Clause 3. — (Power of Parliament of Dominion to legislate extra-territorially.)

Part of the debate – in the House of Commons on 24th November 1931.

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Photo of Sir Gerald Hurst Sir Gerald Hurst , Manchester Moss Side

I beg to move, in page 3, line 3, at the end, to add the words: Provided that such laws do not conflict in their terms with laws prevailing in the United Kingdom or in other Dominions which have extra-territorial operation or with international law. May I, at the beginning, make two observations which, I think, can fairly be made, not only on my own behalf, but also on behalf of my hon. Friends whose names are attached to this Amendment? The first is, that in moving this Amendment there is not the slightest idea of making any cave or revolt against the National Government. That suggestion has been made, but, of course, we are all loyal supporters of the National Government. It is not, however, in the interest of the National Government, or of the nation, or of any of the Dominions to pass a Measure which is full of obscurities, and which is not based upon the very best methods possible to achieve the end which the Government have in view. Secondly, in moving this Amendment, there is not the slightest idea of combating or challenging in any way the famous formula as to equality of status laid down by the late Lord Balfour in 1926. No doubt this House is committed to that formula, but it does not follow in the least that the House is committed to every word in the Measure now before it. The aim of the draftsmen of the Measure has been to give effect to the formula, but draftsmen are fallible men, like ourselves. No sanctity attaches to the exact words used by them. We, as a House of Commons, are entitled to ask: "Where are we going?" and I cannot think that any representative of the Government will really urge that this House is committed to every sentence in this Bill, and is disqualified from examining every Clause on its merits, and arriving at a fair and free decision as to whether those Clauses are in the best form.

This Amendment deals with Clause 3 of the Measure, which declares that the Parliament of a Dominion has full power to make laws having extra-territorial operation. At the present time, the Dominions do not enjoy such power, except the very limited power of dealing with coastal trade and matters of that sort when dealing with what goes on in territorial waters. There has been, and there is to-day, a range of law outside the jurisdiction of the Dominion Legislatures. That range is described very roughly in paragraph 38 of the Report of the Conference on the Operation of Dominion Legislation, in which it alludes to questions concerning fisheries, taxation, shipping, air navigation, marriage, criminal law, deportation, and the enforcement of laws against smuggling and unlawful immigration. But there are other branches of law also which are not touched by Dominion legislation—Imperial British nationality, naturalisation, the status of married women and allegiance. The reason why this range of jurisdiction has not been exercised by Dominion Legislatures is not because of any alleged or imputed inferiority of the States. The reason has been that it has been universally recognised that, upon all these matters of world-wide importance and world-wide interest it is desirable, from the point of view not only of this Kingdom but from the point of view of every Dominion, to have as much uniformity of law as possible. These are not subjects in which the historical and racial differences which divide the members of the British Empire to some extent from one another apply at all. They are matters in which the greatest possible uniformity is desirable.

These matters of jurisdiction have passed through three stages in the history of English law. There was a time when our Parliament legislated for British subjects all over the world without regard to the self-governing Dominions. The second stage was arrived at when this country passed legislation leaving it within the power of Dominion Legislatures to adopt the same legislation, and that course has been followed with regard to copyright law in 1911, and with regard to the British Nationality Act, 1914, which was adopted with, I think, very slight modifications by Australia and New Zealand. In later years, since 1926, the third stage has been reached in which legislation on those lines has been proposed, but subject to consultations and agreements first with the Dominions. These stages have all made towards unity and uniformity, be- cause it is not in the interest of the Empire that there should be seven complete systems of law. There are anomalies in the present system with regard to naturalisation, uncertainties and doubts; at the same time, British citizenship has been so interpreted, and the extra-territorial jurisdiction of this Parliament has been so exercised, as to render the ambit of those anomalies as small as possible.

What is the effect of Clause 3? It really means that, apart from the invaluable personal link of the common Sovereign, there is a liability to a conflict of laws with regard to extra-territorial legislation between seven self-governing countries, and I hope that whoever speaks on behalf of the Government on this Amendment will deal with that point. Is it not a fact that Clause 3 in its present form opens the door to a specific conflict of laws with regard to a great range of legislation between the seven parties to this Statute? This must mean very great inconvenience and very uncomfortable clashes not only between members of the British Commonwealth, but also the greatest uncertainty among individuals as to what the law is. Take the ease of nationality. Under the law of the Irish Free State anybody who had been resident in Ireland for seven years, in 1922 became automatically an Irish citizen who may be, and probably will be, a British national from our point of view, and if this Clause is passed, and you really get the idea of two nationalities within the common Commonwealth, a man may be in point of law an Irish national and an English national at the same time. He may be subject to two conflicting systems of law. It is very difficult to know what would be right in that case. If such a man died in Italy, what would be his power of testation? We refer this question to the law of the domicile, but that law refers it back to the law of the man's nationality. What is that man's nationality? Is it English or Irish?

There are countless questions such as those relating to marriage, to the capacity to make 'a will, and to the devolution of property on intestacy. Then, again, there is the very difficult question which is raised in paragraph 44 of the Report, and which is ignored in the Bill. Paragraph 44 says: In connection with the exercise of extraterritorial legislative powers, we consider that provision should be made for the customary extra-territorial immunities with regard to internal discipline enjoyed by the armed forces of one Government when present in the territory of another Government with the consent of the latter. In other words, some specific provision was recommended by this Committee to be inserted in the Statute to meet the case of a British garrison sent to a Dominion, or kept on garrison duty within the frontiers of a Dominion. That recommendation has not been acted upon, and no such provision is made. If this Clause is passed in its present form, with no such provision made, it will mean that the arm of British law will not be long enough to maintain discipline in a British Army garrisoned, say, in a port in Ireland, and the garrison will be subject to the local law. That would be the result of the non-observance of paragraph 44.

I only mention what might be regarded as of minor detail, resulting from the conflict of laws. I do not wish to raise the graver questions of conflict of laws which may very readily suggest themselves to the imaginations of hon. Members, such as may arise from conflicting advice being given to the Crown by the Governments of different members of the British Commonwealth of Nations and will raise infinite difficulties. If, in addition to conflicting advice, you have a conflict in extra-territorial legislation, the result will be positively disastrous. It may be said, on behalf of the Bill, that clashes of this sort are impossible, and that we have to rely upon a reasonable understanding, forbearance and intelligence in those who govern the countries, and who are not likely to encourage clashes of this sort. That is what we rely upon at the present time. That; reliance upon mutual forbearance and understanding has been the cement which has kept the Empire so loyally together.

We have regarded the Empire, just as we regard the State, as a living organism that grows, and where changes of the very greatest importance can be made without being incorporated in any written or rigid constitution, but which will be recognised by those who are responsible for the government of the Dominions. That is the present system. By this Bill we are substituting, for the system which is based upon mutual understanding, a written constitution, and those questions in the future will not be simply questions of conduct and policy, but will become also questions of law. They are to be interpreted, not by the wishes and the sentiments of those who are, for the time being, governing the different members of the Empire, but as legal matters, according to the true construction of the Statute.

We have put forward this Amendment as a Proviso that such laws do not conflict in their terms with laws prevailing in the United Kingdom, or in other Dominions which have extra-territoriality, or with international law. The aim of that Proviso is to leave, over and above the obvious functions of a municipal legislature legislating for its own internal affairs, a margin where we can have uniformity, so far as it is possible to have uniformity, and where what has been agreed upon by the United Kingdom and the Dominions can be given free play, along with those practical rules and principles, which are so recognised as international law that they form part of our common law. An Amendment of this type need not be a permanent part of the law of the Empire, because if advantage is taken of the next Imperial Conference, it may be possible to give effect to the spirit of the third Amendment, which you, Sir, are not going to call, but which provides that the Section shall not come into operation until a convention has been ratified by the Parliament of the United Kingdom and every Dominion Parliament establishing uniformity with regard to laws having extraterritorial operation throughout the Empire. If the Proviso which I am moving were incorporated in the Statute, it would be possible, at the next Imperial Conference, to make an appeal to arrive at uniformity, in general Imperial matters as to which there is no conflict of opinion between the Dominions and this country. It is of the first importance to establish the closest possible uniformity of spirit and of outlook. I know that it is not your intention to call that Amendment which stands in the name of the hon. Member for Cardigan (Mr. Hopkin Morris), but the spirit of that Amendment is in the Amendment which I am moving. I feel that all hon. Members must realise the need for having a common law of the Empire or Commonwealth, in those non-contentious, non-national but Imperial matters, as to which a conflict of law would be of the gravest disadvantage to the British Commonwealth of Nations.

I should like to ask the learned Solicitor-General if it is not a fact that Clause 3 opens the door to a greatly increased conflict of law. There is a conflict of law, here and there, at the present time, between the United Kingdom and the Dominions, but is it not a fact that the introduction of seven extraterritorial systems of law, in place of one, must lead to an increased conflict of law I Secondly, does the learned Solicitor-General not think that conflict of laws is in itself a bad thing, and that it should he the object of Imperial statesmanship to lessen that conflict of laws? That is a view which I am sure will commend itself to anybody who has at heart the true interests, not only of our nation, but of the Dominions as well. The present law is not the result of any arrogation of supremacy or superiority by the Mother Country, but is simply the result of the deep-felt need for uniformity of nationality and citizenship, and of law, among the members of the same Commonwealth throughout the world.

I suggest that this Proviso deserves very serious consideration by the Committee. We were told that we must not criticise this Bill too much, and that it is a good thing to make a leap in the dark. What is the good of a leap in the dark? We are entitled on these matters to be guided by the best opinion and the best experience that we can get, and my object in moving this Amendment is that, if we have to take this plunge and walk in darkness, at any rate we may try to preserve as many rays of light as possible, to lead our footsteps amid the encircling gloom.