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South Africa Bill

Volume 656: debated on Thursday 29 March 1962

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Question again proposed, That those words be there inserted in the Bill.

I was asked about the possibility of appeal from an ambassador's decision which is the same question as that of an appeal from any High Commissioner's decision when powers have been transferred in accordance with Section 8 (2) of the 1948 Act. As I was pointing out, the question of appeal does not normally arise because once some simple facts are proved it is a matter of entitlement. Also one has to bear in mind that when a discretion is to be exercised the Home Secretary is exempted by Statute from giving his reasons for it.

Section 8 (2) of the 1948 Act which we are invoking, says:
"The Secretary of State may make arrangements for the exercise in any country mentioned in subsection (3) of section one of this Act of any of his functions under the last two foregoing sections by the High Commissioner for His Majesty's Government in the United Kingdom."
That has always been taken to be a complete transfer, by the Secretary of State to the High Commissioner to whom he transferred it, of the Secretary of State's functions in relation to registration.

5.45 p.m.

I am told that for some strange technical reason, which I must confess I have not got to the bottom of, it is not strictly a delegation: it is a statutory transfer of a function. That being so, once the High Commissioner has had this duty placed upon him there is no question of there being an appeal to the Secretary of State.

The hon. and learned Gentleman said there was no right of appeal. Of course, when we were talking about appeals we were not thinking in terms of references to the Secretary of State at all; but, there is, of course, another way in which an appeal may arise. As the hon. and learned Gentleman said, once certain facts are established, a man is entitled to be registered and the registration is automatic, but there does sometimes happen a case in which the facts are in dispute and in which the Home Secretary under the Nationality Act comes to what the applicant thinks is a wrong conclusion. He may have thought the facts had not been established when they had. In those circumstances a man can go to the courts, of course, and ask for a declaration that certain facts are established and in that way rights of appeal would arise.

I think that I am right in saying that generally speaking not only is the High Commissioner by virtue of Section 26 of the 1948 Act not obliged to give reasons for his decision—

Where it is discretionary, certainly not; but where the entitlement automatically follows establishment of certain facts, then the Home Secretary or the Commissioner may say, "I do not believe that the facts have been established," and the man can go to the courts and establish them.

It certainly will not be so in the case where it is merely a question of establishing facts giving an automatic entitlement, but Section 26 of the 1948 Act says:

"The Secretary of State, the Governor or the High Commissioner … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion …"
That refers to that minority of cases which are at discretion. I must say that had I known that this point was going to arise I would have preferred to have taken some advice about it. The Section goes on:
"and the decision of the Secretary of State … on any such application shall not be subject to appeal to or review in any court."

That is not my point. It is not the case I had in mind. If a man is entitled to something and that something is refused to him he can always under the Common Law go to the courts for a declaration that he has established his entitlement, and that must apply where the grant of registration is as of entitlement and not as of discretion.

Yes. It, therefore, is quite clear, in view of what the Section says, that the ban on appeal to or review in any court applies to the exercise of the discretion only.

I am going to try to answer the points which the hon. Gentleman has raised. There are further points to bear in mind. Perhaps I may be allowed to go on and we shall see how it goes.

I was asked what happens when the application is made not directly to the ambassador or his office but to a British consul within the ambassador's jurisdiction—if that is the right word. The answer is that the consul would forward the application to the ambassador's office.

The hon. Member for Eton and Slough (Mr. Brockway) gave me very great pleasure by what he said about our present Ambassador and High Commissioner in South Africa, because it so happens that he was both dean of my college and Permanent Secretary of the Department in which I first became a Parliamentary Secretary. Knowing his tremendous discretion and humanity, one feels extremely confident that he will exercise these functions in a sensible way.

The right hon. Member for Derby, South (Mr. P. Noel-Baker) raised a number of matters which, candidly, are not within my ministerial responsibility and which I do not think could be the subject of legislation. They raise the question whether an Ambassador or a Minister should be appointed and I think that I should steer clear of that.

I recognise that, but I think that it would be a suitable occasion for the Government on Third Reading to make a declaration of the kind I mentioned.

The right hon. Gentleman, with his long experience of this House, must recollect that there are rules of order.

The moment has come for me to give way to the hon. Member for Eton and Slough if there is any point on which I have not answered him.

I am very much obliged. Where there is an entitlement the decision is made and in a sense is absolute. There is no argument about it. It is the minority of oases where there is discretion that I had in mind when I asked whether there was any appeal from the Ambassador. The hon. and learned Gentleman has answered that point. Whilst we have the present Ambassador one has no doubt about the humanity of his decision, but we are passing what will be a permanent Act and things might possibly be different. Will there be a right of appeal from a decision made by an Ambassador in the minority of cases where there is discretion?

No, because Section 26 of the 1948 Act says that there cannot be an appeal, at any rate to a court, in the case of any discretion. I hope that I am understanding the position rightly. As I have said, this is not a mere delegation by a Secretary of State to an Ambassador. It is the transfer to the Ambassador of a power or function to make a final decision and therefore there is no appeal from the Ambassador's decision. Neither has there ever been an appeal in the past in those discretionary cases from the decisions of the High Commissioner. There has been a complete transfer of function, and we are continuing a position which has worked successfully and, as far as one knows, without injustice for many years.

Amendment agreed to.