Science Fiction or Legal Fiction?
Various uses of Legal fictions. What one must remember is that each and every human being, each separate capacity (father,mother, daughter, son, teacher, Policeman etc) and each and every NATION and PARLIAMENT is a legal fiction.
The UK itself, is a legal fiction. The Queen’s powers are legal fiction. The EU’s supremacy is a legal fiction. While, as you will see, they dismiss legal fictions when it suits them. If they do not like a bill or the way a law works, they will attack the legal fictionality of it. Why? Because, when they do, they know there is no logical argument for not doing so!
What makes you a citizen or a subject of a nation? A LEGAL FICTION. All here in black and white. While it is obvious to those who understand how this MATRIX works, it is worthwhile showing it to others who don’t understand and revealing it in THEIR own words!
So, it is my hope that, in reading the following, the reader will recognise that, if a country and nationality/citizenship is purely legal fiction (which it is) then one, as a PERSON, legally recognised as a “citizen” is also a legal fiction. There is no two ways about this. That legal fiction, in law, is refered to as a “Natural person” simply to differentiate it from being a “legal person” (a Corporation). The differentiation is then just for the law to exact its policy and regulations on different types of legal fictions – You CANNOT have a law stating that a corporation is disallowed to smoke in a public space now can you? Corporations do not give birth – although that is debatable because Corporations create subsidiaries which may be considered birth since the Corporation is considered the Parent company!
Now, once more: YOU HAVE SUBROGATED YOUR INHERENT RIGHTS TO A LEGAL APPARATUS WHICH IS, ITSELF, A LEGAL FICTION. THAT LEGAL FICTION THEN ASSUMES AUTHORITY OVER THE LEGAL FICTION WHICH IS PRODUCED BY THE REGISTRATION OF YOUR BIRTH.
Debtors
LANDLORD AND TENANT BILL
Would the right hon. and learned Gentleman say whether, if this right was granted, he would limit it to the people who are in actual occupation of the houses?
§Several Hon. Members rose—
CROWN LANDS ACTS.—COMMITTEE.
MR. HENLEY
said, he supposed that the management of certain rights included the receipt of any profit from them?
RECOGNITION OF CORPORATE STATUS OF CERTAIN FOREIGN CORPORATIONS
The Solicitor-General should clarify some of the sloppy wording in the clause. It states that if any question arises whether a body which purports to have or, as the case may be, which appears to have lost corporate status
it will be granted a legal personality.
Corporate status is one of the prime means of crookery, fraud and milking money out of various organisations. Corporate status is granted as a convenience to allow capitalism to develop. It allows a fictional person to exist separate from the members of the organisation itself. That person has limited liability, does not become bankrupt and is not affected when the body corporate, with its separate and distinct legal personality, goes into liquidation. In that way, companies go into liquidation with their directors owing huge sums of money to them. Companies, with their separate, legal personality, lend money to the directors who form the company on extremely advantageous terms, sometimes without any repayment provisions.
Will the legislation bring under the Banking Act 1987 all the bodies which purport to have lost corporate status or which have had that status under the laws of the territory concerned? If it does, that will ensure that the Bank of England will be able to scrutinise them. We know that under the Bank of England’s powers there is no possibility of any bank in this country engaging in fraudulent practices—unless, of course, we turn to immediate history and look at the Bank of Credit and Commerce International. Despite all the legislation, the Bank of England has not been able to find out what happened in that case.
POLICE BILL—(No. 392.)
(10.27.)MR. ADDISON(Ashton-under-Lyue)
I really am quite astonished at the speech of the hon. and learned Gentleman, the Member for Stockton (Sir H. Davey). All who are acquainted with Quarter Sessions know that they are a Court of Record, cognizant of such matters as those into which we are now inquiring, whereas the Borough Magistrates are not a Court at all in the legal sense of the word. The hon. Member for Sunderland speaks of a contest between Borough and Country Magistrates. I am well acquainted with Lancashire, and to say that there is any contest between the Borough Magistrates and the County Magistrates in that County, where there-are many Borough Magistrates, is a mere-fiction.
COMPANIES OF ENEMY CHARACTER BILL. [H.L.]
My Lords, the Bill to which I invite your Lordships to give a Second Reading to-day is of a simple character, and its object is to make provision with respect to companies of enemy character carrying on business in this country. Your Lordships require no reminder from me that trading with the enemy is in itself an offence except with His Majesty’s permission, but the legal fiction which prevents objection being taken in the case of an enemy company which is registered in the United Kingdom is one the reason for which it requires some legal acumen to discover. If instead cf being registered as a company these 578 people were engaged in an ordinary partnership and it was found out that they were alien enemies, the matter would be a very simple one indeed. But by a legal fiction —for it is absolutely a legal fiction—a company composed of twelve Germans can register under the Companies Acts here, and by that very simple process can be made, forsooth, an English company. A company so registered has been declared to be an English company, capable of doing everything that the legal person thus constituted by law may think proper to do by way of trade.
Legal fictions, I know, are not very popular with the general public. John Doe and Richard Roe have departed from among us, but they served a very useful purpose. But John Doe and Richard Roe were never allowed to be actual persons and to be so dealt with when they ran counter to common sense. An ingenious gentleman, in an action of ejectment, once pleaded that he had got a release from John Doe or Richard Roe— I forget which—but the Courts cut very short this treating of a legal fiction as a reality, for they sent him to prison for contempt of Court, and very justly. After all, legal fiction was intended as legal fiction; it was never intended that these fanciful persons should he invested with the ordinary powers of a natural person. So I think it might have been well if the Courts who had to deal with this question had recognised the fact that the legal entity is not different in its constitution when you come to deal with the question which was in debate in the case of the Continental Tyre and Rubber Company v. Messrs. Daimler. It was because the entity created has no nationality at all that the question of trading with the enemy was held not to arise.
PARLIAMENTAY REFORM—BILL FOR ENGLAND—COMMITTEE—THIRTY SECOND DAY.
next moved, “that all persons who shall be excluded from voting for Members of Parliament, shall be exempt from the payment of taxes and rates, and from serving in the militia, and be protected from being compelled to serve in the navy, under the Impressment Law.” The principle on which he made this Motion was, that Taxation and Representation ought to go hand in hand. In our Law Courts it was supposed, that every man should know the law, and no man could be allowed to plead ignorance of the law, as it was presumed he had helped to make it by himself or his Representative. He wished to make this a fact instead of a legal fiction, by giving every man a right to make the law through his Representative, or exempt him from the payment of taxes to which he had never consented.
§ Amendment negatived.
LEGITIMACY BILL
With all deference to the most reverend Primate, that is not what the court is 338 asked to declare. The court is asked to declare that the child was born in lawful wedlock between Mrs. X and Y. Otherwise, by the laws of legitimacy as understood in this country, it could not be a legitimate child. It is that which personally I find so shocking.
The noble and learned Lord, Lord Denning, seemed to think—at least so I understood—that there was no material difference between the situation which I have just described and the situation which was dealt with by the Act of 1926, under which both the parents were unmarried at the time of the birth of the child and they merely, as it were, anticipated the ceremony. But to me at any rate, there is all the difference in the world between the two cases. In one case both were free to marry each other; in the other one or both was solemnly linked at the time in wedlock to another man or another woman. How is it possible for the court to ignore that fact? If I may say so with all deference—and this is a great impertinence—some lawyers always seem to think that by adding the adjective “legal” to the word “fiction” it makes it much more respectable, just as in politics when a Government wants to do something which is manifestly unjust to some section of the community it thinks it makes it sound better by calling it “social” justice. In both cases, the addition of the adjective is intended to produce a different and more agreeable atmosphere. But to the ordinary man, such as most of us in this House are, a fiction remains a fiction, whatever adjective is attached to it; a lie remains a lie even though it is condoned by the law.
BRITISH NATIONALITY BILL. [H.L.]
Every person who under this Act is a British subject of the United Kingdom and 993 Colonies or who under any enactment for the time being in force in any country mentioned in subsection (3) of this section is a British subject or citizen of that country shall thereby have the status of a British subject.The noble Lord said: Since this is a complicated and very far-reaching Bill, it may be desirable that I should begin by explaining the purpose and effect of my Amendment…………
§ In the second place, we believe that the use of this term for the United Kingdom and Colonies may have very undesirable political repercussions. Although this Parliament is, of course, still supreme throughout the Colonial Empire, nevertheless, as everybody who has lived and lives in the Colonial Empire knows, there is in the Colonial Empire a universal dislike of Whitehall government. There is a universal desire to feel that they are not dominated by a distant Legislature and administration but that, in fact, they are able more or less to conduct their own affairs without remote control. That has always been the history of the Dominions since the days when an early settler in New Zealand said that he would rather be governed by Nero on the spot than by a committee of archangels in Downing Street. That feeling is just as strong in the Colonial Empire. We have been trying to recognise that in every respect. In various ways we have been preparing and even carrying out systems of decentralisation and of regional organisation which will give more authority to those who are responsible on the spot. While, of course, there are in the Colonial Empire at the present time old Colonies with ancient Legislatures—and do not let us forget that—to whom this term will appear curiously inappropriate, the Colonies are all moving the same way. 997 Therefore, while this term “citizenship” when used in the Dominions will have an increasing significance as the Dominions grew in stature and in power, in the United Kingdom and Colonies it would have a steadily decreasing and ultimately shing significance.
§ There is no such difficulty if we remain faithful to the old term of “British subject.” That term has covered every variety of subject under every variety of Government. In is appropriate to them all, and they are proud of it. We would much prefer that no suggestion were made in this. Bill or in any other way that we are seeking to tie the Colonial Empire more closely to this country, to make it more dependent upon this country or in any way to interfere with the individual development of Colonies or groups of Colonies.
§ In the third place, there is another objection which is also deeply felt upon these Benches, and that is that the establishment of the term “citizenship” in many Colonies would be a fertile ground for political agitators. Our effort now, certainly in the African Colonies and elsewhere, is to try to give priority and emphasis to economic development and to avoid the danger that that development may be outstripped and impeded by premature political agitation. The noble Lord, Lord Milverton, called attention to that danger in a remarkable speech not many weeks ago. “Citizenship,” after all, ought to mean, and in its proper sense does mean, equal rights and responsibilities. Do noble Lords opposite really suppose that, if that term is used in regard to the Colonial Empire, it will not be exploited against us by every malcontent, by every political agitator? It is a poor answer to say that after all the term is merely a legal fiction. That would be the truth but, as I say, it would be a poor answer. I am afraid that it would furnish the Soviets, in their propaganda against the Empire, with another text for their constant theme of the “crude and callous insincerity of British Imperialism.”
LEGITIMATION (SCOTLAND) BILL [H.L.]
§ 4.23 p.m.
§LORD HUGHES My Lords, I beg to move that this Bill be now read a second time. As the Explanatory Memorandum points out, this Bill is based on the Report of the Scottish Law Commission Reform of the Law Relating to Legitimation per subsequens matrimonium, published in April of this year………….
As your Lordships will see, these provisions of the Bill are necessarily very detailed, but since much of it is a restatement of the existing law I propose to confine my remarks, at this stage, at any rate, to the main changes effected in the present law. The main change to which I would draw your Lordships’ attention is the removal of the present legal fiction in Scots law that legitimation confers legitimate status retrospectively with effect from the child’s date of birth. The fiction finds its origins in the Canon Law which offered as a doctrinal justification of legitimation by subsequent marriage the view that the marriage took effect retroactively by a fiction of the law from the date of conception; and thus the children were regarded as legitimate from their birth. As the Law Commission point out, however, this is nowadays little more than a legal fiction. The Scottish courts have criticised the fiction and have held, for example, that property rights of third parties cannot be affected by the fiction of retroactive legitimation.
Constitution
Secondly, and more importantly, the Royal prerogative is a fiction and a dangerous fiction. It includes a wide range of ministerial appointments and vast areas of patronage. It makes it difficult for the Royal Family. The present Queen has behaved impeccably but it is possible that a future head of state, for example, might have different views on fox hunting—I throw that out as a possibility—and that that might lead to problems. At present, the whole situation with regard to the Royal prerogative is an enormous cop-out for Ministers of any party. It has absolutely aided the growth of uncontrolled, undemocratic and unaccountable patronage—the so-called “demi-monde” of which the noble Lord, Lord Smith of Clifton, has written. I believe that it also has the effect of emphasising the status of our citizens as subjects and not as citizens.
Finally, I refer to the Prime Minister. Any Prime Minister is a beneficiary of Royal prerogative. We have seen the dangers of it in the Butler report. That report showed how changes in our constitutional mechanisms have led to serious effects in our foreign policy, and it absolutely makes the case for a far more written constitution.
First, the Prime Minister’s power to declare war under the Royal prerogative should absolutely come to an end. As it happened, there was a parliamentary vote in March, before the Iraq war. But simply leaving it to one individual, particularly in the way in which the Butler inquiry showed that that decision was reached and with all the misrepresentation attached to it, means that we should go towards the American system of having parliamentary approval and should draw a great distinction between it and the fiction of the prerogative.
Finally—I know my time is up—the question of legality should be set out. If a war is to be undertaken, it should be clearly set out that it is legal and that constitutionally and internationally it is approved in law. Far too much is taken on trust. Our presently informal, secret, enclosed constitution is dangerous to our liberties and I greatly welcome the Motion that has enabled me, however briefly, to say that.
Finance Bill
There is one exception to that commonsense approach, and that is income tax. The exception arises because the legal fiction is that income tax is not a permanent tax. It may have been with us since the days of Pitt. but it is not a permanent tax. It is an annual tax, and every year the Treasury considers afresh, with careful consideration. whether it requires income tax, and having reluctantly decided that it does, it brings forward a fresh clause giving authority for income tax to continue for a further year. As income tax would automatically lapse without the fresh clause, it follows that there is no law setting out the status quo for income tax as there is with VAT or other taxes.
This legal fiction has certain hilarious consequences. It means, in the context of today’s debate, that the Government are not cutting the higher rate bands on income tax by 14 per cent. On the contrary, the Government are imposing a fresh and unanticipated burden upon the higher paid. However, other consequences are rather less hilarious. The Committee is severely restricted in what amendment it can propose to such a proposal. Were the Government to propose to double thresholds for the higher tax bands, and it is not inconceivable that the Government would propose to do so in the future, it would be improper and incompetent for any other hon. Member to seek to reduce that doubling of the threshold.
The Committee would be left with the choice of accepting that doubling or voting against clause stand part. If the Committee were to vote against clause stand part, it might find itself in the same position as that in which the Opposition found themselves with the last Finance Bill in the previous Session. The Committee would also be voting against the clause that contains the authority for the standard rate of income tax. Thus, were the Committee to carry that resolution opposing clause stand part, it would abolish income tax in toto, although that is not what it would be seeking to do.
This problem flows from the legal fiction that income tax is an annual tax. Were the man in the street to be told that income tax is not a permanent tax and that the procedures of the House of Commons operate on the assumption that income tax is subject to imminent abolition, I suspect that he would consider that to be further striking proof of just how out of touch Members of Parliament were with reality. Nor does that accord with the current state of the law. In 1977 and again in 1980 the House provided explicit statutory power for the indexation of income tax, which makes sense only if we assume that income tax is a permanent tax likely to be renewed year by year.
LEGITIMACY BILL
THE LORD ARCHBISHOP OF CANTERBURY
There are, however, legal methods of meeting that situation. One—the Amendment recognises it—is that, in spite of the adultery, the parents, or rather the one parent and the other partner to the marriage, agree that the adultery shall be concealed; the married couple take the child born of adultery into their own family, into the family life, as one of their own children. Pastorally that is a legal fiction, but pastorally it is the one nearest available for the true good of all concerned, because it gives to the illegitimate child the active care of one parent and a secure home, things of which an illegitimate child should not be deprived.
Now we come to the problem of this Bill. A and B, by adultery, cause a child to be conceived and born out of wedlock. In due course—or rather, if you like, in undue course—by whatever ill or unhappy means, A and B become 320 legally married. What is to happen to the child? That is the question. It can be left with no status at all in the world, belonging to nobody. But surely none of us would like that. What then is to be its relation towards its newly married parents and to the world in general? The parents can adopt their own child. That is the course recommended by some, for perfectly good reasons; or, if this Bill passes, they can secure for the child a legitimated status: not a legitimate status, because that can never be acquired or given by any law, but a legitimated status conferred by legal machinery, just as adoption is conferred by legal machinery.
PROTECTION OF PERSON AND PROPERTY (IRELAND) BILL.— [BILL 79.]
thought that if the Amendment moved by the hon. and learned Member for Roscommon (Dr. Commins), and the schedule of crimes which he had placed on the Paper, were fairly looked into, the Committee would see that Her Majesty’s Government had a good opportunity afforded to them for showing that they were not animated by a feeling of Dictatorship or by the feeling of alarm which had been excited in England by their own announcement of crimes and outrages, and Fenian and other plots. It was a legal fiction that every man ought to know the law. Most men did know the ordinary law, although, perhaps, not from a legal point of view. They knew that certain crimes and immoral acts were prohibited by the law—that it was not right to murder a man, or to steal his property, or to intimidate him. But when, as was now the case, they were introducing a peculiar coercive law into Ireland which might be used in a despotic manner, it was only fair that they should define what were the acts beyond the ordinary Statute Law for which a man was made punishable. He thought this schedule of crime really covered everything that the Government and their supporters could desire to discountenance in Ireland.
PROVISIONS FOR REDUCING STATELESSNESS
It is, therefore, wrong to insist that Britain should take any more. However, we cannot resist such pressure. It arises from events that are no fault of ours. An example was the Vietnamese boat people. We felt obliged to accept 10,000 of them. They came from a part of the world for 1016 which we had no legal, constitutional or imperial responsibilities. These people were simply cast upon the high seas——
§Mr. Garel-Jones By Communists.
§Mr. Stanbrook Yes, they were expelled by Communists. We had no obligation to these people save in the general international humanitarian sense. In spite of all our difficulties, and with all the problems that we have brought upon ourselves by this humane attitude towards the legal fiction, the mistake in our legislation that has given us such large immigrant populations which we cannot peacefully absorb, we agreed to accept 10,000 of these people.
LEGITIMACY BILL
But, as I understand them, the promoters of this Bill say that, while that may be good law, it is very hard on the child who, through no fault of his own, but entirely through the fault of his mother (in the case with which I am particularly concerned), has to bear throughout his life the stigma of illegitimacy. I think that that is a fair statement of their point of view. In their view, that is a wrong which must be expunged. They say that it is not very difficult to expunge it; all that is needed is to make use of a legal fiction. By this convenient fiction the court, should the matter come to court, will, in certain circumstances, be empowered legally to declare that a child that has hitherto been regarded as the offspring, born at a certain date in lawful wedlock, to a certain woman and one man, shall henceforth in certain circumstances be legally transformed into the offspring, born equally in lawful wedlock, on one and the same date, of the 699 same woman and an entirely different man. That, in effect, is, as I understand it in plain words, what Clause 1 proposes.
COMMITTEE. [Progress 15th May.]
The hon. Member has interrupted me again and again when I referred to this matter; but he always makes a statement absolutely irrelevant to the one I make. The hon. Member has said two things not necessarily connected—two things that ought to be treated separately. The hon. Member has said that the theoretical supremacy of this Parliament cannot be disputed or disposed of. I quite agree with that, but I do not care one brass farthing for that theoretical supremacy. I know what 1120 the theoretical supremacy of this Parliament is over Australia and Canada, and I do not want to sot up in the case of Ireland a supremacy which is worth no more than the supremacy over Australia and Canada. The hon. Gentleman, so long ago as October, 1892, declared his intention to make it perfectly clear that the supremacy of this Parliament over the Irish Parliament should be limited. The hon. Member was referring to a speech made by the Chancellor of the Duchy in which the right hon. Gentleman appeared to have said— It is not a question of asking us to divest, ourselves of this power, because we could not do so.
That is the legal fiction—that is the imposture which has been exposed to-night, and the hon. Member knows perfectly well that it is an imposture. Referring to these words of the Chancellor of the Duchy, the hon. Member for Waterford in his article said— The rights of the Imperial Parliament would remain intact; those rights would remain dormant, so far as Irish affairs are concerned. A Parliamentary compact would be entered into binding the Imperial Parliament to leave those rights dormant.
I will now quote the hon. Member again, because he is perfectly consistent, and why he should endeavour in this Committee to prove himself inconsistent I cannot imagine. This is a passage from his speech in the Debate on the Address in August, 1892— It comes to this, therefore: that what we ask is this—that in this Home Rule scheme there shall be a specific undertaking—a clause specifically undertaking that while the Irish Parliament continues in existence the powers of the Imperial Parliament to legislate for Ireland should never be used.
Now, Sir, after that, what is the use of the hon. Member getting up and interrupting mo and trying to minimise the significance of his own words? Let the hon. Member get up and say he has changed his mind.
PUBLIC RIGHTS OF WAY BILL.
MR. DUNDAS WHITE(Dumbartonshire)
said it seemed to him that the Bill would constitute an important step in securing public rights of way. They should do all they could to maintain those public rights. The rights were increasing in value every day, because under modern conditions people wanted more and more 1424 access to country districts, fresh air, and fields. He might be allowed to say that in the application of the Bill to Scotland there would have to be very considerable alterations made, and probably a new clause would be required. The principal difficulties which had arisen in England in relation to rights of way were due to the peculiar state of the law in this country. There was in England behind a right of way the presumption of dedication, and consequently any claim to a right of way might be challenged on the ground that there could have been no dedication at some particular time. He was glad to say that in Scotland they were quite free from that. The late Lord Watson, one of the highest authorities on Scots law, in Mann’s case in 1885 said— According to the law of Scotland, the constitution of a public road does not depend upon any legal fiction, but upon the fact of use by the public as matter of right, continuously and without interruption for the full period of long prescription. I am aware that there are dicta to be found in which the prescriptive acquisition of a right of way by the public is attributed to implied grant, acquiescence of the owner, and so forth, but these appear to me to be mere speculations as to the origin of the rule.
Taking that to be the law in Scotland, the effect of the Bill as regards Scotland would seem to be to shorten the period of prescription to twenty years.
FINANCE (No. 2) BILL
The Clause is avowedly designed to penalise distributed profits and subject them to higher taxation in the hands of the shareholders than the other profits of companies. It is founded on a completely fallacious view of the nature of public and private companies. They are not, save by legal fiction, separate entities distinct from their shareholders. Their shareholders created them. Shareholders’ money gives them their lifeblood, and their shareholders can put an end to them.
As an hon. Member observed earlier, these compaines have no interest outside 1892 that of their shareholders. The money that flows into these companies is given by the shareholders to create the businesses which have made this country prosperous. What reason is there why these shareholders, drawing their revenues from their enterprises, should be penalised and be subject to a higher rate of tax than persons who draw their revenues from any other kind of enterprise? There is none whatever. This whole Corporation Tax, in its attitude towards the shareholder, is founded on the dislike of hon. Members opposite for the shareholder as a person.
Crime and Disorder Bill [Lords]
The Bill will ensure earlier, more effective intervention to nip offending in the bud. It lays down that, for the first time, the principal aim of everyone working within the youth justice system will be to prevent offending by children and young people.
Child safety orders and powers for local authorities to establish local child curfews will protect children under 10 from being drawn into crime. The Bill reinforces the crucial role of parents. Parenting orders will help and support those who are genuinely trying to control their children’s unacceptable behaviour. Sanctions will be available for the minority who stubbornly evade their parental responsibilities.
When children first offend, the response should be quick, firm and consistent. The Bill replaces cautioning for young people with a statutory final warning scheme. Warnings will normally be followed by intervention to tackle the causes of the youngster’s offending. The Bill also makes young offenders properly responsible for their actions by the abolition of the legal fiction of doli incapax.
NOTE: “Doli Incapax” is a legal fictional term which, in UK law, holds that a child under the age of 10 is INCAPABLE OF CRIME. The point of pointing this out is thus: The legal world bestows rights and imposes responsibilities based upon entire legal fiction. It then provides exceptions to these rights and responsibilities for who and what it sees fit. That could be the exception for children under 10 of “Doli Incapax” or it may be an exception offered to a certain type of company/corporation to pay tax. Or, as in a case I just read of in Parliamentary minutes, they do not bestow a legal fiction on a transgendered person therefore, allowing that person to be raped without there having been a rape committed! Why? Because the transgendered person did not exist legally!
New Clause.—(EXTENT.)
I interrupt myself here to remind the Committee that when I speak about Northern Ireland I do not, of course, mean Northern Ireland at all. The legal term “Northern Ireland” is merely a legal fiction. I have already been obliged to give the hon. Member for Belfast, East (Mr. McKibbin), a few lessons in Irish geography, and it should be understood that when I speak about Northern Ireland I mean the Six Counties in the northeastern corner of Ireland. I hope that when I use the words “Northern Ireland” hon. Members will remember that it is simply for the sake of simplicity and convenience.
POWER TO TAKE REMEDIAL ACTION
I am grateful for that intervention, which makes it clear that the Home Secretary and the Government take our fears very seriously. 1125 Again, I do not want resort to hyperbole, but it has become fashionable to decry our record on civil liberties and human rights. We have nothing to be ashamed of over the past 200 years. With its unwritten constitution, our country has been a beacon for civil liberties. Amending the constitution is a very serious matter, as I am sure everyone realises. I hope that we are not taking a dangerous course.
Let me describe what could happen. Under clause 10(3)(b), a Minister can make such amendments “as he considers appropriate”. He can amend primary and secondary legislation to make it compatible with the convention. United Kingdom courts can make declarations of incompatibility under clause 4(6), which the Home Secretary was searching for earlier. Courts can make a finding that a provision of UK statute law is incompatible with the convention. Strasbourg can also make such a finding.
This is where we have the fig leaf of parliamentary sovereignty. Such directions are not meant in themselves to strike down the legislation, as happens in Canada and the United States. The ministerial power arises once a final court order has been made that cannot be further appealed against and in which there is a finding of incompatibility, or—this is the important point in clause 10(1)(b)—if it appears to a Minister that a finding of the European Court of Human Rights
in proceedings involving our country means that a provision of legislation is incompatible”………
I believe that we are giving unprecedented powers to Ministers. As the right hon. Member for Caithness, Sutherland and Easter Ross said, the Government, who are rightly concerned about the notion of parliamentary sovereignty, are desperately trying to erect a legal fiction to protect that notion, which is precisely that—a fiction. The course on which we are embarking is dangerous indeed.
LEAVE. FIRST READING.
By the law of England, a single woman was capable of exercising all the civil rights of property, and the responsibilities of property fell upon her likewise. By the highly artificial rule, which had grown up as to marriage, all these rights were denied to an English married woman, and her existence as a legal person was denied by the law. By a fiction of law, husband and wife are considered one person. Like most legal fictions, these had worked great evil, and, amongst the wealthier classes, had been got rid of by the interposition of courts of equity. The remedy was to abolish this fiction altogether, but your written laws accord with the laws of nature and good sense, and let a married woman stand exactly in the same relation to property the day after her marriage as she did the day before.
National Health Service (Amendment) Bill
I also support this useful little Bill. I should like to declare my interests, which are almost a mirror image of those of the hon. Member for Exeter (Mr. Hannam). I am an honorary vice-president of the Environmental Health Officers Association, and have been for many years, and I advise the Pharmaceutical Society of Great Britain. It is a professional body that looks after the standards and registration of pharmacists.
I should like to deal first with clause 1. The Environmental Health Officers Association has battled for years against the ludicrous concept of Crown immunity. 815 Crown immunity is a legal fiction which held that the Queen or the King could do no wrong and that therefore a Department of State could do no wrong. There have been recent terrible incidents in old people’s homes or in hospitals for old people, and in hospitals that care for the mentally ill. Those are people who are least able to cope and need the greatest protection from the state. Things have gone badly wrong, people have suffered illness and many have died. The Bill is an advance against Crown immunity and I congratulate the Minister for taking what all hon. Members have said is but one small step.
Clause 1. (AMENDMENT OF SECTION 1 OF PRINCIPAL ACT.)
People will be thrown out of Kenya while holding British passports, and will have nowhere else to go. Horror should afflict the mind of every responsible Member to think that there will be people trying to come to this country with British passports who have been created stateless. That is what they really are. I know that technically and legally they are not stateless, but unless one has the rights of nationality what does nationality count for? If one cannot live and work in the area that has given one nationality, what does it mean that one has been given that empty legal fiction?
SECOND READING.
Does this Bill put women on a footing of equality with men? It does not. A man does not lose the franchise when he weds—some men come under petticoat government, but that is a different thing. Frequently men are qualified for the franchise through property brought them by their wives. By this Bill the woman will lose her vote on her marriage, and the husband will exercise the privilege without the knowledge of the woman, through the protection of secret Ballot. Therefore, there is no equality in the Bill at all. And why is this to be done? Simply because by the common law of the land a man and his wife are supposed to be one and indivisible—they are supposed to be one flesh and blood. Everyone knows that that is a legal fiction; but our lawyers are partial to fiction, and even when they propose to emancipate womankind, they have not the courage to sweep away the cobwebs of the common law. Small as the Bill is, and adjured as we are not to travel beyond the four corners of this small Bill, no two hon. Members look upon it in the same light. The right hon. Gentleman the Member for Halifax (Mr. Stansfeld), whom I do not see now in his place, asked us last year not to oppose the Bill, because it was so small a measure and so excellent a measure, and because it was the logical corollary of the Bill of 1867; but my hon. Friend the Member for North Warwickshire says it is a huge Bill of reform which is calculated in a short period to bring us to universal suffrage.
Employment Rights
A ruthless employer, Mr. Murdoch, of News International, has been able to use the law in a way which, I submit, the House never intended.
The Secretary of State at that time was the right hon. Member for Waveney (Mr. Prior) and the law that he put on the statute book has been subsequently amended, altered and shaped by the judges and the legal profession so as to allow what was never intended by section 17 of the Act. It has allowed Mr. Murdoch and other employers to construct a chain of limited companies to create a legal fiction of separation. If, at company A the work or the business is being interrupted by a perfectly legitimate industrial dispute, the law on secondary action can be brought into play at company X although it is owned and operated by the same employer, because a chain of small private limited companies have been erected between them, even though the same work is being done on behalf of the same employer. The workers in that context have been denied their job opportunities and denied their work. Subsequently they have been denied their rights to such things as redundancy payment and the right to claim unfair dismissal and to take such claims to a tribunal. I am sure no decent citizen would attempt morally to justify the scenario that exists at Wapping.
And finally, the DIPLOMAT. Probably with just a very few exceptions (such as the Queen for example), the DIPLOMAT has bestowed upon him the most powerful legal fiction which a corrupt individual could ever hope for. While, if not corrupt, then by the sheer exemption from law which he has, he will become so:
DIPLOMATIC PRIVILEGES (EXTENSION) BILL
Mr. Basil Nield(City of Chester)
From the course which this Debate has taken it seems to me to be quite clear that hon. Members in all parts of the House are in agreement with the general purposes of the Measure as explained by the Under-Secretary of State—that is to say, to extend special privileges to the Council of Europe. I intervene only to express some doubts whether this Bill as at present drafted is best designed to achieve that purpose. It is a short non-controversial Bill, but none the less it is one of very great constitutional importance, and I agree so much with what my hon. Friend the Member for Bucks, South (Mr. Bell) has just said, namely, that where there is a proposal to extend diplomatic privilege and immunity it must have the most careful consideration by this House.
One has but to look at some of the fundamental privileges and immunities which attach to the diplomatic agent to see how important it is not to extend 1437 these rights to other categories without the greatest care. There is a right of personal inviolability. Then there is the legal fiction which makes the house of a diplomatic agent, for example an embassy, to be regarded as within the territory of the country from which he is accredited. The position is that such an agent is not subject to the Government of the receiving Power. Several of my hon. Friends have pointed out that he is exempt from taxation, from certain local rates and from civil jurisdiction. He cannot sue or be sued, neither can his goods be seized, and he is also exempt from criminal jurisdiction.
Wrong Patrick! You’re not a person either! You’re a free man!
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