Attorney-General v HRH Prince Ernest Augustus of Hanover
[1957] AC 436[1957] 1 All ER 49
[1957] WLR 1
(Judgment by: Lord Normand)
Attorney-General
v.HRH Prince Ernest Augustus of Hanover
Judges:
Viscount Simonds
Lord Normand
Lord Morton of Henryton
Lord Tucker
Lord Somervell of Harrow
Subject References:
Alien
British nationality
Lineal descendant of Electress Sophia
4 Anne c 4 or 4
&
5 Anne c 16
British Nationality Act, 1948 (11
&
12 Geo 6 c 56), s 12.
Statute
Construction
Preamble
Acts in pari materia
Ex post facto inconvenience or absurdity
Whether clear en-acting words restricted
4 Anne c 4 or 4
&
5 Anne c 16.
Case References:
Powell v Kempton Park Racecourse Co Ltd - [1899] AC 143
Cape Brandy Syndicate v Inland Revenue Comrs - [1921] 2 KB 403
Ormond Investment Co v Betts - [1928] AC 143
Brett v Brett - (1826) 3 Add. 210
Crespigny v Wittenoom - 1792 4 Term Rep 790
Suggested reading:
Hearing date: 22, 23, 24, 25, 29, 30 October 1956
Judgment date: 5 December 1956
Judgment by:
Lord Normand
My Lords, the only question for adjudication in this appeal is whether the effect of the Act 4 Anne c 4 was to naturalise, subject to the exclusion provided for by the second section, those children and lineal descendants of the Electress Sophia who were alive at the passing of the Act and those who were born thereafter but before the death of Queen Anne, or whether the effect was to naturalise, subject to the same exclusion, all persons lineally descending from the Electress alive at the passing of the Act or born at any time thereafter. The question is one of interpretation, and it is not in doubt that the Act must be construed as it would have been construed immediately after it became law.
The Act itself and the related Acts, 7 James 1 c 2 and 4 Anne c 1, have already been brought sufficiently to the notice of the House, and I need not recite them here. On either of the constructions put forward the effect of the Act, both intended and actual, was to confer the privileges and obligations of naturalisation on persons neither resident within nor expected to reside within the realm without their having any voice on the matter and without requiring that they should take the oath of allegiance. On the other hand, naturalisation was conferred only on persons who might in conceivable circumstances succeed to the throne under the Act of Settlement. The Act is unique in these respects and the scope of its operation must not, in my opinion, be extended beyond those who are manifestly covered by the enacting words. In order to discover the intention of Parliament it is proper that the court should read the whole Act, inform itself of the legal context of the Act, including Acts so related to it that they may throw light on its meaning, and of the factual context, such as the mischief to be remedied, and those circumstances which Parliament had in view, including, in this case, the death of the last of Queen Anne's children and the state of the family of the Princess Sophia. It is the merest commonplace to say that words abstracted from context may be meaningless or misleading.
The issue in the appeal is whether the words "the Issue of Her Body and all Persons lineally descending from Her born or hereafter to be born" are capable of suffering a limitation of time which might have been expressed by adding to them such words as "during the life of Queen Anne". The issue may be more closely defined. Much of the argument of the Attorney General rested on the basis that the enacting words were general, and that general words are more susceptible of control by context than specific words, and he cited authorities in support of this proposition. If the words in the present case had been "the Issue of Her Body and all Persons lineally descending from her" alone, the authorities which the Attorney General referred to it would have been material. Here, however, it is the words qualifying these general words by reference to the time of birth that are important, and it is their meaning that we have to ascertain.
Before attempting to solve this question, it will be proper to consider the reasons, derived from the context of attendant circumstances or of law, which on the Attorney General's argument are relevant to influence the construction of the enacting words. The Attorney General maintained that the naturalising of all future descendants of the Princess Sophia was inherently so absurd that Parliament cannot be supposed to have intended it. I can dispose of this point at once by saying that I agree with the observations on it of Romer LJ in the Court of Appeal [2] . The Attorney General then relied on the terms of the Act 4 Anne c 1, which paved the way for the Act now under construction, and provided for the introduction of a Bill naturalising the Princess Sophia and the issue of her body alive at its date only. I think that the Act 4 Anne c 1 does not assist the Attorney General, for the reasons stated by Romer LJ. The lack of issue of Queen Anne and the state of the family of the Princess Sophia throw no light on construction. It is true that, if the Act naturalised only those descendants born before Queen Anne's death, the successor to Queen Anne and the successor to her successor would probably have been among those naturalised, but Parliament might well have intended to go further and to naturalise all who, under the Act of Settlement, might, in certain events, probably or not, succeed to the throne.
The Attorney General placed the main weight of his argument on the preamble of the Act 4 Anne c 4. The preamble, is, however, itself in need of construction. After a reference to the Act of Settlement and some compliments addressed to Queen Anne, it continues:
"And to the End the said Princess Sophia ... and the Issue of Her Body and all Persons lineally descending from Her may be encouraged to become acquainted with the Laws and Constitutions of this Realm it is just and highly reasonable that they in Your Majesties Life time ... should be naturalized and be deemed taken and esteemed natural born Subjects of England."
It is to be noted that the parties agreed that the sentence beginning "and be deemed" and ending with "Subjects of England" is merely a description in common form of the status conferred by naturalisation. The important words are "they in Your Majesties Life time ... should be naturalized". These words seem, on the face of them, to be a clumsy inversion of the words "they should be naturalized in Your Majesties Life time", and so far there is nothing to suggest that "naturalised" has not its ordinary meaning, viz, "admitted to the rights of a natural born subject". Such an interpretation receives some support from the expressed motive that the persons to be naturalised would be encouraged to become acquainted with the laws and constitutions of the realm. This would be a not unreasonable expectation for a limited time and a limited number of persons, but it is scarcely probable that Parliament should expect all future descendants of the Princess Sophia, however remote from any prospect of succeeding to the throne, to be encouraged to apply themselves to the study of English laws and constitutions. The respondent's suggestions that the words "in Your Majesties Life time" merely mean "now", and that "naturalized" means "have an Act passed providing for their naturalization" or the like, do considerable violence to the language used by Parliament. Moreover, the word "now", if it were substituted would be otiose, and the words "and be deemed", etc, fit "naturalized" if it is used in its ordinary sense, but are awkward if "naturalized" is given the meaning which the respondent would ascribe to it. I would, therefore, provisionally accept the construction of the preamble put forward by the Attorney General, always bearing in mind that the preamble is part of the statute, and that no part of a statute can be regarded as independent of the rest.
When there is a preamble, it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is, therefore, clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act, or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of, the indications that may be gathered from the preamble. Again, the preamble cannot be of much, or any, assistance in construing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. The courts are concerned with the practical business of deciding a lis, and when the plaintiff puts forward one construction of an enactment and the defendant another, it is the court's business in any case of some difficulty, after informing itself of what I have called the legal and factual context including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward. If they admit of only one construction, that construction will receive effect, even if it is inconsistent with the preamble, but, if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.
Now I am of opinion that we have in the present instance a simple case where the enacting words are capable of the respondent's construction and not reasonably capably of the Attorney General's construction. The question is whether the words "all Persons lineally descending from the Princess Sophia born or hereafter to be born" can reasonably be construed as subject to a limitation of time, such as the date of Queen Anne's death. Though it may be an exaggeration to say that no words can be conceived more apt to exclude such a limitation, they are clear enough. I find it difficult to think that, if a limitation to the life of Queen Anne had been intended, it would not have been expressed. The words "born or hereafter to be born" appear here for the first time with the evident purpose of clarifying the descriptive words "all Persons lineally descending from Her". Unless "hereafter" means "at any time hereafter", the words "born or hereafter to be born" have no clarifying effect whatever, and would be better omitted. If they are to receive any effect, they are, in the absence of compelling context, inconsistent with any terminus ad quem short of the failure of all descendants. The words are not only clear, they are also direct, whereas it is only by inference that the preamble seems to limit the operation of the Act to those born before Queen Anne's death. There is no clumsiness in the wording to raise a doubt whether they mean what they seem to mean. Nothing but the most compelling context would justify a construction radically altering the plain meaning of the enacting words by reading into them a qualification such as "in Her Majesties Life time". The preamble has no such compulsive force. It may be possible to read the preamble, despite the violence to its language, in the sense put forward on behalf of the respondent, or it may be said that the enacting words go beyond the preamble. It matters not which.
I am, therefore, of opinion that the appeal should be dismissed. I agree with what my noble and learned friend on the Woolsack has said on the possible bearing of the Act of Union on the operation of the Act 4 Anne c 4, and I express no opinion on it.