The Gazette 1967/71

in order to take up employment elsewhere. This freedom is not absolute, as the writ - "Ne exeat regno" still exists in England, which forbids a subject from leaving. In New Zealand in 1970, an unsuccessful attempt was made to prevent the New Zealand Rugby Team — the All Blacks — from leaving to play in South Africa. In Felton v Callis (1968) 3 W.L.R. 952, Megarry J. held that the writ "Ne Exeat regno" was extant, but the action in fact was the equitable equivalent of one in which the defendant would formerly have been liable to arrest at law, as there was probable cause for believing that he was about to leave the country, but this absence would not in fact materially prejudice the plaintiffs in the prosecu tion of their action. It was also believed in 1969 that an immigration officer who prevented a jour nalist from leaving London Airport, had acted ille gally. The freedom of movement of individuals may be dependent upon the possession of a valid passport and this may conflict with the provision of the European Convention of Human Rights which declares that "Everyone is free to leave every country, including his own". The United States Supreme Court has upheld the right of American citizens to the possession of a passport and has declared that the State Department cannot with-hold one. (2) Freedom to remain away from one's own State. In England, there is in theory a prerogative power to summon the return of a subject, and, if he fails to do so, to confiscate his property; however, this procedure is very formal, and the Great Seal should be affixed to each such summons. As the Great Seal was abolished by statute in 1884, there is no longer any procedure to enforce this. In fact the English Supreme Court Rulles of 1965 abolished the former provisions relating to "Ne exeat regno". There is, however, an informal understanding between States, which may secure the return of the nationals of one State from abroad by getting the foreign Government to im pound passports. The Council of Europe Con vention on Extradition consists basically of rules for the protection of States rather than of in dividuals. Furthermore, the States tend to co operate by using procedures outside the recog- 241

established rule of law that the first and para mount consideration of the Court was the welfare of the infant. Section 6 of the Act declares that the father and mother of an infant shall be guar dians of the infant jointly — By Section 11, the guardian of the infant may apply to the Court for its directions on any question affecting the welfare of the infant, and the Court may make such order as it thinks proper. In practice, in view of the costs involved, it has often been found convenient to avail of the 1964 Act in order to determine which of the parties involved, if living separately should have custody of the children. It will thus be seen that broadly the welfare of the children has usually been the paramount consideration, when ever a dispute as to their custody was brought before the Irish Courts. GERARD A. LEE. For recent cases, see title "Guardianship of Infants" in current Law Digest in this issue at page FREEDOM OF MOVEMENT OF PERSONS Dr. Paul O'Higgins, Fellow of Christs College, Cambridge, delivered two public lectures in Trinity College, Dublin, on the subject of "Freedom of Movement of Persons in States" on 23rd and 25th February, 1971. Dr. Cole, who presided, foreshadowed that the lecturer's approach would be authoritative and scholarly, and so it proved. The lecturer stated that, in the 19th century, the special feature of the poor law was to control the spread of ideas; even in the British Empire, common citizenship did not give free access throughout the Empire. For instance, the so-called "Safeguarding of Employment Act 1947" in Northern Ireland gravely contravened provisions of the United Nations Declaration of Human Rights and of the United Nations Covenant on Civil and Political Rights 1966. In Britain, the State has a right to interfere, as long as no legal infringements have been interfered with. The problem of "Freedom of Movement of Persons" should be considered under six heads: — (1) Freedom of persons to leave their own State