HL Deb 05 July 1955 vol 193 cc421-31

3.2 p.m.

Order of the Day for the Second Reading read.


My Lords, this is another short Bill, arising in slightly different circumstances but having somewhat the same origin. This Bill is based upon the Bonn Conventions, just as the Bill which the House has just passed was based upon the Austrian Treaty. Your Lordships will remember that what we have called the Bonn Conventions were originally signed as long ago as May 26, 1952. In the interval the whole complex of European affairs in which the Bonn Conventions were involved, and upon which they depended, suffered a number of setbacks and alterations, as a result of which the question of making operative certain aspects of these Conventions only now comes before your Lordships. A Bill was, in fact, introduced in another place shortly before the Dissolution of Parliament, but owing to the Dissolution it did not proceed beyond the initial stages. The Bonn Conventions, as originally agreed in May, 1952, to some extent became inapplicable as a result of the change in European arrangements which had taken place between May, 1952, and October, 1954, when the Paris Agreements were entered into; and the Bonn Conventions now stand as amended by the relevant applicable documents of the subsequent Paris Agreements.

The Bonn Conventions were designed, of course, as part of the whole scheme of terminating, subject to certain explicit conditions, the Occupation régime in Germany and of restoring to the German people their complete sovereignty. In these Conventions, which are, your Lordships may remember because we have debated them in the past, somewhat voluminous in character, three different bodies are set up by different parts of the Conventions and they have differing purposes under them. Those three bodies are, first, an Arbitration Tribunal, the purpose of which is, subject to certain express limitations, to deal with any questions of difference between the parties to the Convention. There is the Supreme Restitution Court—the name of which perhaps describes its function: it is a sort of Supreme Court of Appeal for cases where it has not been possible to resolve, through the existing methods, the differences which have arisen in regard to restitution. Then there is an Arbitral Commission on the return of various property which is specified in the Convention.

In regard to those three tribunals it has been found that those who constitute the tribunals and those who appear before them ought. in fairness to themselves and in order to enable them to carry out with complete impartiality and freedom the functions which fall to them, to have immunity from the consequences of any official acts done in the course of their work. The immunity which we suggest is incorporated in Clause 1 of the Bill. It extends to members of these three tribunals (if I may call them by that generic term); to State Counsel—and a State Counsel is not merely a counsel appointed to represent a State: he is really a person in the position of what, in the law, is commonly called amicus curitœ, whose business it is, if required, to advise the court upon difficult matters of law; to the Court Clerk and the representatives, counsel and others, of parties and, in cases where a party chooses to conduct his own case, the party himself.

My Lords, those correspond very closely to the sort of immunity which would be extended in an English court. It differs, of course, from the diplomatic immunity about which we have been talking in other contexts, and which we shall have to mention again, in this sense: that this immunity attaches to the individual perpetually. It does not extend only during the period while he is performing these functions; after he has resigned from his position as a member of a tribunal, he cannot then be involved in proceedings arising out of his conduct as a member of the tribunal. Quite rightly, it enures perpetually for his protection, otherwise his freedom and impartiality would not be guaranteed; he would be looking into the future and taking steps to protect himself against possible future perils.


Is there an absolute freedom for counsel under English law?


I am not absolutely sure about that. I believe that if there were any form of malice, protection might not enure. But I think noble Lords will probably agree that in this particular case it is right, because it is difficult to draw any distinction and to make any exceptions.


I speak without having looked up the point. There is absolute privilege for a judge, of course, but I should have thought that, in regard to counsel, there would be a merely qualified privilege—that is to say, if it could be shown that in making a statement he was actuated by malice, he would be liable. However, as I say, I have not looked up the point, and I do not really know.


My Lords, I think that that is the position; but we have here to conform with the whole of the Treaty apparatus, taking into account the procedure of a number of other countries as well. In this particular instance, I think it is not unfair to extend what is, perhaps, a wider privilege to counsel than is given in our domestic courts.

Subsection (1) of Clause 1 deals with a subject not unfamiliar to your Lordships, diplomatic privileges and immunities, which we discussed only a few days ago. When these Conventions were being entered into we considered, with the other parties, whether the people who are to be covered by these immunities and privileges were properly included in such a "protected area." The general feeling was (and it was agreed in the Conventions themselves) that those persons should be granted the necessary privileges and immunities under the International Organisations (Immunities and Privileges) Act, 1950. These particular privileges and immunities will, of course, attach to the members of these tribunals only on the perhaps infrequent occasions when these persons visit this country; otherwise they have no efficacy. It may happen that the people to be covered by these Conventions will not come to this country, and it is not proposed to lay before Parliament an Order in Council conferring these particular privileges under the Immunities and Privileges Act unless a situation arises in which the people concerned are coming to this country and we feel that they ought to be given the necessary protection. We do not propose automatically to lay before Parliament an Order in Council, but merely wish to have the power to submit such an Order if the necessity arises. Subsection (3) is a somewhat technical one. It enables evidence to be taken in this country for the benefit of people before the Supreme Restitution Court. The reason for confining this to that Court is that it is provided by the Conventions themselves that the Court shall sit in Germany, whereas the other two bodies could, if necessary, sit in other places and might be able to take evidence for themselves in this country.

Clause 2 is on a rather different basis. Under the Conventions, certain British forces are permitted to remain in Germany on terms which are specified in the Conventions themselves; and it is also provided that those forces shall be subject to German law in regard to Customs. There is a further arrangement that members of the forces shall pass through what may be called "check points" and that they shall there he dealt with, in regard to customs matters, not by the Germans but by the British military authorities. Although provision is made for the Admiralty, the Army Council and the Air Council, this duty will, in fact, largely fall upon the Army alone. This clause is necessary because without it it would be impossible for British personnel at these check points legally to confiscate goods which, under Germ in law, are contraband and which are being brought into the area of the British forces by members of the forces or by certain specified categories of persons—their wives and families and also certain people who, for this purpose are equated, although civilians, with those persons having a military status. So far as such civilians are concerned, it assists the arrangement, and it is perhaps only fair that if they get certain exemptions they must at the same time be prepared to accept certain liabilities; and no hardship is inflicted upon them by being dealt with in this way.

Subsection (5) of Clause 2 makes the provision in regard to the enforcement of the German customs law retrospective to the date upon which the Convention came into force—namely, May 5 this year. The reason for that is that during the time between that date and the time when this Bill becomes law and operative it may be that these British personnel operating in Germany customs law at these check points have confiscated articles brought in by members of the forces or their dependants which in fact they were not entitled to confiscate. If that were so, those persons from whom goods had been taken would be entitled to take action to have the goods returned, and unless the provision is made retrospective to the date when these provisions came into operation there will be this gap between May 5 and today, a period during which persons who might have been partially wrongly handled in regard to their goods would have no method of instituting a claim or of having their grievance redressed.


Can the noble Marquess say whether there is any such case at present; because if somebody has started an action on the ground of wrongful seizure it would he a hard measure to make this law retrospective. If there is no such case at present, and if this is merely a theoretical idea as to what might have happened, that is a different proposition.


I know of no actual case. This is merely a safeguarding provision in case anybody should be disadvantaged by failure to fill this gap.

My Lords, that is the substance of the Bill, and I hope it will commend itself to your Lordships as a brief and effective way of covering the matters which require legislation in order tc make them operative and, in this way, to tie up what I may call the loose ends which were deliberately left under the Bonn Conventions because they would, at some later stage, require legislation to give them their full efficacy. Fortunately, that moment has now come, and with this Bill, if your Lordships are prepared to accept it, the last of the matters for settlement under those Conventions will, I hope, have been happily and finally disposed of. I beg to move.

Moved, That the Bill be now read 2a.—(The Marquess of Reading.)

3.20 p.m.


My Lords, this Bill also will receive our assistance in going through its various stages. As the noble Marquess has said, the provisions of the Bill, again, are really machinery and technical provisions, and it is obviously necessary and desirable that we should implement obligations which we have entered into under the Conventions with the Federal German Republic. The three bodies mentioned by the noble Marquess, which are provided for by the Conventions, are necessary machinery for their respective purposes, and if, in the course of their work., it is necessary for members, counsel or other officials connected with these pieces of machinery to visit this country in the performance of their duties, it seems only right that they should not be liable to any legal proceedings in respect of official acts performed in the exercise of their duties, and that a similar immunity should be enjoyed by a party to proceedings before the Arbitral Commission.

The noble Marquess will not be surprised when I say that we look with less favour on the proposed further extension of diplomatic immunities and privileges. There can be no doubt that the House is disturbed by the almost continuous process which seems to have set in. The late noble Viscount, Lord Simon, on several occasions raised the matter in this House, both when we who are now on these Benches were in the Government and later when the present occupants of the Government Benches were there. My noble and learned Leader, Earl Jowitt, on most occasions in the last three or four years when Orders in Council under the 1950 Act have been before your Lordships' House, and my noble friend Lord Silkin, only last week, when four Orders in Council were before the House, have urged that the time was approaching when the question of extending diplomatic privilege ought to be thoroughly re-examined. I am not going over the ground again this afternoon, because the House is fully aware of the arguments brought forward in connection with this matter. I will say only this. I noted that the Under-Secretary of State for Foreign Affairs stated a week or two ago in another place that: the large number of people who receive diplomatic immunity does need consideration, and I hope that that statement means that Her Majesty's Government are giving the matter their serious attention.

With regard to Clause 2 of the Bill, we welcome the provision that British Service personnel or their dependants who contravene the customs law of the Federal German Republic regarding the importation and exportation of goods shall be dealt with by the British military authorities instead of by German authorities. In such cases not only may the goods be confiscated by the British authorities and disposed of, but, as I understand, a Service offender will also be subject to military discipline for his offence.


That is quite right.


That means that a British Service offender will not get off merely with the seizure of his smuggled goods while a German civilian offender may have additional penalties imposed by the appropriate German authorities. The only query in my mind arises because I believe that the dependants of Service personnel are liable only to have the goods confiscated; they are not subject to military discipline, and, therefore, they will have to some extent preferential treatment as between themselves and German civilians committing similar offences. But I think the principle that British military authorities should be made responsible for dealing with breaches of German customs law by British military personnel is one which we should all welcome. Having made those brief observations, I repeat that, so far as we are concerned, no obstacle will be put in the way to prevent the noble Marquess from getting his Bill through rapidly.

3.26 p.m.


My Lords, my noble friend Lord Henderson has referred to me about this matter and I desire to say a word or two upon it. I was unable to be here last week when this question arose, but I do want to emphasise what Lord Henderson has said. I think this is becoming really rather a scandal. It is quite exceptional now to find any organised body of people coming from a foreign country who do not possess diplomatic immunity. The only body of people I know of who do not at the present time are the South African cricketers, and I should say they are much better entitled to it than many of those who have it. I think the time has come when this House ought to take a stand on this matter, though I may say that I am not going to do it now. As the noble and learned Viscount, the late Lord Simon, used to point out to me when I was Lord Chancellor—and I was very disturbed about this matter then—what is called diplomatic immunity from one point of view is, from another, deprivation of rights. I give the noble Marquess notice that it is my intention, at some time in the autumn, to move a Motion about this matter. And I may warn the noble Marquess also that I am sure I shall get a large measure of support from all sides of the House.

I think we ought to call a stop to this practice, and I believe that if we do not do so we shall have to insist on this: that the Government say, quite frankly, that although they are going to grant all these immunities, they will stand in place of the persons concerned if anyone is injured, so that the injured person can sue the Government and get his money out of them. That would not be altogether a satisfactory alternative, but it might be some solution. At the present time, by some strange diplomatic convention which has crept in, it seems to be thought that, in order to extend courtesy to people who come to visit our country from abroad, we must extend, almost automatically, diplomatic immunity. These Conventions are made and people who come here to discuss all sorts of matters are given diplomatic immunity. It is true that our people are given diplomatic immunity when they go abroad.

I think that this whole conception is utterly wrong. I believe that we have to take a stand, and before the United Nations I hope that our Government will point out that this practice ought to stop. It is not right that it should go on. It would not have gone on as long as it has done but for the fact that those entitled to this diplomatic immunity are, I am glad to say, very well-behaved people, so that scandals do not often arise. In the case of an Ambassador the privilege is his, and he can waive it on behalf of his staff. I am certainly not going to give any examples, but in my experience and in that of the noble Marquess, there have been cases which have given us considerable anxiety. I am sure he will agree that this matter is one which needs to be watched. This particular case is a very small extension, and not one that is worth making a song and dance about. In any event, I should be reluctant to do that in regard to this Bill, because I was so delighted to welcome the German Reich back to the comity of nations and, I hope, to a long and enduring friendship with our people. However, I should like the Government to know that there are many people who feel strongly about this question, and in due course we shall ask for a debate, in order that the whole subject may be brought under review.

3.29 p.m.


My Lords, before the House agrees to the Second Reading of this Bill may I intervene to say how entirely I agree with what the noble and learned Earl has just said about diplomatic immunity? Unfortunately, I was not here last week when these privileges were granted to various bodies, but I am sure we all feel considerable anxiety at the wide scope and number of bodies who are now included in these immunities. I hope that the noble and learned Earl will put down a Motion at some time or other, in order that this matter can be thoroughly threshed out. What passed through my mind (I do not know whether I am in order in suggesting it or not) was whether it might not be helpful to all of us here if we could have, in the form of a White Paper, a list of the bodies showing the number of people to whom we give these privileges. I speak on this matter because I have had experience of the other end, at the outposts, when I was an Ambassador and had a flock under my control; and in those years I gained some knowledge of how this thing works out in practice. Since those days, I have been surprised at the fact that these considerable privileges have been given to large bodies of people, no doubt very worthy in themselves, and in my view this feeling of uneasiness is thoroughly justified. If we could have something in the form of a White Paper, showing the number of bodies which enjoy these privileges, and their membership, it would help us all to approach this matter, when it is raised later on, with greater knowledge of what we are talking about.


My Lords, I am obliged to the noble Lord, Lord Henderson, who himself at an earlier stage was so actively concerned in promoting the arrangements in regard to Germany which have now reached fruition, for what he has been good enough to say in accepting this Bill. As regards the question of diplomatic immunity, the House will realise, as I have said before, that in this case all parties to the Bonn Convention have bound themselves to extend immunity to these different classes of persons. I do not in the least begrudge the two noble Lords who have spoken the opportunity which they missed last week of making some general observations on the subject. I can only hope that their absence during last week was pleasantly spent. At the same time, I recognise that there is in the House a measure of apprehension in this respect. I recognise further that what my right honourable friend the Under-Secretary of State said in another place, that the large number of people now protected in this way does require consideration, is an accurate statement. I will certainly heed "the gipsy's warning" about what is coming when we return in the autumn.

As regards the suggestion of the noble Lord, Lord Killearn, who has enjoyed the privileges of these immunities on the periphery in the past, I would suggest to him that, if he would like to have this information, the simplest way might be for him to put down, a Question for Written Answer. It would then be possible to give him what I am afraid is likely to be a longer list than could conveniently be read out to the House in answering an oral Question. If he wishes to take that course, I will see that he obtains full information.


My Lords, I shall be delighted to do that. But would it not be more convenient to the House if we had a printed statement, for the very reason the noble Marquess has given?


My Lords, what I suggested was a Question for Written Answer, and in that case, both Question and Answer would be printed in the OFFICIAL REPORT of the House. I think that is really a more convenient way than issuing a separate White Paper.


By all means.


I think that the information can be conveyed in a Written Answer; I do not think it would justify the publication of a separate White Paper. My Lords, I am grateful to the House for having expressed, openly or silently, its assent to the provisions of this Bill.

On Question, Bill read 2a: Committee negatived.

Then, Standing Order No. 41 having been dispensed with (pursuant to Resolution), Bill read 3a, and passed.