CO885-(15-16) — Page 603

PUBLIC

RECORD OFFICE

وا

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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diminished still further without running counter to the spirit of the Convention.

"(d) Conditions to be endorsed on licences to recruit native labourers in the New Hebrides (annexed to the draft Regulation). As the issue of licences appears to be in the absolute discretion of the representatives of the two Powers, the Secretary of State desires that it

may

be made clear whether, as a condition of the issue of such licences, the licensees may be required to perform certain acts not prescribed by law, or to refrain from performing certain acts legally permissible, as may seem fit to the issuing Authority."

That a different question arose with regard to the method of making the pro- visions of the draft Regulation legally binding on British subjects alone.

That a joint Regulation under Article VII. of the Convention must, of course, be acceptable to both the British and French authorities, and that it was possible that some provisions of the draft Regulation under consideration might not meet with the approval of the French Government. That in that case it would, in some instances, be convenient that they should be made binding on British subjects alone by means of a King's Regulation under Article 108 of the Pacific Order in Council, 1893. That, as was explained in the draft confidential despatch to the High Com- missioner, the Secretary of State was advised that there was no legal objection to that course, provided that such a King's Regulation contained nothing contrary to the Convention; and that he would be glad to learn whether the Law Officers con- curred in that view, which appeared to be borne out in particular by Article IX. of the Order in Council of the 2nd November, 1907, relating to the New Hebrides.

That Sir F. Hopwood was accordingly to request that the Law Officers would take the papers into consideration and report:

(1) Whether there were any provisions in the draft Regulation, with the sug- gested modifications, which were invalid on the ground of repugnancy to the terms of the Anglo-French Convention of 20th October, 1906, as amended by the notes exchanged on the 29th August, 1907, or on other grounds; and if so, what sections?

(2) Whether it was still competent for the High Commissioner, under the Pacific Order in Council, 1893, to make King's Regulations binding on British subjects in the New Hebrides both concerning the recruiting and employment of natives within the Group and concerning other matters--such Regulations not being inconsistent with the Convention?

We have taken the papers into our consideration, and, in obedience to the Secretary of State's commands, have the honour to

Report--

(1) That, in our opinion, the undermentioned provisions of the Draft Regula- tion conflict in the manner indicated with the Anglo-French Convention of 20th October, 1906, and are consequently invalid.

(a and b) The provisions of Section 4 of the draft Regulation relating to the forfeiture of the deposit of £80, and those of Section 5 enabling the Resident Commissioner to refuse to issue licences and to revoke or suspend them conflict with the provisions of Articles VII., XXXI., and LVI. Article XXXI. is expressed in language which more aptly describes a duty to issue licences than a discretionary power to do so, and the provisions of Article LVI. make it clear that there is no power to suspend or revoke a licence at discretion, for even in the event of a conviction on a serious charge or for a second offence, it gives a power of suspension only and that for not more than two years. This Article disposes of any ambiguity there might be in Article XXXI. and points to there being no discretion to refuse to issue a licence. This being so, such a discretion cannot be given by the Regulation, and Clause 5 of the draft Regulation is therefore void. As to the forfeiture of the deposit-assuming that there had been a discretion as to the issue of the licence, any terms which might be thought désirable could have been imposed. But there being, as we have said, no such discretionary power, the provision as to forfeiture of the deposit becomes in effect the attempted imposition of a penalty, and, by virtue of Article VII. of the Convention, the maximum penalty

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which can be imposed for the enforcement of any Regulation is £20. The true view is that the deposit is, as Article XXXI. calls it, a security," that is to say, a fund which is there to answer penalties or expenses of repatriation and the like.

(e) It is doubtful whether the provisions of Section 7 of the draft Regulation forbidding the engagement of female natives are valid, in view of the language of Article XXXIII. of the Convention, which contemplates that women may be engaged subject to the consents therein mentioned being obtained.

(4) The same considerations as are referred to in (a), (b), and (c) above apply to Clauses 4 and 11 of the proposed conditions of licence, and these conditions cannot be imposed.

(e) Section 19 of the draft Regulation appears to cover the transfer of a contract of engagement from a British subject to a French subject, or vice versa, with the consent of the British Resident Commissioner alone. Article XLIII. (2) of the Convention (assuming that "or is a mistake for "and") requires the joint authority of British and French Resident Commissioners.

(f) Section 22 of the draft Regulation concludes with a proviso that the labourer is to be made clearly to understand that repatriation is not compulsory. It appears to us that Article LI. makes repatriation compulsory, and Sir E. im Thurn, in paragraph 8 of his despatch of January 5th, 1910, emphasises the importance of such a provision. (g) Section 33 of the draft Regulation, in its first paragraph, requires wages to be paid in cash; yet, in its second paragraph, it appears to con- template deductions from wages to pay for articles purchased from the employer, and this in effect involves payment of wages in kind. We think it doubtful whether this second paragraph can be reconciled with Article XLVI. of the Convention.

(h) The provisions of Section 36 of the draft Regulation, as it stands at present, are in conflict with Article XXVI. of the Convention, and are to that extent void. We observe that in paragraph 24 of the draft despatch it is proposed to substitute the analogous provisions of the draft Solomon Islands Regulation. We are unaware of the effect of the Regulation which it is proposed to substitute and cannot therefore say whether or not it is open to the same objection as Section 36.

(2) Yes.

(3) The Convention has been given the force of law by the New Hebrides Order in Council of 2nd November, 1907, which enacts that the provisions of the Order itself and of all laws and regulations made under it shall be read and construed subject to the Convention. The Pacific Order in Council, 1893, is also applied to the New Hebrides, subject to the Convention.

If, therefore, it is desired to restrict or alter, so far as British subjects are con- cerned, the rights and liberties which they possess under the Convention, this cannot be done by King's Regulations, but a fresh Order in Council would be required.

We have, &c.,

RUFUS D. ISAACS. JOHN SIMON.

The Right Honourable

Lewis Harcourt, M.P., &c., &c.. &c.

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