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Clause 1—(Immunities Of Representatives Of Commonwealth Countries And Republic Of Ireland And Certain Other Persons)

Volume 496: debated on Thursday 28 February 1952

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7.45 p.m.

I beg to move, in page two, line 13, to leave out from "envoy" to the end of line 17.

The Bill deals with the conferring of certain immunities upon certain representatives in the United Kingdom of Commonwealth countries and the Republic of Ireland. Clause 1 extends these immunities to certain members of staffs in addition to high commissioners and agents-general.

The reason for the Amendment is partly because of some remarks made by the hon. Member for Enfield, East (Mr. Ernest Davies), during the Second Reading debate. He was the Under-Secretary of State for Foreign Affairs in the last Socialist Government, and can therefore be expected to know something about this subject. I wish to quote what he said about the domestic staffs aspect of the matter. He made this statement
"…there has been a regrettable increase in the number classed as on the domestic staffs of the heads of missions. Figures were given to me in reply to a Question today to the effect that between 1945 and the present time the numbers of those classified by foreign missions in London as being domestics have risen from 537 to 861. I sometimes have a slight suspicion that some of these people might be wrongly classified with the purpose of obtaining that diplomatic immunity."—[OFFICIAL REPORT, 5th December, 1951; Vol 494, c. 2462.]
I also spoke on Second Reading and referred to the same point.

It seems to be that this is of some importance because some of the figures quoted by the hon. Member referred to foreign missions, not to High Commissioners and representatives of our Dominions. If under this Clause we are to grant additional immunities, it seems to be extending diplomatic immunities far more than is reasonable. I am glad to have the support ab initio of the hon. Member by reason of his statement on Second Reading.

We have had the Report on Diplomatic Immunity—Command Paper No. 8460—from an Inter-Departmental Committee under the chairmanship of Lord Justice Somervell who, in my previous experience in the House, was a very popular Attorney-General. The Report contains several references to the domestic servant. There are three main points. The first is the question of extending diplomatic immunities to such a large number of domestic servants. The second is the question of giving diplomatic immunities to the local nationals who are in the service of the heads of missions, whether they be foreign or Dominion. On that, the summary of conclusions in the Report says:
"…the Foreign Secretary should in future refuse to accept any local national as holding any position in a foreign embassy in this country.…"
I am sorry to say that for that purpose Dominion countries are classed as foreign—
"including the position of a 'domestic servant,' except on the condition such person shall not enjoy a personal diplomatic immunity."
The third point is the question of reciprocity. If the Committee will read this Report, they will find that in paragraph 10 on page 6 it is clearly shown that in some cases there is no reciprocity with some countries. If I may read one sentence:
"The immunity was recognised as applying and under our laws applies to Ambassadors and their servants, including domestic servants. There are a certain number of States, including the U.S.S.R. which do not recognise the immunity of servants of any nationality."
It seems to me, therefor, that we ought to do something in the Bill on the lines of only giving diplomatic immunity in those cases where it is given to our people.

This is a very complicated matter both, legally and technically, and the Report does refer to how Britain came to give diplomatic immunity to the domestic servants of the heads of missions. The incident which gave rise to it occurred in the early 18th century when the Czar of Russia was visiting Queen Anne, and his carriage was upset by the mob, so I understand.

I think it was the Czar's ambassador and not the Czar in person.

I agree. The Czar's ambassador was in his carriage and the carriage was upset by the mob. Both the Czar and the ambassador were furious. The result was that under the Diplomatic Privileges Act, 1708, for the first time Britain gave certain diplomatic immunity to servants of representatives of foreign countries.

On the merits of the case, diplomatic immunity is not the same as diplomatic privilege, but I said on Second Reading that diplomatic immunity for domestic servants conferred immunity in two main ways. I was not contradicted and I hope I was right. The Acts are there to be studied. Incidentally, I should like to make a plea for some form of consolidation so that we might be able to understand these Acts more clearly.

There is freedom from taxes. I am not talking now about Customs and Excise, but internal taxes. Domestic servants who may come within our tax ranges are covered under this subsection, and it seems to me very unfair to the overburdened British taxpayer that such a large number of people should be granted exemption from taxes simply because they happen to be the domestic servants of a High Commissioner, ambassador or agent-general.

Then there is the question of freedom from legal suing. I mentioned on Second Reading a supposed case where the chauffeur of a High Commissioner had an accident:
"Supposing the chauffeur of one of these consuls or high commissioners—it does not matter whether he is on duty or not—knocks down somebody. He need not have a driving licence; he need not have passed a driving test, because being free from legal suit, he cannot be sued for not having a driving licence nor can he be sued for having driven without having passed a driving test, and he cannot be sued for the consequences of any damage he does to a British citizen in the streets."—[OFFICIAL REPORT, 5th December, 1951; Vol. 494, c. 2473.]
The Somervell Committee to a certain extent deals with this point. It says that by some agreement which has been made with the various foreign missions in London, all drivers of cars now have to have, in effect, insurance against third parties. But that is not good enough, because although third party risk itself covers a part of the element of risk to a British citizen, it does not cover all, and it seems to me that the British citizen ought to be covered entirely against risk as with any British driver of any British vehicle on any British street.

I know there is in normal practice an arrangement by which diplomatic immunity is waived, and I am thankful to see from the Report that that normally is done, but I should like to see it in much more legal form than that. Arrangements should be quite clearly made whereby people should not be allowed to claim diplomatic immunity if an accident is caused to British citizens. There have been cases where diplomatic immunity has not been waived. I need not recite them, but the Tass Agency was one. This is one of those things where we are making such vast extension to the immunities and privileges of people from abroad who are in this country, that we should be very chary of extending it without proper safeguards.

I hope, therefore, that my hon. Friend will not only do his best to meet the point that I have made, but will give me some indication of what he intends to do about the recommendations in this respect of the Inter-Departmental Committee presided over by Lord Justice Somervell.

8.0 p.m.

The hon. and gallant Member for Angus, South (Captain Duncan), has referred to some remarks I made in my Second Reading speech. He mentioned that I drew attention to the large increase in the domestic staff of the foreign missions in London, and to the fact that I expressed the view that I had suspicions that this large increase might not be fully warranted.

It was because I had in mind the very committee which has since reported, that while I was at the Foreign Office I came to the conclusion that it would be advisable if some action could be taken as regards the domestic staff. In the Bill now before us some action is proposed, and it carries out, in fact, a recommendation made in the Somervell Report. Because that recommendation is being implemented here, it would be unfortunate if the Amendment were accepted by the Under-Secretary of State who is handling this Bill.

It would be most unfortunate if the domestic staffs were not included and if, being included in the Bill as they are, it were proposed that they should only receive immunity for their official acts, and therefore strictly limited immunity. It would be unfortunate if they were not included because it would put Commonwealth missions in a worse position than foreign missions, and that is something which the Bill itself aims to remedy.

This Amendment would cover that point. The principle of the Amendment, if accepted, would put foreign missions on a level with the English missions.

I am not certain that it would be the case. If this Amendment were accepted it would mean that the domestic staff of a Commonwealth mission would not be granted any immunity whatsoever, not even for their official acts. As it happens, it seems certain, as the Somervell Report points out, that such immunity for the domestic staffs is required by international law, and as the report indicates in paragraph 9, in the passage which the hon. and gallant Gentleman quoted, it is made clear that under the Act it is required that this immunity should be given to domestics or domestic servants.

I want to know from the Under-Secretary whether it is intended that this Report should be carried out as regards foreign missions, and if action is to be taken in the near future; because that seems desirable, when we are dealing with a Bill aimed at bringing the Commonwealth missions into line with the foreign missions. In this case we are going a little further, inasmuch as the immunity of the domestic staffs is being restricted as regards local nationals, and it would be most unfortunate if the foreign domestic staffs of the chiefs of missions were not brought into line in this particular as soon as possible.

So I hope the Under-Secretary will indicate that it is proposed to proceed with that legislation, if legislation is required, which I rather doubt. But, if it is proposed to take the necessary action I hope the hon. Gentleman will indicate that there will be similarity in the immunity which is granted to the two missions.

One other reason I would put forward for rejecting this Amendment is because of the effect it would have on our embassies abroad if reciprocity were entered into by Commonwealth countries in this case or by foreign countries in the case of foreign missions. After all, we employ a large number of domestics, including foreign local nationals overseas in our foreign missions, and it would be highly undesirable if they did not receive immunity at least in all cases for their official acts. It would put us in a difficult position and it is necessary that immunity should be given to all our staffs, including the local nationals whom we employ.

So, although I referred to this matter in my Second Reading speech, it was with a view to having this limitation put on and certainly not with a view to having that immunity taken away completely from the domestic staffs.

The Amendment put forward by my hon. and gallant Friend is founded, as he says, on two main points, and I hope to be able to satisfy him on both.

The first was regarding the position of the servants of the local nationality under the report on diplomatic immunity which was made by an Inter-departmental Committee under the Chairmanship of Lord Justice Somervell. If my hon. and gallant Friend looks at page 7 of that report, he will see that the Committee at para. 12 says that—
"Apart from local nationals employed as domestic servants our general conclusion is that the immunities granted here do not exceed those required or probably required by International Law."
Then if he looks at the Bill he will see that the proviso restricts the diplomatic immunity in the case of the domestic staff to nationals who are not citizens of the United Kingdom except where they are dual nationals, when they get the diplomatic immunity. The reason why local nationality servants who are also dual nationals were included in the scheme of diplomatic immunity is that in the case of the Commonwealth countries it is very likely that, say. Australia or New Zealand citizens would also have a dual citizenship because their father might have been born in the United Kingdom. Therefore it was felt that it was desirable to include within the scope of diplomatic immunity those domestic servants who had the local citizenship in addition to that of the Commonwealth countries.

I hope my hon. and gallant Friend will be satisfied that the report of the committee with regard to the persons covered in the category of domestic servants has been carried out by this Bill, and that local citizens have been included in the scope of diplomatic immunity.

Then my hon. and gallant Friend raised a point with regard to paragraph 10 of the report of the Inter-Departmental Committee. He pointed out that a certain number of States do not recognise the immunity of servants of any nationality. If he will look at the Bill, I hope he will be satisfied with the provision in Clause 2 (2), which allows Her Majesty by Order in Council to modify or remove any immunity where the corresponding country does not accord a like immunity.

Of course it does not mean that if one of the Commonwealth countries did not accord immunity to the servants of the United Kingdom High Commissioner in that country we would necessarily go through the motions of bringing that Order in Council. That would be a matter for decision at the time. It might be that, as a result of representations, the Commonwealth country would change its mind. But we have the power, and the hon. and gallant Member will appreciate that this provision about the Order in Council is covered by Clause 2 (2) and is subject to the affirmative procedure under Clause 3 (2).

May I ask one question on that? Is it the intention of Her Majesty's Government to apply that principle to foreign diplomatic missions as well?

My hon. and gallant Friend will appreciate that it is not within the province of the Department of my noble Friend. All I can say is that the matter is under consideration. That is a time-honoured phrase used by Governments and sometimes it is active or earnest or immediate consideration. However, the report is being studied and a decision will be taken about that. At any rate, on this point the recommendation of the Committee on Diplomatic Immunity has been carried out with the immunity which is sought to be given by the Bill to the representatives of Commonwealth countries.

My hon. and gallant Friend, quoting from the speech of the hon. Member for Enfield, East (Mr. Ernest Davies), expressed apprehension about the growing number of servants and his doubt as to whether all the servants of the foreign countries were carrying out domestic tasks on behalf of their missions. All I can say is that the situation is always carefully watched by the Foreign Office and that the fact that there might be abuse would not be a reason for refusing diplomatic immunity to servants. The best way to deal with this is by ensuring that no claims which are made by any foreign mission—I have no reason to suppose that this is the case—for putting servants on what is called the diplomatic list are improperly based.

Both points, therefore, are covered by the Bill. First, with regard to the position of servants, the local citizens, where they are not dual citizens, are excluded; and second, the Bill gives power to the Government to modify the immunity, or to remove it entirely, where reciprocity is not accorded. I hope, therefore, that my hon. and gallant Friend will be disposed to withdraw his Amendment.

The last point raised by my hon. and gallant Friend—that of tax privileges—is outside the scope of the Bill. In so far as I may speak on a matter which is outside my Department, I believe that domestic servants do not have tax privileges. This is a Bill dealing, not with privileges, but with immunity, and tax privileges do not follow from immunity—they are two entirely different subjects.

I see that the hon. Member for Enfield, East, believes I am right. For all these reasons, therefore, I hope that my hon. and gallant Friend will see his way to withdraw the Amendment.

The successes with which my hon. and learned Friend has shown that the anxieties of my hon. and gallant Friend the Member for Angus, South (Captain Duncan) in regard to domestic servants are covered in this Bill so far as Commonwealth countries go, has thrown into relief the unsatisfactory position regarding foreign countries.

By the Bill, as has been shown, where a Commonwealth country denies reciprocity, diplomatic immunity in this country can be withdrawn. But we are unable to protect ourselves similarly against foreign countries, which are much more likely to deny reciprocity. It is ironical to reflect that the country which at present most conspicuously denies reciprocity, Russia, is the country on account of which this immunity was first written on to our Statute Book; for although my hon. and gallant Friend was not quite accurate in saying that immunity did not exist before 1708, it was not statutory before that year. Accordingly, as the hon. Member for Enfield, East (Mr. Ernest Davies) has said, there are the words "domestick or domestick servant" in Section 3 of the Act of 1708.

The difficulty, of course, is that in order to remove the anomaly which the Bill creates, we should require new legislation in regard to foreign powers. Several hon. Members have drawn attention to the unsatisfactory and unconsolidated condition of the law on the subject of diplomatic immunity. Thus it is not unreasonable to suggest to my hon. and learned Friend that he should ask his right hon. Friend the Foreign Secretary to take this matter into consideration.

Perhaps the whole conception of immunity for a domestic, as embodied in the law of diplomatic privilege, is something of an anachronism. At the time of the Reign of Queen Anne, and, of course, much earlier, it was normal to accord to servants the same privileges as were enjoyed by their masters. For example, all the immunities outside the Palace of Westminster which were enjoyed by Peers of the Realm were equally enjoyed by their domestic servants. At a time when such privileges existed widely, it was natural that they should be conferred upon the servants of foreign ambassadors.

The unsatisfactory position to which the hon. Member for Enfield, East, and others have drawn attention, justifies us not only extending the provisions of this Bill to foreign countries, but also examining more jealously whether there should not be a narrower definition, for the purposes of diplomatic immunity, of the conception of a domestic servant.

8.15 p.m.

I will certainly bring to the notice of my right hon. Friend the Foreign Secretary the observations of my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). It is important to realise that in practice diplomatic immunity does not result in the escape from either a suit or prosecution in the courts of a person who may have committed an offence.

It is, however, necessary as a practical matter to have this immunity, because at the time an accident takes place—take a motor car accident as a typical case—it might lead to a very awkward result if, say, the chauffeur of an ambassador or a High Commissioner were to knock somebody down whilst he was driving dangerously and the police were to arrest him immediately and create, perhaps, an international incident.

The chauffeur would be prosecuted and sued for the accident; he would have his third party liability. The British subject who may have been run over would get his damages, and the law of the land would be enforced. If, however, diplomatic immunity did not exist, the incident might lead to very undesirable consequences at the time the accident or crime is committed. It is for that reason that in civilised nations it is thought very necessary and valuable to have this diplomatic immunity.

There is often a misconception that the criminal or the person involved is enabled to get away unscathed. I know that my hon. and gallant Friend does not share that illusion, but it is important to mention that in relation to the Amendment because he very helpfully drew the attention of the Committee to the situation when a motor car accident occurred and to the statements in the Report on Diplomatic Immunity, where the Committee point out that in practice the immunity is waived. The provisions about waiver are contained in Clause 1 (5) of the Bill.

The discussion has been worth while and I was justified in putting down the Amendment. I am grateful to my hon. and learned Friend for saying that, broadly speaking, the points I have raised are covered in the Bill. At the same time, I hope we shall have impressed on the Foreign Office that the existing law is not satisfactory. I am glad that my hon. and learned Friend said in reply to my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) that this whole matter is under further consideration, so that we can get reciprocity and equality with foreign missions and nations. In the circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move, in page 2, line 30, after "such," to insert "offices or.

I think it would be for the convenience of the Committee if we also took the remaining Amendments to this Clause, as they are purely consequential and all rest on a small drafting point.

The position is that it was found that it might be inconvenient to restrict the words only to classes of offices as sometimes there might be only one example and it might be necessary by Order in Council to confer consular immunity on an office and not on classes of office because there was only one office in a particular case. I hope the Committee will think it is not an important enough Amendment to divide upon it.

Amendment agreed to.

Further Amendments made: In page 2, line 31, after "being," insert "offices or."

In line 42, after "such," insert "offices or."

In line 43, after "being," insert "offices or."—[ Mr. J. Foster.]

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

Before we add the Clause to the Bill I should like to draw the attention of my hon. and learned Friend to two points on which he may give some clarification. The first relates to the proviso to subsection (1), which is found in line 18 of page 2 of the Bill. This is the proviso, already referred to in this debate, which lifts the immunity from persons who are citizens of the United Kingdom and Colonies but not also citizens of the country concerned.

It does not however lift that immunity from all classes of persons on whom Clause 1 confers it. Clause 1 deals with the chief representative of a Commonwealth country and his family as it also deals with his official and domestic staffs. If we look at the terms of the proviso, we see that the immunity is only lifted from a member of the official or domestic staff, or members of such a person's family. In other words, the chief representative and the members of his family retain these immunities even when they are citizens of the United Kingdom and Colonies only. That appears to me to be an anomaly which can hardly have been intended.

It may be a very improbable case that the chief representative himself would not be a citizen of the country which he represented; but I can very easily conceive that his wife or other members of his family residing with him might at the material time only be citizens of the United Kingdom and Colonies. We would therefore have the absurd situation that the United Kingdom wife of a counsellor or other subordinate is not immune, whereas the wife of the chief representative himself would be immune. I cannot see that it was intended to create that anomalous situation and I hope my hon. and learned Friend will refer to the matter.

My second point relates to subsection (5), also referred to previously in this debate, which enables the immunities to be waived for the purpose of securing suit or punishment. It does so under two headings. Paragraph (a) deals with waiver in the case of what is described as
"a person in the service of the Government of the country."
Paragraph (b) refers to waiver in the case of a State representative or a member of a State representative's staff.

It seems evident that these two paragraphs are intended to correspond with paragraph (a) and paragraphs (b) and (c) respectively in subsection (2). That is to say, the person
"in the service of the Government of the country"
is a person such as is referred to in subsection (2, a) and a State representative or a member of his staff is a person such as is referred to in paragraphs (b) or (c) of subsection (2). May it not easily happen that the State representative or a member of his staff is also in the service of the Government of the country which the chief representative represents? If that could happen, and I cannot see how it could fail to happen, we would have the position in which two separate individuals, who might be personally antagonistic to one another, would equally have the right to waive the immunity of the same individual.

Suppose, for example, that a process was intended against a member of the staff of the State representative for Western Australia. That State representative himself, or the member of his staff, might also be a servant of the Government of the Commonwealth of Australia. The position would arise that both the Commonwealth High Commissioner and the Agent General for Western Australia would be entitled to make the waiver. Knowing the sensibility of States within a federation as to their privileges and rights, one can well imagine that such a collision, which there is no necessity to create, could cause difficulty. I hope that if there is a real collision, or duplication, in this subsection it may be removed.

I am grateful to my hon. Friend for raising these two interesting points. With regard to the first, which was that the chief representative or his family, if they were solely United Kingdom citizens, would not be exempted from diplomatic immunity under the proviso, I can only say that it really is a matter of opinion as to whether it is right or wrong. It certainly was intended. My hon. Friend said it could not have been intended, but it certainly was. The argument for that view is that if we have a chief representative who is solely a United Kingdom citizen it was thought desirable that he should have immunity and that also the members of his family, even if they were only United Kingdom citizens, should have that same immunity.

I agree that it would point a distinction between the wife of the counsellor my hon. Friend instanced who might be a United Kingdom citizen only and would not have that immunity because she was excluded under the proviso. But I can quite understand as a practical matter that it would be desirable for the chief representative and his family to have diplomatic immunity in the very rare case where the chief representative was solely a United Kingdom citizen and perhaps in the less rare case where a member of his family might be solely a United Kingdom citizen. I do not think it is a point capable of any further bargument. It is a matter of opinion. We think on the whole that it would be right to include these persons who are solely United Kingdom citizens within the diplomatic immunity and, therefore, the proviso was purposely drafted in that way.

8.30 p.m.

With regard to the second point, the view of those who drafted this Measure, and the view of my noble Friend, is that the two subsections are not overlapping. I would be grateful to my hon. Friend if he would say if he really thinks that the Agent General is in the employ, in the service, of the Federal Government. I should have thought he was not, and that although a State might be an emanation of the Central Government, there is a difference between the Agent General and the chief representative.

I would not suggest that he was in the Commonwealth employ in his capacity as Agent General, but that he and the members of his staff might well also be in the service of the Government of the Federation in some other capacity.

I do not know if my hon. Friend means that he had some other service in Australia, but probably he would have given that up to be Agent General. I think it unlikely that we should get a person who doubled the roles of being both in the service of the Federal Government and also in the service of the State Government. In that very unlikely case there would, of course, be the possibility that both classes would have the right to waive immunity. But I should have thought that was so unlikely to happen that it would not be worth introducing any complicated provision to avoid the situation.

Besides the unlikelihood of its happening we would have to have the position where the chief representative and the State representative, either himself or the person under him, in the double employment, do not get on together. There we have two very far-fetched hypotheses.

But as my hon. Friend has raised these points we will look at them again to make sure our view is right.

Question put, and agreed to.

Clause, as amended, ordered to stand part of the Bill.