§ 4.51 p.m.
§ LORD WINDLESHAM rose to move, That the Draft Functions of Traffic Wardens Order 1970, laid before the House on November 12, be approved. The noble Lord said: My Lords, this Order extends and consolidates the functions of traffic wardens. The need for such a measure is shown vividly by the increase in the total number of vehicles on the roads. In 1960, when police authorities were first authorised to appoint people to discharge certain functions connected with road traffic or road vehicles, there were 9,439,196 vehicles on the roads. In 1955, when the functions of traffic wardens were extended, there were 12,937,800. Last year the total rose to 14,751,900. Traffic wardens can make a considerable contribution in helping to relieve the pressure on the police and it is important that they should be as widely employed as possible. The functions they may perform are specified by the Secretary of State by means of an Order 1069 which is subject to Affirmative Resolution in both Houses.
§ As traffic wardens have become an accepted part of the motorist's daily life their functions have been extended: in 1965, and again in the Order before us to-day. It seems to us appropriate at the same time to consolidate these functions in one Order, and accordingly the Schedule represents a comprehensive list of what duties traffic wardens can be called upon to perform. The proposed new functions contained in the draft Order will enable chief officers of police to employ traffic wardens to man police car pounds—they will not be permitted to drive cars away—to enforce the vehicle excise laws; and to obtain the name and the address of owners or drivers of cars where it is thought that a traffic offence, of the type with which traffic wardens are enabled to deal, may have been committed. In addition, it will become an offence to disregard directions given by a traffic warden when directing traffic. The draft Order has been the subject of extensive consultation with the police, the local authorities, appropriate trade unions, the motoring associations; even the Pedestrians' Association. The attention of chief constables has been drawn to the requirement in the Road Traffic Regulation Act 1967 to take steps to ensure that only qualified persons are appointed as traffic wardens and that they must be suitably trained before undertaking their duties.
§ All that it remains for me to say is that the draft Order was originally laid in August when copies were sent to all police authorities. No representations against it were received and the Police Federation have withdrawn their earlier objection to traffic wardens manning car pounds. The draft Order was, however, withdrawn last month to enable a drafting change to be made which was needed as a result of the Secretary of State for the Environment taking over certain responsibilities from the Minister of Transport who was named in the draft Order. The Order was subsequently re-laid and has been considered by the Special Orders Committee in the normal way. My Lords, I beg to move.
§ LORD WINTERBOTTOM
My Lords, the House is grateful to the noble Lord for a clear exposition of what this Order entails. Although most people believe that traffic wardens play an important function in keeping our traffic moving on the roads, there is in certain quarters some resentment at their activities. It might be helpful if a definition of the powers that are being transferred to the wardens under this Order is given some publicity, so that there is no argument that they exercise those powers. Otherwise, I think that the proposals are completely acceptable.
§ LORD ROYLE
My Lords, I wonder whether I may say a word or two on this Order. I shall be brief and should not like to say anything derogatory of what I am sure is a sound body of people. But in the course of our experience as motorists we have been a little concerned in the past that, as opposed to the police, traffic wardens rarely exercise discretion. It seems to me that there might be a little more elasticity in the way in which they behave towards people, particularly to motorists with whom they mostly have to deal. Because one has this feeling, there is a little doubt as to whether an extension of their powers at this time is right.
I should like to be assured by Lord Windlesham that the training for any added duties which are being placed upon them is sufficient. We know very well that so far as the police themselves are concerned the training is of a very high calibre. It takes place in police colleges and the like, and the police are getting just the right atmosphere, particularly in their relations with the general public. I wander whether that applies to the same extent to traffic wardens. I am quite sure that what I say would be echoed by many people who have come into contact with them. I feel certain that traffic wardens are of great value to the country today in the great growth of road traffic, but there is just this little doubt that exists in one's mind, and I wonder whether the noble Lord, Lord Windlesham, can appease me in this matter and give me a greater sense of satisfaction.
§ LORD BROOKE OF CUMNOR
My Lords, without wishing to quarrel with anything that the noble Lord, Lord Royle, has just said, I should like to lend my support to this Order, for a reason which I think has perhaps not arisen sufficiently in this brief debate—that is, that we simply must take all reasonable opportunities of relieving the police of duties which are not essential to the police service. There is no way in which we shall effectively counter crime unless we press on by every possible means in enabling police to concentrate on what is their main job, which can be done by nobody else than policemen. Of course I agree with the noble Lord, Lord Royle, that we should be careful about this other matter, but I am sure he would not wish anything that he has said to be taken as opposition to the general purpose that I have just mentioned.
§ 4.59 p.m.
§ LORD WINDLESHAM
My Lords, I should like to endorse what the noble Lord, Lord Brooke, has said. There is very grave pressure on the police. The calls that are made on them and the duties that only they can perform increase all the time, and although recruiting is looking up the police are under very grave pressure indeed. I personally think that the increase in road traffic which I have mentioned is a significant indicator here. It has increased so sharply after the last decade that the work of simply ensuring that the parking regulations, for example, are observed, is falling increasingly on traffic wardens. We have developed rather slowly, in that the powers of the traffic wardens have been extended very gradually because of exactly the sort of disquiet of which the noble Lord, Lord Royle, spoke. We have had a 10-year period in which traffic wardens have begun, bit by bit, to get the confidence of the motorist and the public generally. Having said that, I think I can say to the noble Lord, Lord Winterbottom, that we take his point about the need for publicity, and we will certainly consider the issue of a suitable Press notice. As I say, this is no news to the many organisations who are directly involved, because a rather extensive process of consultation has gone on for some months.
On the training point, I did just refer to it briefly in my opening remarks. I 1072 would agree entirely with what the noble Lord, Lord Royle, said: there is a need for training in this field, and we are very aware of it and have been in touch with the chief constables to re-emphasise that there must be a form of training for the traffic warden, and the greater the powers the traffic warden has, I would agree, the greater the need for training. I think that nothing that has been said in this short debate would cause me to dissent from the opinions expressed, and I hope that, with the general welcome that this Order has been given, we can agree to its going through.
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (FEDERAL REPUBLIC OF GERMANY) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (FRENCH REPUBLIC) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (ITALIAN REPUBLIC) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (JAPAN) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (KINGDOM OF BELGIUM) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (KINGDOM OF DENMARK) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (KINGDOM OF GREECE) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (KINGDOM OF THE NETHERLANDS) ORDER 19701073
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (KINGDOM OF NORWAY) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (KINGDOM OE SWEDEN) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (REPUBLIC OF AUSTRIA) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (SOCIALIST FEDERAL REPUBLIC OF YUGOSLAVIA) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (SPANISH STATE) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (UNITED STATES OF AMERICA) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (UNITED STATES OF MEXICO) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (PEOPLE'S REPUBLIC OF BULGARIA) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (POLISH PEOPLE'S REPUBLIC) ORDER 1970
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (SOCIALIST REPUBLIC OF ROMANIA) ORDER 19701074
§ CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (UNION OF SOVIET SOCIALIST REPUBLICS) ORDER 1970
§ 5.1 p.m.
§ THE MARQUESS OF LOTHIAN
My Lords, having been given the leave of the House, I now rise to move the first 19 Orders standing in my name on the Order Paper. I should like to make it perfectly clear again that if, in the course of the debate, it becomes clear that there is a demand for a separate Question on any particular Order or Orders, I shall of course not avail myself of that leave. It will, I am afraid, be necessary for us then to take 19 separate Motions and Questions.
The purpose of the draft Orders, which it is proposed to make under the Consular Relations Act 1968, is to accord in respect of the consular posts in this country of 19 foreign States certain privileges and immunities above the scale which will be generally accorded under that Act. The Act, the relevant provisions of which will come into force on January 1, 1971, will accord to all foreign consular posts in the United Kingdom the scale of privileges and immunities provided in the Vienna Convention on Consular Relations. This will not however enable us to give full effect to our obligations under bilateral Consular Conventions and other Agreements which we have signed with the foreign States concerned.
The Agreements, and consequently the Orders which are based on them, fall into two distinct groups which I shall explain separately. First, there is a group of 15 Orders which for convenience I will describe as the "Western European" group. These Orders relate to countries which with three exceptions, the United States, Mexico and Japan, are in Western Europe. We have extensive consular relations with those countries, and their consuls account for about three-quarters of the total number in the United Kingdom. The international agreements with those 15 countries were all in force before 1968. Effect was given to them in part under the common law, in part by various Orders in Council, and in part administratively. The Consular Relations Act, however, will place on a statutory 1075 basis the privileges and immunities accorded to consular posts in the United Kingdom, and we propose by the Orders in this group to give effect to the continuing obligations under these bilateral Agreements in so far as they exceed the Vienna Convention scale. These Orders accord privileges only and not immunities from jurisdiction. The immunities contained in the relevant Agreements can be given effect by the ordinary provisions of the Consular Relations Act. The Orders before your Lordships vary in detail, because of variations in the terms of the Agreements on which they are based. But the privileges accorded all relate to rating relief for residences of certain members of consular posts, exemptions from customs duty and taxation, and additional protection for consular bags.
The second group of Orders I will describe as the "Eastern European" group. The countries covered by this group are the Soviet Union, Bulgaria, Poland and Romania. Under these Orders immunities from jurisdiction on a diplomatic scale are extended to certain members of consular posts in the United Kingdom. We have already ratified the Consular Conventions with the Soviet Union and Bulgaria. It was in our interest to do so as soon as possible in order to gain the benefit of provisions in those Conventions giving us better facilities to exercise consular functions and to protect our nationals. Neither country maintains any separate Consulate in this country at present, apart from the consular section of its Embassy, and neither country is entitled to open a Consulate without our consent. There is no immediate prospect of a Soviet or Bulgarian Consulate being opened in this country. Nevertheless, it is unusual to ratify a Convention without first obtaining the necessary legislation to enable effect to be given to it. It is therefore right that we should take the present opportunity to put our legislative house in order.
The Conventions with Poland and Romania have not yet been ratified, but we are anxious to ratify them as soon as possible in order to secure for our consular posts in those countries the benefit of the additional facilities which they contain. Poland at present has two consular posts apart from the consular section of the Embassy, but Romania has 1076 none. The establishment of additional posts in both cases requires our consent.
As the Special Orders Committee have pointed out in their Report, the Conventions with Bulgaria, Poland, Romania and Russia accord immunities which are more extensive than those accorded by the other 15 Orders which give no immunities in excess of the Vienna Convention. It is important to emphasise that these immunities are accorded on a basis of reciprocity. It was thought right in the negotiation of these Conventions to seek the highest degree of immunity and inviolability for our Consulates in those countries and for our consular officers and staff working there.
The report of the Special Orders Committee also called the attention of the House to a doubt which they felt as to whether the Orders are intra vires. I have considered this matter most carefully and consulted my noble and learned friend the Lord Chancellor, and I am satisfied that in laying and making these Orders so that they will come into operation simultaneously with the remaining provisions of the Consular Relations Act we are acting correctly. We rely in so doing on Section 37 of the Interpretation Act 1889, which provides that after an Act becomes law a power to make Orders under it may be exercised at any timeso far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof.May I emphasise the words "necessary or expedient"? The House will note that Section 37 does not require that the Orders should be necessary to bring the Act into operation at the commencement thereof. The test is one of expediency only.
So far as the 15 Orders of the "Western European" group are concerned, the expediency derives from the need to give effect under our law to continuing obligations under our bilateral Agreements. Hitherto the privileges set out in these 15 Orders have been accorded administratively. But the entry into force of a Statute intended to place these privileges on a legislative basis will give rise to a doubt as to whether it is proper to continue to rely on administrative cover. We believe that it is expedient to avoid this doubt and therefore to bring the Orders into operation on January 1, 1971, simultaneously with the relevant provisions of 1077 the Act. To put the point another way, Section 3(1) of the Act under which these Orders will be made is an integral part of the Act, and it is impossible for it to operate as it should from the commencement of the Act unless the Orders, which were anticipated when the Consular Relations Bill was before Parliament, are made in advance.
The Orders relating to the Soviet Union and Bulgaria accord immunities as well as privileges, and there is no doubt that effect cannot be given to these immunities by our courts until the Orders come into force. As I have explained to the House, the Conventions with the Soviet Union and Bulgaria have already been ratified and, although these countries do not yet have Consulates in this country, the Orders are required to put our legislative house in order. It is expedient that we should regularise the position at the earliest possible moment. We do not intend to ratify the Conventions with Poland and Romania without first obtaining statutory authority. But we are anxious to ratify as soon as possible, in order to secure the benefits of provisions in the Conventions relating to protection of our nationals in those countries. It is expedient, we feel, to make those Orders now, so that the provisions of the Act will be effective in regard to those countries at the earliest possible date, and enable us to proceed with ratification. If the Orders were not laid until after the commencement of the relevant provision of the Act, there would inevitably be a delay of several weeks before the ratification process could be put in hand.
It has seemed to us that all these Orders should be presented and considered by Parliament as a single coherent package, thus providing an opportunity to compare their provisions and saving the time of the House. The Consular Relations Act will come into operation more smoothly and effectively if it is accompanied by these 19 Orders. The Orders are part of the machinery of the Act, and we are therefore satisfied that it is expedient that they should be made so as to come into operation with the relevant provisions of the Act on January 1, 1971.
The other matter raised by the Report of the Special Orders Committee is the possible difficulties that may be caused 1078 by the fact that the 19 Orders confer in each case different privileges and immunities. I have already explained to the House that each Order is based on provisions in an international Agreement to which we must give effect if we are to enjoy reciprocal benefits. The discrepancies between the various Conventions are not the result of our deliberate choice but are the inevitable result of bilateral negotiations with another sovereign State in which we must take account of that State's special wishes and difficulties and must strike the best bargain we can obtain.
I hope that I have satisfied your Lordships that the unusually large number of these Orders does not in fact imply any alarming or indiscriminate extension of privileges or immunities to foreign consuls in this country. We believe that our bilateral Conventions are of great importance to the functioning of our consular posts abroad. I hope that the House will accept this and approve these draft Orders accordingly. My Lords, I beg to move.
That the Draft Consular Relations (Privileges and Immunities) (Federal Republic of Germany) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (French Republic) Order 1970, laid before the House on November 17, he approved;
That the Draft Consular Relations (Privileges and Immunities) (Italian Republic) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Japan) Order, 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Kingdom of Belgium) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Kingdom of Denmark) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Kingdom of Greece) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Kingdom of the Netherlands) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Kingdom of Norway) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Kingdom of Sweden, Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Republic of Austria) Order 1970, laid before the House on November 17, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Socialist Federal Republic of Yugoslavia) Order 1970, laid before the House on 17th November, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Spanish State) Order 1970, laid before the House on 17th November, be approved;
That the Draft Consular Relations (Privileges and Immunities) (United States of America) Order 1970, laid before the House on 17th November, be approved;
That the Draft Consular Relations (Privileges and Immunities) (United States of Mexico) Order 1970, laid before the House on 17th November, be approved;
That the Draft Consular Relations (Privileges and Immunities) (People's Republic of Bulgaria) Order 1970, laid before the House on 17th November, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Polish People's Republic) Order 1570, laid before the House on 17th November, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Socialist Republic of Romania) Order 1970, laid before the House on 17th November, be approved;
That the Draft Consular Relations (Privileges and Immunities) (Union of Soviet Socialist Republics) Order 1970, laid before the House on 17th November, be approved.—(The Marquess of Lothian.)
§ 5.15 p.m.
§ LORD SHEPHERD
My Lords, I should first of all express, on behalf of your Lordships' House, our gratitude to the Special Orders Committee for the exhaustive inquiry and attention which they have given to these Orders. I also express appreciation to the noble Marquess for the manner in which he has explained them. May I also add a particular word of thanks to the noble and learned Lord who sits on the Woolsack for having made himself available to the House this afternoon, because I believe that we shall need special guidance from him.
I am not certain on this occasion whether I appear as a gamekeeper turned poacher, or a poacher turned gamekeeper. I well remember supporting my noble friend Lord Silkin, many years ago, in raising serious objection to the enlargement of diplomatic immunities, and immunities and privileges 1080 that went well beyond the diplomatic circle. Our case then was, first, that, by and large, we in this country object to a privileged society; and, secondly, that there was, and there still remains, serious concern at the way in which some of the immunities and privileges are abused, not only in this country but in countries overseas, by those who enjoy them. It is clear that the Orders before us do not extend privileges or immunities which have not in the past been available by administrative action, except perhaps in the case of those relating to the Eastern European group.
We on this side welcome the Eurocontrol (Immunities and Privileges) Order and the European Commission and Court of Human Rights (Immunities and Privileges) Order—which come next on the Order Paper—but I wonder whether the noble Marquess can deal with a point which was raised in another place about the immunity of some 15 days which will be available to a witness. It may be that a case could go on for longer than 15 days, or that a witness might not be able to leave this country in that period. I should be grateful if we can be told whether the Government intend to take a flexible attitude on the 15 days' immunity, and whether the noble Marquess can say anything about the administrative arrangements for warning a witness as to the length of his immunity and as to the steps he can take about having such immunity extended.
As to the general content of the Orders, I would not raise any serious objection, but I am surprised that it appears that persons of United Kingdom citizenship will, as a consequence of these Orders, be able to receive special exemption from dues and taxation. That is quite clear in the Order relating to the United States of America, which provides for this in Articles 3, 4 and 5. So it seems quite clear that United Kingdom citizens who are in the employment of the United States Government will enjoy special privileges.
The same can be said of the Federal Republic of Germany Order. Under Article 3 of that Order, British citizens receive special privileges in regard to dues and taxation. There are quite a number of others, such as the Kingdom of Denmark and the Republic of Austria Orders, 1081 and I have no doubt that I could find other Orders under which British citizens are given these special exemptions. I do not know whether that is right or wrong, but we should like to have an explanation about why these British employees of foreign countries should be in this special position.
The main concern of the Special Orders Comittee was whether the 19 Orders were intra vires. As I understand it, Sections 7 to 11 of the Act came into force with its passing, and the remaining sections will come into force on January 1 as a consequence of an Order which I believe was laid and passed on November 11. I can understand the difficulties with which the Government are confronted in terms of the Western European Orders. At the moment these privileges are available and the individuals are protected as a consequence of the Royal Prerogative. There could be doubt as to what would be the position if these Orders were not passed and these matters rested on the Royal Prerogative after the Act came into force. I should be very grateful if we could hear from the noble and learned Lord how serious are these doubts as to whether there will be a loss as a consequence of these resting on the Royal Prerogative once the Act of Parliament has come into force.
In regard to the Eastern European Orders, it seems to me that there is considerable doubt. As I understand it, the Government rest their case on Section 37 of the Interpretation Act 1889. That section provides that Orders in Council and other instruments made in certain circumstances shall be valid where power to make them is exercised before the Act under which they have been made comes into operation. I think the House will agree that the use of this particular section must be limited. My initial understanding was that in the past this section had been used when it was necessary to set up the machinery under which an Act of Parliament, when it came into force, could operate from the due date. I understand (and I have read very carefully the speech that was made in another place by the Attorney General in which he stated it) that Section 37 could be used in a different situation. My Lords, it seems to me, as one who is not a lawyer, that the whole question is whether these Orders are necessary and 1082 expedient. They may be necessary, but whether they are expedient I am not myself sure.
The noble Marquess set out the reasons why it would be convenient—that is, convenient in terms of the operation of the Act—for the House to pass these Orders to-day. Speaking in another place on December 8, the Under-Secretary said there were four considerations; and he went on:The first is that the Orders form part of a single coherent package and it is therefore desirable that the House should have the chance to consider them at the same time as the others. The second, that to do so would be a saving in parliamentary time".—[OFFICIAL REPORT, Commons, 8/12/70, col. 332.]My Lords, that may be so, but I should not have thought, so far as the 1889 Act is concerned, that that was a question of expediency. The Under-Secretary continued:Third, that it is expedient because until the Order is made we are not in a position to give full effect to the provisions of the Conventions with the Soviet Union and Bulgaria, which have … already been ratified. And fourth that we wish to ratify the Polish and Romanian Conventions in order to obtain our reciprocal rights and if these Orders had not been laid until the 1st of January next our ratification would have been delayed by two months…".I am not certain in my own mind whether this makes it expedient to use the 1889 Act for passing these Orders, which relate to a section of a Bill that has not yet come into force and will not come into force until January 1.
My Lords, this is not a Party matter. Clearly, there should be no doubt that these Orders are intra vires, not only for the sake of our relations with the foreign countries concerned but also for the sake of those who may be involved in claims or disputes with Consular officials. If at any time it were to be questioned whether these Orders were intra vires, or if they were found by the courts to be ultra vires, then, clearly, our own people would be at loss, and so might be the officials who represent the countries attached to us. I should be very grateful if the noble and learned Lord on the Woolsack could explain to your Lordships the view of Her Majesty's Government, and particularly if the noble and learned Lord himself, speaking as the highest legal authority in the land, could tell us whether or not, in his view, these Orders are intro vires.
§ 5.26 p.m.
§ LORD CONESFORD
My Lords, I think it is right that a Back-Bencher should express his great gratitude to our Orders Committee for the skill and diligence with which they examined these Orders, and, in this case, for bringing to our attention the important question whether the Orders before us are or will be intra vires. I say "will be" because, of course, all we have before us at the moment are the draft Orders. The question whether or not they are intra vires will, of course, apply to the Order in Council when it is made; but the point that is substantially before us is whether these Orders will be intra vires. I thought that the clear statement by our Orders Committee—and I was glad that the noble Lord, Lord Shepherd, also paid tribute to them—placed upon any legal Member of this House who had any leisure to look into the matter a duty to do his best to find out how much substance there was in this point that they raised.
My Lords, admittedly the validity of these Orders under the Order in Council when it comes to be made depends on the construction of Section 37 of the Interpretation Act 1889. That section has been the subject of two important decisions of the Court of Appeal: Rex v. The Minister of Town and Country Planning, reported in  1 King's Bench at page 1; and Usher v. Barlow, reported in  1 Chancery at page 255. When I read those cases and some of the Orders now before us—I will not pretend that I read them all—I felt great doubt on the point raised by our Orders Committee. I therefore wrote to my noble and learned friend on the Woolsack explaining the doubts that I felt. He sent me a prompt, full and considered reply, and for that I am most grateful to him. The points that he raised have since been reinforced and amplified by the speech of my right honourable and learned friend the Attorney General when the matter was fully debated in another place last Tuesday.
In the circumstances, I should not think it proper to trouble the House with the nature of my doubts, some of which, I admit, if I were to consider only my own impressions, still persist. I am particularly doubtful about the Polish and Romanian Orders, to give examples. The reason I think it improper to express any further doubt is that we have now had 1084 the benefit—at least, I have had the benefit—of the view of my noble and learned friend on the Woolsack, and we have all had the benefit of the views of the Attorney General, on what is a pure point of law. It would be wrong to put my doubts against the strong views on points of law that have been expressed. I therefore agree with the requests that have been made that we should have at the end of this debate, or in the course of it, a speech by my noble and learned friend on the Woolsack; but, subject to that, I should be quite content to pass these Orders without further objection.
§ LORD LEATHERLAND
My Lords, from the dark recesses of these Benches I beg leave to say a word upon the matter of these Orders. I do so with some trepidation, because I must delve back into 45 years of my own personal history. I am concerned mainly with the privileges that are granted to a very large and expanding number of people on what we might call the periphery, strictly interpreted, of the Diplomatic Corps. I have regard to No. 8 of the proposals that are before us, and I have regard in particular to the Soviet trade delegation.
I remember 45 years ago when I was working as a Lobby correspondent in the other place, where I was on the payroll of one of the major political Parties of this country and was in daily communication with Ministers of the Cabinet, that at that time there used to wander about the corridors of the other place a gentleman who was in close contact with the Soviet authorities in this country. On one occasion he invited me to have tea at Highgate with an officer of the Soviet trade delegation. During the course of that tea we had a general discussion about the political affairs of his country and of this country. The officer knew well that I had no knowledge whatsoever of British-Soviet trade and he also knew quite well that I was closely in touch with matters being discussed in the British Cabinet at that time and that I was in daily contact with members of that Cabinet.
He put to me—not particularly in a direct form but in a very clever form, such as you would expect from a Soviet chess player—various questions which obviously were designed to draw from me information about certain matters 1085 that were then under discussion. I ought to say that the raid on the Soviet trade delegation took place a fortnight later. In those days I was rather quick witted and very loyal to the Party that employed me; and I can say that I saw what he was getting at and they got nothing from me. But it was clear to me that there were members of that organisation enjoying some kind of peripheral diplomatic privileges who were here not in order to further the interests of British-Soviet trade but in order to act as Intelligence agents for the Soviet Government and the Soviet Communist Party.
I feel that there are hundreds of these people on the payroll of Soviet organisations in this country to-day who may be engaged either whole time or part time genuinely on the furtherance of Anglo-Russian trade, but that there are others who are here for very much more sinister purposes. It grieves me to think that by these Orders we are proposing to extend to some of these people privileges which they certainly ought not to enjoy. I have made my point and I do not desire to detain your Lordships further.
§ 5.36 p.m.
THE LORD CHANCELLOR
My Lords I have been asked to intervene in this debate simply on the question of the vires of these Orders which is a highly technical matter. Whether these Orders are expedient from the point of view of policy is for this House to decide; and the other place has already approved them. I do not myself feel that a court of law could question the wisdom or the unwisdom of either House of Parliament in deciding upon Orders of this kind at all on questions of policy.
I confine myself to two quite separate basic issues, both of which may depend, but in a different way, upon the construction to be placed upon Acts of Parliament. The first is this. Could these Orders be successfully challenged in a court of law on the basis that they exceeded the powers conferred upon Her Majesty in Council when backed by two resolutions of the Houses of Parliament? The second is whether, in any event, these Orders could properly be made because, even if they could not be successfully challenged in court, neither House of Parliament would wish to exceed their powers— 1086 for we are a constitutional body and neither House would wish to exceed powers conferred by Parliament.
My Lords, Sections 7 to 11 of the Consular Relations Act came into force on enactment and the remaining provisions will come into force on January 1 next. These Orders have been laid in advance of that date and are framed so as to come into force at the same time. The doubt consists of the proposition that, being laid under Section 3—before Section 3 has come into force—can the two Houses of Parliament by resolution effectively back draft Orders in Council laid before the effective date of the operation of that Act, notwithstanding that it has not yet come into force? That is the point which has to be considered.
As a matter of general law, I think it would be accepted that you have to justify the making of Orders in such circumstances unless the Act contains a contrary intention. I would not claim that the Consular Relations Act 1968 contains such a contrary intention. Unless the Act contains a contrary intention, you cannot normally do this; you must justify it if you want to do it. The justification, as the noble Lord, Lord Shepherd, suggested, is to be found in Section 37 of the Interpretation Act 1889, which provides, in words more complicated than those that I am going to use (though I think I am going to bring out the relevant parts of the section) that:Where an Act … is not to come into operation immediately on the passing there of"—and that is the present case—and confers power to make … any Order in Council …"—again the present case—or to do anything for the purposes of the Act,"—the section applies to a wide range of different activities. We are dealing with a draft Order in Council to be approved by Affirmative Resolution.That power may, unless the contrary intention appears, be exercised at any time after the passing of the Act so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof.That means that the presumption against an action of this kind is reversed. Provided that the conditions are fulfilled, 1087 the power may, unless the contrary intention appears, be exercised at any time after the passing of the Act so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof.Subject to this restriction that any instrument made under the power shall not — come into operation until the Act comes into operation.That again is the case here. Therefore the test is to be found in the words:So far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof.The Special Orders Committee, quite rightly in my opinion, drew attention to the point of vires because wherever a point of vires lies, it is obviously desirable that the attention of the House should be especially drawn to it. They set out the terms of the section as I have read it, but they added these words:that the Act will give the force of law to certain provisions of the Vienna Convention. The doubt is whether Orders in Council … are expedient for the purpose of bringing the Act into operation.With respect, they left out from that second citation words which are important, and possibly decisive in coming to a conclusion on this point; because the question is not whether the Orders are necessary or expedient for the purpose of bringing the Act into operation, as the second citation might suggest, but whether they are necessary or expedient for the purpose of bringing the Act into operationat the date of the commencement thereof;and these last words in that section are obviously at least as important, and it may be more important, in construing the section as the earlier words.
My noble friend Lord Conesford rightly stated that this section had been the subject of comment and decision in two decisions of the Court of Appeal. Perhaps it is worth citing them. They are the case of Rex v. The Minister of Town and Country Planning,  1 King's Bench at page 1; a decision of a strong Court of Appeal consisting of Lord Justice Tucker, Lord Justice Asquith and Lord Justice Jenkins. The other is Usher v. Barlow,  1 Chancery, at page 255, when Lord Justice Jenkins, who had 1088 been a party to the earlier decision, gave the full judgment to which I shall be referring.
The question which the House would wish to consider is the significance of the words, "necessary or expedient". Perhaps it is not too much to summarise the first decision by saying that the ingenious person who sought to invalidate the direction of the Minister in the Town and Country Planning case tried to give a narrow construction to the words and to say that the only thing you had to look at was whether it was necessary or expedient to bring the relevant portion of the Act into operation at all. The Court of Appeal in the former case really destroyed that rather narrow construction and said that it meant a great deal more than that. But in the second case Lord Justice Jenkins used a passage that I should like to quote to the House indicating that an even more flexible and wider construction was appropriate. In that case the persons who were trying to restrict this action were, in effect, ignoring the word "expedient", so Lord Justice Jenkins said, and insisting on the word "necessary" to the exclusion of the word "expedient".
Lord Justice Jenkins said:If the section had been confined to matters without which the Act could not come into operation at all, the words 'or expedient' would, so far as I can see, have been not only otiose but wholly inappropriate. A matter without which an Act cannot come into operation at all is necessary for the purpose of bringing it into operation and cannot be anything less than that. A matter which is merely expedient for the purpose of bringing an Act into operation is, by definition, not necessary for that purpose. It is a matter without which the Act can come into operation but with which the Act will come into operation more conveniently and effectively.And that is the question on which I really have to advise the House.
He said that these Orders are Orders with which the Act will come into operation more conveniently or effectively. Once one has accepted that as the case, and nothing else, I would humbly submit to the House that the answer really suggests itself. I do not want to go unduly over the ground already opened by my noble friend Lord Lothian, because he has given the House the position: that the 19 Orders that we are discussing divide themselves into three groups. There is the group which he calls, for 1089 convenience, the Western European group, which contains 15 Orders. There is the group which consists only of the Soviet Union and Bulgaria, two of the Eastern European countries; and lastly, there is the group which consists of Romania and Poland, where the conventions have not been ratified. I would respectfully suggest to the House that the basic situation is really the same for them all and the relevant portions of the Act conveniently and effectively into operation these Orders are expedient. I do not say that they are necessary, but I say that they are expedient, and some of them are necessary. The only difference between one group and the other is that manifestly in some cases it can be argued that they are necessary and in other cases that they are really only expedient, but either will do.
I think the convenient thing is to take the strongest case first, which is the 15 Orders. This illustrates the point I want to make rather more clearly. The situation now is that Her Majesty gives these privileges under common law by virtue of the Royal Prerogative—that is to say, they do not require any statutory authority at all. The effect of having passed tile Act of 1968 (of course these are very fine technical matters and though I may sound dogmatic on this point it is not necessarily because I feel dogmatic but in order to shorten the argument) is to merge the Prerogative in the Statute, and when the Prerogative is merged in the Statute it means that it should not be exercised independently.
The position therefore is that in the absence of Orders in the case of these 15 countries it may be in doubt whether the privileges continue to exist at all after the coming into operation of Section 3 of the Act. I submit that in order to bring that part of the Act effectively into operation on January 1, 1971, it is necessary that these additional privileges come into effect the moment the Act comes into effect in order to avoid a legal interregnum in which someone might challenge the additional privileges and say that because the Prerogative under which they had been granted up to that time had been merged they were no longer effective. I submit that this is a fairly clear case of the operation of the 1889 1090 Statute in relation to these 15 conventions.
A rather similar situation probably exists in relation to the Soviet Union and Bulgaria. These two Orders relate to Conventions by which we have entered into obligations in excess of those laid down in the Vienna Convention. I am told, though this is a field of law in which I should not like to set myself up as an independent arbiter, that the Vienna Convention might have altered customary international law. If privileges and immunities are sought to be accorded in excess of what the Vienna Convention allows, it might well be said that in the absence of statutory authority there was no power to grant them. At all events, my submission would be that these Orders are entirely convenient and therefore expedient for the purpose of bringing the Act into effect on the due date as regards obligations which we have undertaken and ratified.
As my noble friend Lord Lothian pointed out, the difference between the previous Conventions and the two last Conventions is that they have been ratified, whereas those with Poland and Romania have not been. But I submit that it is clearly convenient and expedient for bringing the Act into effect conveniently and effectively to ensure that we have the powers given by these Orders rather than to proceed to ratify these Conventions and then find ourselves without the statutory power to give them effect. The two Orders for Poland and Romania relate to Conventions which are not yet ratified. But Her Majesty's Government wish to ratify them urgently, and I would suspect, too, that this would be the wish of Parliament. We cannot do so unless the Orders are made for the purpose of bringing the new machinery into effect. This cannot be done under the old machinery, because the old machinery will not be available; therefore we must use the new machinery and the new machinery can only be operated by means of these Orders.
I am not prepared to advise the House that even administrative convenience does not or cannot come within the definition of expedience; I think it probably does. What is clear is that the Act cannot come into operation conveniently or effectively on January 1, 1091 1971 (which is the date of the commencement of the relevant portions of the Act) unless these Orders are made now. Otherwise we should be in the position as regards some of these countries that we would be in breach of our international obligations, and as regards the remaining two countries we should wish to take the normal diplomatic step and be without legal machinery to do it.
It follows, at least in my opinion, that the words used by Lord Justice Jenkins in the case of Usher v. Barlow apply and there ought not to be any real question as to the vires of these Orders. I hope that what I have said is helpful. This is a highly technical question and I have applied my mind to it as well as I possibly could. The House must now decide on the matter.
§ 5.56 p.m.
§ LORD GARDINER
My Lords, the whole House will be extremely grateful to the noble and learned Lord the Lord Chancellor for the care with which he has addressed himself to the point raised by the Special Orders Committee. I have listened with the greatest attention to everything he has said, but I very much regret to say that I do not find myself altogether in agreement. It is not my purpose to submit the House to a long legal argument. I am not saying that these Orders are ultra vires; I am not saying that they are probably ultra vires. If the noble and learned Lord had said that in his view they were probably intra vires, I should not have disagreed with him.
The question is whether there is a doubt. This is really all that the Special Orders Committee were saying. And if there is a doubt, what is the wise course to take? Naturally we do not propose to divide the House on this matter. The responsibility is the Government's, and they must decide. I think there is a strong probability that the Orders are intra vires, but I also feel that there is doubt. Like the noble Lord, Lord Cones-ford, I have read the cases and feel the same difficulties that he felt when he read them.
If the Orders are ultra vires, obviously the consequences are serious. We cannot by resolution determine the law. Only the courts can say whether these Orders, 1092 if made, are intra vires or ultra vires. Such a question might not arise before the court for quite a long time. Meanwhile, many consuls, their staffs and families, would have believed in good faith that they were given the privileges which these Orders set out—and they are considerable: freedom from taxation and rates, from having to appear in court, from having one's goods destrained on, and so on. The serious position which would then arise would be that the people concerned had been led into a trap. They would have accepted these privileges in faith of these Orders, though in fact they never had these privileges at all. Moreover, the other countries concerned would, on the faith of these Orders, have accorded our consuls, their staffs and families, the same privileges, and we should find ourselves in breach of our Agreements with the United States of America, the Soviet Union and 17 other countries.
We appreciate that it is for the Government to decide what course they wish to take. But it is for us to point out the difficulties and the serious situation which would arise if (which we hope will not happen, and we believe will not happen) the courts did one day decide, and particularly perhaps in the case of Poland and Romania, where the Conventions have not yet been ratified, that they are not covered by Section 37 of the Interpretation Act.
The House will of course appreciate that these are Orders purporting to be made under a section of the Act which is not yet in force, and if it stopped there they would without doubt be ultra vires. The sole question is whether they are covered by Section 37 of the Interpretation Act. That is not a section which is altogether easy to construe, and particularly to apply to many different circumstances, especially, as I have said, in the case of the Polish and Romanian Orders. I do not desire to add anything further tonight.
§ THE MARQUESS OF LOTHIAN
My Lords, I do not think that it is up to me to say anything further on this highly technical matter which we have been discussing, except to thank my noble and learned friend for his intervention, which I am sure your Lordships found extremely helpful and I hope convincing. 1093 I should like to the thank the noble Lord, Lord Shepherd, and other noble Lords who have spoken, for their general welcome to these Orders. The noble Lord, Lord Shepherd, raised a point about the 15 days immunity, which I think actually comes into the two Orders that we are not discussing at the moment; and the noble Lord, Lord Leatherland, drew our attention to what I am sure we all realise is an important point. I know that there is a lot of business before the House, and I do not propose to say anything more.
§ LORD SHEPHERD
My Lords, can the noble Marquess help me in regard to Article 3, where we appear to be giving special privileges to British citizens?
§ THE MARQUESS OF LOTHIAN
Yes. I think the noble Lord is referring to rating relief accorded to nationals in this country. The position is that the provisions in the Orders each give effect to a provision in the relevant Convention and therefore exclude nationals of the United Kingdom only where this is in accordance with the terms of that Convention. Most of the Conventions do not exclude British nationals from the provisions according rating relief in respect of residences, because relief is never accorded unless the sending State itself is the owner or lessee of the residence. The privilege is therefore accorded to the Government rather than to the individual. It is in fact unlikely that United Kingdom nationals acting as Consuls or consular employees of foreign States will actually be living in Government-held accommodation.