HL Deb 09 May 1950 vol 167 cc185-99

3.30 p.m.

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

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

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause l [Amendments of 7 & 8 Geo. 6 c. 44]:

THE LORD CHANCELLOR

This Amendment is purely formal. I beg to move.

Amendment moved— Page I, line 10, leave out ("references to") and insert ("words").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment again is formal. I beg to move.

Amendment moved— Page 1, line 13, leave out ("respectively references to") and insert ("the words").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to add to the clause: () In the proviso to subsection (2) of section one of the said Act of 1944 as amended as aforesaid (which proviso provides that an Order in Council relating to an organisation to which the said section one applies stall not confer any immunity or privilege upon any person as the representative of His Majesty's Government in the United Kingdom or as a member of the staff of such a representative), after the words "shall not confer" there shall be inserted the words "on any person any immunities or privileges greater in extent that those which, at the time of The making of the Order ore required to be conferred on that person in order to give effect to any international agreement in that behalf and shall not confer.

The noble and learned Viscount said: This is an Amendment about which I told your Lordships on Second Reading. It has the effect of preventing any Order in Council from conferring upon anybody any privilege greater than that required by the international instrument or contract in question. May I let your Lordships into a secret and say that when drafting this Amendment I showed it to noble Lords on the other side in order that I might be satisfied that the drafting was right? We all thought it was. But they, or some of them, with an untiring industry which is greatly to be commended, have looked at the Schedule which is coming presently. What I am going to suggest to them is this. We cannot very well make an Amendment in the Schedule, because the Schedule merely automatically records what we have done in the body of the Bill. I mention this point so that the noble and learned Viscount, Lord Simon, in particular, may consider whether he would like to say something about the f arm of this Amendment here in order that we may get it right in the Schedule. It would he put right in the Schedule automatically if we put it right here.

Because I have been spending such time and brain-power as I had on the last matter, I have not had much time to consider this point. I am completely at one with the noble and learned Viscount in what, if I understand him aright, he has in mind. I myself feel that we have gone perhaps a little too far in this idea of extending the whole doctrine of diplomatic privilege to include all sorts of people who take part in international discussions. We started it in 1944, so that the noble and learned Viscount is deeply implicated. I am equally implicated in what was done in 1946 and now, going a little further, in 1949. I agree with the noble and learned Viscount that we should cut down the principle or, at any rate, not extend it unnecessarily. The particular matter which I think the noble and learned Viscount has in mind is the extension of this privilege to such people as the staff, the wives, the maidservants, the oxen, the cattle and all the rest of it. If it is necessary to extend privileges to individual men, do not let us, as it were, carry all these other people automatically with them. With that, I personally have sympathy.

On the other hand, I have not had much time to consider the appropriate form of Amendment and I should be glad not to be pressed to make it to-day. If I may indicate the sort of thing I have in mind, or rather the sort of thing which the noble and learned Viscount has in mind, I should like the Amendment to read something like this. After the introductory part about subsection (2) of Section 1 of the Act of 1944, it should read as follows. For the words shall not confer any immunity or privilege there shall be substituted the words shall be so framed as to secure that there are not conferred on any person any immunities or privileges greater in extent than those which, at the time of the making of the Order, are required to be conferred on that person in order to give effect to any international agreement in that behalf. The effect of that is that we shall not be conferring privileges on any individual automatically by reason of the fact that he stands in some relation to a special individual, unless the treaty includes precise requirements that that shall be done. In due course, if the noble and learned Viscount agrees with what I am saying, I shall submit to him an amended draft on the lines I have indicated. In the meantime, perhaps we may consider the Amendment as printed, because I have not had time to consider the other words, and until some earlier hours of to-day I thought that this Amendment would be satisfactory. I should like to move this Amendment on the understanding that I will get in touch with your Lordships between now and the next stage of the Bill when I anticipate I shall be able to put down an Amendment on those lines, to make it carry out more precisely what we require. I beg to move.

Amendment moved— Page 1, line 26, at end insert the said subsection.—(The Lord Chancellor.)

VISCOUNT SIMON

We are all very much obliged to the noble and learned Viscount the Lord Chancellor for the way in which he has spoken. When I first saw this Amendment on the Order Paper I certainly formed the view that it completely met one of the two main criticisms which on Second Reading it seemed right to make. I suppose this matter is not as complicated as are the Coal Regulations, but it is getting pretty near to that. There were really two criticisms on Second Reading which I thought it was reasonable to make. Neither of them has anything to do with the question as to whether the Council of Europe or the Consultative Assembly are most desirable bodies: they are very important international organs.

The two criticisms were these. The first was that the Bill is not limited to the Consultative Assembly of the Council of Europe, as was evidently the impression of the representative of the Foreign Office when the Bill was presented in another place—indeed, he said so. It is not so limited. It is a Bill which, according to its terms, will apply to the grant of privileges or immunities to the representatives in other organisations, some of which perhaps as yet have not even been thought of, set up hereafter with foreign Powers, such as Soviet Russia. That was one criticism and, if I may, I will deal with that in the Amendment standing in my name a little later on. The other criticism was one which the noble and learned Viscount the Lord Chancellor has faced and, I certainly thought, had dealt with completely in the Amendment now before us. I made the point on Second Reading that in this Bill as it stands there is no provision which limits the scope of the Order in Council to such privileges as the International Agreement seeks to confer; therefore, although the International Agreement stipulated only for privileges A, B and C, it was possible to make an Order in Council which would cover all the letters in the alphabet. That is the point which the Lord Chancellor is now meeting. In substance, I think he is perfectly right, and I hope we shall accept, that the Order in Council, which is an executive act, should be no greater in extent by way of giving these privileges than the International Agreement requires, because every time a man is given a privilege of this sort other people are deprived of rights against him which they would otherwise have. I think that is agreed on all hands.

Accepting that, as I did in spirit, it occurred to me that there was a possible difficulty. I will not develop it now because the Lord Chancellor has been good enough to consider it, and has told us the sort of words which it occurs to him might be put into this clause, I suppose on Report.

There is one other matter which is relevant to this Amendment on which I wish to address a question to my noble and learned friend. It is a good thing to provide that the Order in Council shall go as far as, and no further than, the provisions in the International Agreement, provided that the language of the International Agreement is language which can be clearly understood. Unfortunately, in the present case it happens that the relevant articles of this Agreement of September 2, 1949, are extremely difficult to construe with any certainty. Those articles are Articles 14 and 15. Article 14 provides that: Representatives to the Consultative Assembly and their substitutes shall be immune from all official interrogation and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions. I think it will be agreed that it is not at all easy to be sure whether this phrase "in the exercise of their functions" governs everything in front of it, or whether there is a wider privilege from arrest which is not limited to arrest when a person is doing something "in the exercise of" his functions. That is the fault of nobody in this House. But if the Order in Council is going to correspond with the International Agreement I am sure that we all desire that it shall be quite clear in its language. I should like to have the assurance, if I may ask for it. that when this Order in Council is drafted it will put this privilege in terms which really correspond with what we mean—namely, I suppose, that in all these cases the privilege is limited to the exercise of the representatives' functions.

A still odder confusion arises under Article 15, because that provides as follows: During the Sessions of the Consultative Assembly, the representatives of the Assembly and their substitutes, whether they be Members of Parliament or not, shall enjoy … exemption from arrest and prosecution. If those words are read strictly they would apparently confer this exemption from arrest and prosecution whatever tae representative was doing. All that would be necessary for him to be completely at large and to do what he liked to avoid the danger of arrest would be that the Session of the Consultative Assembly should be going on A member might be appointed to attend the Consultative Assembly and while the Consultative Assembly was going on, he might go to another country and perpetrate same grave irregularity. And Article 15 would assure him that whatever happened he could not be arrested, unless of course he was actually caught in the act. It cannot be that this was what was intended, and therefore I ask again that the Lord Chancellor should be good enough to assure us (I think he will) that when the Order in Council is drafted, it will be drafted in terms which mean what we mean, and will not repeat the vague and possibly elusive language which I am afraid is written down in Article 15.

I am not for a moment reproaching anybody. Anybody who has had experience of trying to draw up these documents in an international atmosphere where a number of people contribute their own formulae, knows that the way in which such words are interpreted tends to be very different on the Continent from what it is here. I fully understand that we may have to accept these very vague and rather difficult phrases for the sake of international agreement and understanding. On the Continent, when it comes to a question of construing and applying such phrases, they have a jurisprudence which seeks to limit them to the sort of case which was meant. We do not do that in this country. We say "look at the words and see what the words cover." I am sure that here they cover a great deal more than anybody meant. Therefore, subject to asking the Lord Chancellor whether we may have the assurance that great care will be taken in drafting the Order in Council to state what these privileges are, within the limitations which really must have been intended, I am very glad indeed to accept the suggestion made by the Lord Chancellor.

VISCOUNT MAUGHAM

I rise only to say that I too thank the noble and learned Viscount the Lord Chancellor for his proposed new Amendment, which I gather he may put down on the Report stage. So far as I am concerned, it seems to carry out his wishes very clearly. The point is of some importance. When this matter was before us last I was interested in the word "staff," which was going to add to the number of people who were to have immunity. I was not quite sure what it meant. Having referred to the great Murray's Dictionary I gather that "staff," certainly without a context, would include caretakers. I doubt very much whether it is necessary that caretakers should have immunity with regard to the language which they think fit to use. If some of the envoys and other people who represent a foreign State over here need a staff consisting of, among others, caretakers, they may just as well employ a good, wholesome English lady who can carry out the duties incident on a person who cleans the floor and wields a mop and so forth; and there ought not to be any special rights in respect of those persons. I thank the Lord Chancellor for what he has done, and I think with that in mind we can accept this Bill as carrying out the objects of the Government.

THE LORD CHANCELLOR

If I may just answer briefly the question of the noble Viscount, Lord Simon, I can give him an assurance on both points. I can give it him with greater confidence in regard to Article 14 than I can with regard to Article 15, because I know quite plainly what was meant in Article 14. I am perfectly certain that what everybody meant was that the immunity therein provided was to be "in the exercise of their functions" in all cases, and we can make it quite plain in our Order in Council that that is so.

When I come to Article 15 it is rather difficult to know exactly what is meant and what are the exact limits. Therefore, I must enter a little caveat about the assurance that I can give on Article 15, particularly having regard to the lesson I have just had about assurances; but I am sure that we can use a phraseology which will prevent the entirely ridiculous results which the noble and learned Viscount had in mind. It does not really apply to our system of law at all. I suppose that there are some foreign countries in which Members of Parliament who are making themselves troublesome are arrested and kept locked up for the time being—possibly until the session of Parliament is over. I have often thought that, perhaps, there is something to be said for that system, though I do not suppose we should be likely to use it here as there might, I imagine, be differences of view as to who should be locked up. On Article 14, I am certain that I can do what is desired. With regard to Article 15, I am sure that the Order in Council, when it comes to be drafted, will be drafted in such a way as to prevent any ridiculous results. I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to add to the clause: () In accordance with the provisions of this Act, sub-sections (1) and (2) of section one of, and the Schedule to, the said Act of 1944 (as amended by the said Act of 1946 and this Act) shall have effect as set out in the Second Schedule to this Act.

The noble and learned Viscount said: The object of this Amendment is to put into the Bill what has sometimes been called, I think, a Keeling Schedule, so that your Lordships in passing the Bill may see what you are doing and consider whether it is desirable that this should be part of the draft of the Act. I do not very much mind, but I am sure it is convenient that it should be printed in this way so that your Lordships may know about it. I think we had better keep it in at this stage of the Bill so that we can have it before us when we come to the Report stage, and can then consider whether or not to omit it. Your Lordships know that we intend to consolidate the three Acts—the 1944 Act, the 1946 Act and the 1949 Act—at the earliest possible moment. A draft Consolidation Bill is already in existence. I move this Amendment at this stage without prejudice to what we may do hereafter, so that we may all see what is being done. I beg to move.

Amendment moved— Page 1, line 26, at end insert the said paragraph.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

3.54 p.m.

VISCOUNT SIMON had given Notice that he would move, after Clause 1, to insert the following new clause:

Provisions as to Orders in Council

".—(1) A draft of any Order in Council proposed to be made under the Diplomatic Privileges (Extension) Act, 1944, after the passing of this Act shall be laid before Parliament and the draft shall not be submitted to His Majesty except in pursuance of an address presented by each House of Parliament praying that the Order be made.

(2) Any power conferred by the said Act of 1944 to make an Order in Council shall be construed an including a power to revoke or vary the Order in Council by a subsequent Order in Council.

(3) Neither subsections (1) and (2) of section two of the said Act of 1944 nor subsection (2) of section five of the Statutory Instruments Act, 1946 (which relate to the annulment of Orders in Council) shall apply to an Order in Council made under the said Act of 1944 after the passing of this Act, and subsection (4) of the said section two (which relates to the variation and revocation of Orders in Council) shall cease to have effect."

The noble and learned Viscount said: The Amendment which my noble friend Lord Llewellin and I have put down is designed to meet the other main point of criticism which arose on the Second Reading. It was certainly a mistake to say, as was said in another place, that this Bill, as it stands, does nothing but provide for the Consultative Assembly of the Council of Europe. It deals with organisations much more generally than that. A possible way of correcting that mistake would be to make this Bill apply only to the Council of Europe and the Consultative Assembly. But I am satisfied, opt looking at it, that that would not be the right way. It is necessary that this Bill should be of a more general kind. The really important point is: should Parliament, by this Bill, part once and for all with its control over future extensions of privilege and the like to representatives and others on these international bodies? That is the real question. What is the path which Parliament ought to take?

If we kept the Bill as it is, an international agreement would of course be made by the Executive. It is the duly of the Foreign Office, the Foreign Secretary, to take responsibility for such things. Parliament has nothing directly to do with that at all. But before stipulations in the international agreement can be effective here some provision is needed which will make the granting of these privileges effective in English law. The way it is to be done is by Order in Council. An Order in Council is again purely an Executive act. The House of Lords and the House of Commons have no right whatever to seek to prevent the Government getting an Order in Council. It is true that in many cases, certainly in this case, what is called a negative Resolution might be put down at a subsequent date thought, in practice a negative Resolution is really no good in the actual result. I think I, am right in saying that in the last five years there has only been one case in which such a Resolution has produced any change, and that was because it was accepted by the Minister concerned. In this case, a negative Resolution is really no good in the ordinary way. If an Order in Council has been made, even though it is liable to be challenged by a negative Resolution subsequently, it does operate in the interval. Therefore, the privileges which are set out in the Order in Council will have been given, and. for good or for ill, they will have been enjoyed until the moment when the negative: Resolution is carried—if it ever is.

I have therefore came to the conclusion—and I submit this for the Lord Chancellor's consideration—that the right thing to do, in respect not of the past but of the future, is to say that these Orders in Council should be authorised by affirmative Resolution, that they should, in the first place, be prepared in draft, and that the Minister responsible should present them in draft to Parliament. If there is a good case for them and a treaty has been made, it is impossible to suppose that in the ordinary way there would be a serious challenge. But Parliament should have the opportunity of knowing what is being done. Statutory Instruments are multiplying at such a rate that I am sure there is not one of us can keep them all in his head. I see that the Statutory Instruments of which we are informed by Papers circulated by the Printed Paper Office have already reached in this calendar year a total of 700. That means that there has been pretty quick going. I undertake that there is not any member of Parliament who has any sort of grasp of what most of them contain. There is also this consideration of which I hope Lord Henderson and everyone else here will approve. It is a serious thing to take away the rights of perfectly innocent British subjects as against those to whom you are going to give these privileges. I do not say that it is wrong, but you ought to know what you are doing.

Let us see the kind of thing that might happen. It may be that some representative, from Ireland let us say, is going to the Council of Europe, and in the course of his journey he drives in a motor car across England. He chooses, let us suppose, to drive himself, and he drives negligently, with the result that he hurts someone. He cannot be made to pay. While that may be quite proper as a way of recognising the importance of this representative of another country, it must seem rather hard to the innocent person who is injured. Therefore, I think that Parliament ought to authorise what is being done by affirmative Resolution. If we have an affirmative Resolution, as this Amendment proposes, the Minister will have to explain the Resolution to the House of Commons, and, incidentally, all departments of government will know, more or less, what is going on. Otherwise, I think it becomes very much a departmental matter. I therefore beg to move this Amendment.

I have had the great advantage of the help of the skilled draftsman whom the Lord Chancellor most kindly allowed me to consult as to its form, and, as you would expect, it is very carefully drawn. It applies only to future cases—not to past ones. The only point on which I feel a little doubt—and I will gladly take the Lord Chancellor's advice about it—arises in connection with subsection (2) of the Amendment as drafted. It is not perhaps clear that the subsequent Order in Council there referred to, which varies the previous one, would be one which would be made under the new procedure. I should prefer to move my Amendment in the form on the printed paper with the addition of the words at the end of subsection (2): made in accordance with subsection (1) hereof. On that matter I am willing to submit myself to the views of the noble and learned Viscount the Lord Chancellor. If he thinks that wrong, I would be much impressed by it; but it seems to me that if we do not do that, some doubt may arise as to whether in dealing with a subsequent Order in Council we are dealing with it under the old or under the new procedure. I should have thought there was not much harm in making plain what is intended—namely, that it is under the new procedure. I beg to move the Amendment in that form.

Amendment moved— After Clause 1, insert the following new clause:

Provisions as to Orders in Council

".—(1)A draft of any Order in Council proposed to be made under the Diplomatic Privileges (Extension) Act, 1944, after the passing of this Act shall be laid before Parliament and the draft shall not be submitted to His Majesty except in pursuance of an address presented by each House of Parliament praying that the Order be made.

(2) Any power conferred by the said Act of 1944 to make an Order in Council shall be construed as including a power to revoke or vary the Order in Council by a subsequent Order in Council made in accordance with subsection (1) hereof.

(3) Neither subsections (1) and (2) of section two of the said Act of 1944 nor subsection (2) of section five of the Statutory Instruments Act, 1946 (which relate to the annulment of Orders in Council) shall apply to an Order in Council made under the said Act of 1944 after the passing of this Act, and subsection (4) of the said section two (which relates to the variation and revocation of Orders in Council) shall cease to have effect."—(Viscount Simon).

4.2 p.m.

LORD LLEWELLIN

In supporting my noble friend's Amendment I should like to make two general observations. Whenever a new international body is set up people are inclined to think that unless it obtains full diplomatic status it is not so important a body as others that do possess this status. I do not think it matters at all to people attending international conferences whether they have this status or not, because they are always treated in the countries to which they go with the greatest respect, whether they represent their Governments or their countries. The noble and learned Viscount the Lord Chancellor and my noble and learned friend Lord Simon have both admitted that they were concerned in this, and so was I. I believe that the first of these Acts was started as a result of the first U.N.R.R.A. Conference, at which I had the honour to lead the British delegation. I am delighted to think that my opposite number in the American delegation, the present Secretary of State, is a man whom we all welcome to our shores once again to-day. At that Conference I did not take much part in the discussions dealing with such questions as diplomatic privileges. I had two very experienced members who dealt with these trimmings, and I thought that my function was to look after the scope and finances of U.N.R.R.A. Probably the whole of this procedure started from the agreements we made at that Conference.

I recall that during the war Sir John Dill and I were in the United States, he on a Staff mission and I as Minister Resident in Washington for Supply; and neither of us had diplomatic privileges. In spite of that, we knew some of the "top secrets" which were hidden even from the security police in the countries affected. For instance, we were the two British members of the first Atomic Policy Committee which, of all "top secrets" back in 1943, was the topmost secret. We could get on with our work properly without diplomatic privileges; and so can the delegates attending international conferences. Noble Lords on all sides must have attended conferences run by such bodies as the Inter-Parliamentary Union and the Commonwealth Parliamentary Association. None of us has sought diplomatic privileges. One of the reasons why I am sure the Government will accept this Amendment is that I hope that in future we shall not too willingly extend these privileges which, in my heart of hearts, I believe are unnecessary even for the delegates themselves—and certainly for some of the staffs at present coveted by the extensive privileges given to the permanent diplomats of the countries concerned. I hope the Government will accept this Amendment, even if it is only to strengthen the hands of present and future Governments in saying to foreign Powers and bodies who want these privileges: "You know that it is quite unnecessary, and as we shall have to get the approval of Parliament for it I hope you will not press for this."

LORD HAWKE

I should like to support this Amendment because many of us feel that the extension of the privileges conferred by the State is an important question in these modern times. There is a tendency in all countries of the world to try to extend to a wider circle special privileges—of taxation, of immunity, of permits and of customs. We feel that they have already gone as far as they should without the most careful scrutiny. The fact that some possible action will now be required by the Government in cases of any future extension will certainly strengthen our hands, as the noble Lord, Lord Llewellin, has said.

THE LORD CHANCELLOR

I am quite prepared to accept this Amendment. I think it is right that before Parliament grants these privileges it should look with careful and watchful eyes to see what ought to be done. With regard to the form of the Amendment, the noble Viscount has moved his Amendment with the addition of some words to his subsection (2), and asks for my advice. I am sure he would like to have it, because we have been working together on the Bill, but I hesitate to offer it as I have not had time to consider his proposal. I suggest that the noble and learned Viscount adopts one of these alternatives. If he wishes to move his Amendment with the addition of the proposed words, I will accept it, provided that he will allow me to come back on Report stage, and, if necessary, ask him to strike out the additional words. Alternatively, he can move his Amendment in the printed form and on Report stage we will consider whether or not to put in the proposed words. I would prefer the second alternative, because I have not had proper time to consider the matter and see what the implications are. My impression, and it is only an impression, is that the words are unnecessary because tae words of subsection (1) of his Amendment are: "A draft of any Order in Council," and there we have as wide a phrase as we can have. I should have thought, therefore, that we did not need any qualifying words in subsection (2). But I may be wrong. I will gladly accept whichever course the noble and learned Viscount prefers to adopt.

VISCOUNT SIMON

I appreciate that we are doing something only provisionally and I do not feel in the least wedded to my suggestion. It might be convenient to insert the additional words now. In the ordinary way the right to make an Order in Council usually covers the right to cancel or amend it. If it was a previous Order in Council it would, therefore, be rather natural to suppose that it was done in the old and not in the new way. But I quite see the point that the Lord Chancellor makes, which, if I may say so, I feel could be strengthened, because subsection (1) does not speak merely of a draft Order in Council, but of a draft Order in Council "made after the passing of this Act." I should like to have the additional words in to be sure that they are considered, but I shall be the first to agree to having them taken out again if, when the Lord Chancellor has looked into the matter, he feels that on the whole the Amendment is better without them.

On Question, Amendment agreed to.

Clause 2 [Short title, citation and repeal]:

LORD HENDERSON

This is a consequential Amendment on the first Amendments moved by my noble and learned friend. I beg to move.

Amendment moved—

Page 2, line 5, leave out subsection (2) and insert— () The provisions of the Diplomatic Privileges (Extension) Act, 1946, specified in the first column of the Third Schedule to this Act are hereby repealed to the extent specified in the second column of that Schedule."—(Lord Henderson.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Schedule agreed to.

LORD HENDERSON

This is a consequential Amendment. I beg to move.

Amendment moved—

AFTER THE SCHEDULE

Insert the following new Schedule—