§ 3.18 p.m.
§ Report of Amendments received (according to Order).
§ Clause 5:
§ Consequential amendments
§ (2) In paragraph (a) of the proviso to section 4 of the British Nationality Act 1948 for the words from "possesses such immunity" to "His Majesty" there shall be substituted the words "is a person on whom any immunity from jurisdiction is conferred by or under the Diplomatic Privileges Act 1124 1964 or on whom such immunity from jurisdiction as is conferred by that Act on a diplomatic agent is conferred by or under any other Act".
§ LORD SILKIN moved to leave out subsection (2). The noble Lord said: The noble Lord, Lord Molson, is, unfortunately, unable to be here to-day and, curiously enough, he has asked me to move his Amendment. I do so with great readiness because the point raised by the Amendment is one which I raised myself in Committee—namely, the clause which was moved in Committee, as in addition to the Bill, by the noble Lord, Lord Carrington. Your Lordships' House may remember that on that occasion I complained that the language of the new clause added to the Bill was quite incomprehensible to the ordinarily intelligent person; and, although the noble Lord, Lord Carrington, gave us an explanation of the clause, which I have since read and which I think is intelligible, nobody would have connected the two or could possibly have guessed that the explanation related to the particular clause.
§ We had some discussion on it. Other noble Lords felt the same. And the noble Lord, Lord Carrington, said two things: first, that the Parliamentary draftsman was listening to what was being said. He also said that he would see whether it was possible to simplify the language. I see nothing on the Paper simplifying the clause, and I submit that this House ought not to pass measures which are quite incomprehensible. I would therefore support the Amendment which was to have been moved by the noble Lord, Lord Molson, leaving out subsection (2), which is the subsection in question.
§ If the House agrees with me that this subsection should be deleted, I am sure that the noble Lord will be able to come back and, with his powers of persuasion, bring back to us a provision which means the same thing but says what it means in much more simple language. I will not trouble the House by reading out the subsection which I want to delete. The noble Lord himself admitted it was very difficult to follow. Indeed I would go so far as to say it is impossible to understand what it means. I would therefore ask the House to delete this subsection, and if the noble Lord 1125 attaches importance to having something of this kind in the Bill, he can put down something simple on Third Reading. I beg to move.
Page 3, line 13, leave out subsection (2).—(Lord Silkin.)
§ LORD CARRINGTON
My Lords, I hope that by the time I have sat down your Lordships will find the subsection as it now stands a good deal more explicable than the unholy alliance between the noble Lord, Lord Silkin, and my noble friend Lord Molson. The noble Lord, Lord Silkin, has explained, as I expected, that the purpose of his Amendment is not in effect to criticise the provisions which we have put in the Bill so much as to protest at the language used to achieve this end. The noble Lord and your Lordships are well aware that if the subsection were indeed to be left out the consequences would be very embarrassing. I explained this last week and I do not think it necessary for me to do so again. But it certainly would not be the intention of anybody in your Lordships' House that British nationality should be given to the children of members of foreign missions born in this country.
I will therefore confine myself to the drafting of the clause, which was the subject of a good deal of criticism during the Committee stage. I said on that occasion that I would look at the drafting, I would consult lawyers in the Foreign Office and Parliamentary Counsel and would see what I could do to make the wording simpler, if it were possible. I gave no further undertaking. I have faithfully carried out this undertaking and have had a number of consultations on this matter. But I regret to tell your Lordships that it has been found impossible by those who are experienced in these matters to find any simpler form of words which could be substituted for those in the Bill as it stands at present. The difficulty is that this is quite a small point but it is a very complicated one, and it is not very easy to convey what is necessary in entirely simple language.
I wonder whether your Lordships or I were quite right in saying that the Amendment as it was on the Committee stage is as mystifying we thought on the last occasion, and here perhaps I was at fault in suggesting that that was so. Per- 1126 haps I might explain a little more fully exactly what this subsection does. When one Statute makes consequential Amendments to another it just is not possible to set out in full what is being amended to show it in its amended form. The Statute Book, which is bulky enough as it is, would be enormous if every time we had to set out in full a section as amended. And I should have thought that the right question to ask is whether when you read the new words called for by the amending Bill in their correct place in the amended Act they achieve their effect in an intelligible and economical way. This means that you must get hold of the amended Act and look up the relevant section and then put the amending clause alongside it.
May we do that with Clause 5 subsection (2)? We refer to Section 4 of the British Nationality Act, 1948. Substituting the words as required by Clause 5(2) the result is this—and I ask your Lordships to listen carefully:Every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth:Provided that a person shall not be such a citizen by virtue of this section if at the time of his birth"—here the new words are inserted—his father is a person on whom any immunity from jurisdiction is conferred by or under the Diplomatic Privileges Act, 1964"—I think the meaning of that is quite clear: a child is not a United Kingdom citizen, even if he is born here, if his father enjoys immunity from jurisdiction under the present Bill. And then it goes on:or [is a person] on whom such immunity from jurisdiction as is conferred by the Act on a diplomatic agent"—that is to say, the full immunity under Article 31 of the Convention—is conferred by or under any other Act".As I explained to your Lordships at the Committee stage, there are various Acts of Parliament which confer diplomatic-type immunities on people who are not diplomats in the strict sense. At present such people are covered by the saving to Section 4 of the British Nationality Act if they enjoy an envoy's immunity. Under the Bill an envoy's immunity is that enjoyed by a diplomatic agent, so that is why we refer tosuch immunity as is conferred by the Act on a diplomatic agent".1127 The reason why it looks more complicated than the existing saving to Section 4 of the British Nationality Act is that there will be various levels of immunity under the Bill, whereas at present diplomats all enjoy the same immunity—namely, such as is accorded to an envoy. As I have already said, the net effect of it all is that the same people will benefit, the same children will avoid being made into United Kingdom citizens against their parents' wishes.
My Lords, having looked at it again and looked at it rather carefully, I am quite sure that, provided you read this carefully, this is a comprehensible way of achieving this purpose. I agree you have to stop and think about it, but I do not think that is objectionable. I am no lawyer, but if I can understand it, I am perfectly certain the noble Lord, Lord Silkin, can understand it. I hope, therefore, that in the light of the explanation I have given and in the knowledge that I have done my best —and I really have tried—to find alternative words and failed, your Lordships will allow the Bill to remain as it is and the noble Lord opposite will withdraw his Amendment.
§ LORD SILKIN
My Lords, it is quite true that the noble Lord now understands this clause. He was not quite so sure when he first presented it to the House. Since then he has had the opportunity of a number of conversations with the Foreign Office and with Parliamentary draftsmen. He has had ten days in which to think about it, and now at last he comes back to the House and says, "I understand it". Well, no doubt he does, but other people might do so as well if they had all the advantages that the noble Lord has.
§ LORD SILKIN
Is it not possible to reproduce the new position in the Bill? The noble Lord read out what the words would be if paragraph (a) of the proviso to Section 4 of the British Nationality Act, 1948, were amended in the form he wants. Why cannot that be inserted in the Bill?
§ LORD SILKIN
I doubt whether it would be any longer at all, and it would at least be explicable. I would ask the noble Lord just to think about that. We have recently had a debate on reform of the law. One thing we talked about on Thursday was simplification. This is one way of simplifying it. Why not put what you really want into the Bill, instead of simply saying "instead of the proviso to the 1948 Act, read so-and-so"? It is then all there and anyone can understand it. If the noble Lord will give an assurance that he will think about this suggestion, I will gladly withdraw the Amendment. I hope he will be able to give that some consideration.
§ LORD CARRINGTON
As I think your Lordships know, I always try to help the House in these matters. I tried to explain why it would be most difficult to do what the noble Lord suggests. In Bills of this kind—and this is not by any means the worst example; it has happened in many Bills which have been passing through your Lordships' House in the last year or so—there have been consequential Amendments of this kind in large number; and if we did what the noble Lord suggests, the Statutes which we are passing would really be enormous. It would be creating a precedent which I am advised would be a dangerous one, and I am afraid that I cannot accept the suggestion made by the noble Lord.
§ LORD CONESFORD
My Lords, may I, in support of my noble friend, say that I do not think it is quite as simple as the noble Lord, Lord Silkin, suggests. I agree with him that it would, of course, he rather simpler if, on looking, at this Bill, you could see what the proviso to Section 4 of the 1948 Act would be hereafter. But if the Amendment were simply to do away with that proviso as it exists in the 1948 Act and substitute a new one, it would be difficult for the lawyer who had occasion to refer to the 1948 Statute to see precisely what was the Amendment that had been subsequently made. Lawyers hereafter may find it necessary not merely to look at this Act to see what it says, but to see precisely what was the Amendment made in the former Act. The view I formed on reading this subsection was that, difficult as it is, it does state in the 1129 minimum amount of words what it sets out to achieve; and the opportunity to bring about the result desired by the noble Lord, Lord Silkin, will come when there is some consolidation.
§ On Question, Amendment negatived.
§ 3.33 p.m.
§ LORD CARRINGTONrose to move. after Clause 6, to insert the following new clause:
§ Saving for certain bilateral arrangements
§ ".—(1) Where any special agreement or arrangement between the Government of any State and the Government of the United Kingdom in force at the commencement of this Act provides for extending—
- (a) such immunity from jurisdiction and from arrest or detention, and such inviolability of residence, as are conferred by this Act on a diplomatic agent; or
- (b) such exemption from customs duties, taxes and related charges as is conferred by this Act in respect of articles for the personal use of a diplomatic agent;
§ (2) The Secretary of State shall publish in the London, Edinburgh and Belfast Gazettes a notice specifying the States with which and the classes of person with respect to which such an agreement or arrangement as is mentioned in subsection (1) of this section is in force and whether its effect is as mentioned in paragraph (a) or paragraph (b) of that subsection, and shall whenever necessary amend the notice by a further such notice; and the notice shall be conclusive evidence of the agreement or arrangement and the classes of person with respect to which it is in force."
§ The noble Lord said: My Lords, during the debate in Committee, I said that we should be putting down a Government Amendment which would have the effect of preserving certain agreements and arrangements relating to immunity from jurisdiction and customs exemption. Before moving the Amendment, I should like to say something in explanation of it. Although the purpose of the Vienna Convention is to codify International Law on diplomatic privileges and immunities, it includes provision in Article 47(2)(b) by which it is open to the parties, by custom or agreement, to confer privileges and immunities beyond those laid down in the Convention. It would have been in accordance with this provision not 1130 only to preserve the present special arrangements for some States, but also to grant special treatment by agreement in the future. In theory, on this basis, we might give complete immunity to all members of the staff of a mission, and continue customs exemption to all; we might remove the exceptions to the immunity from jurisdiction under Article 31 and so on. But in the Bill there is no power to give effect to Article 47(2)(b). In other words, the Bill applies the Convention as it stands, and accepts it as containing all that is needed in the way of privileges and immunities.
§ This has been a difficult decision to take. Originally, we had intended to include a general power to make agreements going beyond the Convention. After careful consideration, we have concluded that the Convention should in principle be taken as being the last word on the matters with which it deals, and that such reductions in privileges and immunities as it entails should be accepted. But, as I said on the previous stage, in two respects, we cannot accept the Convention as it stands; and these are dealt with in the new clause. The effect of the clause is extremely limited. It relates only to existing agreements and arrangements. There is no question of our setting out to conclude any further arrangements.
§ The clause relates to two matters. The first is the immunity from jurisdiction and from arrest or detention and the inviolability of residence of persons connected with a mission other than members of the diplomatic staff. At present, all members of a mission, their families and certain private servants enjoy complete immunity from civil and criminal jurisdiction under United Kingdom law. However, under the Diplomatic Immunities (Restriction) Act, 1955, provision was made for withdrawing certain immunities from persons connected with a mission of a country which was not according the same immunities to our representatives to it. As a consequence of the 1955 Act, Her Majesty's Government took steps to discover the immunity position in foreign countries, and in 1956 an Order in Council was made under the 1955 Act withdrawing immunities to a greater or lesser degree from persons connected with certain missions in London. A few foreign countries themselves had a rule of reciprocity in the 1131 matter of diplomatic privileges and immunities, and it was possible to come to an understanding with those countries that the complete immunity should be recognised on a reciprocal basis. On this basis, certain countries either were not included in, or were deleted from, the 1956 Restriction Order.
§ I have already dealt more than once during the passage of the Bill with the security aspect of the immunity from jurisdiction or persons connected with our missions abroad. I am sure that I need not labour the point to your Lordships. I will merely say that, from this point of view, the vital thing is to be able to assure the persons concerned, in particular sensitive countries, that in no circumstances whatsoever can they be made subject to legal process or proceedings against the wish of the head of mission. What we are proposing in the Amendment is to maintain the complete immunity from jurisdiction of persons connected with a mission in those cases where we already have an arrangement to that effect with a foreign country. On the face of it, this may seem to be a major exception to the policy which I have described of accepting the Convention as it stands. In fact, however, so far as we can tell at present, the provision will probably not apply to more than four States. Understandably, it so happens that these are States where the immunity is needed.
§ The new clause also deals with the customs exemptions of non-diplomatic staff. Under the Convention and the Bill, diplomatic staff enjoy customs exemption throughout their tour of duty. Administrative and technical staff enjoy exemption only in respect of articles which they import at the time when they first take up their post. At present, customs exemptions arc based on reciprocity, and in the case of non-diplomatic staff do not continue throughout their tour of duty unless there is a specific arrangement with the foreign country concerned to that effect. We have such arrangements with a number of countries. These arrangements cannot simply be terminated by us at will. As and when the States concerned become parties to the Vienna Convention, we may well be able to negotiate their termination.
§ It may perhaps help your Lordships 1132 if I add a few words of explanation about subsection (2) of the new clause. The purpose of this subsection is to enable public identification of the States to which the provisions of subsection (1) will apply. The States will, of course, be only those with which we already have special agreements or arrangements. The subsection will also enable States to be removed from the list when particular agreements or arrangements come to an end. As I have said, no new agreements will be possible, and we hope that circumstances may allow at least some of them to disappear in course of time. I beg to move.
After Clause 6 insert the said new clause. —(Lord Carrington.)
§ LORD SILKIN
My Lords, I would say to the noble Lord that at least this Amendment is intelligible and he has explained it fully. As I understand him, this applies to four States with whom we have existing agreements, and the purpose of this Amendment is to give wider immunity to diplomatic agents and their staff than would be available under the Vienna Convention.
§ LORD CARRINGTON
My Lords, if I may interrupt the noble Lord, it applies to four States with regard to subsection (a), and nine States with regard to subsection (b).
§ LORD SILKIN
I will not ask the noble Lord for the names of the States, but I understand that they are going to be published.
§ LORD SILKIN
I was puzzled about how much wider the exemption could be. I thought that the Vienna Convention gave pretty wide exemptions from arrest, from detention, inviolability of residence, and all the rest, which it was possible to give both to diplomatic agents and, to a lesser degree, to their staff. It would be helpful if the noble Lord could explain what further diplomatic immunity there is. It may not be the same kind of immunity in all cases. I found it quite difficult from reading this to see how much further it was possible to go, for I thought that the Vienna Convention went almost all the way. That is on subsection (a).
In regard to subsection (b) and the exemption from Customs duties, is it 1133 really the intention to grant not only to diplomatic agents but to members of their staff—even the proverbial chauffeur —the right to import goods at will without any restriction at all, so long as they are for personal use? I should be grateful if the noble Lord could tell us what we are letting ourselves in for. I quite understand the reason behind it—that these are reciprocal arrangements which we have to honour because our people overseas are getting similar privileges.
§ LORD CARRINGTON
My Lords, if I may answer the two points made by the noble Lord, Lord Silkin, I would emphasise that this is not giving anything new to anybody. It is merely a continuation of something which is in force at the moment. With regard to subsection (a) in relation to the fair countries, what we are doing by this is only restoring to those people immunities which they had before the Convention. Under the Convention certain people lose some of their personal immunity. All we are doing is restoring to them file personal immunity as it was before the Convention is ratified by the passing of this Bill. It is not anything over and above the full immunities of the diplomatic agent. With regard to the noble Lord's second question, this immunity does not apply to chauffeurs. It is diplomatic privilege to such people as consuls who normally enjoy it only on first installation in their office. It is a reciprocal arrangement with other countries which we can not abrogate unilaterally.
§ On Question, Amendment agreed to.