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Clause 4—(Restriction Of Powers Of Entry In Relation To Consular Offices)

Volume 463: debated on Tuesday 22 March 1949

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I beg to move, in page 4, line 1, to leave out from "except," to "with," in line 3.

This Amendment, together with the next Amendment in line 4, at the end, to add:
"or except with the consent of the consular officer in charge of that office,"
deals with the right of entry into consular offices under certain circumstances. We wish to strengthen the terms of Clause 4 as at present drafted. It was quite clear from the Second Reading Debate that Clause 4 was not designed to deal with normal circumstances. Normally if entry is desired into consular premises, the permission of the consul concerned would be obtained as a matter of course and as a matter of courtesy. Clause 4 was inserted because it was necessary to deal with abnormal circumstances, and my hon. and learned Friend and I do not think that the powers conferred on the police and other authorities to enter consular offices are strong enough.

Let us suppose there was good reason to believe that the premises of a particular consulate of a foreign Power subscribing to this Convention were being used for an improper purpose, perhaps at a time of great international crisis. Under Clause 4, as at present drafted, if the consul were to object, no entry could be made into those premises unless the permission and authorisation of the Secretary of State were first obtained. In other words, the fact that the consul could object might cause a good deal of delay before entry into the premises could be made. The Foreign Office would have to be con- sulted, the authorisation of a Secretary of State would have to be obtained, and many hours, and, perhaps in some cases, two or three days, might elapse before that cumbersome procedure could be completed. We think that if the circumstances are such that entry into a consulate is desirable, that entry should not be delayed merely because the consul in question objects, and that the only condition of entry should be that the Foreign Secretary himself considered it necessary. That should override any objection by the consul in question. Indeed, if the Foreign Secretary considers that entry is necessary, the consul's objections should not delay proceedings.

The only other point I wish to clear up, and which arises from a question I asked during the Second Reading Debate, is whether the term "consular officer," particularly with reference to this Clause, means the consular officer to whom the Exequator has been granted, or whether it could apply to a vice-consul who happens to be physically in charge of the consulate when the proper consul is away owing to leave or illness. If the right hon. Gentleman can give us a reply to that question, we shall be much obliged. I think he will consider that the Amendment strengthens the hands of the authorities to enter consular premises without undue delay in cases where there is a suspicion that those premises are being used improperly, and I hope, therefore, that will be accepted.

7.0 p.m.

Having regard to the present form of the Bill, the Amendment raises quite a small point. What is making the hon. Member for Windsor (Mr. Mott-Radclyffe) anxious, as I understand his argument, is that he feels that in a time of abnormal international strain or something of the sort delay might be occasioned if it were necessary, in order to enter consular premises, in the first place to ask for the permission of the consular officer. I think I can assure him that his fears are groundless in that respect. What the Bill says, as at present drafted, is that if the consent is withheld or cannot be obtained, the consent of the Secretary of State must be obtained instead.

In practice that simply means this. Supposing it is desired in the circumstances to effect an entry, all that has to be done is for the telephone to be lifted up, the consul to be rung up and asked for his permission. If he is there, he either gives permission or he refuses it. If he refuses it, the consent of the Secretary of State will be obtained and entry will be effected. If he is not there or cannot be contacted, then the words "cannot be obtained" in the Bill are satisfied. If you have rung him up, tried to contact him and cannot reach him, so that you cannot obtain consent, whether he would have given it or not, then the situation has emerged that his consent cannot be obtained within the meaning of the Clause.

Translating that into practical facts, it means that there would be only a very few minutes delay. If it were desired to enter consular premises, what would happen would be that you would first try to obtain the consent of the consular officer. You would ring him up, or call, or resort to any other means of contacting him that might be open to you. If you cannot obtain his consent, either because he refuses to give it or because you cannot contact him, a situation has arisen in which you must get the consent of the Secretary of State—it would be the Secretary of State for the Home Department or the Secretary of State for Scotland, in consultation with the Foreign Secretary. The only delay that would be occasioned would be a few minutes.

The Amendment proposes simply that one should be able to go either to the consular officer for his consent or to the Secretary of State for his. There has to be a certain amount of delay in any case in getting the consent of the Secretary of State. The only change would be that it would not be necessary first to have to go through the formality of seeing whether the consent of the consular officer could be obtained. The hon. Member may say, "Why not accept the Amendment and the alternative form proposed in it if, in fact, the substance of the matter is practically the same?" The answer is that the form which we have chosen follows the wording of the Convention which we have entered into. If the hon. Member will kindly look at the Convention, which is Command 7642, he will see on page 7 that paragraph (4) of Article 8 provides that:
"A consular office shall not be entered by the police or other authorities of the territory, provided such office is devoted exclusively to consular business, except with the consent of the consular officer or, if such consent cannot be obtained, pursuant to appropriate writ or process and with the consent of the Secretary of State for Foreign Affairs."
We are simply reproducing the form of wording adopted in the Convention which has given rise to the introduction of this Bill. That is why we feel it would be very difficult, when there is no difference in substance involved, for some reason entirely unexplained, to depart from the wording of the Convention and to adopt a new wording which seems to give two alternatives instead of prescribing the procedure which is prescribed in the Convention. That is the reason we think no real case has been made for the change which is proposed. Even if some case were made, it would be very difficult to depart from the wording of the Convention unless there were strong reasons for so doing. I hope I have satisfied the Committee that there are not strong reasons for so doing, which is putting it at its very highest.

Turning to the second point, the consular officer concerned would be the person who had been placed in charge and had had given to him the authority of the consular officer at the time. He would be the person de jure acting as the chargé of authority in respect of that consular office. The hon. Member asked whether, supposing the person in charge were not there at the time, it could be said that a clerk or someone of the sort were de facto acting in his place. It would be the person who had charge of the office conferred upon him for the time being—it might be the vice-consul—

As the right hon. and learned Gentleman knows, a difficulty might arise under Clause 4 if the absent consul were a British subject acting in an honorary capacity and the vice-consul, temporarily in charge, were a national of the country concerned.

That is unlikely to happen. The case which the hon. Member mentions is not one which in practice is likely to arise. It is much more likely that we shall find the consular office in the charge of a citizen of the sending country with the subordinates being citizens of the receiving country. In the actual case, it would be the per- son who at that time was the person who had had entrusted to him, by whatever was the appropriate procedure in the circumstances, the duty of supervising and managing the consular office. That would be the person whose consent one would have to receive in the event of the necessity arising for entering the office.

The right hon. and learned Gentleman has dealt with the Amendment at some length and I should like to make a few observations on what he said. He said that it raises quite a small point. So far as the existing Convention is concerned, I would entirely agree, because I think it is extremely improbable that a provision of this kind would have to be used in relation to the present Convention. But, of course, this Bill is to provide what I might call an umbrella for making other Conventions in addition to the one already entered into; I think that is agreed.

I am not quite sure that I entirely agree with the right hon. and learned Gentleman in saying that in all its aspects this is a small point. He has said that, of course, we can dispense with the consent of the consular officer in charge of the office if that consent is withheld or cannot be obtained. Withholding that consent must mean that the consular officer receives the request and refuses it. I would apprehend that it does not cover the case in which the consular officer says "You must give me half-an-hour in which to think what my answer would be" or anything of that sort, because if he delays giving his answer it could hardly be said in law that his consent had been withheld.

To turn to the other limb of the argument, I was rather astonished at the right hon. and learned Gentleman's statement that it was sufficient, in order to come within the words "cannot be obtained," to ring up the consular office and not get a reply. I should have thought from the wording of this Clause that it was implied that before one regarded consent as unobtainable, one should make all reasonable efforts to obtain it. I should have thought that was encumbent upon us, if we were to satisfy the provisions of this Clause. The right hon. and learned Gentleman says that if we ring up the consular office and find, in answer to our inquiry that we want to speak to the consular officer, that he is out for the afternoon playing golf, we can act upon that and say that consent cannot be obtained; whereas if we ring him up at the golf course and find that he has got as far as the nineteenth hole, in that case the consent may be obtained. I really thought that the right hon. and learned Gentleman was going a bit far when he said that all one had to do was to ring up on the telephone and that then, if one did not get a reply immediately, one could say as a matter of legal construction that the consent could not be obtained. I think that is going a bit too far in the interpretation of this provision, as in my view the wording would imply that one has to make reasonable efforts to obtain the consent.

I think that the wording of these Amendments would really improve the Bill. All that happens here is that one can follow the ordinary custom of making an application, but if the occasion warrants it, if there is an occasion when one really wants to use Clause 4, then one can obtain the consent of the Secretary of State to enter the premises without giving notice in advance to the consular officer. Under the Bill as it stands, one is bound to get into contact with the consular office before any entry is effected at all. That might—I say "might"— defeat the object of the entry. One does not know. However, I should have thought that no harm could possibly have followed and no difficulties have arisen if the wording had been in the first place in accordance with the wording of the Amendments. If the right hon. and learned Gentleman would say that he will consider this matter a little more, bearing in mind that this Clause does not apply at all when there is a United Kingdom national in charge of the consular office, I am sure my hon. Friend would not desire to press these Amendments tonight.

I do not wish to press the Amendments, but I ask the Solicitor-General to think again about this time-lag. His argument that if the consul's consent is withheld, all that the police authorities have to do is to ring up to get the permission of the Secretary of State is a little impracticable. What we are suggesting is that before the police approach the consul in question to seek permission to enter the consulate, they should first take the precaution of obtaining in advance the permission of the Secretary of State to enter the consulate, lest the consul should object.

Let the right hon. and learned Gentleman just examine what really would happen if his argument were accurate. Suppose the chief constable in a certain town approached the consul and the consul refused to allow entry into his consular premises. Is the right hon. and learned Gentleman really suggesting that in a matter of a few moments the chief constable could get on the telephone to London, and go through all the business of getting the permission of one of the Secretaries of State named in the Bill, who might themselves be otherwise engaged at that particular moment, and that a few hours later the permission would be telephoned to that chief constable that he could force entry into that consulate? It really would be a much more complicated and a far longer procedure than that. So far as the right hon. and learned Gentleman's argument rested on the matter of delay, I do not think he can have worked out how it would apply in practice. I want to emphasise that we are trying to deal with wholly abnormal circumstances, not with normal circumstances at all, and where we have abnormal circumstances we want power to act speedily, if the action is to be effective.

In replying to the previous arguments addressed to the Committee, I was dealing with them legalistically because they were rather of that character themselves, but I think we ought to get back to a sense of reality in the matter. After all, we are dealing now with one Convention. We shall not enter into conventions with countries with which one cannot feel that there is a certain amount of cordiality and mutual trust. It has to be remembered that Clause 4 is the Clause which will relate to countries in respect of which there are reciprocal advantages granted. As I say, we have already this particular Convention, and it is upon that basis. After all, what is it that hon. Gentlemen opposite are anxious about? They feel that a situation may arise in which emergency conditions prevail and where we should have to act speedily. To assume that in circumstances of that sort the consular officer in charge of the con- sular office would have gone off to play golf is most unrealistic, in the assumed circumstances here.

7.1 p.m.

But that is exactly what he would do if he wanted to withhold his consent.

All right then. If he has gone off, and one cannot get his consent because he has absented himself to play golf when he ought to be in his place, one is par excellence within the words, that consent

"is withheld or cannot be obtained. …"
We cannot say that he is doing his duty if he has gone off to play golf when he ought to be in his consular office. If there were conditions of emergency, quite obviously one could either get permission from the consular officer or the permission would be refused, or he would have gone away to avoid being contacted; but one could then say his permission could not be obtained. If he wanted half an hour to think about it one would have to consider how urgent the case was. One has to make efforts to obtain his permission which are reasonable having regard to the nature and urgency of the occasion; and if the occasion were one which would not brook half an hour's delay, then one could perfectly properly say one could not obtain his permission, if he would not give it before half and hour had elapsed. So that really the two forms of wording come to very much the same thing, and they really do not make much difference; and that being so, in face of the Convention into which we have entered, it would be extremely difficult now, for some reason which really must appear, to a person who entered bona fide into this Convention, very difficult to understand, to depart from the terms we have used in the Convention.

These conventions will not be entered into lightly and without proper care and proper reflection of the general circumstances appertaining with regard to the country with which the Convention is entered into. If it should happen that an emergency did arise, it would be an easy matter of common sense to determine at a particular moment whether one could, in fact, say one could not obtain permission or that it had been withheld. I ask hon. Gentlemen opposite not to press these Amendments, which really will not effect any big change, and which would be very difficult to justify, having regard to the wording which has been used in the Convention that has been entered into.

I do not think that the right hon. and learned Gentleman's reply is very satisfactory, but in view of his explanation that we have already entered into a consular Convention with certain countries, and that to alter its terms may lead to misunderstanding, my hon. and learned Friend and I do not wish to press the Amendment.

Amendment negatived.

Clause ordered to stand part of the Bill.

Clauses 5 and 6 ordered to stand part of the Bill.