§ 4.4 p.m.
§ LORD SHEPHERD
My Lords, I beg to move that the Special Order as reported from the Special Orders Committee on Wednesday, March 16 last, be approved. At this late hour I do not propose to make a lengthy contribution to a debate that I am anticipating with a degree of excitement, but I think it would be desirable, if your Lordships will permit me, to say a few words about the regulations contained in this Order. First of all, the Regulations are almost exactly the same as Regulations already approved, first, for England and Wales, and, secondly, for Scotland. In the compilation of the register of electors for October next, in the provisions relating to the registration of absent voters, in the issue and receipt of postal ballot papers and in the provisions dealing with Service voters, the Regulations are exactly the same for Northern Ireland as those for England and Wales and for Scotland.
May I now have a few words about the differences that exist—because there are minor differences between the Regulations applying to the different countries? Normally, when a register of electors for the Imperial Parliament is issued in Northern Ireland it will make no provision for local government elections or local government registers. It will be confined purely and simply to Parliamentary elections. Notwithstanding that, in every third year, coincident with the publication of a spring register, there will be a Northern Ireland register for the elections to the House of Commons in Northern Ireland and for local government elections in that country. That register will be compiled under regula 979 tions which apply to Northern Ireland institutions only and which will have no reference to this country. Because of that arrangement, it is provided that the dates which govern the publication of the registers in this country shall be varied, in the case of Northern Ireland, in order to bring them into line with those relating to the register for the Northern Ireland elections.
Finally, as your Lordships will have noticed in reading the Order, whereas in this country we have ceased to employ revising barristers, who hold prolonged courts to determine claims and objections, in Northern Ireland they are still maintained; and provision for them is made in this Order. With that brief explanation, I ask the House to give their approval to this Order.
§ Moved, That the Special Order as reported from the Special Orders Committee on Wednesday, March 16 last, be approved.—(Lord Shepherd.)
§ 4.8 p.m.
§ VISCOUNT SIMON
My Lords, I think the noble Lord, Lord Shepherd, has been as good as his word, and has not raised any excitement. I have no intention of raising the temperature either, but before this Motion is put to the vote I should like to draw attention to a paragraph in these Regulations which may have important consequences. As the noble Lord has said, it is a paragraph which will also have appeared in the earlier Regulations already approved and which may therefore involve the same difficulties in other parts of the country. The Regulations begin by saying that they are made under the Representation of the People Act, 1948, and we shall all agree—indeed, it was implied in what the noble Lord has just said—that the Regulations as such do not and cannot enlarge the right to vote in a Parliamentary election. The right to vote in a Parliamentary election is conferred by the Representation of the People Act and not in any way by these Regulations, which are matters of machinery. Paragraph 20 (1) (b) runs as follows:The registration officer before registering any person (other than a service voter) may, if he thinks it necessary—(b) require that person either to produce a certificate of naturalisation or to make a 980 statutory declaration that he was a British subject or citizen of Eire on the qualifying date.Of course, the reason for a certificate of naturalisation would be that the individual was not, in the first instance, a British subject, but had become such by naturalisation.
That is not connected with the point to which I am going to call attention. The other words are:…to make a statutory declaration that he was a British subject or citizen of Eire on the qualifying date.When you look at the Representation of the People Act, you find, as one would expect, that the persons upon whom that Act confers the right of being a Parliamentary voter are British subjects, and nobody else. So that if we are concerned simply with the Representation of the People Act, 1948—which is the governing Act—and these Regulations are made under the Act, it is apparent that the necessary test for a man to be qualified to exercise the Parliamentary franchise in Northern Ireland is that he is a British subject.
The question therefore arises as to how it comes about that we now find in the Regulations the alternative test that he is a citizen of Eire, even though he is not a British subject. This raises the point which I raised in this House last December—it was then discussed by a number of noble Lords—as to what is the meaning of the phrase "citizen of Eire." We have been informed that on Easter Monday next, which is less than a fortnight from now, there will come into existence an independent, sovereign republic which is going to call itself the Republic of Ireland, or the Republic of Eire. At this moment, of course, everybody who lives in the Dominion of Eire—which is the condition at this moment there existing—is living under allegiance to the British Crown, and is living in an area which is within the Commonwealth. What is going to happen on Easter Monday next is that that will no longer be true. The result of what happens on Easter Monday next—I do not stop to argue about it, although I have no conceivable doubt about it—puts it beyond question that the Republic of Eire will become internationally a sovereign, independent, foreign State. It is true, as we all know, that the present Prime Minister offered the soothing 981 assurance that His Majesty's Government would not so "regard" it; but I am afraid that what His Majesty's Government are pleased to say they will not regard does not make any difference at all. We shall see in due course whether it is not acknowledged that the result is the creation of a new, independent, foreign, sovereign State.
The citizens of that new State may be called citizens of Eire, but the question is whether they are citizens of Eire in any sense which can justify the use of that phrase in paragraph 20 (1) (b) of the Regulations. I need hardly say that I am not for a moment claiming to lay down the law; it is not for me, or for any member of the House, not even the noble and learned Viscount on the Woolsack, in his present capacity, to lay down the law. I am saying only that a very considerable doubt appears to some of us to arise. How does it come about that we find in these Regulations that a man may claim to be registered to cast his vote at a Parliamentary election, say, in Belfast, for the choice of a Member of Parliament here at Westminster in the House of Commons, when he is not a British subject? The answer is said to be, "Because in the middle of last year Parliament passed the British Nationality Act, 1948." That was an Act which some of us found it rather difficult to interpret; and I think, even to-day, that it contains some rather difficult language. We pointed out at the time that the clauses which dealt specially with the citizens of Eire were extremely difficult to interpret with precision.
The reason why these Regulations put this in as one of the alternative qualifications for being a voter in a constituency in Northern Ireland at a Parliamentary election for choosing a Member for the House of Commons across the way, is to be found in Section 3 (2) of the British Nationality Act, 1948. That subsection says:Subject to the provisions of this section, any law in force in any part of the United Kingdom and Colonies(and no doubt the Representation of the People Act, 1948, is such a law; in fact it received the Royal Assent on the same day as the British Nationality Act) shall, until it is altered,have effect in relation to citizens of Eire who are not British subjects in like manner as it has effect in relation to British subjects.982 I ventured to point out in the debate last December that, to my mind at least, it was not at all clear that when Parliament in the month of July last used that language, and talked about "a citizen of Eire," it meant anything but a citizen of the Dominion of Eire. At that time Eire was a Dominion of the Crown; at that time Eire was a member of the Commonwealth. From Easter Monday next that will no longer be true. It is manifest that we must be careful not to confuse an indentity of label, as though that were the same thing as an identity of subject matter.
One view of the matter—I speak of it with all respect, because I know it is so viewed officially—is that last July, when the Republic of Eire was not in the Contemplation of His Majesty's Ministers at all, and not in the contemplation of Parliament at all, none the less, by a process of divination, Parliament meant by "citizens of Eire" citizens of a Republic which did not then exist, and which, so far as His Majesty's Government knew, would not exist, but which, as it happened to their surprise, did come into existence at a later date. It may be so; but also it may not be so. If the one view is right, then, obviously, after Easter Monday next a man who claims to be a citizen of the independent Republic of Eire will have no right on that ground to be registered as a Parliamentary voter in Northern Ireland; though on the other view he would be entitled to do so even though he was—as I believe is sometimes the case—an American of Irish ancestry who, under the Act which was passed by Mr. de Valera, I think in 1935, had conferred on him the citizenship of Eire. I confess that it seems to me rather odd that a former cab driver in Chicago—who, when he was made a citizen of Eire, was made a citizen of a Dominion of the Crown, but who is now entirely without any sort of connection with the British Crown at all—if he resides in Northern Ireland (whatever "residence" may mean, and I do not discuss that) will acquire the right to vote for the election of a Member in the Imperial Parliament for the place where he casts his vote. Certainly Parliament did not intend that, and certainly the Government did not intend it. But stranger things have happened, and it may be that that is so.
983 Fortunately, the matter can now be decided judicially, because if your Lordships will look at Section 70 of the Representation of the People Act, the placing of an individual on the Parliamentary register does not in itself give him a right to vote wherever he comes from and to whatever Sovereign or Republic he may owe allegiance. On the contrary, it can be challenged—and I read briefly what is provided in Section 70 of the Representation of the People Act:An appeal shall lie to the county court"—in this case with the county court in Northern Ireland—(a) from any decision under this Act of the registration officer on any claim for registration or objection to a person's registration made to and considered by him.It follows, therefore, that if the individual who makes this claim persuades the registration officer (by making a statutory declaration that he is a "citizen of Eire") to put him on the register, if he is not a citizen of Eire in the relevant sense he can be challenged, and the county court will then decide the meaning of "citizen of Eire" as passed in the British Nationality Act of July last year. If the court decides that it means the citizen of a Republic which did not then exist, and which neither Parliament nor the Government believed was going to exist, then he and his friends will be entitled to vote in the way they think right under the ballot in that Parliamentary election. But if, by any chance, the county court were to decide that that is not the meaning of "citizen of Eire," and that the individual, though he is a citizen of a foreign republic, is not a "citizen of Eire" in the sense in which Parliament used the words in the Act which was passed last July, then the county court will decide that he must not be included in the register of voters.
I have no means whatever of knowing, and I do not seek to anticipate, whether such a challenge might arise; but I am very comforted to know that this matter ceases to be a controversy between lawyers—lawyers are always friends, but in a controversy we do not always take the same view—and is to be decided judicially. If it is said, "After all, the county court decision in Northern Ireland need not be regarded as a decision of the 984 final tribunal," it is comforting to know that there is a possible appeal. Section 70 (2) of the Representation of the People Act goes on to provide that there may be an appeal to the Court of Appeal—that would be in Northern Ireland—and it goes on to say:No appeal shall lie from the decision of the Court of Appeal on appeal from a decision of the county court under this section.In other words, if the case does arise and goes to appeal, three Lords Justices of Northern Ireland—very skilled and competent people, as I believe they have always shown themselves to be—will decide this knotty point.
Let me say quite plainly that I am not doing more than pointing out that the Regulations to which we are asked to give assent on the Motion moved by the noble Lord opposite, do provide the opportunity for finding out which view is right. I should think it very probable that in due course that would be so decided. It is quite true, as Lord Shepherd said at the beginning of his speech, that the same question might have arisen, and I might have made this speech, when we had the corresponding Regulations for other parts of the United Kingdom. As a matter of fact, I never observed the contents of the earlier Regulations. I do not know whether it was the fact that the noble Lord was so little exciting, or whether it was that I was away doing something else at the time. But it does not make any difference, because exactly the same point may arise in connection with any part of the United Kingdom if a challenge is made as to who is entitled to claim to vote on the ground that he is still a "citizen of Eire."
Let me say this, in conclusion. I have not found very great difficulty in understanding the reason for the phrase "citizens of Eire who are not British subjects," as it was used when Eire was a Dominion. I think it plainly refers to the circumstance that the Act passed in Dublin by Mr. de Valera, which embraced a number of people of Irish origin as citizens of Eire, undoubtedly included people who were not British subjects. An American citizen of Irish extraction might be an example. So there is no difficulty about that. The point will be a very neat one, not merely interesting to constitutional lawyers—which may not matter much—but of very great importance 985 indeed in deciding, or helping to decide, how we shall make up the list of voters for electing Members to the British House of Commons.
It will be observed, of course, that the question involves wider issues. When a successful candidate is elected to the British House of Commons, the first thing he does is to walk up the Chamber to take the Oath. The Oath happens to be an Oath of Allegiance to His Majesty the King. I am afraid that at present I have not succeeded in fully understanding how a future citizen of Eire, who is a citizen of an independent and foreign Republic, and who owes no sort of allegiance to His Majesty the King, can very well take an Oath of Allegiance to him. But that is a matter which no doubt will be settled hereafter. I am concerned in pointing out to the House—and I think it should be pointed out clearly—only that there is no need to have any further controversy between competitive legal opinions. It may be that the view I have formed is wrong, and in that case I shall be quite willing to receive correction. At any rate, the matter now arises and it arises in a perfectly definite way. It will arise when these lists are made up in Northern Ireland, and one way or another it will be judicially decided. That being so, I do not offer any opposition to the Motion which the noble Lord opposite has moved. As he truly says, in substance these Regulations follow a common pattern. I should think they are perfectly reasonable Regulations; and I have ventured to intervene merely to point out, as clearly as I can to anybody who happens to be interested in the subject, that now we shall get a judicial decision on what I think is a rather difficult and doubtful point.
§ VISCOUNT MAUGHAM
My Lords, I rise only for the purpose of saying that I am at one with the observations which my noble and learned friend has made. I should be glad if the point were cleared up.
§ 4.31 p.m.
§ LORD SCHUSTER
My Lords, in opening this debate the noble Lord, Lord Shepherd, observed that the hour was late. The hour now, of course, is still later, but I trust that I shall be forgiven if I make a few observations, for I do not entirely accept the view that either the noble and learned Viscount, Lord 986 Maugham, or the noble and learned Viscount, Lord Simon, has expressed—that is, that we should accept these Regulations without more ado. I do not wish—indeed, it would be impertinent and presumptuous if I were to do so—to express any opinion on a point of law. My object is to suggest to your Lordships that, in the circumstances, these Regulations should not be approved. This is not a question to be settled by a county court judge in Northern Ireland or, on appeal, by three Judges sitting there; it was settled by Parliament. The question is whether a citizen of an independent, sovereign Republic should be entitled to cast a vote in the election of a Member of the House of Commons of this country.
The question turns really upon the meaning of the section of the British Nationality Act which my noble friend quoted. Nobody, I am sure, thought, at the time when that Act was passed, that the result would be to confer this franchise upon the citizens of an independent Republic. We were told in express terms on behalf of the Government that at the time when the negotiations were being carried on they had no idea that this declaration of an independent Republic was to follow. That assurance was, I am sure, quite unnecessary, for His Majesty's Government, in their mad rush to disintegrate the British Empire, have proved, as much by their lack of foresight as by their lack of caution, that no one could attribute to them the capacity for caring what was going to happen. It was the case of the blind leading the blind—and, unfortunately, it was we who were the blind and who have fallen into the ditch. What dismays me is that the blind conductor, having led us there, should now turn round and congratulate himself on having brought us into that unenviable position.
I should have thought the proper thing for the Government to do now was to remedy that which they have inadvertently done in conferring this franchise. No one, surely, will contend that it is right that a citizen of Eire, who owes no allegiance to the King, should be able to cast a vote in a Parliamentary election in this country. This Regulation confers no right; the right is there already. All that the Regulation does is to provide a means whereby the right can be vindicated. At the same time, if we 987 accept the Regulations, we actually sanctify that right—
§ LORD SCHUSTER
I am sure it is not; but the world at large will think that it is our attitude if we accept these Regulations; if we accept this claim to vote on the basis of citizenship of Eire, and nothing else, the world at large will think that we are at least consenting—which we are not. If, on the other hand, the right exists, it is a right which all of us surely will agree should not exist. Therefore I suggest that it is not right that these Regulations should be approved. My noble and learned friend carefully abstained from expressing his own view—though one may guess what view he held—and in the circumstances it would be improper for me to express mine. This Regulation makes it possible for a citizen of this new Republic to have the right to intervene in our affairs. Against that I protest, and I invite your Lordships to reject the Regulation.
§ 4.35 p.m.
§ VISCOUNT SWINTON
My Lords, I should not have intervened but for the speech which has just been made by the noble Lord, Lord Schuster. I think it is right, however, that I should now intervene in what is a very important debate, and a debate which I am extremely glad has taken place. I should like to make perfectly plain the legal position as I see and accept it, and to express the opinion of my noble friends in this House on the political implications, or the absence of political implications, in what we do to-day. As I understand it, these Regulations are a mere piece of machinery. The only reason why there are separate Regulations for Northern Ireland, and that they did not come into the general Regulations for England and Wales—I do not know about Scotland—
§ VISCOUNT SWINTON
—is that there seems to be a difference in Northern Ireland between the Parliamentary franchise and the local franchise. But what is abundantly clear is this: that 988 these Regulations are only a piece of machinery. Whether we pass them or whether we do not makes no difference whatsoever to any Act which this Parliament has passed, whether it be the Representation of the People Act or the British Nationality Act. We do not in the least affect the validity of those Acts or their interpretation—whatever be the right interpretation—if we refrain from passing these Regulations. Moreover, I do not believe it would be possible (I speak subject to correction) by a different form of Regulation to amend either of those Acts. I suppose that Parliament can do almost anything, but I should think the one limitation upon Parliament is that it cannot do by Regulation something which can be done only by Act of Parliament. Therefore, if it was our desire to amend an Act of Parliament, we could not do so either by refraining from passing these Regulations or by passing a different set of Regulations. That can be done only by an amending Act of Parliament.
I also want to make my political position perfectly plain as regards these Regulations. I am not going to express an opinion on what I think the law should be, beyond saying this: I am not going to express a legal opinion on the Regulations. It will rest with the courts to decide the legal interpretation of the British Nationality Act. I imagine that the courts will pay no attention to what was presumed to be the intention of Parliament from its debates. They will have to look only at the rather obscure wording of this Act of Parliament. But, speaking for myself and, I should think, for practically every noble Lord in this House, I do say this: that when we passed that Act of Parliament (to which your Lordships will remember I took the strongest possible exception at the time), nobody contemplated that we were passing an Act of Parliament which had anything whatever to do with the Republic of Eire. I am quite certain of that.
I remember that when I myself advanced arguments dealing with this obscure Irish clause and took exception to it, I was greatly taken to task by the Government spokesman—upon what ground? On the ground that, if we did not accept this clause, and the arrangement enshrined in it, we should be throwing 989 away a wonderful opportunity of reconciling Eire to this country and to the Commonwealth. Back went the argument, over decades of time, to the opportunities that had been lost under Mr. Gladstone; we were begged to accept this because it was to be a great and lasting settlement. Of course, it was nothing of the sort. As soon as the Irish election was over, contrary to the expectation of those who approved the Act, the Government of Eire introduced a Bill to establish an independent Republic and to declare themselves upon an appointed day—which will be Easter Monday—an independent Republic, a foreign State entirely outside the British Commonwealth. We certainly did not expect that.
As I have said, we cannot do anything about it. If I may respectfully say so to him, on behalf of my Party, I entirely reject the implication which the noble Lord, Lord Schuster, has made: that by allowing these Regulations to go through, anybody in this House is giving any assent, express or implied, either to what was done in the British Nationality Act or to the legal interpretation which may be put upon the British Nationality Act—and still less to what may be our attitude when the Republic of Ireland becomes an independent State on Easter Monday, as a result of which, as the Lord Chancellor has said, it will be necessary to introduce new legislation into this House. Upon that, I entirely reserve my position, and the position of those who act with me. It would be quite improper on these Regulations to discuss that position. Nothing that we said to-day could have the least effect upon any new legislation; and nothing we say or do to-day can in the least fetter our judgment or discretion as to what may be the right attitude to adopt on that occasion.
Speaking, as I do, as the acting Leader of the Opposition, I have thought it necessary to say that—I am sure the Government will agree that that is a perfectly fair political position to take up—so that nobody will seek to argue against noble Lords on this side of the House that we are in any way committed. No political issue arises to-day, although I am extremely glad that the case has been clearly and fairly stated by the noble and learned Viscount, Lord Simon. That is our political position 990 and, that being our political position, I would counsel the House with certainty that it is not committing itself at all by letting these Regulations go through. As the noble and learned Viscount points out to me, we are actually passing these Regulations on April 5, when Ireland is a Dominion; and it cannot be a Republic until the appointed day arrives.
§ 4.45 p.m.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I think the noble Viscount who has just spoken as the acting Leader of the Opposition has taken a perfectly fair point of view. I agree with everything he has said. He is in no way committed to anything by passing these Regulations. I should have thought this, at least, was plain to a first-year student: that, by passing Regulations, you cannot alter or enlarge the scope of an Act of Parliament. The Regulations depend upon and hang from the Act of Parliament and can only carry out the Act of Parliament. If the Regulations have gone further than the Act of Parliament, then the Regulations are bad. I am glad that the Regulations can be tested by a court of law, and we can see presumably which view is right with regard to this matter.
I say these few words because an attack has been made upon the Government in what I venture to say was a somewhat irresponsible speech of the noble Lord, Lord Schuster, who said that we were in a hurry to dash away and break up the British Empire, and that it was a case of the blind leading the blind. I myself had a good deal to do with this matter. I told your Lordships before, and I say again, that the threatened passage of this Bill, which is, I understand, going to become an Act on April 18, put us in a position of great difficulty. It was a measure which I personally deplored. It is the fact, as we all agree, that at the time when we were discussing the British Nationality Bill, we had no idea that there was going to be such a situation. I myself conducted the negotiations in Paris. I had the great good fortune to be associated with the distinguished statesmen of Canada, Australia, and New Zealand. Believe me, none of us, from Canada, Australia, New Zealand, or even from this country, wanted to break up the British Empire. We wanted to know what was the right and sensible thing to do in 991 these circumstances. It may have been right or it may have been wrong, but we all came to a conclusion, and we took the only sensible course. Had we taken any other course, we should certainly have found ourselves at cross purposes with the other member States who were there represented and who had large Irish populations. Therefore, I repudiate entirely the statement that we were rushing with haste to give away or to break up the British Empire. We were trying sensibly to deal with a very difficult situation which had arisen without our knowledge and against our wishes. So much for that.
I can understand the point of view of the noble and learned Viscount, Lord Simon. I am bound to say, speaking for myself, that had it not been for the doubt which the noble and learned Viscount, Lord Simon, expressed, I should have thought that this matter was plain beyond argument. That is the view which the Law Officers and the Home Secretary in another place and all our legal advisers have formed. It turns entirely on the construction of the British Nationality Act. In the main, it turns on the construction of the particular section, Section 32, to which reference has been made—I say "in the main" because there are other indications. I think the definition of "foreign country" isa country other than the United Kingdom, a Colony, a country mentioned in subsection (3) of section one of this Act, Eire, a protectorate,and so on. But Section 3 (2), omitting the words which I think are not material for this purpose and substituting some simplified words, reads as follows:…any law which by virtue of any Act of Parliament passed before….the 1st January, 1949comes into force….in the United Kingdomon or after that date, shall…continue to have effect in relation to citizens of Eire who are not British subjects in like manner as it has effect in relation to British subjects.I read that, and it has been read by all our advisers, as meaning this: that where there is an Act coming within that category which refers to and uses the phrase "British subject," you must give to that phrase "British subject" the expanded meaning of "British subject or citizen of 992 Eire." That may be right or it may be wrong, but that is the view which we have formed. The noble Viscount has indicated his doubt (which of course I respect) as to the correctness of that view, but so far as I am concerned I adhere to the view which I have expressed as being the correct view, though I am happy to think that the correctness of the view can be tested.
§ VISCOUNT SIMON
Would the noble and learned Viscount forgive me for one moment? There is no difficulty in defining an issue, and I quite agree with him that the answer would be that it is a matter to be decided judicially hereafter. But when the phrase "citizen of Eire" is used in the British Nationality Act, surely the issue is: what is the range which it covers? That is the issue, and no reading of any section will alter that. I think my noble friend will agree with me there.
§ THE LORD CHANCELLOR
I quite agree that that is the substance of it. And the form of Government which Eire has, the name by which she calls herself, does not alter the fact at all, any more than anyone would doubt that Burma, which used to be a Dominion and has now become an independent country, whatever else she is, remains Burma. I take it that it would be perfectly plain that a person who was a citizen of Burma when Burma was a Dominion would be to-day a citizen of Burma now that Burma is an independent Republic. That is the issue, and it can, of course, be defined in the courts, where they can deal with the matter.
The noble Viscount, the acting Leader of the Opposition, reminded your Lordships that in the very near future we are to have a Bill dealing with the Irish position—certain consequential alterations have to be made—and when that Bill comes up it will, of course, be perfectly open to any of your Lordships to whom the terms of the Bill are not satisfactory to move Amendments dealing with the whole position. Manifestly, the time to do that is on some Bill and not on a group of Regulations which seek to give effect to what is already in an Act. Therefore, I hope that your Lordships will agree with us in passing these Regulations.
§ On Question, Motion agreed to.