HL Deb 30 May 1949 vol 162 cc1233-47

4.15 p.m.

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

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

LORD CALVERLEY

My Lords, before the House goes into Committee, may I ask the indulgence of your Lordships in order to make a short personal explanation? On the Second Reading I made some remarks about His Majesty's Government advising the Sovereign to use His clemency for Irish Republican prisoners in our prisons in this country, and I made an appeal to the North of Ireland Government as an act of faith to try to show the same clemency. I want to say, and to place on record, that I did the North of Ireland Government a great injustice, because I find that since 1945 the North of Ireland Government have recommended the Sovereign to release well over 100 prisoners convicted for serious crimes during the troubled periods in the North of Ireland. I find that at the present time there are only ten prisoners left in the North of Ireland prison, and that five of these were committed for capital offences. His Majesty showed clemency in their case by granting reprieves. I want to say quite specifically that I pay my tribute to the humanity of the Government of Northern Ireland, and I regret it if I created a false impression by what I said earlier.

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause 3:

Other provisions as to operation of United Kingdom and colonial laws in relation to Republic of Ireland

(2) Until provision to the contrary is made by Parliament or by some other authority having power in that behalf, the following provisions shall have effect as respects any Act of Parliament or other enactment or instrument whatsoever passed or made before the passing of this Act, so far as it operates as part of the law of, or of any part of, the United Kingdom or any colony, protectorate or United Kingdom trust territory, that is to say— (a) if it contains a reference to His Majesty's dominions, or to any parts thereof, which would have extended so as in any way to include the Republic of Ireland had that part of Ireland remained part of His Majesty's dominions, it shall have effect, with any necessary adaptations, as if that reference did extend so as in that way to include the Republic of Ireland, notwithstanding that that part of Ireland is no longer part of His Majesty's dominions; and

THE CHAIRMAN OF COMMITTEES

May I remind the Committee that the Amendment before the House at the moment is that which was before us when we adjourned the other day—namely, Lord Simon's Amendment to page 3, line 13. Perhaps before the noble Viscount deals with his new Amendment he will formally withdraw the Amendment he moved the other day.

VISCOUNT SIMON

I beg leave to withdraw the Amendment which I moved the other day.

Amendment, by leave, withdrawn.

VISCOUNT SIMON moved, after subsection (1) to insert as a new subsection: ( ) Notwithstanding the foregoing subsection a person born within His Majesty's allegiance before the 6th December, 1922, in the part of Ireland referred to in this Act as the Republic of Ireland, who has not had his ordinary residence in the Republic of Ireland since that date and who has not caused himself to be registered as a citizen of Eire, is not to be deemed to have ceased and does not cease to be a British subject by reason of anything contained in the law of the Republic of Ireland or by reason of anything contained in the British Nationality Act, 1948.

The noble and learned Viscount said: I am sorry that I should seem to be occupying so much time this afternoon. The present subject is a difficult one, but I am sure that everybody will agree that it ought to be possible to meet the difficulty which has been pointed out in the proposed legislation of the Ireland Bill by language which is clear and easily understood. The position to which I call attention must, I think, be illustrated briefly by two facts which have come to my notice. The question which I raised was: Can it be that citizens who have never lived anywhere except in the United Kingdom, and who are ordinarily resident in Northern Ireland, ought to be regarded as citizens of Eire within the meaning of that phrase in the British Nationality Act, 1948, with the result that they are, by Section 1 of that Act, denied the status of British subjects?

I will not go through the stages of the argument again, because it will not be denied that Section 1 of the British Nationality Act does provide that the status of being British subjects does not attach to persons who are citizens of Eire. Therefore the question at once arises: Who is a citizen of Eire? In that connection, there has without any question been some considerable dubiety, if not confusion. I have before me a letter written on April 12 from a Home Office official to a gentleman (whose name I can supply if the Lord Chancellor desires it) to inquire whether or not he was a citizen of Eire or whether he was entitled to a British passport. He wrote on March 27, and this is the answer he received, dated April 12: Sir, With reference to your letter of the 27th March, I am directed by the Secretary of State to say that on the information furnished it seems possible that you are not a citizen of Eire in the law of Eire. This, as you will appreciate, is a matter which only the Eire authorities can decide and in the first place the Secretary of State would suggest that you should consult the High Commissioner for Eire, 33, Regent Street. London, W.1, on this point. If you are not a citizen of Eire you will already have become a citizen of the United Kingdom and Colonies under the provisions of Section 12 (4) of the British Nationality Act, 1948. If the High Commissioner informs you that you are a citizen of Eire you should write to this Department again and information on how to become a citizen of the United Kingdom and Colonies, or to preserve British nationality, will be sent to you. I have no doubt that the Secretary of State for the Home Department, in authorising that letter to be sent, was doing his best to help the applicant. But I think it is entirely wrong that the question whether or not a man is of British nationality should depend upon an opinion expressed by the High Commissioner for Eire. As I pointed out the other day, this sort of thing has been happening for some little time, and I venture to submit that the situation thus disclosed is plainly one which requires clearing up.

The other fact of which I must remind the Committee is this. Many people were much surprised, I think, when I ventured to suggest in the debate last Thursday that, at least in the view of the authorities of Eire, "citizen of Eire" was a phrase that extended to the whole of the Island of Ireland. I am sure that that idea took a great many people by surprise. Since then the matter has been looked into by the noble and learned Viscount the Lord Chancellor, who, if I may say so, has done everything possible to help. He was good enough to show me what I really knew already—namely, the actual decision, the view taken in the courts in Ireland. Here was a case of a man born in the city of Derry. Now, if you were to tell a citizen of Derry that he was within the jurisdiction of Mr. Costello, he would be considerably surprised. This man was born in the city of Derry, and from his birth in 1898 down to this date has lived in that city. You could not have a clearer example of a man who throughout his life has lived in Northern Ireland. Yet here is the judgment, right or wrong, given in the Dublin courts. I will read two passages. Here is the first: Held, … that at the time of the coming into operation of the Constitution Act"— that means, in 1922— all Ireland was within the 'area of the jurisdiction' of Saorstat Eireann, and that all persons domiciled in Ireland on sixth December, 1922, who possess the other necessary qualifications are citizens of the Saorstat with the power of election not to accept the citizenship given by Article 2 of the Constitution. The other passage is this. It is an extract from a judgment (whether right or wrong I do not know) which argues the matter at great length: I hold therefore that at the time of the coming into operation of the Constitution all Ireland was within the 'area of the jurisdiction' of Saorstat Eireann and that all persons domiciled in Ireland on December 6, 1922, who possess the other necessary qualifications are citizens of the Saorstat.… I feel that in coming to this decision I am interpreting truly the intentions of the framers of the Constitution. I am convinced that they never intended to exclude from citizenship of the Saorstat, solely because they had resided beyond an artificial and generally invisible border.

Your Lordships will see that I was perfectly right, if I may say so, when I said that in the view of the Eire authorities and of those who expound the Eire law, a man who throughout his life has been resident in Northern Ireland is none the less a citizen of Eire; and secondly, that by our own legislation which we passed last year he is deprived, so far as Section 1 goes, of his British citizenship. I am certain that nobody in Parliament would desire that situation to continue. We want to do everything that is right and friendly with the Government of the Republic of Ireland; but that is no excuse for allowing the Ireland Bill to pass in a form which, by the exposition of the Home Office, leads to this result. I am sure that everyone, including the noble Viscount the Leader of the House, will agree that this is a situation which must be remedied.

The object of my Amendment is to make that clear. I do not say that the Amendment does not need any correction; very likely it does, and I am sure the noble and learned Viscount the Lord Chancellor will help me in the matter. Perhaps we can help one another, if I may say so. This is the Amendment that I have put down: Notwithstanding the foregoing subsection a person born within His Majesty's allegiance before the 6th December, 1922, in the part of Ireland referred to in this Act as the Republic of Ireland, who has not had his ordinary residence in the Republic of Ireland since that date and who has not caused himself to be registered as a citizen of Eire, is not to be deemed to have ceased and does not cease to be a British subject by reason of anything contained in the law of the Republic of Ireland or by reason of anything contained in the British Nationality Act, 1948. I claim that if there is a man in Northern Ireland who has a genuine doubt as to whether or not the result of our legislation leaves him without British citizenship, he can read that subsection and apply it without having to go to lawyers. He has, of course, to know the date of his birth, where he was born, and where he was ordinarily resident at the relevant dates. If he knows those things, this subsection will show what his position is.

I admit at once that there is a defect in my Amendment which ought to be corrected. I have failed to observe that there is another class of person who has to be covered. An example is the man who, though he was born in the Southern counties, was born of people who had no permanent residence there, who were Northern -Ireland people. Such a man, at a subsequent date, for some reason may establish himself at a permanent residence in Eire; then again at a later date for a third time he may have a different permanent residence in Northern Ireland. I quite agree that that case has to be provided for. I had some words to suggest. But, subject to that and subject to the fact that I have taken advantage of what the Lord Chancellor pointed out on Thursday, that we must deal with the case of a person who caused himself to be registered as a citizen of Eire, I claim that this Amendment has the advantage that "he who runs may read." I am quite ready to receive any alternative suggestions, so long as they satisfy that test, but it does not seem to me to be right that a man who has done nothing in the world to justify the claim that he has forfeited his British nationality should have to say: "I must see what the British Nationality Act of 1948 says." He would be a clever man if he were able to interpret everything it says. But it ought to be simple.

I am asking for the help of the noble Viscount the Leader of the House and the Lord Chancellor to find a better way of doing it. I do not think that, on reflection, the Government would seriously say this Bill does not require amendment. It was natural, of course, to try to avoid amendment, if it could be avoided, and I sympathise with that effort, because we do not want any further fuss about it. But it must be amended in order to make this point clear. Therefore I do not expect the Government to say otherwise. As the Lord Chancellor observed on Thursday, it is true that my first Amendment does nothing for what some people call the "Loyalists" in Southern Ireland, but my second Amendment is meant to do something for them.

I do not know whether everybody appreciates it, but down to the beginning of this year a man who was resident in Southern Ireland had two nationalities. On the one hand by the law of Eire in which he lived he was a citizen of Eire; on the other hand, by our law he was a British subject. The effect of this Bill, combined with our Act of last year, is to take away from that man one of his two nationalities, to say that he is no longer a British subject at all, but he must get along with being a citizen of Eire and nothing else. Perhaps we cannot avoid that. But it seems to me that if the time comes when he chooses to apply to keep his British nationality, he should be able to do so in a form which will show everybody, if he is challenged, that that is his position. That is the purpose of my second Amendment.

I have raised this matter, not for the purpose of starting a controversy, but solely for the purpose of reminding your Lordships that this is a most complicated issue. I have studied it with such experience and skill as I have and, within the limits of my powers, I have endeavoured to state it clearly to your Lordships. I say that this situation must be made clear by some Amendment in the Bill now before the Committee. I have put forward my proposal for what it is worth, imperfect as it is, because at least that would give a clear statement of the position. All I ask is that we should have the same consideration which the Lord Chancellor always gives, because I am sure that his object is the same as ours—namely, that without arousing any animosities or acerbities we should do what we can to make it plain to people who hitherto have been British subjects that we are not here doing anything to alter that position.

Amendment moved— Page 3, line 12, at end insert the said subsection.—(Viscount Simon.)

THE LORD CHANCELLOR

I had the experience on Saturday of meeting a very intelligent man who had sat here as a visitor through all our debate on Thursday, and he told me that it was one of the bleakest days of his life. He had not understood one word that either the noble and learned Viscount opposite or I had uttered. The first thing he did understand was when the noble Marquess the Leader of the Opposition got up and said, "My brain is reeling."

VISCOUNT SIMON

Is he here now?

THE LORD CHANCELLOR

My Lords, the long and short of the matter is that this is an exceedingly complicated question. I agree very largely with the view of the noble and learned Viscount that we have to do something in this matter. A great amount of detail has been raised, but what we have got to do does not arise under this Bill—I would like to stress that. What the noble and learned Viscount has done is to point out a defect in the British Nationality Act of 1948, arising from the fact (about which, I confess, I did not know) that the Eire Government—or the Government of the Republic of Ireland, as it now is—takes a fundamentally different view on this question from the view that we take. I do not want to argue the point now at great length, but I do not think that the Amendment moved by the noble and learned Viscount is technically satisfactory. I have prepared an Amendment, which I have shown him and which I think would be adequate to meet the point; but I concede that my Amendment is a complicated one, and if it is possible to do this in a simple form then manifestly it is desirable so to do it. But it does not, of course, follow that one can find a short cut and do a very complicated thing in a very simple form.

I do not know what the noble Marquess who leads the Opposition or the noble Viscount the Leader of the House think, but I am wondering whether it would be convenient to your Lordships that, before discussing these two Amendments or coming to a final conclusion on the matter, you should have the opportunity of reading and considering the Amendment which I have put down. I am sorry to say that I could not put it down before now because I had to obtain authority so to do. It may be convenient, if the Leaders of both sides and the Leader of the Liberal Party think it desirable, that we should have an opportunity of considering these two Amendments together, and deciding what is the right thing to do.

May I once more attempt, if I can, to make this matter plain? Of course we are not in any way concerned with, nor should we have any desire to make any alteration in, the laws of the Republic of Ireland. We are entitled, however, to make what alterations we like in our own law, though we should be most reluctant to make an alteration in our own law if it involved a breach of any understanding that we have come to with the Government of Eire. The difficulty is one which arises in the main under Section 12 (4) of the British Nationality Act, which has nothing whatever to do with this Bill. Section 12 (4) says this: A person who was a British subject immediately before the date of the commencement of this Act and does not become a citizen of the United Kingdom and Colonies by virtue of any of the foregoing provisions of this section shall on that date become such a citizen unless— (a) he is then a citizen … of Eire. That was the trouble. That was what we used to refer to as the "mopping up" section, which brought in everybody who had been a British subject unless he was a citizen of Eire.

VISCOUNT SIMON

Surely, then, the whole trouble arises because we are invited in this Bill to say that a citizen of Eire is a citizen of the independent Republic of Eire. That is the cause of it. If "citizen of Eire" meant a "citizen of the Dominion of Eire," no difficulty at all would arise.

THE LORD CHANCELLOR

Exactly the same difficulty would arise, if I may say so with the greatest respect to the noble and learned Viscount. If you are considering just a citizen of the United Kingdom and Colonies, exactly the same difficulty arises whether or not we pass this Bill. There is no argument about it. It is plainly the fact that what we have to do here is to amend the British Nationality Act because of what has been revealed as a defect in that Act which is quite independent of this Bill. So much for the British Nationality Act of 1948.

I then come to this question because, when you say, "unless he is a citizen of Eire," that would depend primarily on Eire law—or the Republic of Ireland law, as it is now. So we looked at the Eire law and we found this—I read the Irish Nationality and Citizenship Act of 1935. The relevant section is Section 24, which is in these words: Every person who is not a citizen of Saorstat Eireann by virtue of Article 3 of the Constitution but was born before the 6 December, 1922"— and then they go on to expound that. So you are driven back to consider who was a citizen of the Free State by Article 3 of the Constitution. I now turn—and everything turns on this—to Article 3 of the Constitution of 1922. I call your Lordships' attention to these words of the Constitution, which is scheduled to the Act: Article 3, Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State … at the time of the coming into operation of this Constitution who was born in Ireland or either of whose parents was born in Ireland or who has been ordinarily reside it in the area of the jurisdiction of the Irish Free State … for not less than seven years, is a citizen of the Irish Free State. I read those words as I think any lawyer would read them, and I came at once to the conclusion that as a mere matter of construction and, I should have thought, common sense, where you are dealing with a clause which refers to these two concepts (one is Ireland and the other is the area of the jurisdiction of the Irish Free State), you would assume they were two different things, otherwise all you would have to say is "domiciled and born in Ireland." May I read the words again in order that I may make that point clear? Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State … at the time of the coming into operation of this Constitution, who was born in Ireland.… It now turns out that this very ingenious argument has been put forward.

Without my going into back history the Committee may remember that at the time there was a period called the "Ulster month." during which Ulster had the right to contract out, or Northern Ireland had the right to contract out. The relevant law was passed on December 5; the Constitution came into force on December 6, and Northern Ireland, I think by a unanimous Resolution, contracted out on the morning of December 7. But on December 6—which was the date of the coming into operation of this Constitution—the position was that the law of the Free State was not exercisable as respects Northern Ireland, and the provisions of the Government of Northern Ireland Act, 1920, continued. When under Section 12 of the Treaty the Northern Ireland Parliament presented a Resolution, it was provided that the power should no longer extend to Northern Ireland. So the very ingenious theory has been adopted—and perfectly honestly adopted: I am not for a moment suggesting the contrary—that on December 6, the day of the coming into force of the Constitution, theoretically, rather in a metaphysical sense, the powers of the Free State, the area of jurisdiction of the Free State, embraced the whole of Ireland, although their powers were not exercisable. There they were, though possibly dormant. It was on December 7, when the Northern Ireland Resolution was passed, that they finally ceased. That is the proposition.

The noble and learned Viscount gave us the information which he derived from Mr. Ellison on Thursday, and I noticed that he then said: I am bound to say that I had not clearly apprehended all the aspects of this matter until I received this information this morning. I referred to it as rather surprising information, and I advised the Committee not necessarily to accept it as correct. I say frankly that I hoped I should be able to obtain some statement from the Government of the Republic of Ireland or some authority for the statement that anybody born and living in Northern Ireland was not regarded as being domiciled in the area of jurisdiction of the Free State. But I discovered that that is not the Eire Government's view. They would say that Mr. Ellison's view is right, and they would say that on December 6, at any rate, the area of jurisdiction was all one over the whole country. That being so, I can say this quite sincerely. When we agreed to the various clauses of the British Nationality Act, it is I think (and I hope I have satisfied the Committee of this) not in the least surprising that we did not understand that conception. And certainly when we agreed to Section 12 (4), by the phrase "unless he is a citizen of Eire" we meant a citizen of Eire in the real sense—that he really was a person born and bred and living, and so on, within the twenty-six counties. If that was so, then it was right to put such a person in the pigeon-hole which called him a citizen of Eire, and not right to put him into the other pigeon-hole which called him a citizen of the United Kingdom and Colonies. That was our intention, and I very much regret that there was this difference of view.

We must put that right. We must have a clause—and it is not easy to draft—which amends the British Nationality Act. I have drafted such a clause and the Committee will see it on the Order Paper to-morrow morning. There are some copies here now in manuscript which the Committee can see. I should like guidance from my noble friend the Leader of the House and from the Leader of the Opposition as to whether they would like me to expound the clause now, or whether they think it would be better that we should discuss this matter to-morrow. The Committee are entitled and indeed bound to look into this matter and consider it. It may be more convenient to leave it until to-morrow. I do not know what view the noble Leaders take. My noble friend tells me he is inclined to think it might be better to leave it until to-morrow, but I am quite willing to take the view of the Leader of the Opposition in regard to what he would like me to do.

THE MARQUESS OF SALISBURY

We are extremely grateful both to the noble and learned Viscount, Lord Simon, and to the noble and learned Lord Chancellor for their brilliant exposition of the very difficult position which exists, and which I may say for about two minutes made it clear to me. I understand that two Amendments have now been drafted: there is the Amendment which was put down by the noble and learned Viscount, Lord Simon, and there is this new manuscript Amendment of the Lord Chancellor. The Lord Chancellor was good enough to send me a copy of his Amendment before the Committee met. I have read it, but I still find it very difficult to understand. My impression is that the Amendment of the noble and learned Viscount, Lord Simon, is the clearer to a layman, but I understand that there are points which the legal draftsmen feel are not covered by it. In the circumstances, and in view of the fact that most noble Lords in the House have not even seen the Lord Chancellor's manuscript Amendment, I think it would not be possible for us to go much further with it to-day. Indeed, if we have not the text it would be rather hopeless for the Lord Chancellor even to attempt to expound it to us.

What I would suggest is that we might postpone the Committee stage until tomorrow, when I hope it may be possible to take it early in the afternoon, because I know the Government wish to make as much progress with the Bill as they can. It might be possible for us on this side of the House to have some talks with the Lord Chancellor even before that time and, in the light of such talks, we might be able to find an agreed solution, which would be the happiest solution of all. Obviously we all want the same thing, and it is only a question of how it should be put. Therefore what I would suggest, with all deference, is that we should adjourn the Committee stage and then perhaps we can consider the Lord Chancellor's Amendment, and whatever Amendment emerges from our discussions should be put upon the Paper for to-morrow. We might hope then to clear up the whole matter. That is the proposal I put forward.

THE LORD CHANCELLOR

I think that that would be a convenient course to follow. If the noble Marquess will give me time to put on my appropriate garments, and to move that the House be resumed, the effect of that, I think, will be that we can have our discussion to-morrow.

THE MARQUESS OF SALISBURY

I would like to have this clear. Is it the intention of the Lord Chancellor to put down his Amendment in any case to-night as one of the subjects for discussion, or do we try to obtain the new draft?

THE LORD CHANCELLOR

Unless we get a new draft on which we can all agree, I think I had better put down my Amendment. The House will then be able to decide as between the two. I beg to move that the House do now resume.

Moved, That the House do now resume.—(The Lord Chancellor.)

4.52 p.m.

LORD MACDERMOTT

My Lords, may I say a word or two about the Ireland Bill, as one who mentioned the problem which we have been considering on the occasion of the Second Reading? I feel that I am only expressing the views of many who have been much perturbed about this matter when I say that we are grateful for the way in which the noble and learned Viscount the Lord Chancellor has realised the difficulties and has expressed the Government's willingness to meet them here. I also wish to acknowledge with gratitude the great pains, labour and research which the noble and learned Viscount, Lord Simon, has devoted to investigating this matter for the guidance of the House. There is just one question which I would like to mention now, so that regard may be paid to it when the two Amendments are being considered by those who will be responsible for the final form of the Amendment to be submitted to the House.

As I understand them—I have had only a very short time to look at them—the Amendments deal primarily with those who are still resident in Northern Ireland. Undoubtedly, the majority of those concerned are resident there. If the view expressed in the Southern Ireland courts be correct—and I do lot for a moment suggest that it is—practically all those still living in Northern Ireland, including myself, would be citizens of Eire. Apart from them, there were many people who were born in Southern Ireland but eventually settled in other parts of the United Kingdom and Colonies, and many of them have felt a good deal of doubt about the official attitude as indicated by the rulings of the Passport Office and the Home Office. I had a letter the other day from a retired captain of the Royal. Navy who was born in Southern Ireland in 1897, who joined the Royal Navy when he came of age and who has never been back in Southern Ireland since. On his application to the Home Office for clarification of the matter, it was suggested that he should sign a form saying that he was a citizen of Eire. That he refused to do.

I mention that class because, though, as I understand it, they are not claimed as citizens of Eire by the Eire authorities, they have been caught lip in the confusion which has been engendered by the rulings of the Passport Office. If their case can be met in the draft which is to be submitted to the House, well and good. I fully appreciate that the matter is different so far as they are concerned. It may be that an assurance by the noble and learned Viscount the Lord Chancellor, that in no event will such persons be regarded as coming within the category, will suffice. I thought it right to draw attention to the fact that those who had been perturbed by the rulings of the Passport Office are not entirely those now resident in Northern Ireland. There are, I am given to understand, a good number resident elsewhere in the United Kingdom and the Colonies who are affected.

THE LORD CHANCELLOR

My Lords, I am very sorry if my premature Motion prevented the noble Lord, Lord MacDermott, saying earlier what he wanted to say on the Ireland Bill and I express my humble apologies to him. What he says will be fully borne in mind. I agree that we have so to frame our Amendment as to parcel out these people. They will not all necessarily become citizens of the United Kingdom and Colonies. Some may become citizens of Canada, citizens of Australia, citizens of India, or whatever it may be. We must take care of that fact in our Amendment.

On Question, Motion agreed to, and House resumed accordingly.

THE LORD PRIVY SEAL (VISCOUNT ADDISON)

My Lords, before the House adjourns, may I say that part of the understanding is that the business with respect to the Ireland Bill will be taken first to-morrow? We have already passed an omnibus Resolution which entitles us so to take it.