HL Deb 14 May 1946 vol 141 cc168-78

Order of the Day for the Second Reading read.

3.35 p.m.


My Lords, I beg to move that this Bill be now read a second time. In February of this year the General Assembly of the United Nations met, discussed this problem, and came to certain conclusions with regard to the nature and extent of the diplomatic immunity which they desired to be given to their officers, and agreement was unanimously arrived at. In order that this country may adhere to that Convention, it is necessary for us to obtain from Parliaent the necessary powers, and that is the object of this Bill. May I make this general observation with regard to diplomatic immunity. I have always thought that lawyers can raise all sorts of hair-raising problems as to what might happen with regard to diplomatic immunity, but these problems very seldom do arise, having regard to the character and the responsibility of those who are appointed to these great positions.


There are exceptions.


There are exceptions, as the noble Viscount has mentioned in his interjection. However, that is not a matter which should be in any way lightly, or inadvisedly, embarked upon. I have no doubt that your Lordships at a later stage, if necessary, will give us the benefit of your experience on your careful consideration of this Bill. I am bound to say that I do not think myself that this Bill goes any further than is necessary, to enable us to adhere to the United Nations Convention. That Convention points this out, that the privileges and immunities are accorded to the representatives of members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connexion with the United Nations. Consequently, a member—that is, one of the States, of course—not only has a right, but is under a duty to waive the immunities in any case where, in the opinion of the member, the immunity would impede the course of justice. They can be waived without prejudice to the purpose for which immunity is accorded. Section 29 provides that the United Nations shall make provision for appropriate modes of settlement of disputes where immunity is not waived.

I think that is right, and with regard to the officers of the United Nations, the Secretary-General is given power to waive the privileges of any one of his officers. With regard to the Secretary-General himself, the Security Council are given power to waive his privileges. Therefore, there is a complete right to waive where that is necessary.

Now I turn to the Bill itself. The Second Schedule of the Bill sets out, I hope in what your Lordships will think a convenient form, the effect of the amendments of the 1944 Act (which I may call the principal Act) by this Bill, showing the amendments in black type. Your Lordships will observe that the Second Schedule shows that this is the utmost extent to which we can be asked to go. Our Order in Council need not go so far as this. If your Lordships will look at page 4, line 42, you will see the words "to such extent as may be so specified," and on page 5, line 10, ".…except in so far as the operation of the said Part IV is excluded…." It does not necessarily follow that the Order in Council will provide all these things, but these things are the maximum, the ultimate limit, with which the Order may deal.

In pointing out the salient features to your Lordships, I must refer to one which is important, and that is the omission of the words which occurred in the 1944 Act "other than British subjects." The effect of this Amendment will be that certain British subjects may be able to claim in this country full diplomatic immunity. In the old days it was often the fact that British subjects sought to be made diplomatic representatives of small Powers in order that they might carry on their lives here and enjoy diplomatic immunity at the same time. That has been stopped for many years. There were many obvious disadvantages in such a course. I may point out, however, that this part of the Bill applies only to the highest officials of the United Nations Organization, that is to the Secretary-General, the Assistant Secretaries-General (who may be seven or eight in number), and the representatives of the member governments. The greatest importance is attached to these higher officials having exactly the same independence in relation to the countries of which they are nationals as they would have in regard to other countries. The number of British subjects covered will be, of course, extremely small, and the occasions on which immunity will be exercisable will be limited. I agree that difficult theoretical questions might arise about crimes committed, but I think the provisions about waiver to which I have referred already will prove a satisfactory safeguard.

Since we have decided to ask your Lordships to modify the principle that no British subject should have diplomatic immunity in this country, in order to cover the case of any of these high officials who might be a British subject it has been thought right no longer to distinguish between representatives of foreign Governments and representatives of the Dominions to assemblies and conferences of the United Nations. Therefore the latter, as representatives of the Dominions, may also be invested with diplomatic immunity.

There are two further extensions to which I ought to call your Lordships' attention. The first is indicated by the words in heavy type on page 4 of the Bill. In order to comply with Article V of the Convention, there has been added to Section 1(2) (b) words to include the class of persons employed on temporary official missions such as, for instance, investigation of an international dispute. Secondly, as indicated by the words in heavy type on page 5, to comply with Section 16 of the Convention, privileges and immunities to be granted to the representatives of foreign Governments have also to be extended to the higher officials of their delegations down to the rank of Secretary of Delegation, and certain immunities have to be conferred in respect of their wives and children. Then I come to the question of exemption from taxation.


May I ask where the words "down to the rank of Secretary of Delegation" occur?


That is certainly the intention of Article 16.


May be it is in the Order in Council.


May be. It may not be on page 5. That is a point I think we ought to examine and I am grateful to the noble Viscount for raising it. It ought to be looked at. Now I wish to draw attention to the change set out on page 3 of the Bill in the proviso to Section 1 of the 1944 Act which prevented exemption from rates and taxation being conferred on any British subject. That we are proposing to change and the grounds for the change are that if United Nations Organization officials are subject to Income Tax on their salaries in their own country but not elsewhere, it is impossible to secure equality of emolument as between officials of different countries who are doing the same work. In consequence, our Delegation gave support to the proposal at the General Assembly that the exemption from taxation of salaries should be irrespective of nationality. But the new proviso clearly provides that the members of the United Kingdom Delegation cannot, under the Bill, claim any immunities in this country.

Two new paragraphs are added to the Schedule to the 1944 Act which, I think, are numbers five and six of Part I of the Second Schedule to the Bill. I think they are self-explanatory and I need not spend time on them. With regard to the duration of the Bill, your Lordship will remember that the 1944 Act extends for five years only, with a right of extension thereafter on the appropriate resolution being passed, but as we most surely hope that the United Nations Organization is going to be a permanent institution we are making this a permanent Bill and removing the five years limitation. There is one further matter which I shall explain. We have taken the opportunity in this Bill to deal with the position of judges of the International Court of Justice. That matter is to come before the General Assembly of the United Nations at its next meeting and we are asking for power to pass Orders in Council to give effect to the conclusions which the General Assembly of the United Nations may reach in regard to the immunity of the high officials of the International Court. Obviously when they are on official duty, on their way to the Court and so on, there ought to be some immunity, and that matter is going to be discussed by the General Assembly of the United Nations.

I would mention in conclusion that our obligations under the Convention apply not only to the United Kingdom but also to Southern Rhodesia, Newfoundland, Burma, all British Colonies, Protectorates and Protected States and Mandated Territories. That gives rise to the not altogether satisfactory position, but a very common one, in which we are assuming obligations which we cannot meet unless the Governments of these territories agree to enact the necessary domestic legislation. I have no reason to think that they will not agree—indeed I have every reason to think they will—but it is an unfortunate position. Although we have not yet received positive assurances from them I think there is no doubt that we shall encounter no difficulty in that respect. I put forward this Bill not as being a controversial one—I do not think it is for a moment. At the same time, I put it forward as a Bill which merits and I hope will receive careful consideration. I do not want to go one whit further than I need go so long as we are enabled to implement and adhere to the arrangements which were decided by the United Nations, and I am sure that we shall all desire to show the importance we attach to that organization by extending appropriate immunity to their officials and representatives. I beg to move.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

3.48 p.m.


My Lords, I think all of us will be prepared to give a Second Reading to this Bill in the spirit in which we were invited to do so by the Lord Chancellor. I would like first of all to observe that, technically difficult as the Bill may be to understand, we are greatly indebted to the draftsman and to the Government for what is a comparatively novel way of printing a difficult Bill like this. I do not think the Statute Book hitherto has contained provisions some of which are in thin type and the rest of which are in heavy type. I daresay it will not be so in this case when the Bill is passed, but in order to make the matter as easy to read as possible we get provided (it is very unusual; I do not remember an earlier instance) in the Bill itself not only the amendments which are to be made to the Act of 1944 but a sort of reprint of what the Second Schedule of that Act will look like when these amendments have been made. The parts of the Second Schedule which are new are to be picked out because they are in thicker type. I must say that I think that is an extremely useful way of presenting to Parliament a Bill as technical and complicated as this, and I hope it will be followed in all suitable cases.

As to the subject itself, I rather agree with what the Lord Chancellor said. It is not the most interesting or stimulating corner of the law, but one has to remember as a practical matter that there are always two sides to diplomatic privileges. If you look at the other side of the matter, the question really is in what cases shall British shop-keepers who have extended credit to a customer not be able to enforce payment of the debt, and in what cases shall people who are walking about our streets, for example, not be able to recover damages because a motor-car has been negligently driven by a person who enjoys diplomatic immunity? That is one point of view from which it might be looked at—the point of view of what I may call the common people.

I read in black type at the very end of this Bill that where any person is entitled to any such immunities and privileges as are mentioned in Part II of the Second Schedule as an officer of the Organization, then that person's wife or husband and children—I am not sure whether there is a definition of children in the Act or whether some other Statute will define it—shall also be entitled to those immunities and privileges to the same extent as the wife or husband and children of an envoy of a foreign sovereign Power accredited to His Majesty is entitled to the immunities and privileges accorded to the envoy. That is for the moment a little mysterious. I am not sure that there is a precise law as to the age which an envoy's child has to reach before it ceases to have the privilege of running down His Majesty's lieges at whatever speed it chooses without either it or its father having to pay. I know that really what happens is that in a gross case, at any rate the larger and most important Embassies never raise any question about it but pay as a matter of grace. It is, however, important to look rather closely to see how far this has got to be done.

The other general reflection which occurs to me is this. How enviable will be the position of any British subject living in this country who has, I will not say the good luck, but the necessary accomplishments and virtues to be appointed as one of these persons thus protected. If he is one of the high officers, he is to have such exemption or relief from taxes and rates as is accorded to an envoy, and there is no doubt of course than an Ambassador pays no taxes. He is to have no liability in this country on any legal process, so that if he can manage to incur any debts here he need never pay them, and if he commits any sort of wrong not connected with contract he need never pay any compensation. I am quite sure, of course, that in gross cases it would none the less be done as a matter of grace, but we are told that the Secretary General has the "power" to disallow the immunity. It is a power; it is not an authority or a duty.

I do not say these things in the least from a desire to suggest that these immunities may not be necessary, because I do not know, but what I am quite clear about is that it is the duty of this House to be reasonably well satisfied on the Committee stage as to what these immunities really do amount to and whether they really are, as I am sure the Lord Chancellor means them to be, the minimum that is right and fair. It is not very long since there was a rumpus in the capital of another State because the son of an Ambassador drove a motor-car in the streets to the danger of the public. Anyone who is interested in the ancient literature of this subject may refresh his memory on the case of Pantaleon Sa, who, if I recollect rightly, was the brother of the Portuguese Ambassador in the time of Cromwell. What he did was very serious and what happened to him I am not quite clear about.

I venture to think that the proper way in which to deal with this Bill is the way the Lord Chancellor suggests, namely, to recognize that the principle it is aiming at is certainly to be admitted and to recognize further that it is very carefully drafted, but at the same time, before we reach the Committee stage, to look very carefully at what is provided and to see whether there is as a matter of fact any instance in which the position is unnecessarily generous to the person privileged and therefore unnecessarily severe on the ordinary British subject who might suffer thereby. I very well remember the passing of the Diplomatic Privileges (Extension) Act of 1944 in this House, and I think I am right in saying that in the course of its being carried quite considerable changes were made in the direction of securing that these privileges should not go too far. In particular, there is a section in the Act of 1944 which provides for reciprocal treatment; it says in effect "We are not bound to give your diplomat privileges to this extent unless in your country you do the same with ours". That does not, of course, apply when dealing with an international body like the United Nations, but I think we should still want to consider whether, before we finally enact this, we have got reasonable assurances that something to the same effect is going to be enacted in the other countries which also form part of the whole body. I hope what I have said Will not be thought to be critical of the Bill; it is not. The Bill is most conveniently and admirably put together but it is not a thing about which everybody can be sure on every detail at first sight.

3.59 p.m.


My Lords, may I add a word in support of what has just fallen from my noble and learned friend Viscount Simon? In the first place, I want to say how fully I agree with something which is of very great importance in the matter of the drafting of many Acts of Parliament, and that is the system whereby Section 1 of the Act of 1944 is amended by a Bill, namely, the Bill before us, which not only sets up the section in its old form but sets it out as amended. Your Lordships, especially those not accustomed to studying beforehand the Bills which you can get in the Printed Paper Office, must be terribly puzzled to know what precisely the House is being requested to do in relation to a Bill. Even a lifetime at the law is not sufficient to make it easy to ascertain the effect of an amendment of an existing Act of some complication. The reason is plain to see. We have not got paper copies of the old Act before us. We cannot take a copy of the Act out of a library, for instance your Lordships' library, and make the alterations in pencil upon it, because the librarian would object, and secondly, you are in the greatest difficulty in seeing in many cases what is the precise result of the amendment proposed in the Bill before the House. For my part I would wish to express in the strongest possible terms my approval of the method adopted in the case of this Bill, and to express a fervent hope that the system will be adopted in a number of other cases in order to enable the House really to know what it is doing in amending legislation.

As regards the merits of the Bill, I have practically nothing to add to what has already been said, both from the Woolsack and by my noble and learned friend Viscount Simon. It is a complicated matter. I do not know if I shall be guilty of egotism in saying that I have had a good deal of experience in these cases. I remember in particular the case of a Minister from a South American Republic who contrived to make himself a trustee here for a relative of his and who pocketed the money. He not only pocketed the money, but he entered the house of his relative and refused to give it up, and there was the greatest possible difficulty in dealing with it. As counsel, I must with shame admit that I failed in a proceeding against him in the first instance, but fortunately, after a decent interval of two or three years, he was removed from his post. I then renewed the effort on behalf of my client, and succeeded at any rate in getting him out of the house, and getting an order for the restitution of the trust funds. He fought that nobly up to the Court of Appeal, and there, I am happy to say, I finally succeeded. I have been concerned with other cases of that kind. Although what the noble and learned Lord, the Lord Chancellor, says is perfectly true, that it is only in exceptional cases that trouble arises, still these matters do arise, and they have got to be considered.

In addition to what has fallen from the noble and learned Viscount, Lord Simon, there is one thing which I have not worked out properly. Perhaps there is nothing in it, but I do suggest that this matter should be considered. An officer, such as a Minister or Ambassador, is appointed by a country and remains accredited to that country until he is removed or dies or retires. The high officials with whom we are concerned here are not quite in the same position. They are presumably not residing here permanently. They may come over here from time to time, and should be given certain immunity. I am assuming that the United Nations Organisation will not be in this country, because it has not been suggested it should be. They will either be in the United States or elsewhere. What I am not sure about is this; ought they to have, and will they have, immunities when they come over here for a period not on official business at all? A Minister who happens to be travelling backwards and forwards gets immunity because he is supposed to be a Minister with duties here, and all the time he is here, whether he is working or not, he is entitled to immunity. If an official of the United Nations Organisation happens to come over here, although his real residence may be in some city in the United States, is he to have immunity? As I say, I have not worked it out, and I am not sure what the answer to my question may be. I only respectfully submit to the noble and learned Lord on the Woolsack that the matter is worth consideration.


My Lords, I am very grateful to your Lordships for the reception that this Bill has had, and I agree with all the observations which the noble and learned Viscount, Lord Maugham, and the noble and learned Viscount, Lord Simon, have made. I would welcome careful investigation of this Bill from your Lordships and also your Lordships' help to see that we have not gone too far. I think, if I may suggest it, the most useful way to approach it is to look at the general Convention, which is Command Paper 6753. It is not a Convention to which we have yet adhered, but it would be a great pity if we did not, as long as other people do the same thing. The real problem is whether the powers we have taken in this Bill are sufficient to enable us to adhere to Command Paper 6753 or whether we have taken too great powers. We do not want to take powers wider than are necessary save with the question of this International Court where we are doing that in order to save a second Bill. I am very grateful to your Lordships.

On Question, Bill read 2a and committed to a Committee of the Whole House.

4.8 p.m.