§ 4.4 p.m.
§ Order of the Day for the Second Reading read.
§ LORD CARRINGTON
My Lords, the purpose of this Bill, which I beg to move be read a second time, is to enable the United Kingdom to give full effect to the Vienna Convention on Diplomatic Relations. This Convention, drafted at Vienna in 1961, is of great 37 importance. It deals with one of the oldest subjects in the field of International Law and provides in a single document a modern code based upon traditional law and practice, but adapted to modern needs. For the greater part, the Convention re-states in concise form well recognised rules of International Law and practice, but it also removes some doubts and makes one or two innovations. It now provides a uniform standard for the whole world and is likely to govern diplomatic relations for many years to come.
The Convention is also important because it is a further step along the path of the codification of international law on which the United Nations embarked in 1947. In that year, the General Assembly established the International Law Commission for the "codification and progressive development" of international law. The Commission has had the full support and cooperation of the United Kingdom in this work. The Vienna Convention on Diplomatic Relations was based on Articles prepared by the International Law Commission. The Commission has in hand other important projects, such as the codification of the whole Law of Treaties. It is the policy of Her Majesty's Government to support and encourage this work. I feel confident that, bearing in mind these considerations, the principles of the present Bill will commend themselves to your Lordships. The Vienna Convention itself came into force on April 24 when twenty-two States had become parties to it. It is now desirable that the Bill should be passed with due speed so that the United Kingdom may ratify the Convention as soon as possible.
Since the Convention deals with the whole subject of diplomatic relations, most of its 53 Articles do not require legislation. They can be fulfilled by executive action. They deal with such matters as the functions and duties of diplomatic missions, their establishment and termination, and precedence among Heads of Missions. They do not affect the rights of individuals under our own domestic law. There are, however, eighteen Articles which do require to be given effect under our own law. It is, therefore, these Articles of the Convention for which the Bill provides.
38 My Lords, just as the Convention provides, as it were, a code in the international field, so does the Bill in effect provide a code in the field of domestic law. Our existing law on the subject is contained in a few Statutes, such as the famous Act of Anne—the Diplomatic Privileges Act, 1708—and in the Common Law. This Bill will provide a single statement of the relevant rules, and will do this on the basis of the Vienna Convention. Thus, the rules to be applied in the United Kingdom will be the rules of the Convention itself. For the greater part, these rules will be the same as those now applied in our law or in practice. But there will be some changes. The tendency of the Convention and of the Bill is to reduce the extent of immunities from our jurisdiction while making comparatively minor changes in privileges which in the sum add or subtract very little.
It may be helpful in this connection to make one or two general observations on the Vienna Convention. It was based upon Articles drafted by the International Law Commission, a group of experts in International Law elected by the General Assembly of the United Nations. These Articles were the product of their joint wisdom and knowledge. They were designed to state the well-established rules of International Law and to clarify those about which there were some doubts. The Articles drafted by the Commission thus represent the results not only of the expert skill of its members, but also of the accumulation of experience from State practice for more than a century and a half.
The Convention, drafted at a conference of some 81 States, was based squarely on the Commission's Articles. The final text was approved by a vote of 72 in favour, none against and one abstention. It is not surprising, therefore, that the Convention reflects not only existing International Law, but also the interests of countries both as receiving and as sending States. When considering these questions of diplomatic privilege, we should always remember not only the desire to limit the privileges of the representatives of other States in the United Kingdom, but also the need to ensure the free and proper representation of the interests of the United Kingdom 39 by our diplomatic missions in other countries. We believe that the Convention taken as a whole achieves this end. Therefore, my Lords, while calling attention to some of the changes in our law which will result from giving effect to the Vienna Convention, I do not wish to lay too much emphasis on the reduction in immunities which will in fact result. But I should like to explain one or two points in this connection.
Under our present law, no distinction is drawn between various categories of members of the staff of a diplomatic mission. The head of the mission and all members of the staff of whatever rank or functions enjoy full personal immunity from the jurisdiction, unless it has been withdrawn under the Diplomatic Immunities Restriction Act, 1955. Such immunity is also enjoyed by the private servants of the head of the mission, but not by the private servants of other members. In fact, with the exception of the servants of the head of the mission, private servants are entitled to no privileges or immunities.
The Convention, which in this respect adopted the practice followed by many States other than the United Kingdom, divides the members of the mission into three categories. These are: the head of the mission and the diplomatic staff, who are called diplomatic agents; the administrative and technical staff, and the service staff. Broadly speaking, the diplomatic staff includes all those who hold diplomatic rank. The administrative and technical staff are those who perform clerical, secretarial, communications and like duties. The service staff are those who are described as performing domestic services.
Under the Bill, only diplomatic agents will in the future be entitled to full personal immunity from the jurisdiction of our courts. The members of the administrative and technical staff will have a large measure of immunity, as indeed is necessary having regard to the character of their duties, but henceforth it will be possible to sue them in our courts for their private acts; that is to say, for loss or damage resulting from acts performed outside the course of their duties. It is estimated that there are over 3,000 people in this category in the United Kingdom. When this Bill 40 becomes law, they will be unable, without liability to suit, to break contracts or to cause damage by the negligent driving of their private motor-cars and so on. Under the Bill, the service staff will enjoy immunity from the jurisdiction only with respect to acts done in the course of their official duties. They will be subject to both criminal prosecution and civil suit for their private acts. These changes may not go as far as some people would like, as far as the missions of other countries in the United Kingdom are concerned, but they go a long way, and some people may think that they go further than we can afford in withdrawing protection from the members of our missions in foreign countries. This is a point on which we may have to reflect further during the passage of the Bill.
I will not worry your Lordships with a complete catalogue of the detailed points on which the law of the United Kingdom will be changed by the present Bill, but I should add a word about the exemption from income tax on their emoluments, which will be extended from the private servants of the Ambassador to the private servants of all members of the mission who are not nationals of or permanently resident in the United Kingdom. This is an extension of privilege, but it is one that should be accepted in the interests of upholding this measure of codification as a whole. Besides, this type of privilege does not operate so unfairly as might be imagined at first sight. After all, the members of the mission who take private servants to their posts abroad normally do so to enable them to carry out their social duties, and they have to be paid sufficient to enable them to pay their servants: so that, on balance, what a State loses by not collecting income tax from servants employed by members of missions in its own territory, it may indirectly save in the amount it is bound to pay for the maintenance of servants at its missions abroad. In other words, what we lose on the swings, we gain on the roundabouts. But I ask your Lordships to accept this provision as forming part of the Convention as a whole, and not because it is a measure which on its own we would necessarily wish to endorse.
I do not think I need detain your Lordships by saying more about the exemption from estate duty than is said in the 41 Explanatory Memorandum on the face of the Bill, and in the relevant Articles in Schedule 1. But lest it be said that I am trying to draw a cloak over certain other changes in the law, I think I should mention that there are several respects in which what is at present done administratively will be put on a statutory basis. This is so, for example, as regards the exemption from customs duty, the provisions as to rates, and social security.
It may be convenient here to say a word of explanation on the question of rates. One of the consequential effects of the Bill will be to give statutory authority to the partial relief from local rates which Embassies and certain members of their staffs have in practice enjoyed for over seventy years by virtue of payments made by the Treasury. Articles 23(1), 34(b) and (e) and 37(2) of the Convention exempt Embassies and diplomatic agents and members of the administrative and technical staff from "municipal dues" on their premises and official residences, except for such dues as represent payment for specific services rendered. These words must be interpreted to include the portion of local rates which does not represent payment for specific services rendered. The Bill will therefore give this exemption the force of law in this country.
The Treasury have for many years accepted liability for the general rates on Embassies and diplomats' official residences other than what has been known as the "beneficial" portion of the rates; this is the element in the rates which relates to the local services which are of direct benefit to the Embassy or the diplomat concerned. The intention is that the Treasury should, after the Bill becomes law, continue to bear the same part of the rates on premises occupied by privileged persons as before; but it is proposed to simplify the procedure so that in future the Treasury will pay the rating authorities the full general rate on premises occupied by Embassies and privileged persons and will recover the "beneficial" portion of the rates from the occupier. This arrangement has in fact been used for some years in respect of certain Embassy premises, but in other cases the rating authority has levied the full rate on the Embassy or the diplomat and the Treasury has subsequently reimbursed the Embassy or the diplomat for the 42 non-beneficial portion. The change in procedure proposed will therefore fully protect the position of local authorities and will, indeed, strengthen it. The Ministry of Housing and Local Government have already been in touch with the representatives of the local authorities on this question and the Government hope that the simplification in procedure proposed will be welcomed by the local authorities affected.
My Lords, may I now for a very few moments offer a few words of explanation on the Bill itself? The main provisions are made by Clauses 1, 2 and 3. The provisions of the other clauses are of a more or less technical or consequential nature. The heart of the Bill is in Clause 1, read with subsection (1) of Clause 2 and Schedule 1. The purpose and effect of these provisions is to substitute for the existing law the relevant parts of the Vienna Convention which are contained in the Articles set out in Schedule 1.
The Articles selected are those any part of which is required to have the force of law in the United Kingdom. There have been omitted those Articles no part of which requires to be given the force of law. It is believed that in the circumstances this is the best way of giving effect to the Vienna Convention. The interpretation of the Articles which are scheduled will be left to our courts. Subject to minor exceptions, no attempt is made to lay down in advance what may or may not be the right interpretation. It is anticipated that our courts will not have undue difficulty in this task and that they will interpret the Articles in the light of international law, so as to give effect to the true intent of the Convention construed as an international agreement.
If we were to attempt now to rewrite the provisions of the Convention in terms of our own law, there would be a serious risk of departure from the uniform standards which the Convention is intended to provide. Accordingly, what may be called the adaptations which are set out in subsections (2) to (5) of Clause 2 have been kept to a minimum. At this stage I do not think I need take up your Lordships' time by explaining those subsections, the effect of which, I think, is clear on a careful reading of them. 43 Subsection (6) of Clause 2 enables the immunities and privileges, first of members of the staff of a mission who are citizens of the United Kingdom and Colonies, or are permanently resident in the United Kingdom, and secondly, of private servants of members of a mission, to be specified by Order in Council. This subsection enables effect to be given to Articles 37(4) and 38 of the Convention. It will be of most value with respect to the Commonwealth because of the comparatively large number of dual citizens involved. It is therefore proposed in due course to lay before Parliament the draft of an Order by which members of the mission of a Commonwealth country in London who are citizens of that country and of the United Kingdom and Colonies will be entitled to the same immunities and privileges under this Bill as they would if they had had citizenship of that Commonwealth country only.
Clause 3 gives power by Order in Council to withdraw privileges and immunities from a mission when the sending State is failing to accord to our mission in its territory the privileges and immunities conferred by the Act. This power replaces the similar powers which exists at present under the Diplomatic Immunities Restriction Act, 1955. It goes further than that Act, which provides only for the withdrawal of the personal immunity and inviolability of residents to which I have referred. It underlines the reciprocity which has always been at the root of diplomatic privileges and immunities, and the power will be exercised in accordance with Article 47(2)(a) of the Convention, which allows restrictive and discriminatory application of the Convention against a State which is applying the Convention restrictively.
I shall be glad to try to provide any further explanations on these or any other clauses of the Bill in reply to any questions which may be raised during the debate, but perhaps I ought to add one comment on Clause 7(2). At present, the representatives of Southern Rhodesia enjoy privileges and immunities by virtue of Section 1(1) of the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act, 1952, and the effect of the 44 repeal in the Second Schedule would be to take away those privileges and immunities. Clause 7(2) will continue them on the scale allowed under the present Bill.
My Lords, I have already indicated the main respects in which the Articles of the Convention set out in Schedule 1, which are to have the force of law, will alter the position under our existing laws. On the whole, I believe that these Articles are clear and self-explanatory, and that we are fortunate in having such a valuable code on a subject of International Law. Britain has by tradition been in the forefront of States which uphold the rule of law and foster and support International Law. Her Majesty's Government regard the Vienna Convention as an important measure in the codification of International Law. Accordingly, I commend to your Lordships the present Bill which will enable the United Kingdom to manifest its sup-port for this valuable work of the United Nations by ratifying the Convention. I beg to move that the Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Carrington.)
§ 4.25 p.m.
§ LORD SILKIN
My Lords, this is a subject in which noble Lords have for a long time taken a very great interest. Whenever there was a question—and there have been many in recent years-of extending diplomatic privileges, or of giving them to a bigger section of people coming into this country, this House has generally been critical. I welcome, therefore, the opportunity of being able to discuss this matter in the form of a Bill which incorporates a Convention that has been agreed to. I hope that we may have a full discussion about this matter and clear our minds of any doubts that may arise on some of the provisions of the Bill.
I would, therefore, accept the noble Lord's invitation to ask him questions as to the meaning of certain parts of the Bill, before I come to its substance. First, under Clause 3(1) I would ask him whether there are at the moment any States in which the privileges and immunities that are accorded to a mission from this country are less than those contained in this Bill; in other words, 45 will the question arise almost immediately of having to curtail some of the privileges and immunities so far as some countries are concerned?
Then I would ask the noble Lord to explain the meaning of subsection (2) of Clause 3. I do not want to be legalistic about it, but I have tried very hard to understand what is meant by it.
The subsection states:An Order in Council under this section shall be disregarded for the purposes of paragraph (a) of the proviso to section 4 of the British Nationality Act 1948 (citizenship of children of certain persons possessing diplomatic immunity).I have looked at the British Nationality Act, 1948, and the proviso to Section 4, and I have failed—perhaps I read it at too late an hour of the night—to understand the relevance of this to Clause 3. Perhaps the noble Lord will explain.
Clause 5 changes the definitionhead of a foreign diplomatic mission or any member of his official staff or householdto other words which seem to me to mean the same thing. But I cannot imagine that this clause of the Bill was introduced merely to put the same thing in other words. I have failed to understand what is the significance behind the change of words, and I should be glad if the noble Lord could explain that when he comes to reply. I am sure there must be some significance in it, but anyone reading the original language and the words which are intended to replace it must find it difficult to understand the difference between the two.
Finally, on the Bill itself I would ask why the Bill does not come into operation on the passing of the Bill, as is the normal case. Clause 7(3) states that it will come into forceon such day as Her Majesty may by Order in Council appoint.Is there any reason why it should not come into operation on the passage of the Bill? There may be some good reason; I do not know. Those are the points that I should like the noble Lord to explain.
This Bill, as the noble Lord said, is based on the Vienna Convention, and the Convention itself was produced as a White Paper to this House in May, 1961. I would ask: what is the reason for the delay in introducing this Bill? Have 46 we been waiting for anything? I see that a number of States have already introduced legislation, or done what is necessary to accept this Convention. What have we been waiting for? Has it been the heavy legislative programme that we have had which has prevented us from passing the legislation? It cannot have been the complexity of the matter, because, as the noble Lord himself said and indicated from his speech, it is not a difficult Bill to prepare. I should be grateful if he could give us the answer to this question. And how many other countries have up to now passed similar legislation? I should be glad if he could tell us that.
There is one more point of explanation which I should like. In the Schedule—I think it is in Article l—a diplomatic agent is defined as,the head of a mission or a member of the diplomatic staff at the mission.That would seem to mean that it is either one or the other: that it is the head of the Mission or the member of the diplomatic staff who takes his place in his absence. I take it that it does not mean that. Why is not the word "and" used so as to remove any ambiguity? I was rather puzzled about it on reading this Bill, because it seems to me to mean all the members of the diplomatic staff.
All these diplomatic agents get immunity both from our criminal jurisdiction and, generally, from our civil and administrative jurisdiction, even if it happens to be outside the scope of their duties. That is possibly a matter which is reciprocal and was agreed to by the Vienna Convention. But there are certain exceptions in Article 31(a), (b), (c). They relate to civil interests which the member of the diplomatic agency may have; and there, for instance, if he is dealing with matters in a purely private capacity, he is not protected. He can be sued, and damages may be recovered from him, or judgment may be awarded against him and execution may ensue.
Generally speaking, the only asset which members of a diplomatic agency may have is their house—the only tangible asset on which execution can be issued; and their private residence is excluded from the possibility of execution. Therefore it would appear that 47 any judgment against such a person in respect of his private actions would be largely ineffective. In fact, it would be ineffective unless he can be shown to have other assets in this country. I should be glad to know whether that is the intention.
Article 37 provides that this immunity applies also to members of the family forming part of his household. They also enjoy all the privileges and immunities which he has. I should like to point out what they are. Perhaps I am wrong in saying "all" he has, but the actual immunities and privileges are set out, I think, in Articles 29 to 36. They are most important, and I ask the House to remember that we are talking not of the actual diplomatic agent, but of members of his family, not defined, who form part of his household. Their person is inviolable. They are not liable to any form of arrest or detention. They have to be treated with due respect—whatever that may mean. Their private residence is inviolable, and so are their papers and correspondence. They are immune from criminal jurisdiction. They are also immune from civil and administrative jurisdiction, with the exceptions that I have already referred to. They will be exempt from the social security provisions. Incidentally, this also applies to servants of diplomatic agents in full-time employment.
Then the family is also exempt fromall dues and taxes, personal or real, national regional or municipal,with certain exceptions. They are permitted to bring to this country, free from all customs duties, articles for personal use—and they, as we know, can form a large category of articles. Incidentally, members of the administrative and technical staff, together with members of their family—and I want to stress "of their family"—forming part of their household, receive the same privileges and immunities, except for general exemption from customs. But they may still import goods without duty at the time of first installation—that is to say, where members of the family of diplomatic agents may bring in property free of customs at all times, those who are members of the family of administrative and technical staff can do so only once, at the time of their entry into this country.
48 If we were starting ab initio, I think most of us would regard it as monstrous that all these privileges should extend to members of the family who comprise the household of the diplomatic agency or of the administrative and technical staff. I find myself in some difficulty because there is this Vienna Convention. I am not surprised that the noble Lord, Lord Molson is inviting us to look at this matter in six months' time. Six months' time would bring us to the fatal months of October and November; and it would appear that this Government may have the opportunity of washing their hands of the whole subject.
§ LORD SILKIN
Well, it may even be fatal. I used the word "fatal" deliberately, but I accept "fateful" as well. However, we have the Vienna Convention, we have signed it, and, having accepted the Convention—and, as the noble Earl said, most of its provisions have been in existence for 70 years, and I am very anxious that we should enact them and put them in statutory form—I find it difficult to say that we should not pass this Bill. But there is a Committee stage, and if it is open to us to discuss all these exemptions and privileges at that stage I should like to examine more closely whether it is inevitable that these privileges should be granted to members of the family.
I would invite the House to consider for a moment what this means. I can understand the position of the diplomat: that if he commits an offence, even a criminal offence, he should be immune from prosecution. I imagine that in such a case representations would be made to his own country and, if it were a serious offence, he would be recalled and no doubt dealt with in his own country. But does that necessarily apply to members of the family? Let us take the extreme case where a member of the diplomatic agent's family commits murder—I will not deal with shoplifting, but such cases have been known. In the case of murder it is monstrous that we ourselves should not be in a position to deal with such a case when the murder has been committed against a British subject. But such a person could claim diplomatic immunity and get 49 away with it. I feel that this is a matter which we ought to examine more closely on Committee stage.
I suppose the most likely offence to-day is the motoring offence. I understand from The Times of last Saturday week that there were something like 2,000 parking offences committed by persons who claimed diplomatic immunity. In some cases these were offences committed in the course of their duty, but as regards diplomatic agents they are, of course, exempt even when these offences are committed outside their duties. Some of these diplomatic agents or members of their family may have gone to Brighton over the week-end and committed motoring offences which have caused great disturbance and obstruction on the road; but they are completely immune, even though the offence was committed not in the course of duty but in the course of pleasure, and committed not necessarily by the diplomatic agent but by a member of his family. It may have been committed by his daughter-in-law or by his son-in-law who happened to be living with him as a member of his household. I suggest it needs a lot of looking at, and I hope that when the time comes we may have a number of Amendments dealing with this matter.
To the noble Lord, Lord Molson, I would say that while I have considerable sympathy with his Motion, which I imagine he is not going to press, I should find myself in some difficulty in supporting it if it came to a vote, simply because I feel that we ought to ratify the Convention, with such modifications as may be necessary, and that the best way of dealing with it is not by moving that the Bill be read in six months' time. This is a measure which one would like eventually to pass by agreement, and I hope we shall get a sympathetic hearing for any Amendments which we may put forward in due course.
§ 4.46 p.m.
§ LORD MOLSON
rose to move as an Amendment to the Motion, to leave out "now" and insert "this day six months". The noble Lord said: My Lords, in putting down my Amendment to the Motion, I was responding to an invitation from my noble friend the Leader of the House on March 5. It 50 may be within your Lordships' recollection that I elicited a certain number of interesting and rather startling figures about traffic and parking offences and, after the matter had been followed up for some time, my noble friend said [OFFICIAL REPORT, Vol. 256 (No. 46), cols. 219-20]:If noble Lords want to debate this question, I suggest we ought to do it properly and in order, and not allow Question Time to become a small debate.I shall be reverting again to, and asking for an explanation from my noble friend about, the administration of the motoring laws.
Before I do so, however, I should like to support what has been said by the noble Lord, Lord Silkin, about the objections in principle to these diplomatic immunities. I fully recognise that, after their having been in existence for something like 200 years, it is going to be extremely difficult to alter them; but an occasion like this, when Parliament is being asked to codify in the law of England the immunities of diplomats and the whole diplomatic entourage, is surely an occasion when one is entitled to consider what is the general principle. The main purpose of these immunities has been stated by Oppenheim as being basedon the necessity that envoys must for the purposes of fulfilling their duties be independent of the jurisdiction, control and the like of the receiving States.I do not suppose there is a single noble Lord who would disagree with that; in other words, the immunity should be such as to enable a diplomat to discharge his proper functions. But in that case the immunity should be confined to his official functions and should not attach to the person in his unofficial capacity. I feel that, in the first place, these immunities are too wide; secondly, that they apply to far too many officials; and, thirdly, I see no reason why they should apply to private servants.
In considering what diplomatic immunity is needed, I think we might consider the history of Parliamentary privilege. There was a time when your Lordships and another place cast their net extremely widely and demanded that everybody who had anything to do with them should enjoy Parliamentary 51 privilege. On page 83 of the first edition of Erskine May it is said thatnot only are persons of both Houses of Parliament free from arrest on mesne process or in execution; but that formerly the same immunity was enjoyed in regard to their servants and their property. The privilege was strained still further, and even claimed to protect members and their servants from all civil actions or suits…although many cases that will he given apply equally to members and to their servants according to the privilege in those times, the latter have, at present, no privilege whatever.This was done in a series of some six Acts of Parliament, and the preamble to the fourth one says this:the previous laws were insufficient to obviate the inconvenience arising from the delay of suits by reason of privilege of Parliamentand it proceeds in a wide category of cases to provide thatno such action … shall at any time be … delayed by or under any colour or pretence of any privilege of Parliament.Parliament, therefore, came to draw a clear distinction between privileges which are necessary in order to enable Parliament and its Members to discharge their proper functions, and the very much wider rights which it was found were really intolerable to other subjects of the Sovereign. Whatever may have been the justification and the lack of inconvenience in the case of these diplomatic immunities at an earlier time, they are becoming steadily more and more burdensome. In the first place, there are a great many more missions; secondly, the members of the missions are perpetually increasing in numbers: and, thirdly, there are a large number of international organisations, some of them almost of a trading nature, to whom these same immunities have been extended.
I find from my researches that there are 83 foreign missions in this country, and the number of persons enjoying diplomatic immunity is now 3,439. In the case of representatives of the Commonwealth who also enjoy the same, there is a further 2,581, making a total of 6,020. In addition to that, there are 464 persons who enjoy immunity as regards their official acts. The fact that there are those 464 persons who are protected as regards their official acts shows that it is quite a workable proposition to confine privileges and immunities to official acts. Then there 52 are various other immunities which are granted to another 306 persons. I should like to ask my noble friend whether he can explain a little who are the people referred to in these different categories. Who are technical and administrative officers? Is a Press attaché, for example, or a cultural attaché a diplomat within the meaning of this Bill?
As regards private servants, I had been intending to say, and to argue, that there could be no possible justification for extending exemption from British income tax from the private servants of the head of the mission to all the private servants of all the members of the mission. But my noble friend disarmed me by making it quite plain that he did not really intend to defend that, except on the ground that it was a sort of quid which we have had to give for the quos which he thought we had gained in other clauses. But it really is a very extraordinary state of affairs, and not one that is likely to commend itself to most of the people of this country.
My Lords, I should like to ask my noble friend what is meant by outside "the course of their duties"? Is this the same thing as "within the scope of their employment" in the Common Law case? If it is, of course, it means that, even though a person may have been expressly forbidden to do something by his employer, if he does it, it still may be within the scope of his employment, and he will enjoy complete exemption. My Lords, these matters are of very considerable importance.
I mentioned the large number of people who enjoy these complete immunities. I would also remind your Lordships of what my noble friend Lord Derwent told us on March 5. The London County Council in one year issued 1,975 Excise-exempt licences. There were 50 traffic accidents in which no proceedings could be taken because diplomatic immunity was pleaded. I should like to know what is the procedure in such cases. Nothing could be done in the courts. If somebody is injured by a diplomat or his chauffeur driving a car recklessly, do the Foreign Office make representations to the head of the mission and ask for compensation; and, if so, how is the compensation assessed? 53 There were 2,000 fixed-penalty notices in one year as regards parking offences. In some respects, these parking offences may be even more exasperating to the people of this country than the accidents; because one acquits diplomats of any intention deliberately to run down any of Her Majesty's subjects, but I think there are a great many cases where they deliberately park where they are not allowed to do so, knowing perfectly well that they are immune. Again, I should like to know what is being done about that. There is complete immunity in the case of diplomats, and here I repeat my question: to what extent do the chauffeurs of diplomats enjoy immunity? I take it that if a chauffeur drove his employer's car on a Sunday and went away with a friend, that would not be in the course of his duties—or would it be? One does not know. But if he were driving the car home—and it is a well-known thing that some chauffeurs are allowed to drive their cars home—even though there was no diplomat in the car, and although he was not on any diplomatic mission, I take it that the chauffeur would enjoy immunity.
My Lords, I think that a number of your Lordships felt some disquiet at what my noble friend Lord Derwent said, about the instructions which had been given by the Commissioner of Police as to the different treatment that was to be accorded by the constables to persons enjoying diplomatic immunity, and other people, if, for example, they were thought to be either driving dangerously or causing an obstruction. I think that this is the opportunity promised by my noble friend, when we might have an explanation from the Government as to how in fact, in an administrative way, they get round the inconveniences which must be caused by these immunities which are extending to an ever-increasing number of people.
There is also the question of contracts—the taking of flats and houses. I believe that, because a landlord cannot sue for rent, it is an invariable practice to ensure that the rent is paid well in advance: but that, of course, does not apply to dilapidations, and I should like to know from my noble friend a little about how this works. It is extremely difficult for us to obtain any information on this matter. It is no doubt done quietly, and by official 54 approaches. When I was in an official position, I did come across one case, and through the courtesy of the present Minister of Works I have been able to check up exactly what happened. This is, I think, a striking example; and because it happened in another capital and concerned a foreign diplomat of yet another country, I feel that there is no harm in giving it as an example. A foreign diplomat inherited the lease of a Paris flat from his father. He pleaded diplomatic immunity, in order to prevent the French landlord from evicting him, and then sub-let the flat to the British Foreign Office. The rent, limited by French law, was 200,000 francs per quarter; he sub-let it for 530,000 francs per quarter. So he used his diplomatic immunity to obtain possession of a flat to which he was not entitled, and sub-let it in order to make two-and-a-half times the legal rent. That is a case which actually came to my knowledge. I have no doubt that there must be a great many others; and what has happened in Paris might well happen even in London.
My Lords, Oppenheim, in talking about this subject, says that these wide diplomatic immunities are difficult to justify. He says:While in some respects the principle of diplomatic immunity from suit is open to the same sort of objections as is the immunity of Governments,"—he had previously been dealing with the objections to that in these days, when Governments trade—and while arguments in its support often partake of a certain degree of artificiality, it does not in general give rise to serious difficulties or to abuses resulting in denial of legitimate legal remedies. This is so on account of the widely adopted practice of voluntary waiver of immunity".If my noble friend can say that in point of fact practically all the missions in London do waive immunity, and make certain that these immunities are not used in order either to defeat legitimate expectations in the matter of contract or to deny justice to injured persons, then I admit that a great deal of the apparent objection to this Bill will, at any rate for the time being, fall to the ground. Will he therefore tell us how this strange and unsatisfactory system of exempting such a large number of people from the law does, in fact, work, and assure us that it is not going to 55 result in any great hardship to our people? My Lords, I beg to move the Amendment standing in my name.
§ Moved, as an Amendment to the Motion "That the Bill be now read a second time", to leave out ("now") and insert ("this day six months").—(Lord Molson.)
§ 5.5 p.m.
§ LORD MCNAIR
My Lords, I am not quite clear whether I am speaking on the Bill or the Amendment, but in either case what I shall say will be very much the same, and therefore it does not greatly matter. I am strongly in support of the Bill and strongly against the Amendment that it be read six months hence, which is the conventional method of rejecting a Bill. I can quite understand that the noble and learned Lord, Lord Silkin, and the noble Lord, Lord Molson, should be reluctant to grant these extensive privileges and immunities to diplomatic persons within our midst. In this country we are all nurtured on the rule of law, and we do not like having in our midst a privileged class who are not subject to the same rule of law. Nevertheless, we have realised in the course of our history that, in the interests of good government, it is sometimes necessary to make exceptions to the rule of law.
One instance I shall mention is the one to which the noble Lord, Lord Molson, has already referred—Parliamentary privilege. Your Lordships and Members of another place enjoy that Parliamentary privilege which enables them to speak their minds freely and fearlessly upon a matter before them, without looking over their shoulders and wondering whether they are exposing themselves to legal proceedings. I doubt whether any of your Lordships would be willing to give up that Parliamentary privilege. The noble Lord, Lord Molson, referred to a certain Act of Parliament which diminished those privileges and thereby subjected the former holders of those privileges to the jurisdiction of our courts; but here we are faced with something quite different, because we are considering circumstances in which British diplomatic representatives abroad are going to be exposed or not exposed to the jurisdiction of foreign courts. We might be perfectly willing to diminish 56 the privileges and immunities of persons if, thereby, we were going to increase their subjection to British courts: it is quite another matter when we consider some of the countries in which members of our Diplomatic Corps must serve.
I could not attempt to answer the many questions that the noble Lord, Lord Molson, has put, but I do not doubt that the noble Lord who leads the House will, either in his reply or during the Committee stage, be able to deal with them. I will merely observe that when the noble Lord, Lord Molson, referred to the officials of International Organisations who have been somewhat in the public eye recently, I think I am right in saying that this Bill does not deal with them. The noble Lord the Leader of the House will correct me if I am wrong.
Now as the noble Lord, Lord Molson, indicated, diplomatic privileges have a long history. I could refer your Lordships to opinions given to Queen Elizabeth I by her legal advisers upon the privileges of diplomats accredited to the Court of St. James; and during the last 400 years there has been built up a mass of customary international law and also, of course, a mass of English Common Law to correspond with it, and what we are now being asked by the Government to do is, first of all, to convert that customary International Law into the much clearer and more solid form of a code, and to convert the English Common Law into statutory law, because the Statutes mentioned in the Schedule to this Bill touch only a very small part of the matter in hand.
That, in itself, is a worthwhile process, a process we ought to support—namely, the conversion of this mass of international customary law into a code, because in its form of custom it is obviously much more likely to give rise to controversy than it will be in the form of a code. I feel sure that a British diplomat serving in some country which has newly joined the family of nations and is not very familiar with the methods of dealing with diplomatic representatives would be in a much stronger position when he could point to a Convention and say: "There is a Convention; your country has ratified it, my country has ratified it and I claim the benefit of it". 57 The essence, as I understand it, of the matter in hand is reciprocity. A good deal of our discussion hitherto has been centred on what happens in the United Kingdom as a result of these immunities and privileges. What is much more important, from my point of view, is what is happening in the foreign countries to which we send our diplomatic representatives. Your Lordships must remember that some 60 or 70 new States have been added in the last few years. They are all making gallant attempts to learn the business of statehood, to learn how to govern their countries; but it is a very difficult task, and one does not require much imagination to realise that many of those countries have very little experience or tradition in matters of police and not much experience in the administration of justice and so forth, so that many foreign diplomats in those countries are placed in a very precarious position.
If we want them to be in a position to discharge their functions efficiently, freely and fearlessly, then we must try to give them all possible protection that is available, by extending to them, in particular, those practices and customs which have been elaborated by International Law and Governments during the past few centuries. So I suggest to your Lordships that you must not think too much about parking places in London and that sort of thing; you must consider what is happening and what is likely to happen in very remote parts of the world; and you must do your best to surround our diplomatic representatives, their families, their staff and their servants, with all that is reasonably required to enable them to fulfil their task.
My Lords, I have one final point and it is this. I have already stated that some 60 or 70 nevi States have been added to the family of nations in the past ten or twenty years. Now, the Governments of the old-established States and their international lawyers are doing all that is possible to try to integrate those new States into the old-established family of nations, to encourage them to study and adopt the existing rules of International Law. That is worth doing, not only in the interests of the smoothness of international relations, but also to avert the possibility of a division between the old States and 58 the new States—which would be a disaster. Therefore, I sincerely hope that your Lordships will give a Second Reading to this Bill and bear in mind our duty to secure all possible safeguards for our diplomatic representatives serving abroad.
§ 5.15 p.m.
§ LORD HOBSON
My Lords, I have listened to the whole of this debate, and I cannot yet make up my mind whether I shall vote for the Amendment or for the Second Reading of the Bill, despite the very clear and lucid explanation we have had from the noble Lord the Leader of the House. I agree with the main premise that no privileges should be given that are not reciprocal; in other words, not received from other nations abroad. But I feel constrained to make an immediate observation on that. With regard to motoring offences—which, from the figures quoted by the noble Lord, Lord Molson, have been considerable, and which have been the subject of Questions in your Lordships' House; the United States have been much quicker to act. I read in the Press some time ago that they have already taken action regarding motoring offences. The Americans are much quicker "on the draw" (to use one of their phrases), and if any action is taken against their diplomats they immediately retaliate. I believe that to be correct. Generally speaking, people have contempt for weakness; and if you show it, you usually get the worst of the bargain.
I should like an explanation about payments of rates. Reference was made to charges which would or would not be paid with regard to those servicing functions. What are they? Are rates to be paid for the fire brigade, for sewers, for road-cleaning or for what? We should all be happier if we knew precisely what part of the rates is to be paid by the various officials in the foreign Embassies. Then I come to Article 33 of the Convention, which, to a layman like myself is, I submit, somewhat nebulous. The explanation here. so far as I can see, is that if any British subject or non-foreign national is employed, he will receive the full social security benefits to which he is obviously entitled; and the Embassy will pay for his stamps. I take it that is what it means. But what is the position? We 59 have had many cases where foreign nationals have been employed by foreign Embassies, have paid no contributions to our social services, yet have drawn the benefits. I should like some clarification on that point.
Next, I come to a very important point with reference to the increasing number of delegations coming to this country which are being granted diplomatic immunity. We also have this situation with regard to international conferences. I know that there is a certain amount of reciprocity here, because I believe that one of the fascinations, or attractions, of going to Strasbourg, to the Council of Europe, is that the delegates get diplomatic immunity. But there are often international quasi-Government conferences taking place in London. There was the International Postal Convention which took place a few years back. The delegates were all granted diplomatic immunity. I should like to know what is the position—and if it has been clarified—with regard to future delegations. Because it is no good having a Convention like this agreed to, and subject to British legislation, if it is possible for other delegations that come here, and further classes of people, to be given diplomatic immunity.
I have had one or two unfortunate experiences with regard to diplomatic immunity, if I may be pardoned for mentioning them. Once I had a constituent of mine who had a brand new car destroyed because a piano was thrown out of a hotel room on top of it. It was nearly impossible for him to get compensation and this was finally achieved only by putting down a series of Questions to the then Mr. Anthony Nutting and suggesting that those at the Embassy concerned should be declared persona non grata. There was also the experience at the Yorkshire-Middlesex match last year, when a diplomatic car was parked right outside the Grace's Gates. A more heinous offence I cannot envisage, except doing the same at a Test Match.
These people have had a good, long run for their money. I am glad that the Convention, despite the high falutin' language used in the Preamble to the Vienna Convention, sees fit to agree to 60 a certain amount of limitation. But the fact remains that these people are a privileged class, the number of which tends to grow, and 1 think something should be done to limit this. We cannot help the number of new States having their Embassies here and bringing their staffs with them, but if there is going to be a plethora of international delegations and quasi-governmental bodies coming over here and automatically being granted diplomatic immunity, then I think that there is a prima facie case for supporting the Amendment of the noble Lord, Lord Molson, to reject the Bill and have it read in six months' time.
I feel that the Foreign Office are far too slow in copying other countries. One constantly reads in the Press, when there has been any abuse committed by a British diplomat abroad, that action is immediately taken by (to use the jargon) the sending State. I think that we have to get far tougher with these diplomats, because the position is becoming a constant source of annoyance, particularly, as the noble Lord, Lord Molson, pointed out, their absolute defiance of traffic regulations, especially in the Metropolitan Police Area.
§ 5.23 p.m.
§ LORD KILLEARN
My Lords, my voice is still a little hoarse, and I hope your Lordships will be patient with me. I intervene only because for many years I was in the Diplomatic Service, and therefore I know something of the question about which we are talking. It is my opinion, and it has long been, that for years past there has been a serious abuse of diplomatic immunity. I have said so in this House many times. We have had two full debates, initiated by the noble Earl, Lord Jowitt, and the noble Viscount, Lord Simon, and supported by the noble Lord, Lord Strang, himself. This abuse is common knowledge. One has only to read the newspapers to appreciate that. Not so long ago there was a case about a chauffeur. It is high time that something was done about it. I welcome this Bill. I am not going to go into the details of it—they have already been discussed by noble Lords, and there are all sorts of technical points which ought to be gone into—but I welcome the fact that the Foreign Office at long last has woken up and is going to do something about 61 this. It should have been done long, long ago. It has been nothing short of a scandal.
The giving of diplomatic immunity started as a perfectly legitimate measure for the protection of the diplomatic representatives of foreign Powers, so that they could act without duress from the country in which they were staying, so that they could say what they thought and not be afraid of the consequences. I believe that I am right in saying that it was started by the Venetian Republic. It was strictly limited to the Minister Ambassador and his personal staff. Even in my day, a few years ago, one read one's list, and decided who should and who should not be on the list for diplomatic immunity, with extreme care. Now there are all these telegraphic conventions, and heaven knows what. I really do not know how many bodies have been covered up to now by this immunity—but I have given my noble friend notice of this question. This is all wrong. It was never intended to be used in this way and it is being abused.
I am sorry to have to admit that it was a man in the Foreign Office who was partially responsible for this: the late Sir Cecil Hurst, a great and good man, who was our legal adviser when the League of Nations was being inaugurated. It was he who insisted at that time that all bodies that emanated from the League of Nations must enjoy diplomatic immunity. I think that he had very small idea of the way in which that immunity was to be abused. I will return to my original point, that I welcome this question's being overhauled properly, as I am sure it now will be. Finally, I would ask my noble friend whether he could tell me actually how many bodies have been covered in the past and how many will be covered in future, if this Bill becomes law.
§ 5.27 p.m.
§ LORD CARRINGTON
My Lords, I am fairly grateful to your Lordships for the reception you have given to this Bill. I am afraid that it rather reminds me of our British weather. Some days are very wet and cold and windy, as demonstrated by the speech of my noble friend Lord Molson; we also have some days of sunshine and showers—most of your Lordships' speeches seem to be like that; 62 but occasionally we get a lovely spring day, like the speech of my noble and learned friend Lord McNair, with which I agree in every aspect, and I am very grateful to him for having made it.
Before I come to what my noble friend Lord Molson has said and the Amendment which he has moved, I would, if I may, like to try to answer some of the many questions that have been put to me by those noble Lords who have spoken. The noble Lord, Lord Silkin, asked me a number of questions about the clauses of the Bill and what they meant. The first question he asked was whether or not there were countries who gave to our missions immunities which were less than those which would be obtainable under the provisions of this Bill. There are about a dozen of them, who, of course, already come under the Diplomatic Immunities Restriction Act, 1955, and it will be necessary to continue this restriction under the relevant subsection of the Bill.
§ LORD SILKIN
My Lords, does that mean that in due course the Government intend to restrict the provisions?
§ LORD CARRINGTON
Yes, my Lords, in exactly the same way as they are now under the other Act. The noble Lord asked me what subsection (2) of Clause 3 meant, as he had read it at length and did not quite understand it. I am not a lawyer hut, as I understand it, the purpose of this subsection is to ensure that children born in the United Kingdom to persons whose immunity is withdrawn by Order in Council under subsection (1) do not in fact become citizens of the United Kingdom and Colonies merely because of their birth in the United Kingdom.
The noble Lord also asked me about the change of words, which did not seem to have any change of meaning, in Clause 5. The purpose of the amendment to these words is to bring the terms of this subsection into line with the framework established by the Bill. I believe that at the moment it is not possible to say precisely what persons are within Section 14(1) of the 1919 Act. The position of a head of a foreign diplomatic mission is clear; the position of a member of his official staff is less clear. The only purpose of this is to make it entirely clear in the framework of the new Bill. 63 The noble Lord also asked about subsection (3) of the Article and why the Bill did not come into force immediately after it received the Royal Assent. I understand that the drafting of subsection (3) is standard form and is included in the present Bill to allow for it to be arranged that the coming into force of the Act coincides with the entry into force, in respect of the United Kingdom, of the Vienna Convention on Diplomatic Missions; and under Article 51(2) of the Convention it will enter into force for the United Kingdom on the 30th day after the deposit of the United Kingdom's instrument of ratification.
The noble Lord also made some play with the delay there has been in introducing this Bill, because he said, and quite properly, that the Convention had been published for three years. The reason for that is that naturally we needed to study the Convention very carefully, and there have been certain inter-departmental discussions which are necessary. But, more particularly, the reason is the one he gave—namely, that the Convention itself did not come into force until last month, and there was in the preceding Sessions a great deal of what we consider to be more important legislation which we thought should have priority over this. I think I told the noble Lord in my original speech that there are, so far, 22 countries which have ratified the Convention.
My noble friend Lord Killearn asked me about the numbers of those who have had complete immunity up to now and will have it after this Bill becomes law. The total staffs of missions in London is at the moment 5,039, and these, of course, under the present system, have complete immunity. When the Bill is passed, the diplomatic staff—that is, the diplomatic agents under the Bill—will total 1,439. These are very rough figures, because there are probably some grey areas in between which one cannot decide until one has tried to put the Bill into practice. The administration and technical staff will be 2,794, and the service staff 552. So your Lordships will see there is a considerable decrease in the number of those who are entitled to full immunity.
The noble Lord, Lord Hobson, asked me three questions. He asked, first of 64 all: what are the functions under the rates which are beneficial, and those which are not? I cannot go into the list of them now, but I think there are some obvious examples. For instance, any rate levy for the purpose of education, which would not be payable by the foreign mission, would be one, and there are other examples of that sort. If at a later stage the noble Lord would like me to go into detail I will certainly do so.
The noble Lord also spoke about International Organisations and the immunity which members of these International Organisations get. These are completely excluded from this Bill. We are dealing here only with the diplomatic representatives of foreign countries. The noble Lord also asked me about foreign nationals—that is what I have written down, but I am not sure now that I understand what the question was. Would the noble Lord be so kind as to repeat it?
§ LORD HOBSON
The question, quite briefly, is this. British nationals working for a foreign Embassy obviously get the social benefits and the payments are made. What is the position of the foreign national: does he get the benefit of British social services without payment?
§ LORD CARRINGTON
For the purposes of the Bill, he is exempt from paying a contribution towards the National Health Act. But he could be prevented from taking advantage of the National Health Act by a regulation under the National Health Act itself, which instituted the National Health Service. I think at the moment these people are entitled to get benefit from the National Health Service in the same way as any visitor to this country is entitled to do.
I come now to what my noble friend Lord Molson has said about this Bill. The difficulty is that he very much dislikes the whole thing and would be quite happy if there were no diplomatic immunity at all for foreign nationals in this country. Probably all of us can sympathise with the noble Lord in some of the things he said. For instance, it is most annoying when we see cars parked for hours at parking meters—
§ LORD MOLSON
My Lords, my noble friend is quite incorrect. I was at pains to say that it was essential that there should be immunity for them in so far as their official activities are concerned, but that it should not extend outside their official activities.
§ LORD CARRINGTON
I am sorry if I misinterpreted what my noble friend said. That is the last thing I wanted to do. However, I got the impression that he did not like this very much, and did not like things as they now stand. There are, it seems to me, really three legs to this matter. First of all, there is the advantage which, as the noble Lord, Lord McNair, has said, we get from the codification of the law, and the package deal which we also get from the Vienna Convention. I think there really is some advantage, as the noble Lord opposite said, in having down in black and white for the first time an international law which applies to everybody who has signed it and subscribed to it. This is the first time it has happened, and I think we gel advantage from it. While we may lose in some respects, I am sure that we gain in others, and I think we must, whether we like it or not, regard this, to some extent, as a package deal.
The second thing (I think I should say this in fairness to the members of diplomatic missions in this country) is that the abuses that we find under this Bill are very limited indeed. It is true that there are a large number of parking offences—some 2,000—but the other sort of offences which one can think of, like disputes between landlord and tenant and so on, are very few and far between; and, generally speaking, they are settled. It is difficult to settle these things when one has no sanction. There is, naturally enough, the sanction of declaring a diplomat persona non grata, but one wants to do that only in extreme cases. But we have found when there is a dispute between a landlord and a diplomat who. for example, has rented a house, the Foreign Office steps in. We talk to the head of mission. We try to get them to agree, but if we cannot, we suggest that there should be some private arbitration about the matter; and generally speaking we find these things are cleared up. I think it would be quite wrong if your Lordships 66 went away, as a result of this debate, thinking that members of diplomatic missions in London abuse privileges which they have as a result of their diplomatic immunity. It really is not so, and it is necessary to settle few of them which come to the Foreign Office.
I absolutely agree, as I said earlier, about the motoring offences; I think they are most irritating. We are proposing to take a rather sterner line, in so far as we can, in regard to these offences, and we have already brought to the attention of heads of missions the fact that, although there is immunity from the penalty of breaking the law, there is an obligation on all diplomats to conform to the law, and they are expected to do so. Although the United States Government in Washington, who have a rather larger proportion of these offences than we have-they have, I think, 8,000 parking offences as opposed to 2,000 in this country—sent out warning notices and so on, they have not yet withdrawn immunity of diplomats from the jurisdiction in respect of motoring offences. So they are in conformity with us in that respect.
But I think the overwhelming reason why your Lordships should agree to this Bill and take the rough with the smooth is the reason which the noble Lord, Lord McNair, advanced so cogently: that is, that we must remember that we ourselves have diplomatic missions abroad, and we have them in countries which are quite unlike our own. I believe, without mentioning any names, we could all think of countries in which we might have to serve where if we did not have the diplomatic immunities which are set out under this Bill we should find ourselves not only inconvenienced but perhaps sometimes in very great danger and in great difficulties. We must always remember, when we are discussing these matters, that there are fellow citizens of ours serving this country abroad who would find it most difficult to carry on their job in the service of this country unless they had these immunities. It is for that reason—and I think that is the strongest reason of all—that I ask my noble friend whether he would be good enough to withdraw his Amendment, and I ask your Lordships to read this Bill a second time.
§ LORD MOLSON
My Lords, I feel that my noble friend has said a great many things that have really set my mind, to some extent, at rest. We can pursue some of these matters a little further on the Committee stage, and I therefore ask your Lordships' leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.