MANDATED AND TRUST TERRITORIES BILL, [H.L.] (Hansard, 25 November 1947)

§ THE FIRST LORD OF THE ADMIRALTY (VISCOUNT HALL)
My Lords, I want to make a few observations dealing with certain matters which were raised on the Second Reading of the Bill. Some of the difficulties mentioned in the debate then have been the subject of correspondence which I have had with the noble Viscount, Lord Maugham, and the noble Lord, Lord Altrincham, in an attempt to deal with them. To allay any possible misunderstandings I must make it clear that this Bill does not affect the law of any Dominion or of any trust or mandated territory under the administration of a Dominion. Government, and nothing in this Bill is, or could be, in derogation of the rights of Dominion Parliaments. This, of course, follows from the Statute of Westminster, under which no Act of the United Kingdom Parliament extends or is deemed to extend to a Dominion as part of the law of that 842 Dominion, unless it is expressly declared in the Act that the Dominion has requested and consented to the enactment.
What this Bill does affect are the provisions of Acts of the United Kingdom Parliament and of subordinate legislation made thereunder, having effect as part of the law of the United Kingdom and of the Colonies and other dependent territories. I might make this clear by giving an example. The Matrimonial Causes (War Marriages) Act, 1944, conferred jurisdiction on the Courts of this country to grant divorces in certain cases, and to provide for the recognition by Courts in this country and in Colonial territories of decrees made by Courts of the self-governing Dominions under any similar legislation which they might pass. Now any similar legislation by a Dominion Parliament might well apply to any mandated territory under its administration. The Act accordingly provides that it shall apply to any such territory as if the mandated territory were part of the Dominion. In other words, in that Act we refer to a mandated territory under the administration of a Dominion Government simply for the purpose of referring to its law, and not for the purpose of legislating for it ourselves.
When the present Bill becomes law the effect will simply be, as regards, for example, New Guinea, which is now under trusteeship administered by Australia, that the 1944 Act to which I have referred shall continue to have the same operation as it did in relation to New Guinea as a mandated territory. The case of South-West Africa, to which reference was made by noble Lords on Second Reading, is, however, different. That territory is still administered by the Government of South Africa in accordance with the provisions of the Mandate. In relation to South-West Africa, therefore, the Bill by Clause 1 (3) provides that the Matrimonial Causes Act, and any similar Acts, shall continue to apply to South-West Africa as a mandated territory. I have been in correspondence with the noble Lord, Lord Harlech, who unfortunately is unable to be present to-day, and with the noble Lord, Lord Altrincham, on this question of South-West Africa, and I am grateful to them both for their expression of satisfaction with the explanation which I have given them on this point. It is in the way I have quoted that South-West Africa 843 comes within the provisions of the Bill. It is certainly true that if at any time the Government of South Africa were to place South-West Africa under trusteeship the Bill would cover the case; but, since the South African Government have stated quite plainly that they do not intend to do so, the case is purely hypothetical. In order to remove any misapprehensions, I also wish to say that nothing in this Bill authorizes the placing by His Majesty under trusteeship of any territory, or deals in any way with that kind of question.

§ VISCOUNT MAUGHAM
My Lords, I am sorry the noble Lord, Lord Harlech, is not here to state the nature of the objection he raised on the last occasion, but I am very glad to hear that he is quite satisfied with the explanation which has been given to him in correspondence by my noble friend opposite. So far as that is concerned, there is nothing more to be said. I confess that my intervention in the debate on the last occasion was to express the desire, which I have so often expressed in this House, that Bills which come before us and Acts of Parliament when the Bills reach that status, should be so clear that it should be possible for ordinary people to understand what the measures really mean. I was quite unable to construe this Bill when I first read it. Some light was thrown upon it by my noble friend Viscount Hall, and after that I was enabled to consider the matter, with his assent, with the gentlemen responsible for drafting the measure. After considerable efforts of that kind the Bill returns to your Lordships' House—I am not sure whether the Bill is feminine or masculine, but, if feminine, it returns intacta; there is not a single fine in it which has been altered.
I only want to say this with regard to it. I am still unable to understand it, and if I were an examiner presenting scholarships in respect of the position of Bills as puzzles which have to be solved at some future date by the Judges, while I should perhaps not give this particular Bill the first prize, I think, after all I have heard, I should fairly feel myself bound to describe the Bill as a proxime accessit. It really is a Bill which presents difficulties, and I am quite sure that it 844 need not have been so difficult to understand as it now is. One other thing that I would say, in the utmost seriousness, is this. During the last few years it has been the practice of noble Lords who are producing Bills here, if their meaning is challenged, to proceed, or to get a friend to proceed, to the corner on the right of the Throne, and after certain whispers they come back fully confident of the nature of the Bill, and what it means. Of late years what was very well known at one time in this House and elsewhere seems to have been forgotten, namely, that the very last people who ought to be asked to tell you what is the true construction of a particular Bill are the able gentlemen who have been responsible for the drafting of it. That is a question of psychology, and it has practically no exceptions. If a man has framed a clause with certain meanings in his mind as to the words and sentences, he is quite unable to say how Judges, after long arguments and consideration in this House and elsewhere, will be able to understand those words, and the sense which should be given to them.
I do think that that should be borne in mind in the future. I remember Lord Halsbury saying over and over again that the draftsmen of a measure were not the proper judges to understand it or to construe it. That is no reflection whatever on the draftsmen's powers. (Whoever they may be—they might be ex-Chancellors, and others—they should never be regarded as being the right people to construe the measure. That should be done by men who approach the matter with absolutely impartial and unprejudiced minds. With that statement, which I feel very strongly is one that should be borne in mind, I wish to thank the noble Viscount for his courtesy in this matter, to me in particular, and I can only express regret that this measure does not possess that clarity which I think all measures should possess.

§ LORD ALTRINCHAM
My Lords, I have very great sympathy with the observations which have just fallen from the lips of the noble and learned Viscount, Lord Maugham. I think the drafting of Bills is becoming more and more complicated, and one can only say that the situations with which draftsmen have to 845 deal are themselves becoming more complicated. All the same, there is a lack of lucidity about a good deal of this legislation which requires attention. I am sure noble Lords in all parts of the House agree with what the noble and learned Viscount has said, that the last people to give an opinion on what a clause means are those who have drafted the clause, whatever their capacity. They necessarily believe the clause to mean what they intended it to mean, and it is not certain that the clause will mean what they intended it to mean. Despite that general warning, I am very glad to accept the assurances which the noble Viscount, Lord Hall, has given about the Bill itself.
When the Bill was read a second time I expressed some anxiety on two points. The first was whether the language of the Bill could in any way be held to derogate from the sovereignty of the Dominion. The noble Viscount has given us assurances on that point, and has himself made a statement in this House which is entirely satisfactory on that particular aspect of the Bill. I would only say this. It appeared to be part of his argument that no Bill in this Parliament could possibly be held to derogate from the sovereignty of a Dominion, because, in any case, that was covered by overriding provisions in the Statute of Westminster. I entirely agree with that, but the fact remains that the language of all our Bills should always be appropriate to the new status as created by the Statute. Only the other clay we found that the language of a Bill was totally inappropriate to the new status of the Dominions as established by the Statute of Westminster. I think care should be taken to see that, whatever may be the overriding effect of that Statute, the language of our Bills shows the most complete respect and understanding for the situation which has existed since that day. There is a tendency for, language which is now obsolete to continue in our Statutes.
As regards South-West Africa, it is quite clear from what the noble Viscount said that there can be no derogation from the sovereignty of the Union of South Africa in that respect. So far as we on this side of the House are concerned we are very glad that the Bill should go through in its present form.
The only point on which we made comment was the breadth of the power given 846 to alter an enactment in a consequential or provisional sense by Order in Council. That is a power which we on this side of the House are anxious to study very carefully, because the tendency to extend the virtue of Orders in Council is always growing and should be watched. But I am satisfied that in this case the power taken is the power taken in previous Bills and particularly—as the noble Viscount has been good enough to tell me—in regard to free State legislation. There again, while noting the point, we do not wish to make definite objection. So far as we on this side of the House are concerned we quite agree that the Bill should go through in its present form.

§ VISCOUNT HALL
My Lords, I should like to express my appreciation of the assistance which the noble Lord, Lord Altrincham, has given. With regard to the points made by the noble and learned Viscount, Lord Maugham, I think I had better not interfere other than to say that I have often felt as the noble and learned Viscount has felt. I had better leave the matter as it is, but I will certainly call the attention of the Department to the points which were made by the noble Viscount.