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Lord Strathclyde: My Lords, I expect that the noble and learned Lord, Lord Falconer of Thoroton, having heard what has been said, is rather wishing that he had asked a Minister from the FCO to come and answer this particular debate.
I commend the tremendous amount of work and research that my noble friend Lord Norrie has put into this subject and the eloquent way in which he introduced the amendment. He made a plea to the Government--perhaps "plea" is too strong, but certainly a request--that the questions he posed should be answered. He gave the impression that they have not been answered before. Perhaps I may urge on the Government Front Bench that I fully endorse the questions of my noble friend Lord Norrie. If he does not get a proper reply, I suspect that he will want to bring the matter back at Third Reading. I do not know whether or not noble Lords opposite want that to happen, but that is what I suspect my noble friend will do.
Amendment No. 58DA asks for something very simple, an element of consultation with the countries of the Commonwealth. If, as my noble friend Lord
Campbell of Alloway pointed out, a mistake has been made in the drafting of the Bill, the Government do not necessarily have to accept the amendment to put that right. They could simply give a commitment to consult. I can see that there is no harm in doing so.10.15 p.m.
Lord Falconer of Thoroton: My Lords, we have had this debate on a number of previous occasions and the same points have been raised again. They obviously cause concern so I will go through each of the points and indicate what seems to me to be the answer to them legally. I should also make it clear that there is obviously no intention on the part of this Government to do anything in any way to undervalue the Commonwealth or to insult it. Any suggestion to that effect is, with the greatest respect to the noble Lords, Lord Norrie and Lord Clifford of Chudleigh, completely misconceived.
Perhaps I may deal with the three points that have been made which are said to give rise to legal confusion and on which apparently the noble Lord, Lord Norrie, has the advice of eminent counsel that they require consultation with the Commonwealth countries.
First, Section 4 of the Statute of Westminster, which is the foundation of these amendments, says, as the noble Lord, Lord Clifford, said:
- "No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that the dominion has requested, and consented to, the enactment thereof".
I give two examples which demonstrate the point. We pass Acts in this country which affect the criminal law. They will affect Australians, New Zealanders and Canadians in this country. We do not consult the dominions about that. We are not required to by Section 4.
Another example is that we make laws in this country about the ownership of property in this country. The fact that there is an Australian citizen in Australia who might have a right under that law in relation to property in this country does not lead us to consult these legislatures before we pass those Acts. There is no difference between those situations and this situation. Therefore, Section 4 of the Statute of Westminster does not provide the foundation of the case which the noble Lord has sought to put.
A secondary point has been raised. It is said that there is a debate between lawyers--eminent counsel--about what is meant by the word "dominion" in Section 4. According to Section 10 of the Act:
- "The Dominions to which this section applies are the Commonwealth of Australia, the Dominion of New Zealand and Newfoundland".
As far as I am concerned, that is pretty clear. Despite that, the amendment refers to 13 countries and 16 provinces and states. I cannot think what possible debate
- there could be about the scope of Section 4 though I understand from the noble Lord, Lord Norrie, that eminent counsel has advised that there is some debate about what this means.
Lord Falconer of Thoroton: My Lords, these amendments are based on the Statute of Westminster. The noble Lord is suggesting that we consult our friends in the Commonwealth about changes to the composition of the second Chamber in our legislature. Are there other allies that we would consult as well? With the greatest of respect, it is a matter for this country to decide. It is not a matter on which we should consult our allies, take into account their views and then proceed. With the greatest respect for the sincerity and passion with which the noble Lord put forward his point of view, I think it is misconceived.
Perhaps I may go on to the legal position on which the two noble Lords rely. Their last point relates to the position of Her Majesty. I assume that the position is that they are relying on the Preamble to the Statute of Westminster because there is no other part on which they could rely. It states:
- "it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well as of the Parliaments of all the Dominions as of the Parliament of the United Kingdom".
The Bill, as is obvious, does not affect the succession to the throne; nor does it affect one jot the Royal style and titles. Her Majesty's title as Duke of Lancaster is not affected in any way by the Bill. I should say in parenthesis that that title is not the title which gives Her Majesty the right to sit in the House.
Lord Chesham: My Lords, before the noble and learned Lord sits down, does he not understand the difference between courtesy, disrespect and a legal requirement?
Lord Falconer of Thoroton: My Lords, with the greatest respect to the noble Lord, Lord Chesham, I have explained what the legal position is and I have explained what is our position as a matter of substance in relation to the passage of the Bill. With the exception of what the noble Lord, Lord Campbell of Alloway, said in his speech, until now the position has always been put on the basis of the Statute of Westminster. That is how it has been argued. With the greatest respect, there is no foundation for the amendment in that. Equally, I have dealt with the arguments advanced that we should consult our Commonwealth colleagues in relation to something which, in my respectful submission, affects only this country.
Lord Campbell of Alloway: My Lords, the noble and learned Lord mentioned my name. By leave, may I ask him whether he will accept that I accept wholly his analysis that it is for us to decide? All that I am suggesting is that it would be reasonable and appropriate to consult. That is all.
Lord Campbell of Alloway: My Lords, I am not out of order.
Lord Falconer of Thoroton: My Lords, I accept that the noble Lord accepts my legal analysis of the position.
Lord Norrie: My Lords, if the Government are not prepared to insult, why will they not consult?
Lord Falconer of Thoroton: My Lords, I thought that I had explained painstakingly to the noble Lord why there is no legal obligation to consult and why, separately from the legal position, we take the view that it is not appropriate to consult. I could deliver my speech all over again--
Lord Falconer of Thoroton: But I detect that the House would not be enthusiastic in that respect.
Lord Norrie: My Lords, I am grateful to the noble and learned Lord for explaining that yet again, but at this stage I reserve the right to bring the matter back on Third Reading, if I have to do so. I am in consultation with High Commissions, and I should like to see what they say about it. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Repeals]:
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