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 Thomas Inskip Mr Thomas Inskip , Fareham

I do not think I suggested that the hon. Gentleman said so without reason, but let me assure him that my right hon. Friend and I and others who speak from this Bench are giving and have given the most serious consideration to these Amendments, and in the examination of this difficult and intricate question, I hope that Members upon all sides will approach the subject with the seriousness which it deserves. My hon. and learned Friend the Member for Moss Side (Sir G. Hurst) suggested that we ought not to take a leap in the dark or at any rate, if we were going to take a leap in the dark, that we should preserve as many rays of light as possible. I have never invited this Committee to take a leap in the dark. I am anxious for as much elucidation of this Bill as possible, because the more the history of this Bill is understood, the more will hon. Members appreciate what is proposed in it. I am not saying that everybody in this Committee will be more likely to agree whole-heartedly with what is proposed. We all have our prejudices and our affections for ancient forms, even of the Constitution, but I say that the more light is thrown on the Bill, the more likely will the Committee be to come to the conclusion that in substance it is desirable that it should be passed into law at the earliest moment. That is the conclusion to which I believe hon. Members are coming, increasingly, in all parts of the Committee. Of course, that view does not preclude the anxious consideration of every Amendment before the Committee.

The Amendment proposed by my hon. and learned Friend the Member for Moss Side is, I understand, intended to provide that the area within which there may be a conflict of laws within the Dominions shall be restricted as much as possible. I am bound, however, to ask the Committee to observe that neither the first nor the third Amendment seems to be framed in such a way as to promote the objects which the promoters of those Amendments have in view. I am not going to base my reply upon a mere form of words. As my hon. Friend has just said, it is always difficult to draft Amendments to give effect to one's meaning, and that is particularly so in this case, but I ask hon. Members to observe that the form of my hon. and learned Friend's Amendment is of a curious character. The first part of the Amendment is to provide that: Such laws"— that is laws which will have extraterritorial operation— do not conflict in their terms with laws prevailing in the United Kingdom or in other Dominions which have extra-territorial operation. That is to say, suppose that a Dominion passes a law which is to have extraterritorial operation, if it be found that that law conflicts with an existing law which also has extra-territorial operation, the law which was in existence first shall prevail and the law which came into existence subsequently shall be of no effect. That seems to amount to a declaration that whoever comes first is to hold possession of the field, because it is only the second law when it is inconsistent with the first law which is to become nugatory. I cannot think that that is a very convenient method or principle upon which to parcel out the legislative authority of the Empire—to provide that the Dominion which gets its word in first is to be the Dominion whose word is to prevail. But the last part of the Amendment provides that such laws do not conflict … with international law, There is not a lawyer, let alone a layman in this Committee who does not know that if there is anything vague in this uncertain world, it is the area and scope of international law. Everybody who has dabbled in that region of the law knows that of the many text books on the subject, scarcely one writer will agree with another upon the state of international law with regard to any subject at all. Take prize law alone, which is part of international law. Every country has its own prize law. I do not believe that any Amendment would be more likely to provoke that conflict and that discord which my hon. Friends are so anxious to avoid than a proposal that the laws passed by the Dominions shall always be judged on some imaginary standard which international law provides. I do not know who is to consider discrepancies between the laws in question and international law, but I am bound to make those observations on the form of the Amendment.

My hon. Friends quite rightly say in regard to the Amendments: "This is the best that we have been able to do, and we put before you the suggestion that you shall in some way seek uniformity within the Commonwealth of Nations." I understood that my hon. and learned Friend the Member for Moss Side expressed the opinion of those associated with him best, when he said that it was very unsatisfactory to have seven different systems of law prevailing in the Empire. [HON. Members: "Hear, hear!"] I am glad to have my hon. and learned Friend's assent that that proposition is the one which best expresses his apprehensions. That view seems to me, and I say it with all respect, to proceed on a complete misconception as to the operation and the extra-territorial operation of laws. Suppose that two countries like Great Britain and France each pass legislation which is extra-territorial by reason of the sovereignty of the nations concerned. We have the power of legislating extra-territorially and so has France, but that does not mean that we may legislate so as to make municipal law in France as administered by the French courts in respect of persons who come within the jurisdiction of the French courts. It simply means that each nation has the capacity to legislate outside the three-miles limit of its own territory, in respect of its own subjects, in such a way as to make them amenable to the law, as administered in its own courts, when they come within its jurisdiction.

Does anybody suggest that because we have the power of extra-territorial legislation and France also has that power, that that fact has produced the inconvenience of two systems of law prevailing both in Great Britain and France? Of course, questions of conflicting laws arise in certain regions of law such as in connection with marriage —for instance, whether a person is a divorced person in one country by reason of the fact that he or she has been a divorced person in another country. Everybody knows that these conflicts, as the hon. and learned Member for Altrincham (Mr. Atkinson) has said, constitute a difficult branch of the law in themselves, but, broadly speaking, the capacity to legislate extra-territorially is a power to legislate for persons who come within the jurisdiction of the courts of the legislating nation.

5.0 p.m.

Let us apply that principle to the Empire. If this Clause is passed without the proposed Amendment, there will not be seven systems of law operating in all the Dominions. It is quite likely that there may be a different state of the law in each Dominion upon particular subjects, but those laws would only be administered as regards any particular Dominion in the courts of that Dominion with respect to persons who come within the jurisdiction of those courts. That seems to me not merely necessary, if you are to have the equality of status implicit in the Balfour Declaration, but it seems to me not inconvenient, because it is to be expected that a British law, a law of the Imperial Parliament, will not be suitable for people who dwell in different Dominions under radically different conditions. You would expect different systems of law to exist in each of the Dominions themselves.

An hon. Member may ask: What are you talking about when you are giving power to legislate extra-territorially? Let me give an illustration. As everybody knows, there are many Conventions regulating the way in which aeroplanes shall be used. They may not fly over certain territory; they may not fly under certain conditions. It is the subject of an international Convention or of many Conventions. Suppose that Canada wants to legislate so as to make it a crime for a Canadin citizen not to fly a Canadian aeroplane, in breach of that international Convention, the capacity of Canada to regulate the conduct of its own citizens stops strictly at the end of the three-miles limit outside Canadian territory. An effect of Clause 3 in its present form will be to allow Canada to legislate in such a way that if a Canadian citizen has offended against a Convention which has been recognised by the Canadian law, when he comes back to his own country he shall be amenable to the Canadian courts administering Canadian law, even though the offence was committed extra-territorially, as we say, or outside the three miles' limit.

I do not think it is right to trouble the Committee with further illustrations of the same operation of extra-territorial law, but I want to deal quite shortly with one or two points that have been raised, in order to show that I think they proceed under a misapprehension. My hon. Friend the Member for Eastbourne has asked why there has been a departure from the form of the proposal to permit extra-territorial legislation only for the peace, order, and good government of the Dominion concerned. If the hon. Gentleman, who has complained that not enough ventilation has been given to this interesting subject, would refer to one book where the subject has been exhaustively ventilated, written by Professor Berriedale Keith, for the express purpose of dealing with the Report of the Conference on the Operation of Dominion Legislation, he will find a volume of nearly 500 pages, dealing with this report. He points out that if this Clause had been passed with that addendum, referring to the peace, order, and good government of the Dominion concerned, it would have afforded abundant opportunities for the exercise of the lawyer s art, because it would be very difficult to discover whether or not a particular law was related to the peace, order, and good government of the Dominion. The omission of that qualifying sentence is a pure question of convenience.

One of my hon. and learned Friends asked what had happened to the recommendation in paragraph 44 of the Report on the Operation of Dominion Legislation as to providing fur the discipline of the armed forces of one Government when in the territory of another Government. The position as to that is that a Convention is now under discussion to enable that subject to be satisfactorily dealt with. It has been already agreed to by South Africa. It is in processs of finding agreement 'with the other Dominions, but obviously the Convention as to that matter must come after the passage of this Statute of Westminster, because this Statute will enable the different Dominions to give legislative effect to the Convention which is in process of being agreed, upon this limited subject. That, I hope, will answer the question put by, I think, my hon. and learned Friend the Member for Altrincham (Mr. Atkinson).

I hope that, while the Committee considers that this Clause has nothing at all in it which is likely to increase the possibility of a conflict of laws between the Dominions, it will see that neither the Amendment on the Paper nor any Amendment designed for the same purpose is necessary. Indeed, my own opinion is that if you are going to try to bring all the laws of the Empire, these widely differing territories, into the compass of some text-book, some volume of legislation, so as to see that no part conflicts with some other part, you will have a task which indeed will engage the attention of the Committee which, I think, the hon. Member for Eastbourne visualised as sitting for months and months and years and years. I cannot imagine a more fruitful subject of discord and discussion.

After all, we do belong to a nation which has Shown a little capacity to order the Government of its different parts; we do credit ourselves with some common sense, with a capacity on the part of even the layman of the Empire to understand the fundamental principles of English law; and I respectfully suggest to the Committee that rather than attempt here to regulate the legislation of all the Dominions, let us give them this power which they have sought and which we have promised them in the Imperial Conferences, and trust that they will, by subsequent co-operation with us, see that it is made a boon to the Empire instead of that Tower of Babel which my hon. and learned Friends appear to contemplate.