HL Deb 11 March 1952 vol 175 cc581-9

2.52 p.m.

Order of the Day for the Second Reading read.

THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (LORD ISMAY)

My Lords, in moving the Second Reading of this Bill I propose to confine myself to an explanation of its salient features and to avoid questions of detail. In view of the amount of Business on the Older Paper, I am sure that that would be the wish of your. Lordships. The purpose of the Bill is to confer on the Commonwealth High Commissioners, and the Ambassador of the Irish Republic, as well as on their official and domestic staffs, and on the families of the High Commissioners, the Ambassador of the Irish Republic, and their official staffs, an immunity from suit and legal process and inviolability of premises and archives, similar to that which, under International Law, is enjoyed by foreign Ambassadors, their staffs and families. This immunity extends not only to the official acts of the person concerned but also to his personal acts.

As your Lordships know, there has been a progressive movement for some years towards putting High Commissioners and Ambassadors on the same footing. They have, for example, been granted the same exemption from taxation and from payment of customs duties as are enjoyed by Ambassadors. Four years ago His Majesty the King graciously approved that they should have the same precedence as Ambassadors. I am sure there will be general agreement that the time has come—if, indeed, it is not overdue—when they should enjoy the same diplomatic immunity. I ought here to mention the position as regards those representatives of the Commonwealth countries serving in this country who are performing functions corresponding to those performed by foreign consuls. These representatives are not, strictly speaking, members of the staff of the High Commissioners, but the Bill, by Clause 1 (2), enables Her Majesty by Order in Council to confer on these persons, and on members of their staff who are performing consular functions, the same immunity as is possessed by foreign consuls.

The countries whose representatives are to be entitled to immunity are set out in Clause 1 (6)—namely, Canada, Australia, New Zealand, South Africa, India, Pakistan, Ceylon, Southern Rhodesia and the Republic of Irelands As regards the lass-named, I should explain that the Ireland Act, 1949, provided that the Irish Republic is not a foreign country for the purpose either of existing law or of future law. There would therefore be considerable doubt, to say the least of it, if the question arose in practical form as to whether the Ambassador of the Irish Republic was entitled to the immunity of a foreign Ambassador. This Bill will settle conclusively any such doubt.

There is one more general point. It is, of course, fundamental to the whole conception that the immunity which this Bill provides should be granted only to the representatives of those countries which are prepared to give reciprocal treatment to our representatives in theirs. Accordingly, it is specifically laid down in Clause 2 (2) that immunity may be withheld entirely, or reduced, in the case of any country which fails to reciprocate either in whole or in part. I very much doubt whether this safeguard will ever have to be used, since all the countries concerned have signified their intention of passing the legislation necessary to enable them to accord full reciprocity. One of them, the Union of South Africa, has, in fact, already passed such legislation.

To conclude, I feel sure that noble Lords on both sides of the House will welcome the opportunity to accord to the representatives of members of our Commonwealth family that equality of treatment with foreign countries which this Bill provides. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(Lord Ismay.)

2.58 p.m.

LORD OGMORE

My Lords, we on this side of the House welcome this Bill and we agree with the noble Lord as to what we believe it will accomplish. There are, however, certain questions that I should like to ask the noble Lord, and a few matters on which we desire to receive assurance. As he has said, this Bill is one which will receive considerable support in the Commonwealth—in fact, to my knowledge, the countries of the Commonwealth desire it as much as we do. They have at times felt it anomalous that the representative in their country of Her Majesty's Government should not have the same rights and immunities as have the representatives of some small and rather obscure State with which they have very few contacts. It is, as the noble Lord has intimated, a symbol of a developing Commonwealth; and in this Bill the British Nationality Act of 1948 is used as machinery. In spite of the many criticisms made of it, the British Nationality Act was a logical step in the development of the Commonwealth, and this Bill represents a further step in that direction. It is. indeed, an interesting conception that the Sovereign is not only head of the Commonwealth but is also head of every one of the individual States of the Commonwealth, save one.

I am glad that the anomaly with reference to Ireland is being cleared up, although, in fact, while this Bill clears away one anomaly in a way it creates another. As the noble Lord said, by reason of the Ireland Act, 1949, Ireland is not a foreign country. Yet it is not a country within the Commonwealth. So, in order to put the Ambassador in the same position as an Ambassador, he has to be treated as a High Commissioner. I feel that this is the right and proper tradition of all Irish matters—and it will be a sad day for the world when there is no Irish paradox in it. Still, after the match last Saturday, I feel very kindly disposed towards Ireland. I am not going to make any comment upon it, but will simply say, "Long may Ireland flourish!"—the only country in the world where a paradox is normal and the normal practice.

I should like to ask the noble Lord a few questions. The first is whether immunity from "suit and legal process," as mentioned in the Bill, covers immunity from criminal as well as civil process, and whether it covers bankruptcy and divorce. If it does, it may be assumed that not only divorces in this country but also bigamies would be held to be covered by the Bill and that there would be no normal right against a person who had committed any criminal act or who was concerned in a divorce suit. The people of this country are entitled to know whether such a wide privilege is, in fact, to be bestowed by this Bill, or whether "suit and legal process" can be considered on a narrower connotation than would seem to be the case if the words are given their normal reading. The second question that I should like to ask is whether the Colonies receive reciprocal treatment so far as new Commonwealth countries are concerned. I will give your Lordships an example. Under this Bill, as I understand it, the Indian representative or agent in Singapore, or the Australian in Kuala Lumpur, would receive the privileges conferred by this Bill. Does the Malayan representative—if there is one, or should there be one in the future—receive similar treatment in Canberra or New Delhi? That is a point upon which we, as trustees for the Colonies, ought to have some information.

The third question I should like to ask concerns the position of servants. Under this Bill the recommendations of the Committee on Diplomatic Immunities—or, at all events the recommendation relating to servants—is carried out. The recommendation of the Committee, at paragraph 13 (1) is That the Foreign Secretary should in future refuse to accept any local national as holding any position in a foreign embassy in this country, including the position of a ' domestic servant,' except on the condition that such person shall not enjoy a personal diplomatic immunity. Under this Bill, in the proviso to Clause 1 (1) the Government seem to have carried out that recommendation with regard to the servants of High Commissioners. That proviso says: Provided that a person who is a member of the official or domestic staff of the chief representative of any country. and is a citizen of the United Kingdom and Colonies and is not a citizen of that country, shall not be entitled under this subsection to immunity from suit and legal process, except in respect of things done or omitted to be done in the course of the performance of his duties, and the members of his family shall not, as such, be entitled to any immunity from suit and legal process. Of course, we welcome that proviso, but it does lead us to inquire from the Government whether a similar proviso or a similar clause will be included in a Bill concerned with servants of Ambassadors.

The servants of High Commissioners are put into a different position from that of the servants of Ambassadors; so in this respect the High Commissioners are not getting all the privileges that Ambassadors are getting. I do not suggest that they should, because I think the Ambassadors should be put into the position of High Commissioners so far as their servants are concerned. It is a matter of great importance, because from 1945 to date the number of Ambassadors' servants in this country has risen from 537 to 861, and they are all people who can claim immunity from suit. That seems an extraordinary number, especially as some of them may be citizens of this country who, as a result of their employment, enjoy a privileged position compared with that of their fellow citizens who have not this immunity. In other words, if the noble Lord's chauffeur commits some offence or borrows money he can be sued; but if that chauffeur's brother works for art Ambassador he cannot be sued, and if he commits an offence, unless the immunity is waived he will not be liable to be tried for it. That is a matter upon which. I think we should have some understanding from the Minister. He should tell us that he will at least look into this question, because it is one which we think should be dealt with by the Government at an early date.

Finally, there is the difference between the orders. Of course, there is a perennial dispute between Ministers, who always want orders made under the negative procedure, and Parliament, who always want them made under the affirmative procedure. In this Bill, however, under Clauses 1 and 2 there are two types of orders. Under Clause 1, the order is a negative order, and under Clause 2, it is an affirmative order. We do not quite see the reason for this distinction. In fact, so far as the affirmative order is concerned, it would rarely arise and would never be challenged. It is the order which defines a new Commonwealth country, and I cannot imagine that anyone in Parliament is likely to object to the admission of a new Commonwealth country to the rights under the Bill. The normal orders which would be made under the Bill are negative orders. There may be a considerable number of them, and at times they may be the subject of controversy. It seems odd, therefore, that the orders which are not likely to give rise to any controversy should be the affirmative ones, and the orders upon which controversy is likely to be raised are the negative ones—at least, would be odd if we did not realise that Ministers always try to have negative rather than affirmative orders. I ask the noble Lord to look into this point—he may not be able to answer to-day—and, if possible, to preserve the rights of Parliament in regard to all orders, making them all affirmative instead of the main body of them negative. With those few remarks, I welcome the Bill and hope for answers to my questions.

3.8 p.m.

EARL JOWITT

My Lords, before the Minister replies, I should like to make a few observations on this Bill. This is a matter which caused me a great deal of trouble during the last Government. There is no doubt thin. extension of diplomatic immunity is now being asked for on a very large scale, and, to my mind, it is a tendency which we ought to watch most carefully. It is easy to refer to this as the Diplomatic Immunities Bill, but one could also refer to it as the Citizens Deprivation of Rights Bill—because that is what it is. If you grant an immunity to "A," and if "A" runs over some unhappy person in his car, that person has no rights at all. As many of your Lordships who were constantly present at our debates may remember, I used to receive protests from all quarters of the House about the vast extension which was taking place in diplomatic immunity. My noble friend Lord Henderson used to come round and ask for immunity in this, that or the other case, and if he did not come, Mr. Ernest Bevin did. I found myself placed in a position of considerable difficulty and I can now afford to say what I think about this matter. I consider that we ought to be exceedingly slow in extending diplomatic immunity, and we ought to do the best we can to cut down some of the existing immunities.

I have said that I entirely agree with this Bill. It is quite ridiculous that we should give immunity to some representative of a small foreign State and not give it to the representatives of the great Dominions here mentioned. Therefore, I am not in the least opposed to the Bill, beyond telling your Lordships that I think immunity is a dangerous principle. In the old days, as the Minister will know, it became an absolute scandal. British subjects used to get themselves engaged as representatives of some foreign Government, thereby obtaining complete immunity, including immunity from taxation. Consequently, to become employed as a second secretary, or something of that sort, at a foreign Embassy, became a very profitable course of action. That was ultimately stopped, and we do not now recognise those people as accredited to us. In the proviso to Clause 1, the Bill says: Provided that a person who is a member of the official or domestic staff of the chief representative of any country, and is a citizen of the United Kingdom and Colonies and is not a citizen of that country, shall not be entitled under this subsection to immunity from suit and legal process, except in respect of things done or omitted to be done in the course of the performance of his duties.… That means, as I understand it, that a British subject who is a member of the staff of the chief representative, say, for Ireland, could not seek immunity for going out to a party and driving his car in such a way that he knocks somebody down, since that would not be part of his official duties.

But why are the words: …and is not a citizen of that country.… included? Is it not enough to say that the man is a citizen of this country? Surely that would be sufficient. But the Bill says: and is not a citizen of that country.… I should like the noble and gallant Lord to consider whether there are any good reasons for the inclusion of those words. If there are, the Minister will no doubt tell us why, and he will no doubt tell us also why he attaches importance to them. That is all I have to say on this Bill. I do not dissent from it. It is a logical step forward. The trouble is that all these steps forward are said to be logical and necessary, and we are stepping forward so quickly that it is becoming appalling. We must be careful—all of us, on both sides of the House—to see whether, in expanding this immunity, we are not depriving the liege of his rights. We are all proud to be living under the rule of law. As I say, I make no objection to the Bill, but I should like to know why the Minister has inserted in it both these tests, the positive and the negative.

3.13 p.m.

LORD ISMAY

My Lords, may I deal first with the question of the noble Lord, Lord Ogmore, whether "suit and legal process" covers criminal as well as civil process? The answer is that both are included in the case of diplomats and will therefore be included also in the case of Commonwealth representatives. I do not know whether the noble Lord had examined Clause 1 (5) of the Bill which deals with the question of waiver. If so, it may have eased his mind. Diplomatic immunity is granted not for the benefit of the individual concerned but for the benefit of the State in whose service he is, and the person will be subject to the law of the land, civil or criminal. It is the practice at the Foreign Office, where a person who has diplomatic immunity is alleged to have committed a criminal offence, to ask for a waiver of immunity, and that is preserved in Clause 1 (5) of the Bill.

LORD OGMORE

My Lords, I understood that. I had previously known the practice of waiver. That was not what I wanted. But the noble Lord has given me the answer I wanted.

LORD ISMAY

The second question the noble Lord asked was whether Commonwealth representatives in the Colonies received immunity.

LORD OGMORE

The other way round.

LORD ISMAY

Very well. Neither do at present. A Commonwealth representative in Malaya does not at the moment receive immunity, but it is hoped that in due course appropriate immunities will be given, subject to reciprocity by the Commonwealth Government. I hope that that is satisfactory to the noble Lord.

LORD OGMORE

It happens to be different from what was said in another place, but I assume that this is the final answer of the Government. I understood from the Minister's statement in another place that Commonwealth Governments would have these privileges in a Colony. What I am asking is whether, in the light of the development of our Colonies, persons in an important position would have similar privileges in the Commonwealth.

LORD ISMAY

My present advice is that no immunity is given to Commonwealth representatives in the Colonies, but that legislation to that effect will be considered.

The third question the noble Earl raised was in regard to diplomatic immunity for domestic servants. All I can say on that point is that I will have the matter looked into and brought to the notice of my right honourable friend the Secretary of State for Foreign Affairs. The fourth question concerned a suggestion that all orders should be subject to an affirmative Resolution, and not an affirmative Resolution in one case and a negative one in another. I think the noble and learned Earl will agree that that is a matter of opinion, but I will have the point looked into. The noble and learned Earl thought we were going a little fast in this matter of diplomatic immunity. I gather that there was much agreement with that view, and his remarks will be very carefully considered and paid heed to. I am not in a position to give an answer at the moment to the legal question which the noble and learned Earl raised, but I will have it looked into as soon as possible. The noble and learned Earl also raised the question of dual nationality.

EARL JOWITT

I only wanted to have the matter considered. I think it ought to be looked into.

LORD ISMAY

I will certainly have that done.

On Question, Bill read 2a, and committed to a Committee of the Whole House.