Skip to main content

Clause 2—(Power To Extend Section One To Other Commonwealth Countries, And To Exclude Countries Refusing Reciprocal Treatment)

Volume 496: debated on Thursday 28 February 1952

The text on this page has been created from Hansard archive content, it may contain typographical errors.

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

I do not see the need for this Clause or, for that matter, the next Clause, because the two are related. I am wondering what other country could be added. I presume that the idea behind it is that there may be some new Dominions in the future. If one begins to think of the possibility of new Dominions, first of all there is the Caribbean which may come into a sort of federation in the West Indies.

The next possibility is a Central African Federation. Both of these are not countries, because Clause 2 (1) says:
"being a country within the Commonwealth."
I am wondering whether "country" is meant to include "Federation." Otherwise I cannot see that there is very much point in including this Clause at all, and I should like to know what is the point.

The comments I would offer on this Clause relate to the same words as those referred to by my hon. and gallant Friend the Member for Angus, South (Captain Duncan), but from a different point of view, namely the words,

"being a country within the Commonwealth."
I have no intention of attempting to indulge in a political discussion on the implications of the term "Commonwealth." Purely in the narrow drafting sense this expression "Commonwealth" has a peculiar history in our Statute Law. The first occurrence of the word "Commonwealth" in the Statutes of the Realm was by a kind of side-wind in subsection (2) of Section 36 of, of all places, the Finance Act, 1950.

Until the issue of the Finance Bill of 1950 the word "Commonwealth" or "British Commonwealth" had not occurred in the text of any Statute of the Realm. When the Finance Bill was first presented, it included no definition of the term "Commonwealth territories," which is the term there used. That was added at a later stage, as the result of an Amendment which I put down. Even so, Section 36 (9) of the Finance Act, 1950 only defines the expression "Commonwealth territories," and it does so only for the purpose of that Act and the Schedule to the Act.

So we are really faced here with what is a substantial innovation in the phraseology of a statute. This is actually the first time where the expression "Commonwealth" occurs at all. "Commonwealth territories," as I have explained, has once occurred. Here the term is used without any definition or reference to any other statute where the expression is defined.

That seems to me to be an unsatisfactory state of affairs. It is one which I believe—and here I think I should be relieving the difficulty of my hon. and gallant Friend—could easily be removed. I submit there is no need at all for those words,
"being a country within the Commonwealth."
In fact they do more harm than good.

Let us suppose that a new State arises within the Commonwealth, whether it be part of Her Majesty's Dominions or not—as is the case at present with the Union of India. Then that country, or whatever one is pleased to call it—that State—could be specified in the Order in Council. There is no danger by omitting these words that a foreign State, one outside the Commonwealth, could be included; for the object of the whole Bill is to place persons who are not representatives of Foreign Powers in the same position as if they were. So no State which is a Foreign Power could in any case by an Order in Council under this Bill be brought within the scope of it.

So far from importing any necessary limitation, the expression
"being a country within the Commonwealth"
is an innovation in our legal phraseology without necessity; and innovations without necessity are always undesirable. I hope therefore that in deference to both my hon. and gallant Friend and myself my hon. and learned Friend will look at this Clause again and see whether it would be better without those words.

Naturally, I will look at the Clause again in view of the remarks put forward, but I would like to indicate the way I view these points. My hon. and gallant Friend the Member for Angus, South (Captain Duncan), made the point that perhaps the word "country" might include a federation.

I see the point which my hon. Friend makes, but I would point out to him that, in the second line of Clause 2, the word "countries" occurs in the plural. It refers to countries which are specified in Clause 1 (6), some of which are federations, for instance, Canada and Australia. Therefore I should have thought that that reference to countries specified in Clause 1 (6), which include federations, indicates that there should be very little doubt that the words "country within the Commonwealth" would also include a federation. It is unwise, however, to hazard legal opinions on these complicated matters without further examination, and I will certainly look into this point.

With regard to the point raised by my hon. Friend the Member for Wolverhampton South-West (Mr. Powell), I see exactly what he means, and I appreciate that if the words were left out there would still be a sufficient safeguard, because we should not need to inquire of foreign countries as they would have diplomatic immunity already. It would be possible to have a foreign country which might not be independent and would not possess diplomatic immunity, and, therefore, would not be included without being a member of the Commonwealth. That is one point that occurs to me.

I think the addition of the words is useful as indicating what is contemplated, because not every word in an Act is actually necessary for its working. So often, many of the words drafted into an Act are there in order to make the object of the particular section clearer, and the word Commonwealth is one which would fall to the interpretation of the court, either to be decided by the judge on political documents and actions as to whether a particular country has been admitted into the Commonwealth, or be decided by the court on the principle of applying to the Executive for a certificate, as in the case of the question whether a foreign country was an independent sovereign country or not.

I would submit for my hon. Friend's consideration that the words "being a country within the Commonwealth" are words which are apt to indicate what the scope of the Order in Council is. Of course, Parliament has complete control over this by reason of the affirmative Resolution procedure mentioned in Clause 3. However, both these points will certainly be looked into, as they are interesting and raise rather difficult legal problems.

Question put, and agreed to.

Clause ordered to stand part of the Bill.