BOTSWANA INDEPENDENCE BILL [H.L.] (Hansard, 7 July 1966)

§ THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (LORD BESWICK)
moved to leave out subsection (5) and to substitute: (5) So much of the British Protectorates. Protected States and Protected Persons Order 1965 as relates to former protectorates, and section 5 of the British Nationality (No. 2) Act 1964 in so far as that Order was made by virtue of that section shall have effect in relation to the Bechuanaland Protectorate as if that Order had been made immediately after the appointed day; and accordingly after the appointed day that Order shall have effect as if, at the beginning of Part I of Schedule 4 thereto, there were inserted in the first column the words 'Bechuanaland Protectorate' and in the second column the words ' Botswana Independence Act 1966, section 3(2)'".

THE EARL OF BESSBOROUGH
I am grateful to the noble Lord for explaining the Amendment, which I think is quite acceptable to us, although the whole question of modifications of the British Nationality Acts is certainly extremely complicated—almost more difficult, perhaps, than matrimonial homes. But in order to clear my own mind, I should like to ask the noble Lord this question. Am I right in thinking that there are in Bechuanaland a number of citizens of the United Kingdom, and others who may have Commonwealth citizenship; and am I not right in thinking also that most people in Bechuanaland at present are British-protected persons? Am I also right in thinking that they will remain so after independence, and will thus continue to be eligible for the protection of the British Government when travelling abroad? This matter is so complicated that I should be most grateful if the noble Lord could give me an answer on those points.

§ LORD BESWICK
I quite agree with the noble Earl, Lord Bessborough, that 1222 this is a complicated matter. Indeed, I had some difficulty myself in ascertaining exactly who was likely to be affected by this clause. The noble Earl is quite right when he says that at the moment the protected persons in Bechuanaland are protected by Britain. They are British-protected persons.

THE EARL OF BESSBOROUGH
They all are?

§ LORD BESWICK
They all are. On independence, under the provisions of the new Constitution of Botswana, the overwhelming majority of them will become Botswana citizens and Commonwealth citizens, but there will be some who will not automatically acquire Botswana citizenship. They have previously been British-protected persons, but they will not automatically acquire citizenship of the new Botswana Republic. Those are the people whom it is sought to cover by this clause. Under this clause they will be enabled to retain the protection which they previously enjoyed. There are not very many of them, but, even if there are only a few, it is right that we should ensure that, at least, they continue in the position of British-protected persons.
As such, they will, as the noble Earl surmised, be able to travel on the passport of a British-protected person. They will not have the right of entry to this country, and they will not even have the right of entry into Botswana; but they will, at any rate, be British-protected persons, and in that capacity will have a passport. Many of them, I imagine, if they have had a connection with Botswana, will be able in the future, if they so wish, to acquire citizenship of the new Botswana Republic. They will not acquire it automatically. I hope that, with that rather complicated answer on what is a complicated question, the noble Earl will be satisfied, and will agree that this is a proper course to take.

THE EARL OF BESSBOROUGH
I think that is quite clear. I accept what the noble Lord has said, and I thank him.

§ LORD BROCKWAY
May I just ask one question? My noble friend the Minister said that those living in Bechuanaland were British-protected persons. There is a considerable number of 1223 residents there of South African nationality, and I am assuming that they did not come under the umbrella of British protector ship, and will not, after this Bill becomes an Act.

§ LORD BESWICK
There are some individuals—for example, those born in South Africa—who may have held South African citizenship but who also held the position of British-protected persons in Bechuanaland. On the independence of Botswana, it is quite likely that such people will not wish to take up their South African citizenship. It is such people to whom we should like to continue to give the status of a British-protected person. They could then, in the future, choose, on reflection, to maintain their citizenship of South Africa, or they could choose to travel on their passports as British-protected persons. That position they have enjoyed in the past: that position they will enjoy in the future, if this Amendment is accepted.

§ LORD BROCKWAY
I thank my noble friend for that answer.

VISCOUNT COLVILLE OF CULROSS
I think it would not be fitting if the rather specialised point the noble Lord, Lord Beswick, mentioned about the drafting of this Amendment went entirely without comment from this side. On one of the Consolidation Bills that were dealt with in the last Parliament, there was, if I remember rightly, a considerable amount of comment upon the amendment of an Order by an Act. Now this is being done again here. I understand that the reason for this is that the Order might not come into effect because of its having to be laid, for the requisite length of time, and that there would be a gap; but I think the House ought to note that, by this Amendment, a specific amendment is being made by legislation to subordinate legislation, and I suspect that this is not a matter that the House would look upon with favour. There are not very many noble Lords here, perhaps, who thought about this on the last occasion, but I would ask the noble Lord to treat this an an exceptional case if, from this side, we do not make any further reference to it to-day.

§ LORD BESWICK
I should like to have an opportunity of consulting my legal advisers on this point, but, as I under- 1224 stand it, this is not a question of amending subsidiary legislation; it is a question of superseding it for this purpose. Under the original form of words we should have been using the procedure of an Order in Council. Here, we are legislating specifically for—

VISCOUNT COLVILLE OF CULROSS
Unless I have misunderstood the Amendment, I do not think that that is what the Amendment says. What the Amendment says is that, accordingly, the Order shall have effect as if a certain amendment were made in the Order. Therefore, from the substantive part of this Amendment it seems to me to bean amendment to the Order. I do not wish to press this point. I have no doubt it has to be done because of the timetable; but I think it is a most undesirable thing to do in legislation, and I hope the noble Lord will make certain it is absolutely necessary and will also make certain that what I have said this afternoon is accepted as a warning against its creating a precedent for a future occasion.

§ LORD BESWICK
I will certainly read very carefully what the noble Viscount has said. I still think he is under something of a misapprehension, but I will have the point considered, and I will write to the noble Viscount about it.