§ 4.7 p.m.
§ Order of the Day for the Second Reading read.
§ THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD HENDERSON)
My Lords, I rise to move the second reading of this very short but important Bill. Its purpose is to amend one provision of the Diplomatic Privileges Extension Act of 1944 and also another provision of that Act as already amended by the Diplomatic Privileges Extension Act, 1946. If your Lordships find the amendment of the two Acts confusing, I hasten to say that it is proposed, as soon as this Bill is passed, to consolidate the three Acts under the consolidation procedure and, further, that your Lordships will find conveniently set out in the Second Schedule to the Act of 1946 the relevant portions of the 1944 Act which have already been amended by the Act of 1946.
The occasion for the introduction of the present Bill is the special circumstances and characteristics of the Consultative Assembly of the Council of 1044 Europe. But for the Council of Europe perhaps these amendments would not have been proposed at the present time, but they are of general application and are also desirable, if not absolutely necessary, because of the Constitutions of certain other international organisations. Before, therefore, I endeavour to explain the actual terms of the Bill, I will indicate briefly the peculiar features of the Consultative Assembly of the Council of Europe which have rendered the introduction of an amending Bill imperative at the present time.
Hitherto, in connection with representatives on international organisations we have chiefly had to consider representatives of countries who represent their Governments, in the sense that they act under the instructions of their Governments; but up to now we have never been under any obligation to grant any immunities in the United Kingdom to any person who represented the United Kingdom, whether as a delegate of the Government or not. In the case of the Consultative Assembly of the Council of Europe, the persons who sit as members of this international body are emphatically not persons who represent their Governments and who act under instructions from their Governments in the manner in which they speak or vote in that Assembly. They represent their countries, but not their Governments.
Further, in order that representatives on this international consultative body may enjoy the same freedom of debate as Members of Parliament do in their own countries, it becomes for the first time necessary to grant to persons who represent the United Kingdom an immunity in the United Kingdom itself. The British representatives on this Assembly, as well as foreign representatives, must be free from prosecution or suit in the United Kingdom in respect of their speeches and votes. It is not sufficient in this case, as it has been in all the other cases, for the United Kingdom to grant privileges and immunities only to representatives on international organisations who represent foreign countries.
The privileges and immunities which have to be granted in respect of the Council of Europe are set forth in the General Agreement which has been published as a White Paper, Cmd. 7780. This is an 1045 Agreement which was signed on September 2 last on behalf of the United Kingdom, but which cannot be ratified until this Bill is law. It is the desire of His Majesty's Government that the United Kingdom should be able to ratify it before the next meeting of the Consultative Assembly, which will begin on August 7. This General Agreement on the Privileges and Immunities of the Council of Europe is on the ordinary lines of similar Agreements applying to other international organisations, in so far as it deals with the Council itself as a juridical person, or with the Committee of Ministers, or with the officials of the Council. No new legislation would be required to fulfil those portions of the Agreement. It is only when we come to Part 5, Article 13 to 15, which relate to the Consultative Assembly, that we find the completely new feature, which I have indicated earlier.
Noble Lords may like to have in their minds what are, in fact, the immunities that have to be granted in respect of this Consultative Assembly. I need not spend any time over Article 13, because its provisions can be fulfilled by ordinary executive action. This Article prohibits administrative restriction on the free movement to and from the place of meeting of representatives on the Assembly and provides what facilities they are to have in the matter of customs and exchange control. It is Article 14 which is the key Article—the safeguard of freedom of debate—and this Article provides that in respect of words spoken or votes cast in the Assembly representatives shall be immune from all official interrogation and from arrest and all legal proceedings; and this immunity continues, as indeed it must, not merely while the Assembly is sitting but indefinitely. Article 15 provides for another immunity, which operates only during the sessions of the Assembly itself and during the period when representatives are travelling to and from the place of meeting. Under this Article we have to give to foreign representatives on the consultative Assembly an exemption from arrest and prosecution, but exemption does not apply when the representatives are found committing, attempting to commit, or just having committed, an offence. Further, the Assembly can waive it. In the case of our own representatives on the Consultative Assembly, we have to give 1046 them during this period the same immunities that Members of Parliament enjoy here.
This Bill follows the pattern of its two predecessors. This pattern is that an Act of Parliament prescribes the maximum limit of privileges and immunities that can be granted, and within this limit Orders in Council, which have to be laid before Parliament and are subject to negative Resolution, provide what is to be granted in detail, having regard to the obligations of His Majesty's Government under the relevant international agreements. The maximum allowed by the Acts is in many cases far in excess of what the Orders in Council actually grant, but His Majesty's Government do not use the powers granted to them by Parliament more widely than relevant international agreements require. They have never done so in the past and have no intention of doing so in the future, either in connection with the Council of Europe or otherwise. However, as a result of the debate in another place, it is my intention to move at the Committee stage of the Bill an Amendment making this practice obligatory by Act of Parliament.
I now turn to the Bill itself. Subsection (1) of Clause 1 makes a purely technical amendment to the statement of the qualifications, with which an international organisation must comply to come under the Acts at all. It amends the Acts by making them apply to organisations of which the constituent members are States, as well as those of which the constituent members are Governments. Sometimes the constitutions of international organisations are framed in terms which indicate the members as being Governments, in other cases which indicate the members as being States, and in some cases, of which the Council of Europe is one, in terms which are ambiguous on this point. We should hardly have thought it necessary to include subsection (1) in this. Bill if it were not for the fact that when we come to subsection (2), dealing with representatives, a distinction has now to be drawn between persons who represent their Governments and persons who represent their States but not their Governments, and the distinction drawn in this connection might have been held to have repercussions on the interpretation of Section 1 (1) of the Act of 1944, which, as I have said, deals with the qualifications 1047 of international organisations which are necessary before the Acts can apply to them.
In the second subsection of the first clause of the Bill lies the real substance of the Bill. If noble Lords will look at the Second Schedule of the Act of 1946 and at paragraph (b) of Part A of that Schedule, they will find the wordsconfer upon … any person who is a representative of a member Government …and they will also find at the end of Part A of this Schedule a proviso which reads thatthe Order in Council shall not confer any immunity or privilege upon any person as the representative of His Majesty's Government in the United Kingdom.Now, as I have already stated, up to the present time it has not been necessary to construe the words "representative of a member Government" in the existing Acts in any narrow and technical sense. No difficulty has been found in interpreting these words as covering, for instance, the workers' and employers' delegates on the International Labour Office who represent their States but not their Governments. This distinction between States and Governments was present in nobody's mind in connection with the existing Acts, and there was no need in construing the Acts to make a distinction which was clearly not intended. But we cannot at one and the same time put a broad interpretation on the words "representative of a member Government" in paragraph (b) and a narrow interpretation on the words "representative of His Majesty's Government in the United Kingdom" in the proviso.
We could not, under the existing Acts, grant any immunity to a British representative, whether he represented His Majesty's Government or the United Kingdom as a State, but now in the case of the Consultative Assembly of the Council of Europe we have to give an immunity in the United Kingdom to persons who represent the United Kingdom but who do not represent His Majesty's Government. Therefore this Bill amends paragraph (b) of the Second Schedule of the Act of 1946 by making it apply (I quote from line 22 of page 1 of the Bill) torepresentatives (whether of Governments or not)1048 but it leaves the proviso unchanged, with the result that under this Bill immunity in the United Kingdom can be given by Order in Council to a person who represents the United Kingdom but does not represent the Government of the United Kingdom: but immunity in the United Kingdom still cannot be granted to somebody who represents His Majesty's Government. In case noble Lords should ask why we say in the Bill "whether of Governments or not" instead of saying "whether of Governments or States," the explanation is a peculiarity which has only recently come to light in connection with the I.L.O. In the case of the governing body of the I.L.O. (that is, so to speak, the executive committee of the I.L.O.) it is held that the workers' and employers' representatives do not sit on this governing body as representatives even of their States, but rather as representing the interests of the collectivity of workers or of the collectivity of employers.
To turn again to the Bill, noble Lords will see that the second Schedule of the Act of 1946 uses the wordson the governing body or any Committee of the Organisation.That is in line 7 of paragraph (b). Now these words were first drafted in 1944, when U.N.R.R.A. was practically the only international organisation whose constitution had been drawn up, and have since been found inappropriate not merely for the Council of Europe but also for other international organisations. Let me take the I.L.O. as an example once more. In the existing Acts the words "governing body" were intended to cover the large Assembly of the organisation on which all member States were represented. That this is so is very clearly shown by Section 2 of the Act of 1946 which adapted them to the special case of the United Nations and makes the words "governing body" apply to the General Assembly.
But under the constitution of the I.L.O., the name of the wider body is the "conference" and the words "governing body" are used for the smaller and, so to speak, executive committee; and here we have a source of confusion, since "governing body" in the Act means the large assembly and in the I.L.O. constitution the smaller organ. If we turn to the Council of Europe and have to apply the words of the existing Acts, we should 1049 have to say either that the Committee of Ministers was the governing body and the Consultative Assembly was a committee, or vice versa; and whichever way we put it, it would be equally wrong and equally contentious. So our present Bill, which is drafted not merely with the Constitution of the Council of Europe in mind but taking acount of the form which the constitutions of the other international organisations have taken, uses the words "on an organ of such an organisation"; and I should like to say here that this word "organ" has now become merely a term of art in connection with international organisations to describe the constituent elements of the organisation.
One further point. Subsection (2) of Clause 1 of the Bill continues, in lines 23 and 24:and members of any committee of such an organisation or of an organ thereof.The word "committee" in the existing Acts has had to be much over-worked to make it fit the constitutions of the different international organisations. It has had to be used in the first place to cover all the organs of the organisation apart from the principal one which was referred to in the Act as the governing body, and it has had to be used in the second place to cover committees which these organs set up to carry out their work. To take one illustrative example: it is well known that the Consultative Assembly of the Council of Europe, which is one organ of that body, has set up committees which work when the Consultative Assembly is not sitting. Therefore, in order to cover the position adequately and conveniently we need the words "members of any committee of such an organisation or of an organ thereof."
My Lords, I have now explained the Bill (Clause 2 is formal and the Schedule is merely consequential and drafting) and I hope I have succeeded in making my explanation reasonably clear. With these amendments to existing Acts we shall be able, by Order in Council, to give, for instance to members of the Consultative Assembly of the Council of Europe, precisely those privileges and immunities which the General Agreement requires. We shall not give them more, and indeed if the amendment which I propose to move at the next stage is accepted, we shall be debarred from 1050 giving more, because Parliament will have laid it down by Statute that no Order in Council is to go beyond what is required by the relevant international agreement. I beg to move.
§ Moved, That the Bill be now read 2ª.—(Lord Henderson.)
§ 4.26 p.m.
§ VISCOUNT SIMON
My Lords, it often happens in this House that, after the noble Lord in charge of the Bill has moved the Second Reading, we express to him our thanks for the explanation which he has given. Certainly, on the present occasion we owe a double measure of thanks to Lord Henderson, because this is, in fact, a very difficult Bill to understand in detail, and he has, I think, for the first time in the history of the Bill, given a consecutive account of it which we shall all wish to study. I hope I do no injustice to other noble Lords here when I say that, even in spite of this very carefully prepared and well-delivered explanation, I doubt whether there are many of us who would be prepared to say at this moment that we understand what it is all about.
That leads me to observe—it is only a passing observation—that I should have thought this was exactly the sort of Bill which ought to have been prefaced by an explanatory memorandum. You may read this Bill from one end to the other and you will not find out what the noble Lord, with his knowledge of the matter, told us at once—that it really arises out of the General Agreement that was made in Paris in connection with the Council of Europe, I think on September 2 of last year. There is not a single word in the text of the Bill that gives one an inkling that that is the case. All the same, the noble Lord has contributed most usefully to what must be a careful study of the measure, and I hope I may observe that I much prefer the way in which he has presented it to the way in which it was presented in another place, when I saw with some surprise that the Minister who moved the Second Reading, in his very first sentence, said that it was a simple Bill—sancta simplicitas! The truth is that it is one of the most complicated measures in detail that I have ever had to look at. I say that, notwithstanding that I, as Lord Chancellor, was responsible 1051 for the first Bill of the kind in 1944 and took some part in the consideration of the amending Bill which the present Lord Chancellor moved in 1946.
I do not think it would be useful this afternoon, especially as we have other business to attend to, if one went into too much detail. But in the first place, I should like, if I may, to make one or two observations of a rather more general character. I should like us all to be sure that we appreciate that, though this sounds very technical and special, we are not concerned only with very recondite things which do not affect ordinary people. In point of fact, whenever you confer a privilege or immunity upon something or somebody you are depriving somebody else of a right which he previously had. That is the reason why the indefinite extension of diplomatic immunity or privilege ought always to be watched by Parliament with great care. If you say that a particular individual who drives his car furiously upon the road and overruns and injures an innocent wayfarer is to have immunity or privilege, that means that he cannot be made to pay the damages. That is very nice for him, and there may be circumstances in which it is quite right for that to happen; but it also means that the perfectly innocent man who has been injured cannot get damages. Therefore, whenever there is a Bill which deals with immunity and privilege of this kind, it is the duty of us all to look at it very carefully to see whether it goes further in the circumstances than is right. I think that observation is one which it is proper to make here in the debate, because it is so easy to imagine that we are doing only the friendly international courtesies in matters of this kind. But the matter is much more important than that, because it does or may affect ordinary people who may be injured or slandered, or whatever it may be.
The second observation I must make about this Bill—I spent a little time examining it yesterday and to-day—is that while the explanation of its being produced is this Agreement on Privileges and Immunities of the Council of Europe, entered into in September last, there is nothing whatever in the Bill to limit the privileges and immunities which are granted under it to those which are provided 1052 for in that Treaty. The noble Lord very usefully referred us to the two Articles of the International Agreement which matter. One is Article 14; the other is Article 15. I should have said that neither is entirely easy to construe, but that is not my business. Just look at them for a moment. Article 14 begins:Representatives to the Consultative Assembly and their substitutes"—I pause to observe that I follow the point made by the noble Lord—a very important one—that the Council of Europe representatives in the Consultative Assembly and their substitutes are not there in any sense as representing a Government; they are merely drawn from a country. Their names were read out, I think, by Mr. Attlee at a certain time last year, and among them were the names of Mr. Winston Churchill, Mr. Morrison and others. It is a list which is drawn up by negotiation and agreement. When they went to Strasbourg they did not go as a team with a leader, as a delegation to the League of Nations used to go. Each went with his independent right to take part and say what he thought was just and fair. That is a very important point, and I appreciate the necessity for some new provision.
But see how the Article runs:Representatives to the Consultative Assembly and their substitutes shall be immune from all official interrogation"—that, I should have thought, is easier for a Continental lawyer to understand than for one of us, but I can imagine what it means—and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.That suggests at once a very familiar conundrum: How much of that immunity is covered by the phrase: "in the exercise of their functions "? It is not for me, and perhaps not for any noble Lord here, to construe how much, but the whole thing from beginning to end is limited, or may be limited, to what these representatives and their substitutes say or do "in the exercise of their functions." That is a very important limitation and, I think, a very proper one. It does not mean that a representative who has gone to Strasbourg and has chosen, quite apart from the discharge of his duty as a representative, to publish defamatory statements is immune; and it ought not to 1053 mean that. The extraordinary thing, however—and I must call your Lordships' attention to this—is that you may look at this Bill which we are now invited to give a Second Reading, and you will not find that limitation in it at all. So far as the Bill is concerned, it would be perfectly in accordance with the language of the Bill to give an immunity which is far wider than anything in Article 14.
When we come to Article 15, we find that the language is even more surprising. Article 15 is also, I venture to think, extremely difficult to interpret. It begins:During the sessions of the Consultative Assembly"—that seems to refer to the period of time, as one might say "during the Parliamentary Recess"—the representatives to the Assembly and their substitutes … shall enjoy:"—I leave out the next paragraph, it does not matter very much, and then we have:(b) on the territory of all other Member States, exemption from arrest and prosecution.They are to enjoy "exemption from arrest and prosecution." Suppose that a representative has been appointed who is minded not to attend too closely to his duties, and who commits a reprehensible offence during the sessions of the Consultative Assembly. Does it mean that, even though he is not engaged on his job but is taking a holiday from his duties, he is so protected? It is a very curious document indeed.
Then Article 15 continues:This immunity also applies when they are travelling to and from the place of meeting of the Consultative Assembly.I will not occupy time by imagining cases in this connection. Anyone who considers these words will see what extremely difficult questions may arise as to the limits within which that phrase is intended to apply. Suppose that a man gets to Paris and there does something which involves an offence that being nothing in the world to do with his work for the Assembly. Is he travelling to a meeting of the Consultative Assembly, or has he to be in motion before he satisfies that condition? I have had some little experience of international documents, and I know how great the difficulty can be in getting reconciliation between what I may call the Continental view and the British view. On the Continent they tend to 1054 express themselves in different phraseology. But I must say I have seldom seen a document more difficult to construe than this. I shall not attempt to invite the Lord Chancellor, if he takes part in this debate, to construe it. I do not imagine that he would feel very happy about making the attempt, and I am sure he will agree that it is far from easy to understand.
The last sentence in Article 15 is really quite amusing. Having first of all given to these representatives this very valued immunity—namely, exemption from arrest and prosecution—which must be very consoling to persons who may be tempted to commit irregularities, the Article goes on to say that this immunity does not apply:when representatives and their substitutes are found committing, attempting to commit, or just having committed an offence …It apparently means that if they are caught in the act, or close to the act, they may be arrested and prosecuted. But supposing an interval has elapsed; whatever the evidence, however clear it may be, even if they admit the offence, they must not be either arrested or prosecuted. I speak with the greatest respect of international documents but, as I say, I have never seen one so difficult to understand as this. What is so surprising to me is that while it is plain that there are these limitations laid down by the Agreement, the Bill which has been produced to Parliament does not contain a glimmer of an indication that there are any such limitations at all.
Here I must most sincerely recognise and, if I may, commend the candour of the noble Lord who has given us this explanation. He has, it is true, had to do it at the expense of completely overthrowing what was said in another place. He is telling the exact fact, and it is all the more commendable on that account. He says in terms: Of course the language of this Bill world give power to do far more than this International Agreement ever stipulated or agreed to. He further said: You will appreciate, of course, that we should never dream of doing that. On that point, my Lords, I wish to make a general observation. I hope that there are other noble Lords in the House who agree with me when I say that I think it very deplorable that in recent days we should so frequently 1055 have had proposals made conferring powers in terms of the widest langauge, when a much more limited purpose is intended to be served. With great respect to those who give the assurance that though they get these extensive powers they would, of course, never dream of using them, I cannot help thinking that it is much more satisfactory for Parliament to give such powers as are intended to be used and to limit the gift to that.
I should feel quite differently about this Bill if instead of its saying airily that it isAn Act to amend the Diplomatic Privileges (Extension) Act, 1944it described itself as "An Act to implement the obligations which His Majesty's Government had entered into in this Agreement of September 2, 1949, for the conferring of certain privileges and immunities on representatives and their substitutes." The noble Lord, Lord Henderson, anticipated that argument and said that much more general language had hitherto been the precedent. I do not think that is quite so. I reminded myself by looking at the Diplomatic Privileges (Extension) Act, of 1946, and I see that its title is:An Act to amend the Diplomatic Privileges (Extension) Act, 1944, in connection with the general convention on privileges and immunities of the United Nations approved at the first General Assembly thereof and in connection with certain resolutions taken at the said Assembly.Surely it would be far better to make plain in the title and contents of the Bill what it is we really mean to do, rather than that the Government should proceed on the basis that, because there is something which it would be right for them to be authorised by Parliament to do, therefore they will seek from Parliament authority which will cover not only that but a vast number of other things, and then, when that is pointed out, say, "Well, you may trust us; we will use these extensive powers only within limits which are common."
I observe that the noble Viscount, Lord Cecil of Chelwood, is raising this question of the relation between Parliament and Cabinet in your Lordships' House in a few days' time and to me at least it appears that this Bill is a rather unhappy example of the way in which we are falling into the habit of giving much wider 1056 powers than ought to be given merely because there is a limited object which we are invited to help the Government to secure. I say, and I am sure the noble Lord knows I say it in the most friendly way, that I feel deeply that we are in great danger, both in Acts of Parliament and regulations, of conferring on the Executive wider powers than they ever mean to use. No doubt that is convenient in many respects, but in the end it is destructive of the authority of Parliament. However, the noble Lord said frankly that this Bill goes much wider than the powers which the Government mean to exercise. He has indicated that he will put down an Amendment on Committee stage which will go some way to meet that difficulty, and I need not say that we shall study it with close attention.
There is one other observation of a general kind which I think it right to make. It appears to me to be a striking fact that this Bill, though presented to another place as being a Bill purely for the purpose of implementing the Articles of this Treaty, not only is not that but does not contain anything to show the limitations on the privileges that are being given. Consequently, we have on both hands this remarkable situation. If this Bill is passed in its present form, whatever future organisations of an international kind may come into existence (they may not have been thought of yet), any agreement made between the Government of this country and a foreign Government—between this Government and the Government of Soviet Russia, if you like—if it provides for any sort of immunity, may lead to the Executive that has made that treaty carrying it out by altering the British law without ever coming to Parliament at all. That does not seem to me to be a proper way in which to exercise our Parliamentary powers. I will not say more on that point now, because of course we shall give the Bill a Second Reading, and we shall then want to consider very carefully what the noble Lord has been at such pains to put before us.
I should like to mention briefly one or two points, and perhaps the noble and learned Viscount the Lord Chancellor may say a word on them. When we read this Agreement, or any similar Agreement, it is obvious that the intention is that there should be reciprocal rights. This Agreement is made between twelve 1057 Governments—the Governments of Belgium, Denmark, the French Republic, Greece, Holland, Italy, Luxembourg, the Netherlands, Norway, Sweden, Turkey and the United Kingdom. If these privileges are intended to be given reciprocally, I should have thought that we might find something in the Bill to secure that we do not grant them to the representatives from another country unless the other country does the same by us. There is nothing in the Bill about that. I hope the noble Lord, Lord Henderson, will not accept it from anybody that what we are advising is an impracticable proposition. I would remind him that in the Act of 1944, the one for which, as Lord Chancellor, I happened to be responsible, Section 4 said this, and I think it showed very good sense:Nothing in the foregoing provisions of this Act shall be construed as precluding His Majesty from declining to accord immunities or privileges to, or from withdrawing immunities or privileges from, nationals or representatives of any Power on the ground that that Power is failing to accord corresponding immunities or privileges to British nationals or representatives.Surely that is a proper provision, but there is nothing about that in this Bill.
§ VISCOUNT SIMON
If that is so, that meets entirely my comment, and I am glad to be corrected. The noble Lord will agree that it should be clear, and if it is made clear in that way, I am wrong and I am glad to be put right.
In regard to my second point I do not think the language in Clause 1 is at all consistent. I know how difficult the matter is. When I look at what the noble Lord rightly described as the operative part of the Bill—namely, subsection (2) of Clause 1–I see that it is proposed that what we are doing should apply torepresentatives of member governments on the governing body or any committee of an organisation to which section one of the first-mentioned Act applies and their official staffs.…I cannot find anything in the Agreement of September 2, 1949, about "official staffs." I find that there are privileges and exemptions granted to "representatives and their substitutes," but I can see nothing in that Agreement about the official staffs of any country. Consequently, here we have an example of the 1058 Bill appearing to go beyond what the General Agreement itself provides.
Lastly, I think it would be of interest to know whether these immunities, whether granted to British or foreign individuals, extend to immunity from paying British taxes or local rates. It seems to me a very doubtful proposition to say that these immunities are granted to those appointed to go to Strasbourg (and Strasbourg is the seat of the council of Europe, by its own constitution) if it will have the effect that they have some privilege when they pass through the Customs, either going or returning. Why should they? When I was Foreign Secretary and went to Geneva, if I brought back anything when I returned I declared it at the Customs, and paid the duty on it like anybody else. Why thould there be any immunity of that sort granted? At the moment I only ask the question, because I do not know.
All this leads me to my conclusion, which is this. I feel we ought to have a reasonable interval before this Bill is taken in Committee. It is a most difficult Bill. Everybody will want to do what is right and fair about it. I am not in the least opposing the Bill on any abstract principle but, if I may repeat myself to this extent, I feel most strongly that Parliament ought not to grant to individuals additional immunities and privileges one scrap wider than are justified by the case. Every time that is done some perfectly decent citizen is deprived of a right which he might otherwise have. If a man is taking part in the Consultative Assembly at Strasbourg and makes a speech in which he defames some individual, it is right to say that he ought not therefore to be made liable in an action for defamation. It is essential in bodies of that sort, as in both Houses of Parliament, that when people are speaking in debate they should feel free to say what they think without fear of the consequences. But once you go beyond what is really necessary you are conferring upon people, rather light-heartedly, advantages which are not justified in themselves, and which have the effect only of depriving other people of their ordinary rights.
I do not think that what I am saying will be resented by the noble Lord, Lord Henderson, and I sincerely hope that we may have time to consider this Bill 1059 carefully, in the light of what he has said. We will consider the Amendment which the noble Lord says he is going to put down and which I dare say will meet a great deal of the difficulty which I have felt. But that will be for the future, as will be any Amendments that we on our part may care to put down. With those observations, I conclude as I began. We are very much indebted to the noble Lord for the care with which he has provided us with this explanation, elaborate as it inevitably is, and I greatly envy the quickness of the apprehension of any noble Lord who has been able to follow Lord Henderson's speech, sentence by sentence, and can say that when the noble Lord sat down he fully understood this matter.
§ 4.53 p.m.
§ VISCOUNT MAUGHAM
My Lords, I shall occupy your Lordships for only a short time, and that because this topic is one intimately connected with my professional career, and I should like to assist the Government, if I may, in producing an impeccable Act of Parliament from the Bill that is now before the House. I have already had an opportunity of considering the points which have been made by my noble and learned friend Lord Simon, and I should like to say that, as at present advised, I think they are sound ones which will require the greatest consideration on the part of the Government. I certainly do not intend to take up your Lordships' time in going through in other words the points which he has made with his usual clarity. I want only to be sure that, before a Second Reading is given to the Bill and we go on at a later stage to consider what Amendments, if any, ought to be introduced, we are at one in what we are discussing to-day.
Like everybody else who has tackled this Bill, at first I was surprised at some of the words in it and found great difficulty in knowing exactly what they meant. Let me give an illustration of that, because, incidentally, it helps me in asking the question I propose to ask of the noble Lord in charge of the Bill. The Bill is entitled:An Act to Amend the Diplomatic Privileges (Extension) Act, 1944.To an ordinary man—I will not say to an ordinary lawyer—those words are misleading, because the Bill is not "An Act 1060 to Amend the Diplomatic Privileges (Extension) Act, 1944." The Acts mentioned by my noble and learned friend (and the present Bill is, too) were measures to enable the Crown by Order in Council to give various immunities to a certain number of people who are supposed to deserve them because of the office which they occupy.
The whole question now, as I apprehend it—and I should like to be sure that the noble Lord opposite agrees—is what powers we are going to give to future Governments, whether they come predominantly from the other side or this side of the House, to give certain immunities to certain people. That, I feel, is fundamental in the consideration of what we are going to do to amend this present Bill. From that there emerges a point which again is a simple one, and it is this: Are we desirous of so amending the rights of the Government to grant immunities to certain people that we will cover anything other than the people who are mentioned in the General Agreement on Privileges and Immunities of the Council of Europe, which was signed on September 2, 1949? In my view, my noble and learned friend Lord Simon was right in pointing out that in the other place it was clearly stated that that was the whole object of the Bill. What I want to ask the noble Lord opposite—or my noble and learned friend on the Woolsack, if he cares to deal with the matter—is whether I am right in supposing that, or whether there is something else which it is desired to provide. If the matter is discussed in Committee as to whether it does only that, the answer is that it clearly goes beyond that. The Bill is not confining itself to the question which has been discussed by my noble and learned friend. It goes further over a number of details. On that there is the question of principle which will have to be discussed on the Committee stage.
I venture to doubt very much whether this House will think it right to give a power to the Government—it may be a Conservative or a Labour Government—to do the various things which are suggested in the noble Lord's speech—namely, that, whatever the nature of an organisation with which we may be concerned at some future date, the Order in Council may confer immunities without Parliament having any say on 1061 whether or not they are proper. The question of the propriety of general rights of immunity has been dealt with by my noble and learned friend Lord Simon, and I do not wish to add anything to what he said. But I believe there is a very strong feeling throughout the country, and certainly in this House, against unnecessarily granting powers to the Government to give wide immunities to members of a future body which we have not in our minds at all, and who are not deserving of immunity. Therefore, on that question of principle, it may be that this House will come to the conclusion that the Bill before us ought to be limited to giving in plain language the immunities which are necessary, having regard to the nature of the Agreement of September 2, 1949.
With regard to the question of reciprocity, my noble and learned friend has pointed out that Section 4 of the Act of 1944 provided for the question of reciprocal treatment, but the only point I should like the Government to bear in mind when they are dealing with that—if not on this Bill then certainly on the Bill to consolidate—is that Section 4 does not exactly meet the case, because it is limited to the immunities or privileges which might be withdrawn from nationals or representatives of any Power. Perhaps that is not wide enough, having regard to the extension which is proposed by the present measure. It is only a question of form, because there is no difference of principle between us there. Having said that, I repeat that I agree with my noble friend Lord Simon in the criticisms he has made, and I hope that the Government will be able to come to the conclusion that, at the present time, they do not want anything more than the immunities mentioned in the Agreement of 1949.
§ 5.4 p.m.
My Lords, it is easy to make heavy weather of a Bill like this which amends two previous Acts, and which refers principally to an Agreement in connection with the Council of Europe. It is easy to pretend that we are extending vast immunities, privileges, exemptions and all the rest of it to an unspecified body of people who, apparently, in the view of the noble and learned Viscount, Lord Maugham, are not quite respectable. The simple fact is 1062 that ever since the end of the First World War there has been a continuing extension of international conferences and international relationships over and above the former and established diplomatic usages—a very good thing which we all support. It has been officially supported by members of all political Parties in this country which, taken with the League of Nations and its various organs and machinery, and now the United Nations, has been and is to the great advantage of everyone concerned.
Since the Second World War we have greatly extended the international negotiations and instruments of exchanging views and so on, not only by the United Nations Organisation but now by this Council of Europe. That has necessitated giving a minimum—I repeat "a minimum"—of safeguard and immunity to the people who, very often at great personal sacrifice, are attempting to carry out the functions of these various bodies. The old idea, of course, of an Ambassador representing his Government is now vastly extended by having people who represent their countries. Take, for example, a body about which your Lordships will know a great deal, the International Maritime Conference, under the auspices of the International Labour Office. That has been of tremendous value to seamen all over the world, and the various meetings are attended by representatives of ship owners and officers' and seamen's unions of all these different nations, together with the Civil Service and the representatives of the Governments to advise and assist.
It is only fair that these gentlemen who represent these bodies, many of whom are nothing to do with Governments (I take this particular case because it is a very clear one)—the representatives of Chambers of Shipping, on the one hand; the ship owners or the seamen's organisations or Unions on the other—should at least have the same privileges and immunities as the civil servants sent directly by their Governments. They are doing good work for their nations and for the whole body of seamen in this particular case. I think it is not generous to cavil and raise suspicions and object to the fact that they pre given these very limited—I repeat "very limited"—immunities and privileges. Now what do we seek to do in the case of people who are acting on behalf 1063 of their nations—not necessarily of their Governments—on the Council of Europe? In the words of the instrument, the General Agreement on Privileges and Immunities of the Council of Europe of the September 2, 1949, which has already been quoted:During the sessions of the Consultative Assembly, the representatives to the Assembly and their substitutes, whether they be Members of Parliament or not, shall enjoy: (a) on their national territory, the immunities accorded in those countries to Members of Parliament; (b) on the territory of all other Member States, exemption from arrest and prosecution.Let us see what are the immunities granted in this country to Members of Parliament. We are free from prosecution or arrest for anything we do in the course of our Parliamentary duties, and that is precisely all. If any of your Lordships leaves his motor car to-night in an unauthorised place the police will prosecute, and the fact that he has a House of Lords badge on the car does not matter in the least.
It is made perfectly clear in the words which I thought the noble and learned Viscount, Lord Simon, rather made a joke about, that these immunities do not apply when representatives are found attempting to commit an offence. That same principle applies, of course, to the privileges which we insist on passing at the beginning of every Parliament in this country. They do not exempt us in the case of ordinary civil offences committed outside this House. All we are inviting Parliament to agree is that we ratify and support the Government in agreeing with all these other Governments in granting these representatives to the Consultative Assembly and their substitutes immunity from official interrogation, arrest and legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.
§ VISCOUNT SIMON
As the noble Lord has referred to me, may I just make one observation? With the greatest respect he is completely misunderstanding the point that was made. If it were true that this Bill did what he has rightly said is reasonable, nobody would dream of criticising it. The whole point is that the Bill does a great deal more than that. The noble Lord will find that the Government are so conscious of this that they 1064 intend to introduce an Amendment designed to make the Bill correspond more exactly to what is intended. I have no objection to the language of the Agreement; all I pointed out was that the language of the Bill does not correspond with the language of the Agreement—it is very much wider.
I was relying on the clear and concise statement of the noble Lord, Lord Henderson, which explained what I have been trying to elaborate. It does not really go any further than that. It is, if I may use the word, ungenerous, when we want to improve the machinery of international relations in these difficult times, to cavil and object to the simple privileges and immunities which we are seeking to grant to these gentlemen who are doing their work in this great cause.
I should like to say one word with regard to the immunities of Members of Parliament. The noble and learned Viscount, Lord Simon, has mentioned the Customs and so forth. My experience is this—and I speak both as a former Member of another place and as a member of this House—that when I have passed our own Customs in this country I have been put through a very careful search, of which I have made no complaint at all on the ground that I was a Member of Parliament—and I think that that is the general experience; but as soon as I get to the frontier of a foreign country (and I have travelled a great deal during the last twenty-five years) I am waved through without formality and nobody thinks of opening my bags or asking any questions: I am a member of the British Parliament, and that is quite enough. That is the kind of spirit I think we should show. Let us keep an eye on our own nationals and see that they do not break the law; but let us stretch the law a little and be courteous and hospitable to others who come to these shores in their endeavours to mend the great wounds in international relations which we all want to see healed.
§ 5.13 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, I was very grateful to the noble Lord, Lord Henderson, for explaining during his speech a phrase which puzzles me—one of many things which puzzle me—in the Bill. He described the term "organs of organisations" as a term of 1065 art. We must respect terms of art and I will content myself with saying that if this is a term of art in diplomacy, it confirms my belief that diplomacy is a somewhat decadent art. But, after all, we are not drafting a diplomatic document: we are drafting an Act of Parliament Are we quite certain that it is necessary to insert so cumbrous and infelicitous a phrase as this in an Act of Parliament? Is the noble and learned Viscount on the Woolsack convinced that its elevation to a term of law is going to be wholly satisfactory to His Majesty's Judges? I would beg His Majesty's Government to consider on Committee stage whether some more elegant and more precise term could not be substituted. I gather that it is the hope of the noble and learned Viscount, Lord Simon, to substitute for "organisations" the simple phrase "the Council of Europe" and to make this Bill apply to the matter in hand rather than to give the omnibus powers which the Government are seeking.
I perfectly understand that if we grant these powers any extension of diplomatic privileges will have to be made by Order in Council, and, of course, those Orders in Council will be capable of being challenged in either House. But I think it will be very difficult and embarrassing for us to challenge such Orders in Council. They will arise as a result of treaties made by the Government with foreign nations. I suggest to Lord Henderson that it will greatly strengthen the hands of His Majesty's representatives abroad if those representatives are able to point out that this or that new treaty will require an Act of Parliament and not merely an Order in Council; I am quite sure that our Foreign Service realises the dangers of an indefinite extension of diplomatic privileges.
Let me assure the noble Lord, Lord Strabolgi, that if I criticise the great extension in the number of persons entitled to receive diplomatic privileges and immunities, I am no foe to the improvement of international relations. I would claim that international relations are rather jeopardised by an indefinite increase in the numbers of persons entitled to diplomatic immunity. Is it not obvious that the more persons there are entitled to such privileges, the more vulnerable those privileges become? Is it not the fact that the high repute borne by diplomatists 1066 arises largely from the fact that they are a carefully selected class and are the best representatives of their nations, and that that high status cannot easily be retained if the class is extended?
And how much it has been extended! Figures were given in another place recently of the present size of the Corps Diplomatique in London. If they are wrong, I am sure His Majesty's Government will be happy to correct them. Those figures stated that the Corps Diplomatique in London now numbers 1,795 persons. Let me put those figures in a form which will be readily comprehensible to your Lordships: two infantry battalions plus an attached company. And now we are to extend this immunity further, not only to the representatives mentioned in the Bill but to their official staffs. I do not think Lord Henderson gave us much light on what was meant by "official staff" or how that term might be construed. It is capable, I suppose, of a fairly wide construction. It is mentioned in the General Agreement for the Council of Europe that the spouses and dependent relatives of the persons entitled to immunity will also receive certain minor immunities on their own. I am beginning to wonder whether the Corps Diplomatique is not rapidly increasing to brigade strength, and whether the Marshal of the Diplomatic Corps will not soon be rising to the rank of Field-Marshal. As Lord Strabolgi has said, we have seen a great increase in the diplomatic contacts among nations between the two wars. I am entirely in favour of the fruitful multiplication of such contacts, but I am doubtful whether the entrusting of them increasingly to a privileged class exempt from so many of the provisions of the ordinary law is really likely to increase the real contact between nations which we wish to see. I humbly submit that diplomatists would be performing an even more useful function if, at any rate in some respects, some of them were subjected to the ordinary hardships which all other mortals have to endure.
§ 5.21 p.m.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I do not in the least complain of the careful and critical examination to which this Bill has been subjected. I think it right and proper that the House should consider 1067 most carefully any question of the extension of diplomatic immunity. We pride ourselves, rightly I hope, on living under the rule of law, and of course it is true, as the noble and learned Viscount, Lord Simon, has said, that when immunity is granted to A it necessarily results in a deprivation of rights to B and C. Therefore, the House is fully justified in looking carefully at the matter to see whether there are, in the public interest, corresponding advantages which make it desirable to do that which at first sight we may think should not be done.
Here let me say with regard to the Corps Diplomatique, that one reason why we are more ready to extend their privileges is that we have been exceedingly fortunate in the past in the members of the Corps and in the traditions which they have maintained and have so worthily upheld. We know that in practice the difficulties which one might fear would arise, never do arise, or arise very infrequently. As we all know, where, for instance, a member of the Corps does get himself involved in some unfortunate accident with a car, or something of that nature, he always behaves with the utmost generosity; so that, in fact, trouble has been avoided. Still, I quite agree that in spite of that fact we must examine this matter carefully.
I have had one very unfair advantage over the rest of your Lordships: I have seen the Consolidation Bill in its draft and somewhat embryonic form. I want your Lordships to realise that the real object of this Bill is to do what we cannot do in a Consolidation Bill—for we cannot introduce any major Amendment in it at all—that is, to get our tackle all in order so that we can forth-with proceed to prepare our Consolidation Bill. May I remove one misapprehension? It is not quite right to say that our intention in introducing this Bill is merely to deal with the immediate problem of the Council of Europe. Perhaps that is the occasion for the Bill and, in one sense, it may therefore be said to be the object of the Bill; but whilst we are introducing a Bill to deal with that matter, we have thought it right to use phraseology which is wide enough to enable us, when we come to our Consolidation Bill, to deal, amongst 1068 other matters, with the difficulty which the noble Lord, Lord Henderson, indicated with regard to the International Labour Organisation. Therefore, although it is true to say that the matter of the Council of Europe was the occasion for the Bill, we have quite deliberately drafted it in somewhat wider phraseology for the reason I have indicated.
The Amendment which the noble Lord, Lord Henderson, said that he intended to move in committee needs to be clearly understood. He is suggesting that there should be an Amendment—which really arose out of discussions in another place and a promise that was given there—limiting the scope of these Orders in Council. Let me say what the machinery is for the Act of 1944, which was amended by the Act of 1946 and which is now to be further amended. The machinery is this. You set out in a Bill, which becomes an Act of Parliament, a list of the immunities which you may give; and then, when a particular organisation is set up and you come to the conclusion that that organisation is one which ought to have a certain immunity granted to it, you then by Order in Council declare which of the immunities specified in the Act of Parliament are to be granted to that particular organisation.
May I now answer a question raised by the noble Earl, Lord Iddesleigh? It would really be quite intolerable if there had to be a Bill each time a new organisation was set up. Do your Lordships know how many organisations there are which have these powers? There are nine to-day, each of which has its appropriate Order in Council, conferring in each case whatever immunity was thought appropriate. Of course, Parliament has control over the matter by means of a Resolution, although it is quite true that a negative Resolution is required. I could understand the noble Earl, Lord Iddesleigh—though I do not want to put ideas into his head—if he put forward the argument that there ought to be an affirmative Resolution. But to say that in each case a separate Bill must be introduced would be, I suggest, an intolerable way of dealing with the matter. Not only are there nine such organisations to-day, but there have been a further nine in the past which have now passed away, each one of which 1069 had its appropriate Order in Council. The course that we are proposing to follow is first to pass this Bill; then we shall introduce a Consolidation Bill to make the whole question simpler, for I agree that it is very complicated to-day; and then we shall have an Order in Council which will set out what the powers are to be in relation to the Council of Europe. Of course, that Order in Council will be subject to a negative Resolution (the form of Resolution which, frankly, I prefer) by which this House can say that a certain immunity must not be granted. This, I believe, is the right way to deal with the matter.
Your Lordships will remember that the Amendment suggested by the noble Lord, Lord Henderson, is to the effect that each Order in Council is to be limited in two respects. First of all, it cannot, of course, go beyond the phraseology of the Act of Parliament: it cannot confer any powers save those scheduled in the Act. Secondly, the Amendment proposes that the Order in Council shall not grant any immunity other than those which are called for by the international agreement itself. For instance, let me consider what would be the effect on the Council of Europe of the Amendment if it were passed. The noble and learned Viscount, Lord Simon, asked a question about income tax. If I understand it aright, the Order in Council could not grant any concession with regard to income tax, because the General Agreement on Privileges and Immunities of the Council of Europe (which is the international agreement to which we have been referring) does not itself contain any concessions in regard to income tax. I think I am right in saying also that the General Agreement does not contain any concessions for the staff of the Assembly. That being so, if we pass our Amendment, it would be impossible for the Order in Council to confer any immunities with regard to income tax or any immunities upon the staff of the Assembly. In that respect, I hope I have made the matter clear.
May I say one other thing to the noble Earl, Lord Iddesleigh, whilst I have it in mind? He asked me about the phrase "the organs of an organisation." He said he had heard it was a term of art. I do not know what sort of art. It is very modernistic, undoubtedly. I think it is about the clumsiest phrase I have ever had the misfortune 1070 to read. But it is the fact that if you read Oppenheim, the great authority on International Law, you will find that the word "organ" is frequently used. If I may venture to say so, it is one of those rather vague words which are so dear to the heart of the international and Continental lawyer, and it may be that Lord Iddesleigh can act as the arbiter elegantiae in this matter and can find a less clumsy phrase than that. If he will be good enough to co-operate with me and give me his ideas, I will see what I can do to turn them into something nearer to the English language.
With regard to reciprocity, of course, the question becomes perfectly plain when you look at the Consolidating Bill. I know where Lord Simon fell into a temporary error about it on this Bill; I did myself until my attention was drawn to the point. It is a fact that the provision in the 1944 Act will continue, and will apply and extend over the whole field. As Lord Maugham said, it may be necessary to look at the wording of the section to see whether it is quite appropriate. It is the fact that the General Agreement itself does not come into force until seven Governments have ratified, and of course no Order in Council can take effect until they have ratified.
Lord Simon asked me whether there would be adequate time to consider this matter before the Committee stage. The Leader of the House, to whom I referred his question, said that I could certainly give him a reassurance on that point. Indeed, I should very much welcome it myself, because I think we all want to do the same thing here, and we all think that it is necessary, as it is a very difficult question, to look at the language with care, and to see that we do not do more than we have to do.
Finally, I was asked some questions about Articles 13, 14 and 15 of the General Agreement. It is very easy to criticise other people's drafts, but I know how difficult it is for a body of international lawyers, looking at things from very different angles, to arrive at a formula, and I must say that the language is not at all happy. On the face of it, Article 14 contains several ambiguities; but I am told that it is plainly understood by everybody to mean that it applies only to acts done by representatives 1071 in the exercise of their functions; and the phrase about arrest and legal proceedings applies, and applies only, to words spoken by representatives in the exercise of their functions. That, at any rate, is what is meant, although I agree on the construction of the words there are two possible meanings, one of which is very different from that.
We have to consider Article 15. I suppose it is possible that during the session of the Consultative Assembly, or perhaps during the period of time that he travels to the Consultative Assembly, a representative might be accused of a crime—it might be murder. It might be that a member of the Consultative Assembly whilst in England during the session of the Assembly is accused of a murder. It might be that he has not been found committing it; a long investigation might have been necessary to track him down. Well, the meaning of Article 15, as I read it, is that such a man would be entitled to say that he is exempt from arrest. That is a fact; there is no getting away from it, as I read these words. Of course, the same applies to every diplomat, and although you get into all sorts of theoretical difficulties about these things, in fact, diplomats do not go about murdering people. If they did, we should very quickly devise some method of coping with them. But to my mind it is quite idle to deny that that is the plain effect of the words of Article 15.
Now that, it seems to me, is a matter which we must consider from the point of view of the balance of convenience. Shall we or shall we not, with our eyes open, take the risk that that sort of thing may happen in order that we may get greater international co-operation? On the whole, I think the risk is a slender one and I think international co-operation is a vitally important matter, particularly, if I may say so, in the Council of Europe. I am one of those who firmly believe that the Council of Europe has a great work to do, and that, in view of the dangers which confront it, the sooner that Europe gets together the better for all of us. Therefore, on the balance of convenience I say quite frankly, that it is a risk that I am prepared to run. I shall be very grateful if any of your Lordships who have ideas about this Bill will take an opportunity of seeing me between now and the Committee stage. I will see that 1072 there is ample time allowed for consideration of these matters, and I do not doubt that together we shall be able to produce the best Bill which the circumstances permit.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.