§ Order for Second Reading read.
§ 3.57 p.m.
The Minister of State (Mr. McNeil)
I beg to move, "That the Bill be now read a Second time."
The House may wish to know a little of the circumstances which have caused the Government to decide that this short, and I hope non-controversial, Bill dealing with consular conventions is necessary. I am told that over the last 100 years many countries have concluded consular conventions. They have done so because there was an absence of generally accepted international practice relating to many subjects connected with the functions and privileges of consulates. States have found it to their advantage to make agreements defining what the position of their respective consular offices should be, and extending reciprocal privileges.
However, the Governments of the United Kingdom have been a notable exception in that they have not followed this practice, and indeed until some few days ago, when we signed a consular convention with the Government of the United States, had concluded no conventions of this class. Primarily, as I understand it, their reluctance to conclude such a convention arose from the view that a great deal of domestic legislation was thought to be necessary in order to enable any Government of this country to fulfil their obligations arising from such a convention. Subsequent detailed and thorough examination of this subject, with the assistance of the Law Officers for England and for Scotland, resulted in the conclusion that the need for legislation changing the law of this country was much less than had previously been presumed.
The greater part of the convention which we have signed can be carried out without legislation, either because the matter falls within the sphere of the Executive or because the provisions of the convention are really declaratory of the general principles of international law, which I am told are recognised by the courts here as part of our common law Subsequent to this examination, 1878 and in consequence of it, the Government felt free to enter into consular conventions without thereby being faced with the necessity for legislation before the convention was ratified. Negotiations with the United States were started during the war but were delayed for a time at the end of hostilities because plainly both Governments were overworked with subjects arising from the war. Last year, however, negotiations were resumed, and we have now a convention with which the House is acquainted.
It is necessarily somewhat a technical document. It is concerned throughout with the position of consular officers in the country to which they are appointed including their legal immunities and their financial privileges. The Government consider that, except in relation to three points to which I shall refer in a moment, they will be able to carry out all their obligations arising from the convention, either because they are in accordance with the law of this country, including international law which would he recognised by the English courts, or by the use of executive power.
The three points upon which it was thought necessary to ask Parliament to legislate are the qualified immunity of consular premises from search, the ability of a consular officer to administer the estate of a deceased person in which his nationals—the nationals of the consular officer—are beneficiaries, but not represented, and thirdly, to endow the Ministry of Transport with power to hand over to the appropriate consular officer the estate of a deceased seaman and national of the consular officer's country if it does not exceed £100. Let me try to deal quite briefly, but I hope not inadequately——
§ Mr. R. A. Butler (Saffron Walden)
Before the right hon. Gentleman proceeds, would he tell us with how many countries this convention is agreed?
§ Mr. Eric Fletcher (Islington, East)
Would the Minister say with what other countries there have been negotiations for any similar conventions?
There are limited agreements existing with eight other countries 1879 which we propose to revoke, as I have disclosed. There is no comparable convention in negotiation, although I make it plain that in the view of the Government it will be appropriate and convenient to extend such conventions, or the offer of such conventions, to many countries. The Bill arises at this time because of the convention which we have signed with the Government of the United States.
The first necessity arises from article 8, paragraph (4) of the convention. It is one with which I expect that the House will be closely concerned and upon which I hope I can meet the proper fears of the House. It provides by Clause 4 of the Bill before us that, subject to certain conditions, a consular office may not be entered by the police or other authorities of the receiving State, that is the State in which the office is situated. We have asked for this legislation on this point because it is doubted if there is sufficient authority in international law or in practice to justify us in relying on this particular immunity being part of the existing international law and as such recognised by the courts of Britain as being part of the United Kingdom law, although it is in fact granted in many other countries. The House, however, will note that this immunity is only given subject to certain limiting conditions which quite clearly distinguish it from and narrow it from the wide immunity endowed upon diplomatic missions.
Upon these limitations let me make these points. Firstly, the consular office must be devoted exclusively to consular business. Further, entry may take place where the consular officer consents to such entry. Further, where such consent is withheld or cannot be obtained, entry may take place in the execution of a writ or any other legal process, provided that the consent of the Secretary of State for Foreign Affairs is obtained. Obviously—and this has some relevance from a recent incident—consent must be presumed in the event of a fire or of some comparable emergency, or if the authorities on the territory of the receiving State have probable cause to believe that crime or violence has been, or is being, or is about to be committed in the consular office.
1880 Finally, even this partial immunity will not apply, in relation to this country at any rate, if the consular officer should be a citizen of the United Kingdom or its Colonies—and I am told that that quite frequently happens—or unless indeed he is a national of the sending State. He must have the nationality of the State for whose interest the consular office is conducted.
§ Mr. Mott-Radclyffe (Windsor)
Before the right hon. Gentleman proceeds may I ask this, which I think is rather important: Does he mean that if the consular office is in charge of any consul of British nationality, the immunity suggested in this Bill is rendered invalid?
If I understood the hon. Gentleman correctly, if an officer, an honorary officer of British nationality, conducted consular premises on behalf of a foreign State, this part of the immunity would not be endowed upon him—such immunities would not be accorded to him or to those premises which he conducts.
I know that normally the House is jealous about withdrawing people or property from the ordinary jurisdiction of the Government or its authorities. The Government, in the drafting of this Bill, have been at pains to see that the normal and, I repeat, the proper fears of the House upon this subject are respected. I hope that, on reflection, the House will agree that there is nothing inherently unreasonable in providing that a consular office shall not be entered without the consent either of the consular officer or, on the other hand, the consent of the responsible Minister of the receiving Government, except under conditions of emergency to which I have alluded. I am warned that it will be inaccurate to say that there is a generally accepted rule of international law upon this point. But I am sure that the House will appreciate that there is sufficient authority resident in the practice of civilised States to justify this limited immunity. I would certainly say it is a limited immunity which we are most anxious to maintain for our consulates abroad.
I am also told that as a matter of practice our police authorities normally would not, except in special cases included in the Convention and in the Bill, enter into foreign consulate premises without first attempting to secure the consent of the appropriate consular officer. There is 1881 one other safeguard which the House will have noticed. This partial immunity is not automatically endowed upon consular premises in this country. To the safeguards to which I have already referred one overriding provision is attached. Limited immunity will apply only to those Governments with which His Majesty's Government has concluded a consular convention precisely providing for this point, and then only if an Order in Council, which must first be laid before Parliament in accordance with Clause 6 of this Bill, has been made.
In translating the language of the Convention into the Bill there has been a slight change. The words of the Convention are:With the consent of the Secretary of State for Foreign Affairs.They become:With the consent of a Secretary of State.That is, the Secretary of State for the Home Department in England and Northern Ireland, and in Scotland the Secretary of State for Scotland. In practice, of course, both those Ministers, before giving their consent to entry, would consult with the Foreign Secretary so that our obligations under the Convention, or under a comparable convention, would be fully met. This is the major point of the Bill and I hope that I am not unreasonably confident in believing that the House will welcome it.
The second point of substance arises from article 18 of the Convention. Here, under certain conditions which are recited in the article, the courts are to give the administration of the estate of a deceased person to the appropriate consular officer who can give a valid discharge for any property forming part of that estate. Broadly, the aim of article 18 is to enable a consular officer to act on behalf of an absent national who has an interest in a property left in the territory of the receiving State. We and the Government of the United States are of the opinion that this would be a useful provision enabling a consular officer to look more effectively after the interests of his nationals than is possible under the present law. The consul will only have access to this, however, in the last resort if the interested foreign nationals have not appointed anyone to represent them.
There is also a subsequent small provision in Clause 1 (4) which will exempt 1882 a consular officer who receives a grant of administration from a court from the necessity of giving sureties. I am told that this is a matter of prestige and a gesture to the Government which appoints him, but it is a gesture with no risks attendant at all. The House will note that in order to give effect to article 18, two Clauses are required, one for England and one for Scotland. This is due to the fact that English and Scottish property law differs in procedure in this respect.
I should not care to be drawn into a discussion upon this point, but I am bound to say that the caution of the Scottish courts in the disposal of properties is beyond exception. In the presence of my right hon. and learned Friend the Solicitor-General, I would not want to suggest that the English courts are ever incautious, but we in Scotland are very careful upon this subject. Here again, an Order in Council will be required to bring the Clauses into operation. It occurred to me when I was trying to master this subject that the courts of Northern Ireland are rather different in some respects. However, I do not see any necessity to be drawn into a discussion on that.
The Bill contains a Clause providing that no further Orders in Council shall be made under Section 4 of the Domicile Act, 1861, and that existing Orders may be revoked. Section 4 of that Act provides that on the conclusion of a convention with a foreign State, the King on the basis of reciprocity may direct by Order in Council that when subjects of such foreign States die in His Majesty's dominions and there is no person to administer their estates, a consular officer of the foreign State may act. I am told that this Section has been a dead letter to a large extent, although eight Orders were made under it in 1939. In view of the provisions of article 18 of the convention and the fact that we intend to include similar provisions in future consular conventions which we may conclude, the Government think that it would be tidier not to make further use of Section 4. In any case, the new Clauses 1 and 2, if the House agrees to them, provide a better way of achieving the same object.
1883 The final point involves two minor amendments of the Merchant Shipping Act, 1894, which arise out of the provisions of article 25, paragraph (4), and article 27, paragraph (2). Clause 5 (1) of the Bill deals with the latter. It will enable the Minister of Transport to pay or deliver money or property of a deceased seaman not exceeding £100 to a consular officer for transmission to the appropriate person or persons who are resident in the consular officer's State. Clause 5 (2) which is concerned with Article 25 of the Convention extends the power of a consular officer in regard to a vessel wrecked off the coast of the United Kingdom, which power already exists in relation to articles belonging to or forming part of such a wrecked vessel or her cargo. The Government have not thought it necessary or convenient to confine these amendments only to consular officers of countries in favour of it, and an Order in Council may be made under the Bill. In other words, this, as distinct from the immunities section, is a general provision.
I hope that the House will agree that this is indeed a brief and desirable Bill which will tidy up our practice in relation to consular officers and add to the efficiency of our own officers abroad as well as to the efficiency of the officers of foreign Governments with whom we conclude conventions. Naturally we shall be glad to try to give further information on any detail arising from a consideration of the nine Clauses of this Bill.
§ 4.19 p.m.
§ Mr. R. A. Butler (Saffron Walden)
It is very good to see the Foreign Office becoming involved in legislation in this House. I am sure that the right hon. Gentleman is now looking forward to a long and intricate piece of legislation which will engage his attention for some considerable time. If I find myself unable to speak for a very long time on this Bill, I hope that the right hon. Gentleman will not imagine that I have not beside me others to whom I would wish to give way in order not to be selfish in this matter and so that they may put their point of view from the legal angle. This is a most important Bill from the legal point of view. The right hon. Gentleman said that there were three 1884 particular objects—immunity from search, the dealing with estates of deceased persons, and the question of merchant seamen.
I think he has with great clarity put before us the main purposes of the Bill. So far as I can understand it, and according to its Title, this Bill applies only to those States with whom a convention has been made in respect of Clause 5. We are in some doubt about Clause 4, and I should like to ask the learned Solicitor-General whether it is of general application or whether it is entirely governed by Clause 6 (1), and, thereby, restricted only to States with whom we may make a convention. If that is the case, it would be the fact that this Bill applies only to our relations with the United States of America and U.S. consular representatives. I should like to ask whether, if that is correct, there are other countries, including the eight with whom we are having negotiations, and, if so, whether the right hon. Gentleman can tell us which States they are and can give us an indication of the likely effect of a Bill of this character, which would appear to be a somewhat cumbrous piece of machinery with which to deal solely with U.S. consular representatives in this country.
Can he also give us an indication how soon it is likely to be applied to other countries, and may we have a clearer idea about the effect of the Bill? I hope that my reading of Clause 6 will be confirmed by the Solicitor-General, and, naturally, before coming to the House today, I took the trouble to read through my "Diplomatic Practice" and other volumes with which I was fully conversant when occupying the position now held by the right hon. Gentleman, and I am somewhat disappointed because so much in these volumes relates to diplomatic and not to consular practice.
We are naturally interested particularly in the provisions of Clause 4. In so far as they apply to the State with which the first convention has been signed, we would regard the Clause as being of very reasonable content; that is to say, in the first place, the consul's consent is attempted to be obtained, but, if not obtained, entry can be made with the approval of the Secretary of State. Then, there are the other provisions concerning fire services and in regard to a constable who believes that a crime of violence has 1885 been committed, and a person entitled to enter by contract or private right. These seem to us to be reasonable provisions. I am not quite clear, however, what will happen in the case of a country, for example, with whom we were on unfriendly terms but which still had consular representatives in this country. I do not know whether the right hon. Gentleman regards these provisions as just as satisfactory in that case as they are in the case of the country with whom we make a convention, and with other countries with whom conventions are to be made.
I should further like an explanation from the right hon. Gentleman on the extent to which, in his view, these new provisions about immunity from search compare with the existing consular and diplomatic practice, because it is not quite clear to our minds whether, in the event of an emergency, the need to enter consular offices of a certain State with whom a convention had been made—because that would be the condition under which the Bill operated—the Government would not be unduly held up in performing a national duty should such circumstances unfortunately arise. I have used language which even the right hon. Gentleman will agree is sufficiently diplomatic, and I should be glad of an answer to that point.
Concerning the estates of deceased persons, we regard this Bill as a piece of consolidation which simply takes the place of Section 4 of the Domicile Act, 1861, but we are not quite clear why it was necessary to re-enact that provision of that Act. The right hon. Gentleman wisely reminded us of the fact, which we had been able to perceive, that this was a consolidation of the Domicile Act, but he did not make it clear to what extent the new provision replaces the old or to what extent it is an improvement or otherwise upon the old Statute. Perhaps this is a matter to which the Solicitor-General could apply his learned acumen.
I have nothing to add on the subject of deceased seamen except to ask whether the introduction of the Minister of Transport into this matter foreshadows any particular extension of the Minister's activities towards merchant shipping, and whether we would be unwise to read into the Bill any sinister intention in this regard. We should like to be able to get some further inkling as to the policy of 1886 hon. Gentlemen opposite, and to elicit a clearer statement from the Minister on that subject. Apart from that, I should be interested to hear what is the position at the present time of His Majesty's consuls abroad.
We are interested to know that the working of the closer practice of consular law in the international field is operating in a satisfactory manner, and I feel satisfied that, a convention having been concluded with the United States, the right hon. Gentleman will be able to give us the complete picture and show us why it was necessary to establish these new consular conventions and replace the old conventions under international law which have governed the general treatment of consular representatives. If he has any information to give us showing what it was that caused the Government to go in for these conventions rather than rely upon international law, we should be very glad to be told, and to know the reason why they came to the House and occupied the time of Parliament with this Bill. Those are the only considerations which occur to my mind in discussing this Measure, and I should be glad if the learned Solicitor-General would deal with some of the points which I have put to him.
§ 4.27 p.m.
§ Mr. Eric Fletcher (Islington, East)
My right hon. Friend the Minister of State, in introducing this Bill has dealt in a very lucid way with matters of a highly technical nature. My examination of the Bill leads me to mention two or three points which I think are worthy of the consideration of the House.
I think we should all be happy about the provisions of this Bill if we felt that they were only going to apply to countries like the United States, but we are in the difficulty today of being asked by the Government to pass a Bill which will become of general application as and when Orders in Council are made. I hope the Minister who replies will be able to tell us the names of the eight countries with whom negotiations are at present in progress.
Negotiations are not in train with eight countries. We had a limited agreement under the old Domicile Act with eight different countries, hut, as a matter of fact, there are only 1887 two other countries with whom we are even remotely near having negotiations upon this subject.
§ Mr. Fletcher
That being so, we are nevertheless being asked by the Government to pass a Bill which may at a subsequent date be extended to other States. It is therefore necessary for us to examine the provisions of the Bill on the hypothesis that they may hereafter be applied to other States besides the United States of America. Taking the provisions of the Bill as it stands, I suggest it would be highly undesirable for the Government to enter into a consular convention of the kind proposed with, for example, the States behind the iron curtain. I cannot imagine that a consular convention with a State behind the iron curtain at this time would confer any advantages on British subjects. I can equally envisage that if there were a convention of this kind with such a State, it might conceivably create very serious disadvantages for many people in this country, especially under Clauses 1 and 2. The same observations would apply if His Majesty's Government were proposing to enter into a convention of this kind with, say, Spain, or any country under a totalitarian regime. In such an event, I do not think there would be any advantage conferred on British subjects, and I believe there would be a serious risk of great injustice being done to residents in this country.
The House should understand precisely what it is that Clauses 1 and 2 intend to do in relation to the estates of deceased foreigners. As matters stand today, if a person dies abroad leaving property in this country, either the executor in the deceased's own country or his legal personal representative can grant a power of attorney to somebody in this country who can then go to the Probate Court—formerly the Ecclesiastical Court—and obtain the imprimateur of the Court entitling him to administer the property in England of such deceased person. It will be appreciated that the duties of the administrator are primarily ministerial. They have to see that the actual beneficiaries or legatees who may well be British subjects or persons resident or domiciled here are duly paid.
This Bill seeks to extend the power of the Probate Court to grant such letters of representation to a consular officer.
§ Mr. Fletcher
The hon. and learned Gentleman says only where there is a will, but I do not agree with him, and perhaps that is a point which the Solicitor-General would confirm. As I understand the Bill, under Clause I in England and Clause 2 in Scotland, the Probate Court will hereafter be able, in certain events, to grant letters of administration to a consular officer in respect of the estate of a deceased foreigner.
I am afraid this is rather a technical subject, and I hesitate to detain the House with it, but it is important to obtain clarification on two points. The first is this. Is the grant of letters of representation to the consular officer to be made to him as a consular officer or as a private individual? In other words, is it proposed, as is the present practice of the Court of Probate, to charge a particular named individual with the responsibility of seeing that the provisions of the will are executed, or, if there is no will, that the provisions of the foreign law on intestacy are duly administered? Also is that particular individual to be held responsible after he ceases to hold his consular office; or is it proposed that if the consular officer nominated by the Probate Court ceases to occupy his consular office and is translated elsewhere, or removed for some other reason that his personal responsibilities should terminate. In that event what is to happen to the administration of that particular estate, and who is to be responsible for seeing that the provisions of the estate are duly carried out?
That is a matter not entirely without importance for this reason. Under the Bill as drawn it is proposed in Clause 1 (3) that where a consular officer is charged by the Court with the duty of administering the estate of a deceased person he should be—unlike all other administrators—relieved from the obligation of entering into a bond to see that he administers the estate correctly and does not defalcate with the property of the deceased person. The present procedure requires anybody who is appointed by the Court to administer the property of a deceased person to give a bond to the value of twice the value of the estate, and to find two sureties so that, if the administrator for some reason 1889 or other, either because he misunderstands his duty or for some more culpable reason, does not carry out the provisions properly, there is security for the beneficiaries. It is very common, as Clause 1 (3) recites, to find that instead of having two individuals a trust corporation acts as surety.
Why should a foreign consular officer be released from that obligation? In this connection it is not unimportant to remind the House of the very unfortunate experience of the Poles a few years ago. A great many Polish nationals, supporters of General Anders, lost their lives, and some of them left property in this country. Their estates were administered presumably by reason of the Domicile Act, by a gentleman known as Mr. Poznanski who at that time was the Polish Consul appointed by the former Polish Government. As the Minister will remember there was subsequently a change of Government in Poland after a General Election. We recognised that new Government which thereupon proceeded to repudiate Mr. Poznanski, said that he no longer had any consular authority, and appointed a new consul. But there was no machinery to enable the new consul to carry on the administration of the estates Mr. Poznanski was dealing with.
I ask the Minister and those who in future will be charged with the administration of this Bill to bear in mind the possibility that after a consular officer has been appointed, he may either lose his office for some reason or other, or there may be a change in the Government which appoints him as a result of which the new Government no longer recognises any responsibility for the former consul. Had a Bill of this kind been in operation a few years ago, we should have found a former consular officer charged with the administration of a number of estates—in this case this particular Polish consul was in fact in the course of administering several hundreds of estates of deceased Poles—fully clothed with the authority of our courts to administer such estates, but repudiated by the Polish Government of the day. In such circumstances there would have been no security by bond and sureties for the due administering of his duties as in the case of all other estates.
1890 It seems to me, therefore, that two conclusions could properly be drawn. First of all, there should be the greatest discretion in extending this consular convention, or any similar consular convention, to other states. If a consular convention is once made with, for example, the state of Ruritania, with whom we afterwards quarrelled or with whom we ceased to have diplomatic relations, it would then be necessary both to revoke the Order in Council sanctioning that consular convention and also to see that appropriate steps were taken to secure the due administration of any estates with which the consul of that country had been dealing under the provisions of this Bill.
I would also urge that Clause 1 (3), which contemplates exempting consular officers from giving a bond, should be reconsidered before the Bill reaches its final stage. If I might mention one other point in detail it is this: in Clause 1 (1) no provision is made with regard to the time at which a consular officer may make his application for a grant of representation. It is provided that the consular officer shall be able to applyif no application for a grant of such representation is made by a person duly authorised by power of attorney to, act for him in that behalf.It would make the provisions of the Bill much clearer if it were provided that an interval were given of whatever would be reasonable—perhaps 12 months, or in certain circumstances even more—before the person who would normally have the right to apply for the grant—that is to say, the person of the deceased's choice—were superseded by a consular officer in whom he might or might not have confidence.
I have dealt so far only with Clauses 1 and 2. I do not propose to say anything about Clause 4, but if the right hon. and learned Solicitor-General would look at Clause 6, I would ask him to consider this point. Is it a correct interpretation of the intention of this Bill that the provisions of the Bill can only be brought into operation by an Order in Council which deals collectively with Clauses, 1 2 and 4, or is Clause 6 sufficiently wide to cover the case where it might be desirable to enter into a consular convention which dealt merely with Clauses 1 and 2, but not necessarily with the other provisions of the Bill?
1891 Finally, it seems to me that if there is to be any considerable extension of consular conventions with other countries, we shall find ourselves in a position where at the same time we have two different standards of consular immunity—one set of consuls enjoying the immunity conferred by Clause 4 and another set of consuls from a different set of States not having that immunity. I am not sure that that will be a desirable situation in our general diplomatic arrangements and it is a matter which the Minister may wish to consider.
§ 4.45 p.m.
§ Mr. Manningham-Buller (Daventry)
The hon. Member for East Islington (Mr. E. Fletcher) has raised a number of points which in my opinion require a full answer from the right hon. and learned Solicitor-General. I propose to raise one or two further points which also, I think, merit most careful consideration.
While agreeing with the general objectives of this Measure, I regret that I cannot congratulate the Foreign Office upon its draftmanship. On this side of the House we felt in the first place, some doubt as to whether Clause 4 is of general application or limited to application to states with whom there are conventions. The Solicitor-General shakes his head. I do not know whether he means he is in doubt or whether he is expressing the view that the Clause is clear, but might I suggest to him that it is not very clear? Clause 1 (1), says that Clause applies only to a person whois a national of a State to which this section applies.That, straight away, indicates that this Clause is of limited application and we have to refer to Clause 6, to see that Clause 1 has to be brought into operation by an Order in Council.
When one looks at Clause 4 one finds nothing to indicate that it is not of entirely general application. There is no word in Clause 4 to carry one on to Clause 6. Bearing in mind the provisions of Section 8 of the Interpretation Act, 1889, which are:That every section of an Act shall have effect as a substantive enactment without introductory words,I must say that in the matter of drafting Clause 4, it is most important to make it 1892 clear beyond doubt that Clause 4, again, has to be brought into operation by an Order in Council. We take the view that it is right that a degree of immunity should be given to the consular offices of States with whom conventions are entered into, but I am not quite certain whether the conditions set out in Clause 4 are quite right. The hon. Member for East Islington made some references to the iron curtain. I do not want to enter into any controversial subjects but I ask the right hon. and learned Gentleman whether this is not the effect of Clause 4.
Suppose that there are some consular offices of a State with whom one has entered into a convention—consular offices to which Clause 4 applies. The right hon. Gentleman in moving the Second Reading said that, of course, Clause 4 would not apply unless the consular offices were exclusively used for consular purposes. But, of course, one might not know, if one is unable to get into them, exactly what purposes they are being used for. Let me assume for the purposes of my illustration that certain consular offices are being wrongly used and that evidence has become available rendering it eminently desirable, in the interests of the state, that those premises should be searched.
Putting forward my argument on the basis of those assumptions, which may never be justified—I hope they will not—does it not follow from Clause 4 that in those circumstances there could be no search of those premises until, first, one had a search warrant and, secondly, the consular officer had been asked to consent to the search, and that he had either withdrawn it or his consent could not be obtained, and that it is only after the refusal of the consular officer that a Secretary of State can exercise his overriding jurisdiction? May it not be the case that if the consent of the consular officer is a condition precedent to the exercise of the overriding powers of the Secretary of State the whole object of the search, which may be in the national interest, may be defeated?
I am merely putting this to the right hon. Gentleman because at first sight it would seem to me that there is something to be said for giving the Secretary of State the power of authorising the search without making it a statutory condition precedent that he should pro- 1893 ceed to obtain the consent of the consul. I quite agree with the right hon. Gentleman that in the normal case the Secretary of State would naturally, if he wanted a search of the premises, seek to obtain the consent of the consul. I quite agree that in the normal case that would happen. However, is it not really desirable to legislate in this connection rather for the abnormal case, leaving the Secretary of State to follow the normal practice in the normal way, and not to make it a statutory condition precedent that he should obtain the consent or seek to obtain the consent of the consul?
I now want to make a few observations, in addition to those made by my right hon. Friend, in relation to Clause 1. I refrain for obvious reasons from making any observations in relation to Clause 2 which applies solely to Scotland. I am sure that that course will meet with approval. The right hon. Gentleman, in moving the Second Reading, did make a casual reference to Section 4 of the Domicile Act, 1861. That Section, as I see it, really gives all the powers which are contained in the first two Clauses of this Bill. It gives them in somewhat greater clarity. In the first place, it starts by saying:Whenever a convention shall be made between Her Majesty and any Foreign State, whereby Her Majesty's Consuls or Vice-Consuls in such Foreign State shall receive the same or the like Powers and Authorities as are hereinafter expressed …That is purported to be contained in Clause 6 of the Bill as:… being a State with which a consular convention providing for matters for which provision is made by those sections has been concluded by His Majesty.As a matter of drafting I think there is a good deal to be said for the Act of Parliament of 1861. That Act was not limited to cases where a person had been named as an executor in a will, and as I read it, Clause 1 (1) of the Bill is clearly limited to cases where the national of the State to whom the convention applies is named as an executor in the will, and no provision is made for the case where a foreigner, a national of that State with whom the convention has been made, dies intestate, leaving property in this country. Quite clearly that case—the death of someone dying intestate leaving property in this country—could be dealt with under the Domicile Act, 1861. 1894 I admit that I am a little puzzled to know why this particular Measure makes no provision for that event—the intestacy of such a national leaving property in this country.
§ Mr. E. Fletcher
Clause 1 (1) states—I am leaving out the unnecessary words—Where any person … is named as executor in the will of a deceased person disposing of property in England, or is otherwise a person to whom a grant of representation to the estate in England of a deceased person may be made …That would cover the case of intestacy.
§ Mr. Manningham-Buller
I may be wrong about that. If the right hon. Gentleman assures me I am wrong about it I shall accept it.
§ The Solicitor-General (Sir Frank Soskice)
I can give that assurance. The first line deals with the case of wills. Line 4 deals with the case of intestacy.
§ Mr. Manningham-Buller
I am obliged to the right hon. and learned Gentleman. That makes that point quite clear. But then there is this further point, which seems to me to arise from subsection (1), which is, that the power in that subsection is exercised on the court's being satisfied, on the application of the consular officer, that the national is not resident in England. That is the first condition that has to be satisfied. The second one is, if no application for a grant is made by a person duly authorised by power of attorney. These two conditions would have to be satisfied. There is no provision here for ensuring that where a foreign national is named as executor the consent of that foreign national to the application being made by the consul should first be obtained. There is no provision for ensuring that the national named as executor should have any notice or knowledge of the steps that may be taken by the consul of the State with whom the convention has been signed.
Again, I notice that the word "resident" is used. It is used elsewhere in this Bill. It seems to me that without some definition of what is meant by a national being "resident" in this country we may have considerable difficulties emerging in the future. We all know the difficulties that now exist in regard to the interpretation of domicile. I should be interested to hear what the 1895 right hon. Gentleman has to say as to the meaning of the expression "a national who is not resident in this country," which appears so frequently in this Bill. Is the national to be treated as resident in this country, if, for instance, he is over here for the very purpose of seeking to fulfil his duties as executor under a particular will and in seeking to administer the estate? The same point arises in Subsection (2).
I would not wish to repeat the points which the hon. Member for East Islington (Mr. E. Fletcher) put. They are points which, in my opinion, are worthy of careful consideration, and I hope that we shall have from the Solicitor-General a statement, at least, that the defects to which the hon. Gentleman and I have drawn attention will be corrected at a later stage in the passage of the Bill.
§ 5.0 p.m.
§ Mr. Mott-Radclyffe (Windsor)
I do not wish to prolong the discussion by going into the details of the Bill, but I want to ask the Solicitor-General two questions. If I understood the Minister of State aright, the provisions of this Bill in actual fact will apply only to the United States, because the United States is the only country with which we have entered into the consular convention. If that be correct, I personally have no objection to the contents of the Bill. If, however, it is intended to bring other countries within the scope of the consular conventions, then I think the House should know what are the other countries in question with whom it is proposed to enter into negotiations, and at what date. I say that with particular reference to Clause 4 which concerns "Restriction of powers of entry in relation to consular offices." An hon. Member opposite and my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) have both quoted obvious examples where it would be extremely unwise to apply Clause 4 to certain countries. If it is to have any wider application than that concerning the United States, we ought to be very careful indeed.
The second question I want to ask is this: The immunity of search is invalid if the consul of the country in question happens to be a British subject. As the Solicitor-General knows, it is sometimes the case that a British subject is 1896 appointed consul to a foreign country perhaps in an honorary capacity. It also happens from time to time that on his staff he has a vice-consul or more often a clerk who is not a British subject but who is a national of the country whose interests the British subject represents in an honorary capacity. Clause 4 says, in respect of the powers of entry and search, that consular offices shall not be enteredexcept with the consent of the consular officer in charge of that office.Suppose that some crisis or emergency were to arise where entry was desired to that particular consulate, at a time when the British subject functioning in a consular capacity was away on leave or ill, and the vice-consul or the clerk was physically in charge of the consulate for that period. Would he be able to render the right of entry invalid by raising objections under Clause 4, and making it necessary for the Foreign Secretary to give his consent? We ought to look a little more carefully at the provisions of Clause 4.
I am not trying to detain the House on any legal quibble, but I should be grateful if the Solicitor-General could clear up those two points: first, what other countries do we intend to bring into the consular convention; and secondly, does Clause 4 apply to a vice-consul who is not a British subject but who is acting consul in the absence of the British subject who normally fills that position?
§ 5.3 p.m.
§ Colonel Gomme-Duncan (Perth and Kinross, Perth)
It is very unusual to be able to say that the Government in one of their Bills have considered Scottish law. We are usually faced with Bills which contain a reference Clause whereby small things are made clear, such as "For 'arbitrator' read 'arbiter'," and that type of thing. Here we have a Clause which definitely sets out to make provision for persons living under Scots law. The Government are to be congratulated on having seen the force of the argument that such Clauses are absolutely essential in a joint Bill for both countries.
However, I think it would have been of assistance if either of the Law Officers for Scotland had been present to tell us something about Clause 2. While I realise that the Minister of State is "weel kennt" in legal circles in Scotland, although he is 1897 not a lawyer, I am wondering whether he is satisfied that this Clause covers Scots people under Scots law without any loopholes. Would it be possible on the Committee stage for a Scottish Law Officer to be present, so that we can go into details of that kind without in any way offering criticism?
§ 5.5 p.m.
§ The Solicitor-General (Sir Frank Soskice)
In the course of this Debate a number of points of interest have been raised, and I will endeavour to answer them, trying so far as I can recollect them, not to leave out any. Perhaps I may address myself first to the questions which were asked by the right hon. Member for Saffron Walden. (Mr. R. A. Butler). He asked whether Clause 4 is limited to countries in respect of which conventions have been or will be made, and the hon. and learned Member for Daventry (Mr. ManninghamBuller) repeated and reinforced that question, making a commentary upon the drafting which he said was not altogether satisfactory. I think the drafting clearly limits Clause 4 to countries in respect of which conventions have been made. The hon. and learned Gentleman may not have noticed in line 2 of this Clause the wordsa State to which this section applies.However, there is no reason why the Clause should not be looked at again to see that we have effectively achieved that purpose. I think we have achieved that purpose with the drafting as it stands. That is a matter which has been carefully considered, but we shall bear in mind the criticism which has been made. It is certainly the intention that Clause 4 should be applied only in the case of States in respect of which a convention has been or will be made. The intention is plain, and we think we have carried it out in the present drafting, but we will reconsider the matter in case we have not.
On Clause 4 a point of principle was raised as to what difference that Clause really makes to the existing position so far as it is embodied in the actual practice which is followed in relation to consular offices. Broadly speaking, the provisions of Clause 4 reproduce very closely what is the de facto practice at the moment. As my right hon. Friend indicated in his opening speech, the exact 1898 legal position is far from clear, but there is a practice followed, and that practice is really very close to that which is now turned into terms of law—assuming that the House passes this Bill by Clause 4. In that respect, therefore, no real difference is made, but there are difficulties about the existing practice.
If a warrant has been issued it must be enforced that is to say, it must be executed—and practical difficulties arise where it is contemplated applying for a warrant in the light of the fact that if it is issued it must be executed and it must be used. We introduce the question of the safeguard of the consent, first of the consular officer, and, in default, the Secretary of State. In that respect the existing practice is improved upon, because a certain elasticity about the practice is introduced which smooths over possible situations of difficulty which may arise under the existing practice.
The hon. and learned Member for Daventry asked whether in Clause 4 we had not possibly gone a little too far. He was concerned with the case in which it might be thought that consular offices were being improperly used, and he wondered whether we had not tied our hands too tightly in the terms of Clause 4. I think there are two answers to that point; one is an answer of fact, and the other depends on the precise wording of Clause 4. The fact is that it is proposed to use Clause 4 only in the case of countries with whom our relations are cordial—countries such as the United States, in the case of which we have negotiated an agreement on these matters, and with whom we feel that we can enter into similar agreements.
If the question is asked what countries they are likely to be at the moment, although formal negotiations have not been entered into, we are moving towards a position in which we shall be or may be discussing the matter with France and Egypt. Those are two other countries; but the whole point and substance of this matter is that we shall enter into these reciprocal arrangements only with countries in respect of which it can be said that really cordial relationships exist and will continue to subsist. Therefore, practical difficulties are not likely to arise in the application of this treaty provision. That is the general background against which——
§ Mr. Manningham-Buller
Is the right hon. and learned Gentleman not assuming that the cordial relations which will exist at the time the convention is entered into will necessarily endure. For instance, cordial relations that existed in 1945 with Russia have somewhat deteriorated. In 1945 if this Bill had been an Act one might have made a convention, but the position is now that one might not. Surely the argument that he has put assumes that the relations remain entirely satisfactory with every State with whom the convention is made.
The hon. and learned Gentleman is an extreme pessimist. I hope that his pessimism is not justified. The treaty is capable of determination supposing the relationship did alter so drastically for the worse. The only country we have entered into a treaty of this connection with is the United States. There is not the slightest reason to suppose that our relationship with the United States should so deteriorate that we should repent of having entered into a treaty on these terms. I am simply saying that the countries with which we have entered into these treaties will be countries with which we feel we are really in terms of cordial relationship. There is another answer to be found in the wording of Clause 4 itself.
The right of immunity is not by any means a general right of immunity; my right hon. Friend in his opening speech intimated the various conditions subject to which it is granted. The condition which he did not mention and which I think is immediately relevant to the question which the hon. and learned Gentleman asked is contained in subsection (3). The building in respect of which an immunity is granted must be one which is exclusively occupied and which must be —and these are the important words—exclusively occupied for the purposes of the official business of a consular officer.It has to be exclusively occupied for his actual official business, and I think that, subject to that limitation, it cannot be said that the immunity is one which is too wide and which is incautious, and not sufficiently limited in the terms of the Subsection. It is taking a peculiarly unreal view of the situation to think that this is anything which we are likely to repent of in the case of a country with 1900 which we are likely to enter into treaty. I think that answers the question put on Clause 4 of the Bill. There is the question of drafting which we have said we shall consider and the question of general policy which I hope I have adequately answered.
I want to answer the questions so far as I am able on the other Clauses which form the subject of observations made by hon. Members who addressed the House. With regard to the Domicile Act, 1861, there are differences between the framework of that Act and the framework of Clause 1. Generally speaking, without going into the details of it which the House can examine in Committee, if it approves the Second Reading of this Bill, the position is this: The Domicile Act, 1861, is founded upon the nationality not of the beneficiary but of the deceased. For a variety of reasons that gives rise to difficulties and inconveniences. That itself, we thought, was one reason which justified us in saying that the Domicile Act, 1861, should not be retained, and that it would be better and tidier in reviewing our legislation on this particular topic to put an end to Section 4 of that Act and to re-enact in the terms of Clause 1 precisely what it is that we desire to encompass in conjunction with a treaty relating to consular officers. That is the reason why we have done it.
Certain technical points were asked in particular by the hon. Member for East Islington (Mr. E. Fletcher) on Clause I as to its effect. He was perturbed with regard to Clause 1 (4). In point of fact, the consular officer is not relieved from the obligation of furnishing a bond. What he is relieved of is the obligation of furnishing security, and we think this is justified by the fact that there is after all a country behind the consular officer and that he should not be required to furnish security although he still has to furnish a bond, which is provided for under existing legislation in the case of grants under letters of administration.
§ Mr. E. Fletcher
As the right hon. and learned Gentleman says that the consular officer will have his country behind him. His country will be responsible for him.
§ The Solicitor-General
I mean that he is normally the consular officer who represents a great country—in the case of the United States an enormous country—and 1901 we think that it is not reasonable to expect the consular officer for a country like that to furnish these securities.
A question was asked whether letters of administration would be granted to the individual consular officer in his personal capacity or in his capacity as an officer; that is to say, whether the grant will be to his office. The intention is that the grant should be to the holder of the office, not to the individual but to the person who from time to time holds the office. It may be said that we have not clearly specified that in the terms of the Clause in the Bill, and, in so far as this is a matter of drafting, we shall again consider it to make sure that we have achieved the purpose which we had in mind in this respect.
I was asked why there was no provision that the court should ascertain whether the national who is overseas—the executor or the person representative of the intestate, as the case may be—whether his consent is forthcoming to the application made by the consular officer. In point of fact, in the treaty itself that we have entered into with the United States, I think that the hon. Gentleman will find that, at the bottom of page 13 of the treaty, there is provision enabling the court to postpone the making of the grant to the consular officer for such time as he thinks necessary to enable the person represented by the consular officer to be informed. That particular provision is not reproduced in the terms of the Clause that we have drawn.
In practice, the substance of the matter is that, before the consular officer in fact applied for a grant, he would have to ascertain whether it was the desire of the overseas national that that should be done. It is most unlikely that he would do it off his own bat without reference to those on whose behalf he was asking for the grant to act. In substance the matter would not occur as a practical difficulty. This is a matter which could be more fully investigated during the Committee stage of the Bill.
My hon. Friend asked what exactly was being done under Clause 1. The main answer which I give to that is that the procedure which is provided for in Clause 1 (1) is ancillary to what is already the existing practice under the existing legislation. That is to say, the person who is abroad can follow the existing practice if he likes. It is only if he takes 1902 no steps that the consular officer will make an application; and that position is specifically provided for by the proviso in Subsection (2). My hon. Friend makes the suggestion that there should be a time limit. That is a suggestion which we heard with interest and we shall certainly bear it in mind. It is a matter which we have considered but we shall again consider it.
A number of other detailed issues were raised. The matters of detail no doubt the House will desire to consider in a later stage of the Bill. They become more technical and more detailed, and I feel that the House would not desire me at this stage to embark on a full discussion on such matters. I believe that I have covered the points of principle. In Clause 4, which is the Clause which rests upon principle, I hope that I have satisfied the House that we have not committed ourselves to anything which is unwise or incautious. In Clause 1 we have simply made it possible to implement this treaty which we have with the United States and any other States with which we may enter into treaty. We have provided for an additional and ancillary procedure not altogether different from that provided for by the Act of 1861, but improving upon it—particularly in the respect that we now consider the nationality of the beneficiary as distinct from the nationality of the deceased person.
No questions were asked about the Clause dealing with the estates of merchant seamen, but no doubt that will be the subject of further questions hereafter. For the moment I make no further comment upon that. We are grateful for the questions which have been asked about drafting, and we shall look into them. In the meantime, I hope the House thinks that the Bill has, in point of principle, been sufficiently justified, and feels that it is now able to agree to the Second Reading.
§ Mr. R. A. Butler
Before the right hon. and learned Gentleman concludes, may I again put to him the general point on which I concluded my speech? Does he think that the passage of domestic law on a matter like this tends to undermine the general corpus of international law relating to the treatment of consular officers? We should like to be reassured on that point before we support the Second Reading.
§ The Solicitor-General
I do not really think it can be said that there is any danger of that. In these matters of international law one is constantly faced with the difficulty that there is a great deal of uncertainty on exactly what it is. We are here endeavouring to bring some measure of certainty into a very uncertain realm of that law. I do not feel that there really is any ground for the fear which the right hon. Gentleman expresses, that, in introducing this very modest but very useful measure for the purpose of implementing an agreement we have already entered into, and others that we hope to enter into, we are in any sense undermining in international law the status and position of consular officers.
§ Mr. Butler
It does not envisage, for example, that our consular officers in other countries with which we have not conventions, might be submitted to difficulty, and that domestic law will in the end spring up in all countries to take the place of international practice?
§ The Solicitor-General
All I can say is that that again is an angle from which the matter has been considered, but we cannot at the moment see any reason for thinking that that is a real danger, and that we ought for that reason to alter our course in introducing this Bill. We do not really think that is a danger.
§ Committed to a Committee of the whole House for Monday next.—[Mr. Pearson.]