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Clause 6—(Legislation For The New Dominions)

Volume 440: debated on Monday 14 July 1947

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Motion made, and Question proposed, That the Clause stand part of the Bill."

I want to raise two points which might interest the right hon. and learned Gentleman the Attorney-General. The first is in connection with Subsection (1) which gives the Legislature of each of the new Dominions:

"power to make laws for that Dominion, including laws having extra-territorial operations."
That is familiar to the Committee as corning from the Statute of Westminster. I should like to ask the Attorney-General whether he thinks this power also extends to the Provinces of the Dominions. I understand there has been some doubt in the past as to whether the States of Australia, for instance, have the power to make laws having extra-territorial operation. The question might arise in the case of India or Pakistan whether the Provinces have the power. I believe I am right in saying that at the moment it is within the sphere of the Provinces to make criminal laws, and it is criminal laws particularly which require to have extra-territorial operation. The second point is about Subsection (6). I do not quite understand the need for that Subsection. I understood that the Legislature had full power to make laws limiting its own powers absolutely or for a time. I should like some explanation of the reason for or the background of Subsection (6).

I am afraid that I cannot answer the first question put to me by the hon and gallant Member for North Blackpool (Brigadier Low) because it is one which depends entirely on the ultimate form of the Constitution which is established by the Constituent Assernblies for the various Provinces. I should think they might follow what is the more usual coarse of not giving extra-territorial powers to the Provinces, but that is entirely a matter for them, and in that they are left complete discretion under this Bill. The position in regard to Subsection (6) is that it will be open to the Legislature to provide for a federal form of constitution under which the powers of the different Legislatures are limited, certain subjects being assigned to the one and certain subjects to the other. If it did that, it would need to make provision that the powers of the particular provincial Legislatures should be limited That is the object of the Subsection.

6.0 p.m.

I really raised the point on Subsection (1) on the present situation. Supposing the Provinces were left as they are now; have they the power to make laws in respect of extra-territorial operation or not?

Speaking as a complete ignoramus in regard to the law may I ask is there any limit to extraterritorial operation in the law?

There is no limit so far as the country itself which passes the extra-territorial legislation is concerned. The United Kingdom Parliament, for instance, can pass legislation having extra-territorial effect to any limit which seems proper to this Parliament, but whether that legislation will receive any recognition internationally by other countries is an entirely different matter. The general rule in international law is that countries are not recognised as possessing any powers of extra-territorial legislation at all, and there is a presumption, which our courts apply to our own legislation, that the Acts of the United Kingdom Parliament are not intended to have extra-territorial application unless the contrary so appears.

Before this Clause goes, we ought to take note of Subsection (4), as follows:

"(4) No Act of Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to either of the new Dominions as part of the law of that Dominion unless it is extended thereto by a law of the Legislature of the Dominion."
It is by this Subsection that Parliament is definitely taking the step of removing from itself power to make laws for India in the future. It is only right of us on this occasion to draw the attention of the Committee to that Subsection and to say What an honour we have regarded it, in what we have described as the Imperial Parliament, to take an interest in legislation affecting India in the past, and what good fortune we wish to those on whom this duty will fall in years to come.

Question put, and agreed to.

Clause ordered to stand part of the Bill.