HL Deb 14 February 1961 vol 228 cc761-74

5.38 p.m.

Order of the Day for the Second Reading read.


My Lords, this Bill comes to us from another place without amendment. Its purpose is to con- fer upon representatives of Commonwealth Governments in certain circumstances the same immunities as now attach to representatives of foreign Governments in the same circumstances. It is our hope, which I am confident your Lordships will share, that the Bill may receive the Royal Assent in time for its provisions to be applied to Commonwealth delegations at the meeting of the Commonwealth Prime Ministers next month.

In proposing any extension of immunities Her Majesty's Government are aware that your Lordships' House has never regarded lightly any proposal to increase the scope of diplomatic immunities legislation and will now wish to satisfy itself that there is good reason for so doing. As I shall explain, this Bill only corrects an anomaly in the law as it is now and puts Commonwealth representatives on all fours with the representatives of foreign Governments. For that reason I hope your Lordships will agree that it should have a Second Reading.

The persons dealt with in this Bill are representatives of the Governments of Commonwealth countries and the Irish Republic attending conferences in this country with representatives of our own Government. Under Section 4 of the International Organisations (Immunities and Privileges) Act, 1950, which was in itself a consolidation of legislation first passed in 1944, representatives of foreign Governments could, by their inclusion in a list published by the Secretary of State for Foreign Affairs, be accorded diplomatic immunity. But there is at present no such provision in our law to cover representatives of Commonwealth Governments. It is that anomaly which the Bill now before your Lordships' House seeks to correct.

As your Lordships will be aware we already have legislation, in the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act, 1952, to give the Commonwealth High Commissioners in London and their staffs the same immunity as is accorded to foreign Ambassadors. The procedure provided in the Bill is the same as that employed in the case of conferences with foreign representatives. My right honourable friend the Secretary of State— in this case the Secretary of State for Commonwealth Relations— is empowered to compile and publish in the London, Edinburgh and Belfast Gazettes, the names of the representatives and staffs qualifying for immunity under the Bill and the dates of the beginning and termination of such immunity. Your Lordships will also observe that the Federation of Rhodesia and Nyasaland is included in the operation of this Bill. The Federation is included in subsection (6) of Section 1 of the 1952 Act relating to Commonwealth diplomats appointed to this country, and similar treatment is accorded to our High Commissioner in Salisbury and his staff. It is therefore appropriate and right that the Federation should be included in this Bill.

The Republic of Ireland is also covered by the Bill, because under the Republic of Ireland Act, 1949, it is not a foreign country for the purposes of United Kingdom law and is, therefore, not covered by Section 4 of the International Organisations (Immunities and Privileges) Act, 1950. Clause 2 of the Bill will enable its provisions to be extended to other countries which may in the future become members of the Commonwealth.

Noble Lords will wish to know the nature of the immunities conferred by this Bill. They will be the same as those for a foreign envoy and his retinue. These include, first of all, immunity from suit and legal process; secondly, inviolability of person and of official premises, residence and archives; and thirdly, exemption from liabilities under social security legislation and for personal service. Under existing legislation, an envoy is also accorded exemption from taxation and Customs duties, and a representative would, as a result of this Bill, be accorded exemption on the same basis. A member of the staff of a representative would also foe accorded exemption according to his status on the same basis as a member of the retinue of an envoy. But if a member of the staff of a representative is a citizen of the United Kingdom and Colonies and is not a citizen of the country represented he will have immunity only in respect of his official acts.

The immunities will continue for the period of the conference only and that period will be stated in the lists published in the Gazette by the Secretary of State. Her Majesty's Government have asked other Commonwealth Governments and the Government of the Irish Republic whether they would be prepared to introduce similar legislation in cases where it does not already exist.

I hope your Lordships will agree that this is a good and useful Bill and does no more than provide a normal protection to representatives of Commonwealth Governments attending these conferences, which are such an important part of our close ties with Commonwealth countries, and that we ought to correct the present position by which the representatives of Commonwealth Governments are treated less favourably than those of foreign Governments. My Lords, I beg to move.

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

5.45 p.m.


My Lords, as the noble Lord, Lord St. Oswald, has said, this House has always been vigilant in endeavouring to secure that immunity is not granted to a wider section than is absolutely necessary. In the days when there was a Labour Government this task was undertaken by the late Lord Simon, who invariably rose on these occasions and put the questions— very critical ones— and ensured that the Bill did no more than was absolutely necessary. After the Labour Government, it fell to the late Lord Jowitt, and he did the same. Since his unfortunate decease it has fallen to my lot to raise these same questions.

So far as this Bill is concerned, I recognise that it remedies what appears to have been an omission and that it is essential that representatives of the Commonwealth attending conferences should have diplomatic immunity. There is no objection to that at all. One wonders how they got on until now, for there have been conferences before. Presumably they have not had diplomatic privilege in the past, and they appear to have got on quite well without it. But I assume that it is advantageous that they should have it. This does not apply, I take it, to other countries, such as trust territories, that come within the British colonial empire. I wonder why not. If people from such territories as are still under British dominion come to this country for the purpose of a conference, is there any reason why they should not similarly have immunity as in the case of members of the Commonwealth? Perhaps the noble Lord will be able to explain to me why they have not been incorporated in the Bill.

I have only one or two small points to make on the context of the Bill. The first is that this immunity should apply only so long as is necessary. The machinery in the Bill provides that the Minister makes a list of people who are immune, and at the end of the conference, or at such other time as he thinks fit, he amends the list by taking people off. There is no obligation on the Minister to do this; he "may if he thinks fit". I should have preferred some stronger language than leaving absolutely to the discretion of a Minister the time when the list is altered.


The noble Lord is referring to the Secretary of State putting names on a list, not taking them off a list?


I was referring to taking them off the list. This Bill provides that he may, if he thinks fit, take them off. That is the language of the Bill. Whenever it appears to the Secretary of State that any person ceases or begins to be qualified for inclusion in a list…he may amend the list…or, if he thinks fit, provide an amended list. It is a small point, but it does leave a certain amount of discretion in his hands.

But perhaps the more serious part is subsection (4) of Clause 1, which deals with the case of people who are members of a conference, but who are citizens of the United Kingdom. They have immunity: in respect of things done or omitted to be done in the course of the performance of their duties. That is a little different from the language used by the noble Lord, who said that it applied during the period of the conference. That is not so. This is intended to be narrower than the period of the conference and applies only "in the course of the performance of their duties." These are words which, to me, are very reminiscent of the language of an Act of Parliament under which my firm, and I am sure the noble and learned Viscount, at some time or another, made a very lucrative living— the Workmen's Compensation Act that used the phrase accidents arising out of or in the course of employment, In many cases it is going to be a little difficult to define what are: things done or omitted to be done in the course of the performance of…duties. Supposing, for instance, one of the persons defined in subsection (4) of Clause 1 goes to a reception where the hospitality is more abundant than usual and that it is a reception which he attends in the course of his duties, and he drives home and meets with an accident. Is he immune? Is this something which has arisen in the course of his duties, or not? One can develop that point (although I do not propose to do so) and find even more difficult cases. I should have thought it desirable to define rather more closely what we mean by the words: things done or omitted to be done in the course of the performance of his duties. It may be that to avoid all argument, the language used by the noble Lord, Lord St. Oswald, would have been better; to say the person is immune during the period of the conference. But, having inserted these words, which I presume are intended to give the representative a limited immunity only, it seems to me that the Government have created a good deal of unnecessary difficulty and confusion, and possible litigation, in the event of a person such as is defined in subsection (4) getting into difficulties and being in a position to say that his action was something he did in the performance of his duties.

Subject to that point, which I feel is an important one, I think this is a very proper Bill, and I hope that even if Her Majesty's Government find it necessary to take some note of what I have said about this clause, they will still get their Bill through in time to operate on the occasion of the Commonwealth Prime Ministers' Conference.

5.54 p.m.


My Lords, I agree that we should watch the position carefully. Any attempt to broaden the field of those who have diplomatic immunity I think deserves the most careful scrutiny of us all. But as the noble Lord, Lord St, Oswald, has rightly said, this is really a question of correcting an anomaly, and when we have admitted people from foreign countries there is absolutely no reason why we should not admit the same kind of people who come on Commonwealth delegations. I believe the Government were quite right to bring in these people, and I welcome that action. There are, however, a few very brief observations I should like to make.

The first is about reciprocal arrangements. I understood from the noble Lord, Lord St. Oswald, that we have asked the countries named in Clause 1 (5) whether they are going to give us reciprocal arrangements, but he did not say what the answers have been. I suggest that it is right and proper that where we make these arrangements we should definitely get reciprocal facilities from the countries to whom we have given these privileges. Perhaps the noble Lord will assure us on that point. The second point I would make is particularly with regard to the Republic of Ireland. For some reason, we have always treated the Republic of Ireland in a peculiar, dual way. In law they are a foreign country, but we have never treated them as such, and both in legislation and in practice we always treat them as a member of the Commonwealth; so much so, indeed, that the Department in Whitehall which deals with them is not the Foreign Office but the Commonwealth Relations Office. I have no objection at all to that. In fact, I welcome that kind of treatment.

In my view, it is the greatest possible pity that the Republic of Ireland is outside the Commonwealth. I hope that the present, very much better feeling which was indicated in the debate we had fairly recently in this House will be extended, and that within no long time we shall see the barriers in Ireland go down, to the satisfaction of all Irish people, and that Ireland will come back into the Commonwealth. But I would particularly ask whether the Republic of Ireland will give us reciprocal treatment— whether we have asked for it and whether they are going to do so. In some cases they do not reciprocate. Any Irishman who has been resident here for six months or so has a vote, but I believe citizens of this country who live in Ireland do not get a vote.

I should like to say a word on a point raised by the noble Lord, Lord Silkin, but from a rather different angle. He raised the question of citizens of the United Kingdom and the Colonies, and I quite agree with him that if we are to have any definition at all, it is better to have the one given by the noble Lord the Minister rather than the one now in the Bill; because under the Minister's definition one can, so to speak, limit and define things which happen during the progress of a Conference, but it is very difficult indeed to define them under the Bill. I wonder, though, whether it is really necessary to make this distinction at all so far as the delegations are concerned. I think it is invidious to try to draw the distinction between one member of the delegation and another.


My Lords, if in fact the Bill were altered on the lines of the noble Lord's speech, in practice, it will be quite unnecessary to have any exact definition.


My Lords, I would quite agree, but, after all, we are not dealing with the noble Lord's speech; we have to deal with the Bill. We are discussing the Bill and stimulating the noble Lord to put down, in Committee, an Amendment which will amend his own Bill in the light of his own speech. It is a rather unusual set of circumstances for a Minister who moves the Second Reading of a Bill completely to alter one of the main terms of it, and then for the Opposition to suggest that he puts down an Amendment. I think even the noble Lord, Lord Silkin, will agree that I am entitled to draw the attention of the House to some of the difficulties which will arise if the noble Lord does not amend his own Bill.

One of the difficulties is that owing largely to the welcome development that not only do people go out from this country to the Commonwealth countries but people from different parts of the Commonwealth go to other Commonwealth countries to work, it sometimes happens that there may be on a delegation, for example, from Nigeria, some Jamaicans. There are quite a number of West Indians working in Nigeria and a Jamaican may well come over on a Nigerian delegation. The odd point is that under this Bill all the Nigerians would come within the scope of the Bill, but not the Jamaican. He would be excluded because he is a citizen of the United Kingdom and the Colonies. Similarly, with a citizen of Sarawak or Brunei— which is perhaps a better example, There is a close and developing connection between Brunei and the Federation of Malaya and we might have a citizen of Brunei who comes over here on a Federation of Malaya delegation. He would not have the advantage of this Bill except to the limited extent as defined in Clause 1 (4), and he would be odd man out.

There may well be in the future a joint delegation from the Federation of Malaya and Singapore. In such a case the Malayan portion of the delegation would have all the facilities of protection of this Bill but the Singaporians would not; they would come under Clause l (4). We now occasionally have a delegation from Ghana coming over with a United Kingdom citizen on it; in fact the Attorney General of Ghana is a United Kingdom citizen, and there are several others. He would not get the full benefit of the Bill, but others would. I regard this as a most undesirable distinction to make and I think it is a pettifogging one. The House may remember that on the International Atomic Energy Agency (Immunities and Privileges) Order, passed by the House on December 19, I raised the same sort of point with regard to international atomic energy delegations. I think that when a delegation comes over here we should treat all members alike so long as they are part of the delegation and while the delegation lasts. I think it is quite wrong to have rather a pettifogging way of cutting out people because they have a sort of legal status of being citizens of the Commonwealth and United Kingdom Colonies.

Finally, I have one much smaller point than the others; it concerns a matter of tidiness. I do not see why we cannot include Sierra Leone in Clause 1 (5), concerning the countries to which this Bill is going to apply. By the time it is passed, presumably, Sierra Leone will almost be an independent country. I should have thought, from the point of view of tidiness, that we might include her now. In any event, not all the countries under the Bill are independent countries of the Commonwealth, as the noble Lord has already indicated. The Federation of Rhodesia and Nyasaland is not independent. The Republic of Ireland is not in the Commonwealth at all. So I do not see why we cannot include Sierra Leone, in view of the fact that in a month or two's time, probably in April or May, she will be, I hope and believe, a full member of the Commonwealth. I have no doubt that the answer will be that an Order in Council can be made under Clause 2 (1). That is perfectly true, but I should not think it would be worth all that bother. All that the noble Lord has to do is to add the words "Sierra Leone", and that will avoid all the trouble and expense of the promulgation, and so on, of an Order in Council.

6.4 p.m.


My Lords, I am grateful to the two noble Lords for the welcome they have given to the Bill. I have tried to satisfy them on a number of questions which they have put. I do not know that I can give entire satisfaction to all the questions, but I think I may give general satisfaction. The noble Lord, Lord Silkin, asked why the Bill does not apply to other than sovereign territories; so did the noble Lord, Lord Ogmore. The answer is that, speaking generally, as a general rule it is accepted internationally that this sort of immunity attaches to diplomats and representatives of sovereign States, and it would require a considerable departure from normal practice to give the same benefits to representatives of States which were not sovereign States as yet.

The noble Lord, Lord Silkin, spoke of the Secretary of State's ability to take off or put on to a list the people who were the representatives, or the staff of the representatives, who were to enjoy the immunity given under the Bill. My Lords, the principle of this is that he will be able to publish a list and to close that list on a certain date, the date being announced in the original publication of the list in the Gazette. If, however, I understand, the conference is for any reason held over or prolonged, there is nothing in the Bill to prevent him from extending the period during which the persons, any one or more of them, can continue to enjoy immunity; and that immunity can be retrospective so far as its actual publication in the Gazette is concerned. The present intention is that the period shall cover the time that they spent in conference and a reasonable period for them to leave the country.

The noble Lord, Lord Silkin, also spoke of the term in the course of the performance of his duties". I am certainly not one to measure my knowledge of the law, my understanding of the law, against his; and I am happy to be assured that the exact meaning is, in fact, for the courts; and there are other instances where the law can be quite satisfactorily interpreted by the courts. I cannot, in fact, answer the question out of hand, but it is a matter for lawyers; and I certainly would not compete with the noble Lord sitting opposite me.


My Lords, that is the very thing one wants to avoid. This sort of question came before the courts for years and years: "What was something arising out of and in the course of one's employment?" Here, we are repeating this thing again. Surely, we do not want to have to bring up decided cases on the matter and have legal arguments. Is it not much better to settle it straight away?


My Lords, is the noble Lord saying that the use of this phrase in legislation has given rise to continual dissatisfaction or repeated dissatisfaction?— because I am unaware of it. I am not saying that it is not so, but it has not, certainly, been brought to my notice.


My Lords, that is exactly what I was saying.


My Lords, in point of fact I am not going to contradict the noble Lord, but it has not been considered a serious enough situation to involve putting another definition into the Bill. In addition to what I have said about the actual phrasing and the difficulty of drawing a meaning from this phrase, "in the course of his duties", this particular passage of the Bill accords with a similar limitation imposed on Commonwealth diplomats appointed to this country in the normal way; that is, the High Commissioners' staffs; and is, in fact, written into the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act.

1952. As I say, I have not been informed that it has given rise to any particular awkwardness.

The noble Lord, Lord Ogmore, asked why a citizen of Jamaica in a Nigerian delegation should not receive the same diplomatic immunity accorded to the rest of the delegation. I have already answered that point to the best of my ability. He made it clear in advance that that answer would not be particularly satisfactory to him, as I understand it. But, at the same time, it is normal practice throughout the world, and we do not feel that in this Bill we could depart so far from that practice. The noble Lord, Lord Ogmore, also drew attention to the fact that while Southern Rhodesia is included in the Bill, Sierra Leone is not. In fact the machinery for bringing Sierra Leone in directly it does achieve independence is very simple, and the decision was to leave it until that could be done. The noble Lord drew attention to the fact that it could be done under Clause 2; and that is the intention.

The noble Lord, Lord Ogmore, also asked, as I understand it, whether it was intended to withhold this immunity from States which did not reciprocate. As I mentioned, requests have been made to the other Governments involved, asking them to consider taking this action, introducing this legislation, and, as I understand it, most of them have already replied helpfully and are considering doing so. The noble Lord mentioned in particular the Government of the Republic of Ireland. I understand that they are seeking how it can be done under their Constitution.

The noble Lord, Lord Ogmore, also asked why a "blanket" cover could not be given to all members of a delegation instead of by means of a list, and he invited me to introduce an Amendment on the basis of my own speech. Although I have never been averse to doing the unusual, I think the arguments against it in this particular instance are greater than would warrant my taking that course. They are, in fact, arguments which I think the noble Lord, Lord Silkin, would be more likely to be able to appreciate technically than myself.


May I say to the noble Lord, if he will give way, that I did not raise the question of a "blanket". I quite appreciate the fact that we must have a list. A list is essential. 1t was not a "blanket" I was referring to: it was the question of whether it was not invidious to have members of delegations who might be from a colonial territory employed by an independent territory being treated in quite a separate manner when they came over here. That is the point I bad in mind.


While they are on a delegation under the meaning of this Bill?




I think the noble Lord need have no particular fears on that account. The real reason for using a list is that, in that way, the public can know, or at least can discover, where they stand in relation to a particular delegate.


If the noble Lord will forgive me, I am not talking about a list at all. It is the noble Lord who has introduced a list. I do not want to pursue this now, but we do not want to get this wrong. Quite frankly, I do not care whether there is a list or not. I quite appreciate that one must have a list, but that is not really the point. Perhaps the noble Lord would be good enough to look at my speech in Hansard.


I certainly will. It appears that I have misunderstood the noble Lord. It is an argument which I think he has used before in similar debates, and as I understood it, both on those occasions and on this, he saw no necessity for a list to be published. In fact, the list as published is practically a blanket list. I have asked for a list as an example, and I have in my hand now a list, reprinted from the London Gazette of August 21, 1956, of the delegates at the Suez Canal Conference, and the list of immunised staffs of the representatives is very large indeed. The United States had 17, France 19, and Soviet Russia 32, all enjoying immunity during the course of that particular conference.

My Lords, I think those were the only questions put to me directly, and I hope that I have given some satisfaction, or at least satisfied the curiosity of noble Lords, as to why the provisions in the Bill are phrased in the way they are.

I am happy that neither noble Lord has expressed any doubt as to the requirement of this Bill, and I hope that they will be willing to give it a Second Reading.

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