in proceedings of the 334 European Commission and Court of Human Rights.
As the House knows, the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in 1950, establishes the Commission and the Court to ensure that the obligations undertaken by states which are parties to the Convention are fulfilled. The Commission investigates complaints of violence to human rights and seeks to achieve a settlement. If this fails, the matter may be referred to the Court or the Committee of Ministers.
The Order will confer on the Judges of the Court, its Registrar and its Deputy Registrar inviolability of papers relating to the business of the Court, immunity in respect of anything said or done in their official capacity, and freedom from arrest or detention while exercising their functions. It will also confer on other persons participating in proceedings before the Court or the Committee of Ministers the immunities necessary for that purpose. In addition, it confers limited Customs privileges on the Judges, the Registrar and the Deputy Registrar.
The importance of the European Convention on Human Rights and of the proper functioning of the European Human Rights institutions will be generally accepted. Since the Court, the Commission and the Committee of Ministers do not normally sit in this country, the Order is not likely to have much practical effect here, but it will enable Her Majesty's Government to ratify the Protocol and Agreement, and demonstrate our continuing support of the machinery of the European Convention. Of course, the Commission can and does take evidence in foreign countries, and might well do so here.
It cannot be disputed that the immunities conferred by the Order are necessary to ensure the independence of the judges and officials and to protect persons who may be called upon to take part in proceedings concerning human rights before the Court and the Commission or the Committee of Ministers.
The Eurocontrol Order is made under section 1 of the International Organisations Act and confers on the European Organisation for the Safety of Air Navigation (Eurocontrol) relief by way of 335 refund of customs duty paid on hydrocarbon oils and refund of purchase tax. It will enable Her Majesty's Government to ratify and give effect to the Additional Protocol to the Eurocontrol Convention.
Eurocontrol's chief purpose is to ensure co-operation between its seven member States (mainly Common Market countries) in matters of air navigation and in particular to provide for the common organisation of air traffic services in the upper air space. Under the original Convention of 1960 Eurocontrol enjoys certain limited reliefs from taxes, including customs duties, and at present it incurs a heavy burden of indirect taxation taxation in connection with its installations and operations. Since Eurocontrol conducts its operations mainly in the territory of a few Member States, this results in some Member States, including the United Kingdom, contributing very large sums of money by way of indirect taxation through the budget of Eurocontrol to the revenue of other Member States.
The Protocol which is designed to accord relief to the organisation in respect of indirect duties, taxes and charges will end this unsatisfactory situation. The loss to the United Kingdom which will be remedied by this Protocol has been estimated at over £300,000 a year. Her Majesty's Government played a leading role in seeking the adoption of this Protocol, and in including in its Protocol of Signature a provision that—the Governments of the Signatory States shall use their best endeavours to ensure that the Protocol shall enter into force not later than 1 January, 1971".For obvious reasons, we are anxious not to be dilatory with our ratification.
In addition, the Order confers certain personal customs privileges on the staff of Eurocontrol. These privileges are required by Article 24 of the original Eurocontrol Convention of 1960 and have until now been accorded administratively. Since the enactment of the International Organisations Act, however, it is accepted policy to provide legislative cover for personal customs privileges required under international agreements.
It is rare that the sponsor of an Order of this kind can assure the House that we will receive such a direct and substantial financial benefit from the international 336 agreement to which it gives effect, and I am sure that this feature will commend it to the House.
§ 8.0 p.m.
§ Mr. Alexander W. Lyon (York)
For convenience, the House is taking 21 Orders together. As the Under-Secretary pointed out, they fall into three groups. The hon. Gentleman dealt with the 19 which come under the Consular Relations Act first, but I propose to deal with them in the reverse order.
My hon. Friends and I have no objection to the Eurocontrol (Immunities and Privileges) Order, which the Under-Secretary explained last. We welcome the European Commission and Court of Human Rights (Immunities and Privileges) Order, although I have one concern about that; namely, that while under article 5(3) the immunity is conferred on witnesses and others who partake in proceedings in the Court of Human Rights, the immunity lasts for only 15 days after the day when their presence is no longer required by the tribunal.
Obviously there must be a time lapse for immunity in relation to people about whom the police in this country may have certain questions. However, I hope that when this is applied, if it ever falls to be applied, the Government will be flexible in their adherence to this question of 15 days, because it could be a trap for anybody appearing before the Court; that is, if such a person did not realise that his immunity lasted for only 15 days.
I do not know what, if any, administrative procedure exists for warning those given immunity of the length of time during which their immunity lasts. I hope, if there is no such administrative procedure, that there will be a certain amount of flexibility. However, this is a minor point and not one over which one would wish to object to the Order.
I fear that we cannot be as amiable when we come to the remaining 19 Orders which are the major substance for debate tonight. These fall under the Consular Relations Act, 1968. During the course of the discussion of that Measure, the then Opposition asked that these Orders should come forward at a very early date. It has taken about two and a half years for them to come before the House, and my submission is that we should have 337 waited a little longer to clear up the ambiguities and difficulties that surround the tabling of these Orders.
The first point my hon. Friends wish to make clear is that the Orders are ultra vires the Act anyway. I raised this matter private with the Under-Secretary, who was good enough to refer to it during his remarks. The point arises under Section 37 of the Interpertation Act of 1889, which states that Orders in Council may be laid and passedso far as they may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof.The Under-Secretary pointed out that there would be certain inconveniences to the Government in adhering to international obligations if the Orders did not come into effect on the date when the Act comes into force. However, that sort of inconvenience is not what is meant by the words contained in the Interpretation Act. That is certainly our view. Those words—and the matter will be dealt with in greater detail by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin)—really refer to the machinery which is necessary to bring the Act into operation and not to give the extra privileges or immunities permitted by the Act, and which can come into effect only when Orders are laid.
There would be a hiatus if these Orders do not come into effect on 1st January next year but, as the Minister indicated, this hiatus is not likely to cause a great deal of difficulty since, in most cases, the privileges and immunities have been allowed either by the exercise of prerogative or by administrative procedure, and the administrative procedure could continue for the short time that would be necessary if these Orders were to be laid immediately after the coming recess. It is to be hoped that the whole matter would then be reconsidered in any delay that there might be.
During the discussion on what was the Consular Relations Bill the point was made that the Vienna Convention of 1963 was intended to clarify and regularise the position of consuls throughout the world. The object was the same as in relation to diplomats under the Vienna Convention of 1961; that is, that the United Nations wanted to have a standard procedure for the treatment of both diplomats and con- 338 suls—and in the Diplomatic Privileges Act we gave effect to the Convention in relation to diplomats and in the Consular Relations Act we gave effect to the Convention in relation to consuls.
It is, therefore, somewhat anomalous that, having decided as part of an international agreement binding on those Member States who have ratified it that there are certain standards to which we should live up, we should then go in excess of those standards by bilaterally making agreements which give greater privileges or immunities.
The argument used against that by hon. Members of the Opposition, as they were at the time of the debate on the Consular Relations Bill, was that the Foreign Office had made agreements before the Bill was passed, that in some cases those agreements gave rather greater protection than was given by the Vienna Conventions and that it was in the interests of our own consuls in the other countries that they should get the reciprocal benefits of those earlier bilateral agreements if they were greater than they would get under the Vienna Convention.
The House was prepared to accept that assurance, as I suspect it would be prepared to accept the assurance of the Under-Secretary in his opening remarks; that these are necessary for the proper functioning of the duties of consuls in some of those countries.
On closer analysis—and the virtue of tabling these 19 Orders together is that one has an opportunity of analysing the whole lot side by side—one sees that it does not really add up. The position is that under Schedule 2 of the Consular Relations Act, 1968, there were six paragraphs which dealt with the extension of exemptions of either privileges or immunities, the first three relating to privileges and the second three relating to immunities. The first paragraph was immunity from dues and taxes in relation to consular premises, including the residence of the career head of the consular post. Under these Orders that exemption is extended to every country named on the Orders, except the Netherlands and Roumania. Why is it necessary that all these other countries should be able to forgo their rates, and so on, on the premises of consular officers if the Netherlands and Roumania do not find it necessary to have that exemption?
339 The most curious exemption is one which is contained in the Order affecting the United States of America. It relates not only to consular officers, but to guards, messengers and drivers. Why should the guards, messengers and drivers have certain privileges which are necessarily accorded, perhaps, to the head of a consular post but which seem inappropriate for those who drive his motor car? It does not obtain in relation to the Orders affecting the other 18 countries. I am not sure that guards, messengers and drivers are members of the service staff as defined in the Vienna Convention. Perhaps the Order affecting the United States needs re-examination. That could be done if the Orders were taken away and retabled after the Recess.
The second paragraph relates to exemption from most taxations for consular officers. Apparently this is not extended to any of the countries named, except again to the guards, messengers and drivers, who seem to be in a peculiarly privileged position, and also to the East European group.
The third paragraph relates to exemption from Customs duties for consular employees in respect of articles imported at the time of their first installation. This is extended to all the Communist states and to a number of what the Under-Secretary called the West European States and to the guards, messengers and drivers of the United States, but apparently not to Italy, Japan, Denmark, Norway and Sweden. Why is it necessary to give such a privilege to some consular employees and officials and not to consular employees and officials from other countries?
I recognise that in some measure the Government are bound by the bilateral agreements which were entered into some time ago and that some parts of those agreements are a valuable asset in enabling the work of the consul to be performed and that the Government want to keep them. It would have been possible to have exchanged notes with the appropriate countries limiting and rationalising the privileges which are extended in these Orders in the first three paragraphs.
The House will have noted that the first three paragraphs relate to privileges and that the privileges help the appropriate persons to evade some form of taxation in the United Kingdom with 340 reciprocal advantages for our consuls in the countries affected by the Orders. Why is that necessary as an extension of the Vienna Convention?
I see logic in extending the Convention in relation to the immunities which are contained in the final three paragraphs of Schedule 2 of the Consular Relations Act. Those immunities give protection in relation to the inviolability and immunity from arrest of consular officials. It is clearly helpful that that should be so. The Under-Secretary said that that applies only in relation to the East European countries. A certain protection is given to the consular bag coming from certain countries in the West. Why is it necessary to give those protections to Germany, Italy, Sweden, Austria and Czechoslovakia and not to any of the other countries which are named in these Orders?
These 19 Orders relating to existing bilateral agreements do not by any means cover the whole area of our diplomatic and consular representation throughout the world. If it is possible to manage within the limits of the Vienna Convention in relation to these other countries, why is it not possible to manage, at least in relation to non-Communist countries, with the privileges and immunities which are contained in the Convention for these 15 countries?
Therefore, we think that the situation is a continuation of an irrational position which could have been clarified and on which the Government could have taken the opportunity, because they had to table the Orders, of making the situation more rational. For instance, they could have done something about the real threat to any consul or diplomat nowadays, which is not so much the pressure of the state in the country where he practises as the threat from kidnappers who might choose to use the threat to life as a bargaining counter with their co domestic Government.
This activity, which is totally deplorable, has been on the increase in recent months. It has affected one of our own diplomats. If the Government had decided that, to rationalise the position, they would reconsider the existing immunities and privileges for consuls throughout the world, it might have been possible to have negotiated also some kind of protection from kidnappers.
341 This is clearly difficult. A kidnapper almost by definition acts outside the law and will not be bound by any protection given in any convention. The real threat to people like Mr. Cross is that the kidnapper can usually bargain upon being able to go to a haven after he has negotiated whatever it is he is trying to secure. If there were an international obligation to make an outlaw of the kidnapper and refuse him a haven after he had indulged in the deed, it is highly unlikely that the kidnapper would think of using this form of persuasion upon his domestic government.
If there had been no Cuba to which the Canadian kidnappers could have gone, would they have taken Mr. Cross in the first place? I recognise that once they had taken him it was convenient for the Canadian Government to be able to persuade them that they ought to go to Cuba, that having gone there they would be given absolute protection, and that this was a way of saving Mr. Cross's life. But was he not put in jeopardy precisely because his kidnappers had this kind of haven to go to?
Would it not be possible under an international agreement, possibly inaugurated by the United Nations, to make proposals which would protect our diplomats and consuls in a much more realistic way than any protection that we can give them at the moment? Would not this be more relevant than simply being able to ensure that the guards, messengers and drivers of the United States consul are able to bring in their whisky at appropriate times when they are coming to their posts?
§ 8.20 p.m.
§ Mr. S. C. Silkin (Dulwich)
My hon. Friend the Member for York (Mr. Alexander W. Lyon) mentioned that we had told the Government of our intention to raise the question of the vires of these Orders. I am most grateful to the Attorney-General for coming to reply to the difficulties with which I shall deal. It may seem a little strange to be arguing a nice point of law in the House, but, of couse, this is the High Court of Parliament.
My purpose in asking the House to consider whether the Orders which are laid before the House in draft are or are 342 not infra vires is not to raise technicalities and still less to make any party political point. It is more important and fundamental. The draft Orders purport to grant various privileges and immunities to consular officers, their families and staff. They confer exemption from rates and taxes and customs duties, and to that extent they affect the Exchequer, for which the Government are responsible. But they also affect local authorities for which the Government are not responsible. In some cases they confer immunity from jurisdiction, and to that extent they affect the private citizen by depriving him of rights of recourse to the law which he would otherwise enjoy. In some cases they restrict the right to require the beneficiaries of the Orders to give evidence in court or to suffer execution of their goods.
It will therefore be apparent to the House that the question whether the Orders will or will not be valid may affect persons and bodies in this country over which the Government have no control. Whilst the Government might, and doubtless would, refrain from relying upon the invalidity of Orders which they themselves have laid, if this House and the other place approve them, it is not possible for this House, the other place or the Government to prevent a private citizen or local authority from contending before a court that the Orders are invalid. If they were held to be invalid, consular officers, their families and staff who had relied upon them would suddenly find that they had done so in vain, and that to the extent to which the Orders purport to give them privileges and immunities beyond those enjoyed by the ordinary citizens of the land are a sham and a delusion.
That alone would be bad enough, but these are Orders to give effect to reciprocal agreements, and if they are invalid in this country, then this country will be in default of her agreements with the United States of America, the Soviet Union and 17 other States. It is therefore not enough that the House should believe the Orders to be valid; it must be certain that they are. If there is any real doubt whether the courts would regard them as valid, the doubt should not be left hanging over them, possibly for many years, until a question arises in the courts. The doubt, if it exists, should be resolved now. As my hon. Friend 343 said, there is no difficulty about resolving the doubt, for what is doubtful is simply whether the Orders are premature. If they are, or if it is possible that the courts may regard them as premature, the Government have only to withdraw them and to lay them again in a few weeks' time and the prematurity can be cured. I accept that if that is done there may in certain cases be some gap in the reciprocity, but it is certainly better that there should be a gap which would be very short than a question mark over the validity which may hang over the Orders for many years.
That is why we on this side of the House take the question of doubt seriously. If the Government decide that the wise course is to withdraw the Orders we shall certainly not regard that in any sense as a tactical victory for this side of the House but rather as a piece of prudent foresight by the Government.
I come to the question of law which arises. I do not for a moment doubt the excellence of the advice which the Government have no doubt received on the matter but, as the right hon. and learned Gentleman will know only too well, the best advisers are sometimes mistaken, and we believe that in the present case there is at the least a serious doubt whether the advice was correct. That doubt does not exist only on these benches. The Special Orders Committee of the other place, whose duty it is to examine such Orders, has already expressed its doubt in print. That Committee, like our Statutory Instruments Committee, examines Statutory Instruments and has the duty to draw the attention of the other place to matters which call for comment. In its Fourth Report it has called attention to its doubts about the Orders, and the reasons which it gives for them are the same as those which produce the doubts which we on this side of the House have. They derive from the technicalities of the legislation and from the judgments which have been delivered in two cases in the Court of Appeal. I shall state them as simply as I can.
These Orders are made under powers given in Section 3(1) of the Consular Relations Act, 1968. We are not concerned with the other two Orders, which relate to European organisations, and we have 344 no point to make on them. They come under a different Act. But the Consular Relations Act, save for Sections 7 to 11, is not yet in force and will not be until 1st January, 1971. Section 16(3) provides that the Act shall come into force on and not before such day as an Order-in-Council may appoint. That Order-in-Council has been made, bringing the Act into force on 1st January. It follows from that that Section 3(1) has not yet been brought into force.
If the matter rested there, there would obviously be no doubt that the Orders which purport to be made under a Section which is not yet in force cannot possibly be valid. This is where the doubt creeps in. The hon. Gentleman referred to the provisions of Section 37 of the Interpretation Act, 1889, and relies upon that Section for giving validity to the Orders. That Section provides that Orders-in-Council and other instruments may, in certain circumstances, be valid where the power to make them is exercised before the Act under which they are made comes into operation.
It would make nonsense of provisions in an Act postponing the coming into operation of that Act if the provisions of Section 37 of the Interpretation Act were wholly unrestricted. It would mean that the power to make delegated legislation could always be exercised even before the Act was in force. Clearly, that cannot be the case. Section 37 avoids that anomaly. It does so by restricting the power which it conveys to make such Orders so that it may be exercised, and exercised only, so far as may be necessary or expedient for the purpose of bringing the Act into operation at its commencement date.
The meaning of that restriction, I myself would have thought, would not seem to be unduly obscure. There may be some provisions in an Act which cannot operate at all unless an Order is made before the commencement. In that case, the power to make the Order before the Act commences is necessary in order to enable that provision to operate.
Such a case arose under a provision of the Town and Country Planning Act, 1947. This was the case of Rex v. Minister of Town and Country Planning ex parte Montague Burton, and it is reported in the first volume of the King's 345 Bench Report, 1951, at page 1. In that case, Lord Justice Tucker described the effect of Section 37 on page 6. He said:It gives power to take the necessary steps to set up the machinery for bringing the Act into operation.In other words, its purpose is, as he said:… so that the necessary machinery will function as soon as the new Act comes into operation.He emphasised, and I emphasise, the word "machinery".
But Section 37 goes further than that. It applies not only to cases where it is necessary in order to bring the machinery of the Act into operation but also to cases where the Orders in question, and the power to make them, are expedient for bringing the Act into operation.
In this sense it applies, for example, to Acts which bring a particular system into operation but leave the details of the system to be filled in by regulations or rules. Such a case arose under the Registered Designs Act, 1949, which provided for the registration of designs with the Patent Office but left it to the Board of Trade to make statutory rules to regulate the business of the Patent Office in relation to designs. Clearly in that case the machinery of registration could not effectively operate from the commencement of the Act unless the rules were made before the commencement of the Act.
Hence it was that in the case of Usher v. Barlow, reported in the First Volume, Courts of the Chancery Division 1952, page 255, the Court of Appeal held such rules made before the commencement of that Act to be valid. In the course of their judgment their Lordships echoed the language used in the early case to which I have referred, and Lord Justice Jenkins explained the word "expedient" by saying that the Order must be one… with which the Act will come into operation more conveniently or effectively.It is, in other words, the coming into operation of the machinery of the Act upon which the wording of Section 37 operates. These are the only two cases of which I know where Section 37 has been before the courts. Certainly they are the only cases that I have been able to find in the standard works of reference. Both are cases in which the power created 346 by Section 37 has been held to cover Orders which bring the machinery of an Act into operation. Neither of them covers a case in which an Order is made which is not a machinery-creating Order. These draft Orders now before the House are not machinery-creating Orders, they are power-exercising Orders. They go far beyond either of the two cases to which I have referred and, subject to what the Attorney-General may say, it seems to us at this stage of the matter that they are not Orders the making of which is necessary or expedient for bringing the Act into operation at the date of its commencement.
I realise that it may be said—it has been said by the Under-Secretary—that it would be inconvenient if they did not operate from the date of the commencement of the Act. But that is a totally different matter from the matter dealt with by Section 37. The mere fact that there would be inconvenience does not mean that Section 37 operates in this case.
This is not an easy subject, and I am grateful to the Attorney-General for coming to the House to assist us with it. I am grateful to the House for the patience with which it has listened to me expounding our views on what is, although a technical matter, nonetheless a very important matter. We share the doubts expressed by the Special Orders Committee of the other place. I gather that the other place may be debating these Orders in the course of this week. In the light of those doubts we feel, subject to what the right hon. and learned Gentleman may say, that the House would be wise not to approve these draft Orders now and that the Government would be wise to withdraw them and give further consideration to this question of prematurity which may sow seeds of future confusion and uncertainty.
§ 8.40 p.m.
§ The Attorney-General (Sir Peter Rawlinson)
I rise, not to wind up the debate—because certain matters, such as kidnapping, have been raised by the hon. Member for York (Mr. Alexander W. Lyon) which would be more appropriately dealt with by the Under-Secretary of State—but to try to assist the House on the matter raised by the hon. and learned Member for Dulwich (Mr. S. C. Silkin). The hon. and learned Gentleman 347 kindly said that he appreciated my presence. I hope that he will feel as appreciative after I have tried to give the House what help I can on this point.
The hon. and learned Member for Dulwich rightly painted the awful consequences which might be said to arise if it were found, as it could be found if a claim were contested in the courts, that the Orders were invalid. New Orders would have to be laid and made as quickly as possible. But the hiatus between finding such Orders invalid, if it should happen, which I beg leave to doubt, and the making of new Orders would probably be the same as the hiatus which would exist if the Act came into force on 1st January and we followed the hon. and learned Gentleman's advice and postponed the laying of the Orders. In other words, the interval would be the same, although the effect would be different, because the effect would arise after the Act had come into force.
Fifteen of the Orders, referred to as the Western European group, confer additional privileges but not immunities. Hitherto, they have been conferred by administrative action under the prerogative powers vested in the Executive. But by Section 3 of the Consular Relations Act, 1968, there arises the power to grant these privileges by Order-in-Council and, therefore, by implication, there arises the very substantial doubt, to put it at its lowest, that by Section 3 the Executive have been deprived of the prerogative power to accord these privileges administratively. Therefore, for a particular period, there would be very substantial doubt about whether these privileges could continue to be conferred by administrative action. Thus, the existence of the doubt that the Government might be unable to comply with the treaty obligations which this country has entered into makes it expedient to bring the Orders into force on the same day as the Act.
The remaining four Orders are in a different category. They confer immunities as well as accord privileges. However, since the Vienna Convention on Consular Relations it is probably not within international customary law and, therefore, probably not available at common law, to use what has been used in the past. In any event, such immunities can be conferred only within the framework of the 1968 statute.
348 The group of four Orders is divided into two. The first two relate to Russia and Bulgaria. There we might well be in breach of the bilateral treaties and it could therefore be said to be expedient, if not wholly necessary, to introduce the Orders. The second group of Orders relate to Poland and Romania and these Her Majesty's Government want to ratify urgently. They cannot do so until the requisite immunities and privileges are conferred, and it is obviously expedient to introduce the Orders so that they come into effect with the Conventions as soon as possible after 1st January, 1971, otherwise there would be a delay. That is by way of introduction to the point raised by the hon. and learned Gentleman pointing out, when we come to examine the Interpretation Act, the distinction between necessity and expediency.
The general principle, as the hon. and learned Gentleman has made clear, is that unless there is a contrary intention, or it is necessary for bringing the Act into operation, the Statutory Instrument cannot be brought into operation before the Act. The Act comes into force on 1st January, 1971, which is the date of the Order, and there is, therefore, no question of the Order coming into operation before the commencement of the Act.
Section 3(1) of the Consular Relations Act specifically refers to agreements made whether before or after the passing of the Act. Some of the agreements which have been entered into before 1st January, 1971, could not be given effect to as soon as the Act comes into operation unless a Statutory Instrument is made under the powers conferred by that Section.
The doubts that have been expressed by the hon. and learned Gentleman and in the Fourth Report of the Special Orders Committee of the House of Lords turn on the Interpretation Act, 1889, Section 37. In paragraph (a) the Special Orders Committee called to the attention of the House three matters and expressed a doubt. The Committee referred to the Consular Relations Act, 1968, Section 3(1), under which the Orders purport to be made and say that the Act is not yet in force. The Committee goes on to say:The power to make Orders in Council before the Act comes into force resides therefore in Section 37 of the Interpretation Act, 1889, which provides that, 'that power may unless the contrary intention appears be exercised at any time after the passing of the 349 Act, so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof …'".That, as the hon. Gentleman has said, is the operative part of Section 37. The Committee went on:The Act will give the force of law to certain provisions of the Vienna Convention. The doubt is whether Orders in Council enlarging privileges and immunities conferred by those provisions are 'expedient for the purpose of bringing the Act into operation'".The quotation marks are then closed, and the quotation does not continue to the end of the Section:… at the date of the commencement thereof".It is on the words "on the date of the commencement thereof" and the link with expediency on which my submission lies that it is appropriate and proper for the Orders to be laid at this time.
The hon. and learned Gentleman quoted the Court of Appeal in dealing with Section 37. He referred to some words which were said in the case of R. v. The Minister of Town and Country Planning in 1951. It was said in that case:The words in Section 37 referring to regulations, byelaws, notices, prescribed forms, and so forth, make it clear that matters of that kind may be made under section 37 so that the necessary machinery will function as soon as the new Act comes into operation and things shall not come to a standstill by reason of the repeal of the existing Act.The important part of that quotation is in the words… the necessary machinery will function as soon as the new Act comes into operation.The right hon. and learned Gentleman then referred to the judgment of Lord Justice Jenkins in Usher v. Barlow—(1 Ch. 1952 p. 255)—and I shall quote from that judgment a little more fully. It also refers to Section 37. Lord Justice Jenkins said:If the section had been confined to matters without which the Acts could not come into operation at all, the words 'or expedient' would so far as I can see, have been not only otiose but wholly inappropriate. A matter without which an Act cannot come into operation at all is necessary for the purpose of bringing it into operation, and cannot be anything less than that. A matter which is merely expedient for the purpose of bringing an Act into operation is by definition not necessary for that purpose. It is a matter without 350 which the Act can come into operation, but with which the Act will come into operation more conveniently or effectively.There is this distinction between "necessary" and "expedient". "Expediency" is linked to the words at the end of Section 37at the date of the commencement thereof.The Special Orders Committee, with respect, may not fully have appreciated that the test is not just in regard to the wordsexpedient for the purpose of bringing the Act into operationbutexpedient for the purpose of bringing the Act into operation at the date of the commencement thereof.Turning back to the 1968 Consular Relations Act Section 3(1) is an integral pant of the Act and it is impossible for it to operate from the date of commencement unless Orders are made under the section before commencement. The date of commencement is the clear test of "necessary" or "expedient" as applying to the exercise of power between passing and amendment.
If I may give an example which came before the House in 1969 under the Mines and Quarries (Tips) Act, there was an Order made on 12th June, 1969, the same date as the Order appointing the commencement of the Act, That fixed a rate of interest on sums recoverable after the commencement of the Act; so they were fixing the rate in advance by order. That was not essential for bringing the Act into operation on the date of its commencement but it was "expedient". The House accepted that and there has been no challenge in those circumstances.
A distinction can be drawn from a more recent example namely the Draft Farm Amalgamations and Boundary Adjustments Scheme 1970 and the Draft Farm Structure (Payments to Outgoers) Scheme 1970. In that case before the House the procedure was different, because the 1889 Act did not apply in the case of those schemes under the Agriculture Act. The supporting legislation under the Agriculture Acts was being made under an earlier Act which was already in force. There was no question of it being madefor the purpose of bringing the Act into operation at the date of commencement thereof.351 It was in those circumstances and in that case that the Government—I do not believe it was at the behest of the Opposition—decided that it was not right to lay those Orders in those particular circumstances.
Shortly, therefore, the point on Section 37 is that it is expedient and even necessary that the Orders relating to all the countries, with the exception of the Romania and Poland Orders, should come into effect from the commencement of the Act, so that our international obligations under existing agreements may be discharged from the date of commencement of the Act. In the case of Romania and Poland, it is expedient that the Order should come into operation as soon as possible after the commencement of the Act, because we want to ratify the agreements with those countries as soon as possible.
The House will be grateful to the hon. and learned Gentleman for raising such a matter and, for his courtesy in giving notice so that at least I have been able to try to give an explanation of the advice which I have tendered. It is important that we should always consider such Orders to see whether we can avoid making Orders which subsequently may be held ultra vires. But it is a matter of advice and judgment, and I can only say that I have so advised the Government, and that I would so advise the House, that these matters are intra vires.
§ 8.57 p.m.
§ Mr. Kershaw
I have only a few words in reply to the hon. Member for York (Mr. Alexander W. Lyon) on his points on policy. I do not wholly understand why the hon. Gentleman wishes us to be satisfied with the Vienna Convention, just the Vienna Convention and nothing but the Vienna Convention. After all, one realises that reciprocity is at the heart of this matter. In countries such as Russia, he will agree that the right of access to our citizens in prison there is a matter of the greatest possible importance. It is very much in our interests to have a much wider cover than the Vienna Convention in some cases.
§ Mr. Alexander W. Lyon
I understand the point that the Under-Secretary has just made. However, the immunities referred to in the Soviet Union Order, 352 for instance, do not relate to access to people imprisoned but to the immunities of the consular officers in relation to inviolability and the rest.
§ Mr. Kershaw
But the status of the consular officers who have to discharge these duties is important in this regard, and that is the reason why we want these provisions.
In regard to the various draft Orders, there are further reasons why it is not possible to rely only on the Vienna Convention. The first is that eight of the Orders are in respect of countries which are not parties to the Vienna Convention. We could not ask them to alter our Treaties with them to conform with a Convention to which they are not parties. In the case of those countries which are parties, I would point out that it is in our interests to have the rather wider facilities in these Conventions rather than those which the Vienna Convention provides, because we have far more consular officers abroad in their countries than they have here. Therefore, from a financial and practical point of view it is very much in our interests that they should have extended privileges and immunities here.
Lastly, there is no derogation from the Vienna Convention in this, for the Convention recognises and provides for this both by preserving agreements which have already been made and allowing new ones to be made by signatories of the Vienna Convention.
The hon. Gentleman referred to one or two specific countries. In the case of the Netherlands, it is true that we have no agreement about rates. The reason is that that country is not a party to a full-scale Convention. The Netherlands is merely party to a customs agreement. When one comes to consider Romania, no question of rates arises in the Convention because that country has at yet no consulate here.
As for the United States, it is true that we have many American officials hopping round disguised as consuls. That is the way they wanted it. One can only surmise, but it may be that in 1951 there was a residual American feeling that foreign food was either non-existent or poisonous, and that they had to bring everything with them. That may have coloured the view of the negotiators at the time. However, that is speculation. 353 From the point of view of policy, it would be hardly worthwhile our engaging in a long wrangle with the United States with a view to obtaining some uniformity in an area long distinguished by a lack of uniformity which is itself actually helpful to us. So probably that should he left as it is.
I must not follow the hon. Gentleman too far on kidnapping. None of these Orders deals with that. From the legal point of view, all safeguards exist. Kidnapping raises questions of practical security which do not arise in any discussion of these Orders.
I hope that the House will approve the Orders.
§ Question put and agreed to.
That the Consular Relations (Privileges and Immunities) (Federal Republic of Germany) Order, 1970, a draft of which was laid before this House on 13th November, be approved.
That the Consular Relations (Privileges and Immunities) (French Republic) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Italian Republic) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Japan) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Kingdom of Belgium) Order, 1970, a draft of which was laid before this House on 13th November, be approved—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Kingdom of Denmark) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Kingdom of Greece) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Kingdom of the Netherlands) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Kingdom of Norway) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Kingdom of Sweden) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Republic of Austria) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Socialist Federal Republic of Yugoslavia) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Spanish State) Order. 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (United States of America) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (United States of Mexico) Order, 1970, a draft of which was laid before this House on 13th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (People's Republic of Bulgaria) Order, 1970, a draft of which was laid before this House on 17th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Polish People's Republic) Order. 1970, a draft of which was laid before this House on 17th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Socialist Republic of Roumania) Order, 1970, a draft of which was laid before this House on 17th November, be approved.—[Mr. Kershaw.]
That the Consular Relations (Privileges and Immunities) (Union of Soviet Socialist Republics) Order, 1970, a draft of which was laid before this House on 17th November, be approved.—[Mr. Kershaw.]
That the Eurocontrol (Immunities and Privileges) Order, 1970, a draft of which was laid before this House on 17th November, be approved.—[Mr. Kershaw.]