Clause 1 (Hansard, 21 July 1972)

§ Mr. Michael English (Nottingham, West)
I beg to move Amendment No. 1, in page 1, line 22, after 'territory', insert: '(other than a self-governing country in the Commonwealth)'. Because of the rather peculiar order of business this week new Clause 1

Mr. Deputy Speaker
I agree that the debate can be fairly wide on Amendment No. 1.

§ Mr. English
I am moving the Amendment solely for the reason stated in the Second Reading debate. In that debate I pointed out that the wording of this Bill seems to be a little strange in that, for example, Clause 1(2) states that the Bill applies in relation to Ceylon, to law of any other country or territory to which that enactment or Order extends. and subsection (4) the wording is: where any enactment of the Parliament of the United Kingdom passed before this Act… Many of those Acts were passed before Ceylon became independent in 1947. They are, therefore, part of the law of Ceylon.
Although Ceylon became independent in 1947, the wording of this Bill seems to try to alter the Act as such not only in relation to the law of England but in relation to the law of Ceylon. If it were doing that it would be contrary to the Statute of Westminster, 1931 which states in Section 4: No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. 1267 On Second Reading the Minister said that this Bill did not apply to the law of Ceylon. That being the case, the provisions of the Statute of Westminster would not apply to it. But if that is the case, it seems to me that my Amendments would be entirely acceptable because all they do is to make clear the point that the Minister himself said was the case, namely that this Measure in no way applies to the law of Ceylon. If that is the case, I suggest that the new Clause is probably technically better drafted than the three Amendments because for technical reasons they had to be tabled late at night after the Second Reading. I suggest that the new Clause should be acceptable in that it makes clear what the Minister said on Second Reading was the case.

§ The Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Anthony Kershaw)
I am afraid that I cannot accept the Amendment for two main reasons. The first is that the wording of Clause 1 (2), to which the hon. Gentleman takes exception, follows that used in other recent republic Acts and it would be undesirable to depart from the usual wording now without good reason. Secondly, the Amendment is unnecessary.
It is true that some Acts of the United Kingdom Parliament passed before another Commonwealth country became independent will have extended to that country as part of its law and may still be part of the law of that country. At first sight it may, therefore, be thought that the last part of Clause 1(2) means that the United Kingdom Parliament is legislating for independent countries so as to effect the operation in relation to Sri Lanka of such Acts that are still part of their law.
But that is not, in fact, the effect of Clause 1(2). This is because the grant of independence either had the effect of terminating altogether the United Kingdom Parliament's power to legislate for the newly independent country or because in the remaining cases, including those of the "old dominions" to which the Statute of Westminster refers and that of Ceylon itself as a result of the terms of the Independence Act, 1947, it was provided that any future Act of Parliament should not extend to that country as part of its 1268 law unless the Act expressly declared that that country had requested and consented to its enactment. The present Bill contains no such declaration.
Whether or not Parliament could, if it clearly showed the intention to do so, effectively repeal Section 4 of the Statute of Westminster or corresponding provisions in the Ceylon or subsequent independence Acts, or could legislate for independent Commonwealth countries in disregard of those provisions, I am satisfied that the present Bill shows no such clear intention and that the provisions to which I have just referred will restrict the application of the Bill.
Clause 1(2) does not, therefore, apply Clause 1(1) so as to affect the operation of Acts of Parliament in so far as they are part of the law of independent countries. The purpose of the last part of Clause 1(2) is to apply Clause 1(1) so as to deal with the operation of Acts of Parliament in so far as they are part of the law of the United Kingdom's overseas dependencies.
The second and third Amendments, to which the hon. Gentleman referred, appear to be based on the assumption that, in the absence of contrary provision in Clause 1(4), this provision will legislate for Sri Lanka by amending Acts of Parliament, Orders in Council and other Instruments made under such Acts in so far as they art part of the law of Sri Lanka. For the reasons I have already given in relation to the first Amendment, this assumption is not correct.

§ Mr. English
Is the hon. Gentleman saying, for example, that subsection (4) does not re-name the Ceylon Independence Act to the Sri Lanka Independence Act?

§ Mr. Kershaw
I am saying that what we are doing here does not alter any law in Sri Lanka whatever, and it is not, therefore, necessary to spell the matter out in the way the hon. Gentleman seeks by his Amendments.

§ Mr. Ivor Richard (Barons Court)
I congratulate the Minister upon the admirable way in which he read his brief and the utter non-communicativeness of his reply. He did it beautifully and blandly. I suspect that, had his reply 1269 been drafted in Sri Lankese—or whatever may be the new name of the language in that delightful part of the world—it would have been just about as comprehensive to the rest of the House.

§ Mr. English
I do not intend at this hour to press the Amendment to a Division, but I am totally dissatisfied with the Minister's reply. His first response was simply to the effect that, because other Acts were drafted in the same way, the present Bill should be. That does not answer the point at all. Why should they be drafted in this way? The Department ought to look at the question of the drafting of both this Bill and any others which may come hereafter.
The hon. Gentleman carefully did not suggest that the question which I raised in an intervention was wrong. Obviously, subsection (4) alters, among several other Measures, the Ceylon Independence Act passed in 1947, changing it to the Sri Lanka Independence Act.

§ Mr. Richard
It is British law.

§ Mr. English
My hon. and learned Friend says that, but it is highly relevant to Ceylon's independence that it was ever passed. Also, I imagine, it is part of the law of Ceylon that that country is independent by virtue of the Ceylon Independence Act, as it is currently called. That being so, one must conclude that the procedure of the Statute of Westminster should have been followed. One can hardly imagine that it would be difficult to follow it. Obviously, since the Government of Ceylon wished to change the name of their country to Sri Lanka, it would have been the easiest thing in the world for them to have requested and consented to this Measure in accordance with the terms of the Statute of Westminster.
It seems to me, therefore, that the proper procedure has not been followed, although it could readily have been followed. There would be no objection in principle on the part of the Government of Sri Lanka, as it now is. The Minister's reply was wholly unsatisfactory, and I strongly urge that when Bills arise in future on like matters the Department should consider carefully the way they are worded and draft them a little more simply, effectively and, I suspect, correctly.

§ Mr. Kershaw
The reason why it is undesirable to change the wording from the wording in the previous Acts which have been passed under similar circumstances is that the Government take the view that those previous Acts correctly achieved the purposes for which they were drafted. If we were now to change the wording it would be inferred that the law had previously been incorrect or that it is incorrect now. That is why, if we take the view that the previous legislation was correctly drafted, as we do, it is desirable that this legislation should follow the same wording.
I think the second point raised by the hon. Gentleman was answered by his hon. and learned Friend the Member for Barons Court (Mr. Richard).