CONSULAR CONVENTIONS BILL

HL Deb 05 April 1949 vol 161 cc993-1006

4.55 p.m.

Order of the Day for the Second Reading read.

THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD HENDERSON)

My Lords, I beg to move that this Bill be now read a second time. This small Bill comes to your Lordships' House from another place, where it was unopposed but where one or two improving amendments of detail were made. It is, I hope, an uncontroversial Bill. It is submitted in order to enable His Majesty's Government to ratify the Consular Convention with the United States of America which was signed on February 16 last. It is also hoped to conclude similar Consular Conventions with appropriate foreign countries in the future.

For a long time now, it has been the practice of other countries to conclude Consular Conventions defining the functions of consuls and also fixing the immunities and privileges which attached to the position of consul. Until the negotiations which have just been concluded with the United States of America, the United Kingdom had stood aside from this practice. The reason was that for many years it was thought that a good deal of domestic legislation would be required to enable the United Kingdom to fulfil the obligations undertaken in such Conventions.

Just before the Second World War, however, the conclusion was reached, after consultation with the Law Officers of England and Scotland, that in the main the provisions of such a Convention could be carried out in this country, either because they involved obligations which could be carried out by executive action or because the provisions were consistent with the general principles of international law which are recognised by the courts here as part of the law of this country. Accordingly, towards the end of hostilities negotiations were commenced with the United States which have led to the conclusion of the Convention already mentioned.

It is only in connection with three points of the Convention that the need for legislation arises. As I hope to show, the amendments to the law are small. Moreover, His Majesty's Government are satisfied that the provisions of the Convention which require this legislation are most beneficial in the interests of British consulates abroad and involve, so far as foreign consuls here are concerned, no undesirable innovations in our law.

Article 18 of the Convention contains provisions regulating the powers and functions of consular officers with regard to the estates of deceased persons when nationals of the consular officer have a beneficial interest as legatees or next of kin in such estates. Clauses 1 and 2 of the Bill enable the consul to obtain administration of the estate of a deceased person in circumstances where the consul's nationals would have themselves been entitled to obtain it if they had been present in the country or had been represented there. The consul has this right only if his nationals are not resident in the country and are not able, or do not wish, to take steps to protect their interests by applying for a grant themselves.

VISCOUNT SIMON

Is that in the Bill? Does the Bill contain words to the effect that the consul can do it if the person named does not want to take action?

LORD HENDERSON

Those words are taken out of the Convention.

VISCOUNT SIMON

Yes, but I am looking at the Bill. I beg your pardon for interrupting.

LORD HENDERSON

The Bill states: …that the said national is not resident in England, and if no application for a grant of such representation is made by a person duly authorised by power of attorney to act for him in that behalf…. The consul comes in only in the last resort. Moreover, the court has the full discretion to postpone the making of a grant to a consular officer in order to ascertain if his absent national really prefers that the consul should act for him to taking steps to be individually represented in his own name. That is the proviso. The reason for two clauses, instead of one clause, is that the law of Scotland is different from that of England, and I am advised by the Law Officers for Scotland that, given the difference of the law between the two countries, the effect of the two clauses is mutatis mutandis the same.

There are only two further points in connection with Clauses 1 and 2 which, perhaps, require special comment. As subsection (3) of Clause 1 shows, the grant to a foreign consular officer is a grant to the holder of that office—for example, to the United States Consul at Liverpool. Consequently, no new grant is required if the actual individual who occupies the office of United States Consul at Liverpool is changed because he dies, moves to another post or is replaced. Further, his successor succeeds to his liabilities, as well as his rights in respect of the administration. In this connection I may perhaps invite attention to paragraph 6 of Article 18 of the Convention, which shows that whatever immunities the consul may enjoy in respect of his other official acts (for instance, under Article 11) he enjoys no immunities in respect of his administration of estates if he chooses to undertake this burden. Clause 3 of the Bill corresponds to this paragraph 6 of Article 18 of the Convention.

The second point arises on subsections (4) and (5) of the first clause. Because in these cases administration is being given to the holder of the office of consul, a high officer of a foreign Government, for whose actions his Government have responsibility, the consul is not required, as an unofficial administrator is, to give surety when he signs his administration bond; and he is permitted to administer an estate alone when, unless it happened to be a trust corporation, an ordinary private administrator would have to have at least one colleague.

I turn now to Clause 4 which provides, subject to safeguards which I will mention in a minute, that the office of a consulate (that is to say the place where the business is carried on, and where the archives, which are inviolable, are kept) shall not be entered without the consent of the consular officer or, if that consent is refused or cannot be obtained, the consent of a Secretary of State. This provision is to carry out paragraph 4 of Article 8 of the Convention. The words in the Convention are: "The Secretary of State for Foreign Affairs" and in the Bill "a Secretary of State." Internally, effect would be given to this by the Home Secretary or the Secretary of State for Scotland, as the case might be, authoris ing police to enter, but only after having obtained the concurrence of the Foreign Secretary.

As your Lordships will see, these consents are not required in certain cases—for instance, in case of fire, or if there is reason to believe that a crime involving violence has been, is being or is about to be committed in the consular office. Nor does it apply where, under the conditions under which the consular building is held, there is some private right by or on behalf of the landlord to inspect the condition of the premises. Further, as subsection (2) shows, this immunity does not apply if the consul in charge of the office is a local citizen or is not a national of the country whom he represents. Further, as subsection (3) shows, the immunity applies only to that part of a building which is exclusively used for consular business.

While it is perfectly clear in international law that an Embassy building is, so to speak, inviolable, the position of a consular office is less well defined. It is certainly the practice of a great many countries to give an immunity as high as, or higher than, that provided for in Clause 4 to consular offices. But I am advised that it could not be said that the immunity in international law of a consular office is sufficiently definite to enable it to be said with certainty that it forms part of that international law which would be recognised and applied by the courts of this country.

Hence, Clause 4, which gives a limited and strictly safeguarded immunity, falling far short of that of a foreign Embassy. With the safeguards which the Clause contains, I submit that it should create no undesirable consequences so far as its application in this country is concerned; and I would emphasise that it is a form of protection which is much valued for British consulates abroad.

I will deal with Clause 5 in a minute. Clause 6 provides for the application of Clauses 1 and 2, on the one hand, and of Clause 4, on the other, to the consuls of foreign States with which a Consular Convention providing for reciprocal treatment for the consulates of His Majesty has been concluded.

The application is by Order in Council. An Order in Council can be made in respect of a country covering Clauses 1 and 2 only, or covering Clause 4 only or covering Clauses 1 and 2 and 4. But Clauses 1 and 2 cannot be applied to a country unless it is giving similar opportunities to British consuls to obtain the administration of estates, and Clause 4 cannot be applied to any country unless it has recognised a similar immunity for British consulates in its territory.

Clause 5 makes small amendments to two different sections of the Merchant Shipping Act which require no Order in Council for their application and do not require the conclusion of a Convention requiring reciprocity. Subsection (1) empowers the Minister of Transport to deliver to a foreign consular officer money or other property of a deceased seaman when the person for whom the money or property is destined is resident in the State which the foreign consular officer represents. The Minister already has powers, under the Merchant Shipping Act, to pay over to the person who appears to be entitled to it, without a grant of administration, the proceeds of the estate of a deceased seaman which does not exceed £100 in value. This clause merely enables the Minister, when the person who ought to receive the money is resident in a foreign country, to pay it over to the consul of that country in order that the latter may be responsible for seeing that the money reaches its proper destination.

The second subsection makes an even smaller amendment to the provisions of the Merchant Shipping Act relating to foreign wrecked vessels. Already foreign consular officers have certain powers, as ex-officio agents of the absent owners of the articles, who are his nationals, in regard to the custody and disposal of articles coming from a foreign wrecked vessel. The subsection gives the foreign consul the same powers, as regards the wrecked hull itself of a vessel which flies the flag of the consular country. Though, as I have stated, the operation of subsections (1) and (2) of Clause 5 are not dependent on the conclusion of a Consular Convention, nevertheless they are required for the purposes of the fulfilment of the Convention with the United States. Thus, subsection (1) corresponds to Article 27 of the Convention and subsection (2) to Article 25.

Clause 7 contains merely provisions for the adaptation of the Bill to Northern Ireland, and Clause 8 repeals Section 4 of the Domicile Act of 1861. The Domicile Act of 1861 contained provisions the purpose of which is generally similar to that of Clauses 1 and 2 of the present Bill, but the provisions of the old Act were not, from the practical standpoint, very happily conceived.

We therefore consider that it would be better and tidier to make no further use of Section 4 of the Domicile Act 1861 but to leave applications of consular officers to be dealt with as provided in Clauses 1 and 2 of the Bill. I trust that with that brief, but I hope not unsatisfactory, explanation of the need for, and purposes of, the Bill, the House will feel able to give it a Second Reading.

Moved, That the Bill be now read 2^a.—(Lord Henderson.)

5.10 p.m.

VISCOUNT SIMON

My Lords, I am sure we are all indebted to the noble Lord for the explanation which he has given us of the contents of this Bill. The explanation was extremely clear, and I think the impression and the hope which he has that the Bill will be given a Second Reading without challenge are likely to be fulfilled. He is dealing with a difficult subject, even though he has his responsibilities at the Foreign Office. My own knowledge of the matter is "rusty", so if I make a mistake I may be forgiven. The noble Lord is quite right when he says that the extent to which a consul or a consular office has immunity is not clearly defined and generally agreed to the same extent to which the rights of an Ambassador or diplomatic Minister are universally recognised.

Consuls do not enjoy the position of full diplomatic envoys. They have, of course, a special position in the area in which they serve, because it is usually a portion of the country in which they operate as the authorised consul. They are not like the ordinary citizen of a foreign State who finds himself in the country. As law students will remember, they receive from the head of the admitting State what is called an exequatur, which I imagine is Latin for "let him perform" his function. They receive that on presenting to the Foreign Secretary their patent of appointment. Thus they are recognised by the admitting State as the agents of the appointing State. But to what extent in different conditions they enjoy a special immunity is, I know, something not universally agreed, and it may be very proper to make such a Consular Convention as has been negotiated with the United States of America.

Once or twice in the course of his speech the noble Lord made reference to the relation between international law and our own common law which we recognise and apply in our courts. If one is to refer to that, I think it is necessary to state it accurately. I do not accept the proposition, in the broadest sense, that international law is the law of England. For example, if we negotiate a treaty with a foreign power, let us say a treaty under which we agree that our citizens shall not fish in a certain area, and if none the less one of our citizens does so, I do not think he could be punished. There has been a breach of the international Agreement to that extent, but it is necessary to have a domestic Act of Parliament in order to put the duty upon the citizen. In the same way, I should have thought that it would not be correct to say—perhaps it was not intended to be said—that since by international law the consuls' official premises are regarded as having an immunity from forcible entry, therefore if a policeman obtained a warrant from a magistrate and entered the consular premises, the policeman could be punished. I would not have thought so. No doubt we have agreed as a State with a foreign State that that should not apply; but our business then is to pass an Act of Parliament to make that prohibition effective as against an individual who might act contrary to it. Indeed, unless I have entirely misunderstood it, that is the very object of this Bill. The reason why we are not content with having a Consular Convention with the United States about these matters is because that in itself would not have the effect which this Bill will have.

For example, Clause 4 says: A consular office of a State to which this section applies shall not be entered by a constable or other person acting in the execution of any warrant… The moment we have enacted that, we apply that which we have arranged with a foreign country in such a way that an individual in this country is bound by it. I agree that this Bill is required. All I wish to say is that this is the sense in which we can say that international law is part of the law of England. Those who from time to time have the business of setting examination papers on these dreary subjects are entitled to propound the conundrum for intelligent students: "Is international law part of the law of England?" A good answer could be written—and a very bad one, too!

I agree with the Bill. The point about which I feel some anxiety is the provision contained in Clause 6, which contemplates that similar Consular Conventions may be entered into with other countries and, if I follow rightly, may be entered into without any further reference to Parliament. I will not mention any country—that would be most indiscreet—but it is pretty plain that there are some countries in Europe with whom we might hesitate to make a Consular Convention (which is presumably meant to be reciprocal, though I do not see the word "reciprocal" in the Bill), because we are not sure that they will treat our representatives in the same way as we treat theirs. Clause 6 says: His Majesty may by Order in Council direct that sections one and two or section four of this Act shall apply to any foreign State specified in the Order, being a State with which a consular convention providing for matters for which provision is made by those sections has been concluded by His Majesty. I am going to assume that that means "with which reciprocal arrangements have been made." I am sure that that is what is meant. We might consider later on whether it would be desirable to bring in such a word as "reciprocal." But manifestly, so far, a Convention can be made according to the judgment of the Government of the day, without any Parliamentary reference whatever. I think nothing but good of His Majesty's Government in this connection. I am sure they would act prudently. But this is an Act for all Governments, whether better or worse than the present one. It gives power by Statute to any Government in this country to make, by Order in Council—which is a purely Executive act which nobody can control—a Consular Convention with any foreign State they think it wise to select.

It is true that an Order in Council may be rejected under subsection (2) of Clause 6, but the third subsection gives me no comfort at all. It says: Any Order in Council made under this section shall be laid before Parliament after being made. That is merely for information. It does not say that Parliament has any control over it; it merely says that it shall not be done without Members of Parliament knowing it is done. Though I do not for a moment ask the noble Lord to make any statement now, I suggest that we ought to consider, before passing this Bill, whether there ought not to be to a greater extent than is at present in the Bill some Parliamentary check on the spread of this scheme to other foreign countries as yet unnamed. That is something which occurred to me on reading the Bill, and I do not seek to do more than mention it to-day.

For the rest, I think the Bill is a good Bill. It was considerably improved in the course of its handling in the other place—because, I may say, of some questions and difficulties raised by Opposition speakers. I apologise to my noble friend opposite for having interrupted his statement, but it illustrates what I mean. As the Foreign Office introduced the Bill in another place, there was nothing in it to prevent a consular officer who finds that there is property in this country to be dealt with, because of the owner's death and because the executor named does not reside here, jumping in and taking charge of the business without a reasonable interval being allowed. As things are now I should think that that would work all right, because, of course, our own courts would take care that this—which the noble Lord described as a method to be used only in the last resort—was not rushed. Therefore, even though a man does remain abroad, he will have an opportunity, if he prefers, of himself acting as indeed the testator desired he should act.

There are one or two other points which will have to be raised—I know that, because I have had a conversation with my noble friend Lord Perth. I do not wish to anticipate what he is going to say. He has a great knowledge of this subject, having been for so many years an Ambassador, and, as such, having under his supervision and control the consuls in the countries to which he was accredited. He has some points to make and, therefore, I merely say, for my part, that I have no doubt that we ought to give this Bill a Second Reading, and I am obliged to the noble Lord opposite for the way in which he has explained it.

5.22 p.m.

THE EARL OF PERTH

My Lords, I am glad the noble Lord who moved the Second Reading has made it clear that the primary object of this Bill is to allow the Government, once the Bill has become law, to advise His Majesty that the Convention which was signed in February with the United States of America can properly be ratified. The Bill is a much shorter document than the Convention itself. The reason for that is clear, as the noble Lord explained. A great many of the clauses of the Convention can be brought into force by executive action but, as was pointed out, legislation has been required on three points in the Convention. The first two enable the consular officer in certain cases to administer the estate of a deceased person, and to represent the beneficiary of that estate; the second is to make certain rather small changes in the Merchant Shipping Act, 1894; and the third is in regard to the immunities and privileges of consular officers. The first two points are of a very technical character, and are mainly of a legal nature. I do not propose to venture into those. The few remarks I desire to make will be concentrated solely on the question of immunities and privileges.

As in the case of diplomatic privileges and immunities, the immunities and privileges of consular officers are in essence based on reciprocity. In the case of diplomatic immunities and privileges the practice is fairly clearly set out in the various textbooks. But, that is not the case in regard to the privileges and immunities of consular officers, which are left extremely vague. In the Convention these privileges and immunities are set out. If I may say so, they seem to me to express admirably what the practice should be between two extremely friendly countries who wish to adopt the policy of the good neighbour. From that point of view, I welcome the Bill and the Convention. I want to be assured, however, that should we conclude Consular Conventions with other countries, such Conventions will not necessarily embrace all the provisions in the Convention to which I have just alluded. To put it another way, I hope that such Consular Conventions will not necessarily conform completely to what I may call this admirable model, but may be open to modification so that account can be taken of all the existing circumstances. If I receive such an assurance I shall be much happier.

I seek that assurance because it seems to me that in certain cases we might be better off under the existing practice than if we concluded a Consular Convention. I will take Clause 4, which to my mind constitutes the main provision. Broadly speaking, under that clause a consular office is not to be entered by the police, except with the consent of the consular officer; or, if that is not obtainable or is withheld, the consent of a Secretary of State is required before entry can be made. Let me take an example of a country with whom we have a Consular Convention on these lines, and which wanted the police to take precipitate action and make an entry into the consular office. The police could, surely, proceed to the consulate with a provisional authority from the Minister of the Interior, or whoever corresponds to the Secretary of State, already made out in case of refusal by the consul to allow admission. The consul refuses, the police produce the authority, they enter and the whole matter is completed. In that event the consul has had no time whatever to appeal, either to his diplomat, who exercises general supervision, or to his Government, and yet the letter of the Convention has been observed. For that reason, I feel we should be very careful in regard to the countries with whom we conclude Consular Conventions in the future.

That brings me to my last point. I have referred to the diplomatic head of the Mission who exercises a general superintendence over the consuls in the country to which he is accredited; but there is no mention made of him either in the Bill or in the Convention. Frankly, that seems to me to be rather odd. It may have been thought, of course, that if a consular officer into whose consulate the police demand entry refuses that entry, he will then be able to, and would naturally, communicate with the diplomatic head of the Mission. I feel, however, that something more explicit than that is required. I realise that it is too late to make any change in the text of the Convention with the United States; but, as I say, I think something more is necessary. Let me give an example of the sort of thing that might happen. Let us suppose that when I was His Majesty's Ambassador in Rome, the Italian police (I am assuming that a Convention had been concluded) had demanded entry into the consulate in Milan, that the consul had refused entry, and that the entry took place on the authorisation of the Italian Minister of the Interior. If I had been neither informed nor consulted by the Italian Government, I should have been very angry, and would have sent in a very strong protest which I should have expected to be completely backed up by His Majesty's Government. Yet the Italian Government, acting thus, would have been complying strictly with the letter of the Consular Convention.

I do not think such a situation ought to be allowed to arise, and I hope very much that something will be done to remedy it. Obviously, I do not ask for an immediate reply from the noble Lord, but I hope that he will give it further consideration, because I think the matter is of some importance. It may be of great importance to His Majesty's Ambassadors in their various posts, and I think that perhaps it may have escaped the notice of the draftsman. Apart from those observations, I welcome the Bill as a whole. I do not want to enter into this very difficult controversy about Clause 6. I am torn between two opinions. I would hate to interfere with what is known as the Royal Prerogative of Treaty-making, and whether or not Parliament should have the right to give approval to a treaty before it is ratified. It is a very difficult problem, but I am glad the noble and learned Viscount raised it, because it gives us all a great deal to think about.

5.32 p.m.

LORD HENDERSON

My Lords, I am very grateful for the friendly reception which has been accorded to the Bill, and for the knowledge which I now have that the Bill is to get a Second Reading. There are one or two points to which I might make brief reference. The noble and learned Viscount assumed—if I may say so, quite rightly—that this is on a reciprocal basis, and the basis of reciprocity is, of course, provided for in the Convention.

VISCOUNT SIMON

It is not in the Bill.

LORD HENDERSON

The Convention gives the reciprocity and the Bill merely provides new powers which are not already in existing law. The noble Viscount also raised a query about Parliamentary check on new Conventions. I think I am able to claim that the way in which the Government is handling this Bill and the Convention is in accordance with historical practice carried on by many Governments. The point which the noble Viscount and the noble Earl had in mind was the question of new Conventions. At the moment, there are only two Conventions for which we hope to conclude negotiations in a very short while, and that is with France and Egypt. But I can assure the House that it is not the purpose of the Government to conclude such Conventions except in the case of countries with whom there are cordial relations.

The point has been raised as to what would be the position of a Consular Convention with a country with whom those good relations subsequently deteriorated. We hope, of course, that those circumstances will not arise, but if such cases did occur, the appropriate course might be to terminate the Convention and to revoke the Orders in Council. Such action, if required, would be possible, since it is not proposed to include in any new Convention any provision that the Convention shall necessarily continue in force for a specified number of years. There will no doubt be a provision requiring a prescribed period of notice to be given to terminate the Convention, and this provision could be invoked by the Government when occasion arose. I suggest to your Lordships that that provides adequate protection against Consular Conventions being concluded or continued with countries with whom it might be undesirable to have such Conventions. However, the noble Viscount has made the point, and naturally I will take it back and have it considered.

VISCOUNT SIMON

That is all I ask.

LORD HENDERSON

Of course, the Convention between this country and America will not necessarily be the text for other Conventions. I can give your Lordships an assurance that any new Convention with any country will obviously take into account all the circumstances. The noble Earl raised the question of the omission to inform the head of diplomatic missions in the event of the application of Clause 4. I have made a note of that suggestion, and no doubt it will be considered in relation to the text of other Conventions. I think those were the main points which were raised, and I hope that following upon those few remarks your Lordships will give a Second Reading to this Bill.

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