CONSULAR CONVENTIONS BILL (Hansard, 13 April 1949)

§ THE LORD CHANCELLOR

My Lords, my noble friend, Lord Henderson, has asked me to move that this Bill be now read a third time, and as the hour is late I will do so as briefly as I can. The noble Lord, Lord De L'Isle and Dudley, ventured yesterday into a field which he told us was unfamiliar to him. I can only say that if the noble Lord were ever in need of a job, I would give him a testimonial as a teacher of constitutional law. The sentiments he expressed and the way in which he expressed them alike were wholly admirable. I have been drawn into this matter by the wiles of my noble friend and asked to deal with the legal point involved. I think that point is a simple one. It is, of course, for the Executive to advise the Crown as to the making of Treaties. This can be done, quite constitutionally, without Parliamentary approval at all. At the same time, any prudent Executive, knowing that Parliament is its master, would not be so foolish as to disregard that fact in making any important Treaty. It is, therefore, the accepted practice that before an important Treaty is finally entered into by ratification Parliamentary approval is sought. The first proposition is that, as a matter of legal theory, treaty-making power is a matter on which the Executive can advise the King without prior reference to Parliament.

The second proposition is equally clear. It is that the making of a Treaty does not alter the municipal law of this country. Accordingly, no subject can be charged with breaking a Treaty unless he breaks the municipal law. An illustration was given in the discussions, either yesterday or a few days ago, of a fishery treaty, where there is a restricted part of the sea, let me say, between ourselves and the Norwegians, under which our fishermen are confined to one certain area and the Norwegians to another. If that is all, it is impossible to prosecute one of our people for fishing in the wrong area, or a Norwegian for fishing in the wrong area. To do that would require alteration of the municipal law; in short, the Treaty will have to be given the force of law. As your Lordships know, it is consequently quite common, after a Treaty is 1269 made, to pass a Statute giving that Treaty the force of law, so that all the lieges are bound to observe the conditions of the Treaty.

I think that is as far as I need go on the legal points. I do not think those propositions would be challenged by any competent lawyer—and amongst the class of competent lawyers I certainly include the noble Lord, Lord De L'Isle and Dudley. He did not seek to challenge them. The point of all this in relation to the present Bill is this. There is no doubt that the Convention contemplated by this Bill would bring about a change of the law. The position in regard to consular houses is extremely difficult. He would indeed be a bold man who would take it upon himself to assert what the law is in that respect. I am not going to do so. But I concede at once that Clause 4 does bring about a change in the law, because that clause says that you cannot enter one of these houses—except in cases of fire, or something of that sort—save with the consent of the person in charge, or save with the consent of a Secretary of State. That is not the existing law; that is an alteration.

Because the Convention would involve an alteration in the law, we come to Parliament and ask Parliament to pass this Bill, Clause 4 of which provides the point about the alteration in the law. I think it is plain, therefore, that whatever else we are doing we are not seeking to undermine the authority of Parliament; nor are we seeking to get away from the two propositions I have enunciated. The real question in this case is: Aye or No, is it right and is it wise that Parliament should give this power? That is not a legal question, but a question of policy. And I venture to think it is a wise step, and is much the better thing to do.

I would point out one other fact. The scheme of this Bill is that this provision may be brought into force by means of an Order in Council. That is the effect of Clause 6 (2). An Order in Council may be revoked by a later Order in Council. Therefore, if Parliament thought that the Executive were acting foolishly in this matter, they could assert indirect pressure upon the Executive to make the Executive promulgate a Second Order in Council reversing the first Order. If you imagine that Parliament is becoming the 1270 sort of Parliament you would have in a completely servile State, then we need not bother about it; in the first place, that is never going to happen, and, in the second, it would be no good speculating if it did. So long as Parliament remains free and master of the situation, the Executive, I hope and believe, can always be brought to book by Parliament; and if the Executive does wrong, then there are ample means of making it go right. I suggest to your Lordships that this is a useful little Bill, and that it contains all the safeguards which one would expect in a matter of this sort. Accordingly, I beg to move that this Bill be read a Third time.