HL Deb 12 April 1949 vol 161 cc1155-61

6.16 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Henderson.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DROGHEDA in the Chair]

Clauses 1 to 5 agreed to.

Clause 6:

Application of sections 1, 2 and 4.

(3) Any Order in Council made under this section shall be laid before Parliament after being made.

LORD DE L'ISLE AND DUDLEY moved to leave out subsection (3) and to insert in its place: (3) Excepting in the case of a consular convention already ratified or awaiting ratification at the date of the commencement of this Act no Order in Council shall be made under this Act unless, after copies of the draft thereof have been laid before Parliament, each House presents an Address to His Majesty praying that the Order be made.

The noble Lord said: I have an Amendment on the Paper concerning a point which I think is of some importance—possibly of constitutional importance. My noble and learned friend Viscount Simon is unfortunately not able to be here, and so the Amendment now stands in my name only. I could wish that it stood in the name of some much more learned person than myself—someone qualified to speak upon these matters of constitutional law. I should like to make the preliminary point that the Amendment explicitly does not refer to the Consular Convention to be ratified by the United States. As stated from these Benches during the Second Reading debate, that has the entire approval of noble Lords on this side of the House. The Amendment concerns rather broader issues—the relationship of the treaty-making prerogative of the Crown and the power and sovereignty of Parliament. All constitutional authorities recognise the right of the Crown, on ministerial advice, to make treaties with foreign Powers without the sanction of Parliament. Equally, I think it is recognised that the binding force of any treaty made under such prerogative cannot be enforced in the municipal law of this country unless it is incorporated in an Act of Parliament. In fact, the Crown can bind the State by treaties but only Parliament, or rather the King in Parliament, can bind the subject in order to fulfil any terms of such treaties. The matter is stated authoritatively in Dicey. I hope that the Committee will bear with me if I read what I believe to be a relevant passage from that authority. It states: Acts of Parliament, it has been asserted, are invalid if they are opposed to the principles of morality or to the doctrines of international law. Parliament, it is in effect asserted, cannot make a law opposed to the dictates of private or public morality. Thus Blackstone lays down in so many words that the 'law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries and at all times: no human laws are of any validity if contrary to this and such of them as are valid derive all their force and all their authority, mediately or immediately from this original,' and expressions are sometimes used by modern judges which imply that the Courts might refuse to enforce Statutes going beyond their proper limits (internationally speaking) of Parliamentary authority. But to words such as those of Blackstone, and to the obiter dicta of the Bench, we must give a very qualified interpretation. There is no legal basis for the theory that judges, as exponents of morality, may overrule Acts of Parliament. Language which might seem to imply this amounts in reality to nothing more than the assertion that the judges, when attempting to ascertain what is the meaning to be affixed to an Act of Parliament, will presume that Parliament did not intend to violate the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and of international morality. A modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because it was immoral, or because it went beyond the limits of Parliamentary authority.

I have taken the liberty of reading that passage from Dicey because of certain remarks which fell from the lips of the noble Lord, Lord Henderson, in the debate on Second Reading which might have been interpreted to mean that what was accepted as international law was ipso facto accepted as the law of the country. I think it proves that that could be so only when international law has been assimilated by the law of the land, either in Common Law or in Statute Law. Therefore, I think it is not in dispute that Consular Conventions such as this require Parliamentary sanction to impose upon a subject of the Crown any obligation to do or not to do certain things.

It seems to me that the question we have under discussion is this: Should Parliament pass an enabling Bill precluding it from discussing future Conventions which lay future obligations on His Majesty's subjects? The Crown can make a Convention without Parliamentary sanction and there is no doubt that in practice such a Convention would be observed. One cannot conceive a magistrate recklessly issuing a warrant for the searching of a consular office. But it is no infringement of the Royal Prerogative to have to ask Parliament to apply in the municipal law of this country the obligations imposed by that Convention. It may be contended that in fact such a Convention would be of no legal force unless its terms were applied by Parliament, and that we are trespassing on rather debatable ground between the rights of Parliament and the Royal Prerogative, though there may be no actual difference in practice. It may be contended that it would be no use making these Conventions unless the Crown, in making them, are satisfied that they can be applied in law.

I think it right that we should argue this matter out in Parliament, not only in terms of this Bill but because it might be held, if we pass it without argument, that some sort of precedent was established. I think that Parliament must always be jealous of seeing that its rights in such matters, particularly in the matter of creating Obligations for the subjects of the Crown, are safeguarded. We ought not to pass an enabling Act which imposes future obligations, possibly in circumstances which we cannot foresee, without going very carefully into the matter of the constitutional position. The Amendment which I have put down on the Paper, by which any future Convention not now awaiting ratification shall be made subject to affirmatory Address by both Houses of Parliament, might in practice strengthen the hand of a Foreign Secretary in relation to countries where the practices we are accustomed to follow are not closely adhered to. In moving this Amendment, I am presenting to the Committee a point which is of real importance in constitutional law. I think it is one which deserves the closest attention of the noble Lord who is in charge of the Bill, and I hope he will deal with it in the spirit in which I have moved it—namely, in the spirit of inquiry, in no factious spirit but in order to preserve the rights of Parliament as I understand them to be at the present time.

Amendment moved— Page 5, line 26, leave out subsection (3) and insert the said new subsection.—(Lord De L'Isle and Dudley.)

6.26 p.m.

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

I have listened with great interest to the point to which the noble Lord has addressed himself. I am not a lawyer; therefore, I feel some diffidence in making any comment on the point which he raised. As the noble Lord is aware, I was not informed in advance that this particular line was to be raised. I have just returned this afternoon from Germany. I have not had time to receive the advice of my legal advisers, and I do not feel in a position to make any special comments on this point. I agree, however, that having raised the point, and having advanced his arguments, the noble Lord is entitled to have the views of the Government, and perhaps it would be better if I had his arguments looked into and took an opportunity on Report stage to give an indication of the official view of the Foreign Office on this point.

The House is aware that the reason for this Bill is the only Consular Convention into which this Government have entered. We agree that it is the duty of Parliament, before approving consequential domestic legislation, to satisfy itself that, generally speaking, it is desirable to enter into Agreements of this sort, and that the advantages we hope to obtain are not outweighed by corresponding disadvantages. But I submit that, once the general issue has been determined, it is surely reasonable, and in accordance with usual custom, to ask that the Foreign Secretary and his colleagues be left to decide, in the light of the current international situation, the conclusion of further Conventions of this sort with other countries.

As I see it, the Amendment is designed to ensure that before the present Bill, when it becomes law, can be applied to any new Consular Convention, the Order in Council shall be subjected to an affirmative Resolution. That means that there would be a debate in either House on the Order in Council. I submit that such a debate could be nothing more nor less than a debate on the question whether Parliament have or have not confidence in country "X"—country "X" being the country with whom a Consular Convention has been reached. Nothing else could arise on the discussion of the Order in Council. In a future case the need will arise for an Order in Council to bring into operation the powers of the present Bill—and, in particular, Clause 4, to which the noble Lord called attention. We hold the view that such a debate would be highly undesirable from the point of view of international relations, even if, as no doubt would be probable, Parliament accepted the view of the Government and approved the Order, and thereby declared that it had confidence in country "X."

VISCOUNT SWINTON

I do not want unnecessarily to interrupt the noble Lord, but I hope he will not carry that argument too far. It is common practice that a Treaty made by the Government is not ratified until after Parliamentary debate. That does not imply confidence or want of confidence; it implies merely consideration of the wisdom or expediency of the particular Treaty.

LORD HENDERSON

But the House is approving this Bill in relation to an existing Convention. All I am saying is that if the Government conclude a Convention with another country, the discussion on the Order in Council can be only on the desirability or undesirability of having a Convention with that particular country. I would like to repeat what I said on the Second Reading stage of the Bill. No future Consular Convention will carry an indefinite period of automatic operation. It will provide that, if necessary, the Government can terminate the Convention at reasonably short notice. The usual practice, I believe, is to provide for three months' or six months' notice. Further, in making new Conventions, as I also stated on an earlier occasion, His Majesty's Government will not automatically follow the model of the Anglo-American Convention. They will include those provisions which seem to be suitable for a Convention with the foreign country in question, having regard, as they must, both to the fact that there are British consulates in that country and that there are consulates of that country in the United Kingdom.

Before I conclude I would like to mention one further point. The operation of Clause 4, as I have stated, is a very limited immunity. It is considerably short of the diplomatic immunity which is enjoyed in all countries. As I said, I do not want to enter into the legal points raised by the noble Lord. I would like to be properly briefed or, if possible, to pass them on to my noble and learned friend the Lord Chancellor. But the immunity that is provided is very limited. The clause gives the consular office some slight advantage over the position enjoyed by the national subject. It does not, I submit, deprive the national subject of rights, as the noble Lord argued. I think it is important to bear that in mind and to realise that all that is being provided in Clause 4 is a limited immunity which is very strictly safeguarded, and that the immunity which we concede to consuls of other nations in this country is an advantage which we shall enjoy in their countries, because this clause is on a reciprocal basis. Having made those points, I regret to say that I am unable to accept the Amendment. Despite the fact that I have been unable to pursue the constitutional argument which the noble Lord raised, I hope he will not press the Amendment.

LORD DE L'ISLE AND DUDLEY

I readily understand the reasons the noble Lord has given for not being able to give the deep attention to this Amendment which I am sure he would normally give to all Amendments moved from these Benches; I appreciate his other preoccupations. I do not intend to detain the Committee for long, but there are one or two things I would like to say. I do not dispute the fact that the limitations which Clause 4 of this Bill imposes are not of a very serious character. But here we are dealing with a principle. The Government have come to Parliament and asked that certain powers should be imposed on constables, and other people—and also, presumably, upon magistrates who issue warrants—not to do certain things. There have been foreign consuls in this country for many years—I do not know how long—and we have somehow managed to find a way of accommodation which did not frequently lead to disputes. The practice was no doubt in advance of the law. But the Government have now come to Parliament and asked them to put into legislative form certain things which were probably practised before. When the Government come to Parliament and ask for certain powers, then I think we are right to look at them critically—that, indeed, is the duty of Parliament.

If we are asked to pass an enabling Act binding us for the future, then we ought to look at it even more critically. That is why I moved this Amendment. I do not intend to press the Amendment to a Division, but I would remind the noble Lord that, in fact, if I do not do so, the Report stage will be taken at once, and on Third Reading I shall be precluded from moving a manuscript Amendment, even if I wish to do so. However, I have consulted my noble friend Lord Swinton, the Acting Leader of the Opposition, and he agrees that we should not obstruct the passage of this Bill. We are concerned with the legal points involved, however, and with the constitutional position, and I hope the noble Lord will seek legal advice and give us on Third Reading as clear a legal view of the position as is possible. I beg leave to withdraw the Amendment.

LORD HENDERSON

If I may have the leave of the Committee to say another word, I can give the noble Lord an assurance that the legal and constitutional points he has raised will be dealt with on Third Reading by my noble and learned friend the Lord Chancellor.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Remaining clauses agreed to.

House resumed.

Bill reported without amendment.