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 Mr Cyril Atkinson Mr Cyril Atkinson , Altrincham

This is one of the matters, in relation to the Bill, which deserves full consideration. Every hon. Member must have been struck by the extraordinarily wide language of the Clause. A Dominion is to be given full power to make laws having extra-terri-torial operation. There is not a single nation in the world which has full powers to make laws of extra-territorial operation. Normally, a nation can only legislate in respect of its own territory and its own people, and with regard to foreigners can only legislate in so far as they come within the jurisdiction of that nation. The most complicated and difficult questions are constantly arising when one nation attempts to make laws to bind foreigners outside its own territory, questions which we come up against where attempts are made to create fishery offences outside territorial waters, and in conflict of law with regard to marriage and divorce. All sorts of difficulties arise once a nation attempts to legislate for other than its own nationals. The principle, which you will find laid down by the authorities, can be put in these words: That, in general, one nation cannot assume jurisdiction which goes beyond the limits established by the common consent of nations. In other words, they cannot attempt to infringe what has come to be recognised as international law.

With regard to our Empire, one thing I should have thought everybody would agree upon, and that is, that it is tremendously desirable that there should be uniformity with regard to an international or Empire code of law, dealing with extra-territorial questions. One would have thought that uniformity was essential, yet it is here proposed to set up seven or eight different legislatures, and to give them all power to legislate differently in regard to matters which must overlap. Let me give you an illustration to show how it would work out. Suppose that Canada proceeded to pass legislation prohibiting anybody fishing, in waters which they chose to regard as Canadian waters, beyond the three-mile limit? Suppose that Newfoundland thought the same thing, and did the same thing, passing similar legislation in respect of the same waters. Nothing in this Bill can give Canada any right to legislate with regard to foreigners, but this question does not affect the rights of foreigners at all. What we do in this Bill may affect the rights of our own subjects, and of members of other Dominions. Suppose that Canada passed legislation of that sort, and proceeded to arrest British fishermen for fishing in waters reserved for themselves, and that we set up the argument: "You have no right to go in for extra-territorial legislation of that kind." They would say: "Look at Section 3 of the Statute of Westminster, which gives us full powers" —not the powers which they usually exercise and which are exercised by international law—"You have given us full power to make laws having extra-territoriality. What effect is to be given to the word 'full'." There would be very good arguments on their part to say, so far as our own subjects and the nationals of other Dominions are concerned, that we have given them rights against us and against those nationals, to a wider extent than they possessed against nationals of other countries.

4.30 p.m.

Take a very complicated branch of law, that of copyright. Suppose that Canada choose to say that anyone who in any country infringed the Canadian law of copyright should be liable to a fine. Suppose that there was an infringement here, and that it was an infringement according to Canadian law but not according to our own law. Of course they could not possibly fine a man here. But suppose that the man here had property in Canada. He could be proceeded against and fined there; there could be service outside the jurisdiction and a fine levied on his property. One can imagine all sorts of questions arising in connection with merchant shipping law. We may have our own regulations, as we have, relating to merchant shipping. Canada may choose to have different regulations regarding the employment of Canadian seamen. Let me give an illustration which may perhaps seem silly. Suppose that Canada said that no Canadian should be employed on any ship throughout the world for less than five dollars a day. Suppose that a Canadian joined a ship in Liverpool at four dollars a day, and sailed to Canada. The Captain could be arrested for breaking the Canadian law by employing a Canadian seaman at less than five dollars a day. The moment we protested and said to Canada, "You cannot legislate with regard to matters of that sort," they would reply, "Why not? You have given us full power to make laws with extra-territorial operation. Cannot we legislate with regard to Canadian subjects throughout the world? What do you mean when you say that you have given us full power to make laws of that kind?"

I raise the points that I have in my mind. It seems to me that the use of this word "full" may lead to all sorts of difficulties. This is a Bill which will regulate the relations of the Dominions for hundreds of years, for all we know. No one can tell what questions will arise. With regard to Ireland all sorts of disputes may arise as to the territorial waters of the two countries. Ire land may have one view of territorial waters and we may take another. I do not know who is to settle the conflict between the two countries. It is quite clear that if this Bill is passed there will not be much left of the right of appeal to the Privy Council of this country. Once that appeal has gone who is to settle how far the power given by this Clause has been legally exercised? It becomes a matter of discussion and dispute and someone has to give way. I support the Amendment, because I hold that we ought not to be put in a worse position than that in which we would be under international law if the Dominions were foreign countries. Under the Bill we would be in a worse position, and no one can complain of the proposed limitations being added to the Clause. I understood that there was no intention to give any Dominion power to infringe what is the recognised international law. It is important that we should try to secure uniformity of extra-territorial law so far as the Empire is concerned. Therefore, the first Amendment is fully justified in providing that nothing shall be done which is in conflict with the law of this country.