§ 9.28 p.m.
§ Mr. A. HENDERSON
I beg to move, in page 2, line 4, to leave out "to four," and to insert" "three and four."
The object of this Amendment is to safeguard certain legal and constitutional provisions which were incorporated in the Act of 1932 with the object of ensuring that the administration of justice in 1790 Malta was carried out under proper safeguards. The provisions of Section 2 deal first of all with the appointment of judges of the superior court of Malta; second, with the qualification of judges; third—not an unimportant matter—the remuneration of judges, which cannot be diminished during the tenure of office of any judge; fourth, the question of retirement—judges are to retire at 65; and, last, judges cannot be dismissed from their office except for proved misbehaviour or incapacity. So that, broadly speaking, these provisions are a bulwark against judicial maladministration, and in the event of this Bill being passed in its present form there is no guarantee that any of the requirements which are to be found in Section 2 of the 1932 Act will be observed by the Governor or by his superior, the Secretary of State.
The object of the Amendment is to ensure that the provisions of Section 2 shall continue to operate even though this Bill becomes law. It may be suggested that these matters are purely academic and of no great practical importance, but perhaps the Committee will allow me to quote from a document which contains the views of the Chamber of Advocates in Malta and which were contained in a memorandum submitted to the Secretary of State on the 23rd May this year. This is what the members of the Chamber say: 1791The Chamber feels that these provisions should be placed beyond the reach of the Secretary of State for the time being in charge of the affairs of Malta, and subunits that Section 2 of the Act of 1932 should stand. The people of Malta look up to the judiciary as to one of the main elements of order and of the stability of their laws and institutions, usages and traditions, to which they are deeply and passionately attached. Any weakening of or tampering with the structure on which every Maltese relies for the security of his person, for the defence of his honour and for the upholding of his rights, cannot but create intense disappointment and chagrin in all sections of the population.Those words, mutatis mutandis, might well be applied to our own country if it were ever contemplated that the judicial safeguards which exists should be tampered with or removed. I would respectfully submit to the Secretary of State that the general basis of this Bill under which the Government desire to secure control of the executive powers operating in the island through their Governor would not in any way be affected by the retention of an independent judicial system. For judges to be guaranteed a certain security of tenure, even though their judicial determination may not always be acceptable to the executive authority, except in the case of proved misbehaviour or incapacity, would, in addition to giving confidence to members of the judiciary, give confidence to the citizens of Malta in the knowledge that their disputes and grievances would be heard and determined, apart altogether from any likelihood of influence or interference on the part of the executive. That was the object in inserting Section 2 in the 1932 Act; to make it perfectly clear that this independent judiciary was to be established in Malta.
I hope that the Minister will accept this Amendment, put forward not in any spirit of obstruction, but because some of us on this side of the Committee believe that it is necessary, especially having regard to the fact that there is to be no elected Legislature functioning in the island. It should be possible—and certainly not incompatible with the objects of the Government—to have an independent judiciary.
§ 9.35 p.m.
§ The SECRETARY of STATE for the COLONIES (Mr. Ormsby-Gore)
With the object of the hon. Gentleman who moved 1792 the Amendment I myself, and I am sure the whole Government, are heartily in sympathy. The one thing we want is an absolutely independent and assured judiciary in Malta. The reason why it was felt necessary to insert the provisions in the Act of 1932 was to ensure that object, and it is our intention in the new Constitution to make sure that that state of affairs will continue. In fact, it is quite definitely the intention of the Government to put in the new Letters Patent, as in the old, as part of the Constitution of Malta, the same provisions to secure the independence of the judiciary as have obtained since 1932. The hon. Member may ask why we do not put it in the Statute. The whole object of this Bill is to put Malta in the same position as other Colonies and the Maltese judiciary in the same position as other Colonial judiciaries, and to make the whole Constitution once again in its entirety what it was before 1921, namely, subject to the issue of Letters Patent. I would point out that at this moment the existing Constitution, including the position of the judiciary, is governed by Letters Patent and the 1932 Act, and the object of the Bill is to restore to the Crown the unrestricted prerogative it had before 1921.
Therefore, I can give my hon. Friend the absolute assurance that the position of the judiciary in Malta will be absolutely unchanged, that it is our intention in every way to safeguard their independence, and that so far from complaining about the judgments given by the judiciary in Malta it is the last thing we do, because in all their judicial decisions they have upheld in every way the high positions of their office. The last thing that the Secretary of State or the executive, either in Malta or elsewhere, would wish is to break in upon the long-established British tradition of non-interference with the judiciary. The whole object of the Bill is to have the whole Constitution clearly set out in a complete set of Letters Patent, and those Letters Patent would be incomplete if the position and the independence of the judiciary were not included. Therefore, I do hope that the hon. Member will not press this Amendment. I can give him the most explicit assurance that no change whatsoever is contemplated; that not only have I no ulterior motive but 1793 that the objects which he says he has in moving the Amendment are also my objects.
§ Mr. HENDERSON
I should like to clear up one point. Do I understand that the specific assurance which the right hon. Gentleman has given covers all the heads of Section 2?
§ 9.38 p.m.
§ Sir STAFFORD CRIPPS
I do not understand why the Secretary of State says that this matter must now be taken out of the hands of Parliament and put into the hands of the executive. If, as he suggests, and I am sure he agrees with me, this is a fundamental matter of right which should be observed in Malta as in every place, and Parliament did in 1932 take the view that it was a matter which should be put into an Act passed by this House, I cannot see any reason for now repealing what Parliament did in 1932. There are other matters besides the good intentions of the executive which have to be borne in mind in relation to legislation of this kind. It has often been said that it is more important that justice should appear to be done than that justice should be done, and it is equally important in a matter of this kind that it should not appear to the people of Malta that Parliament is repealing that which it thought fit and proper to enact in 1932. Where we are relying upon the good intentions of the Secretary of State and his successors in office, we are, in effect, taking off the Statute Book a provision which was put there for the protection of the people of Malta as recently as 1932. Inevitably a number of people must think that there is some reason for that removal.
If, as the Secretary of State says, the position will be exactly as it was in the past, and that no change is going to be made, there can be no possible reason for the removal of this Section from the Statute, because he tells us that even with it on the Statute Book it is under the Letters Patent that the provisions are made. It is not a question of avoiding duplication, because that is now the practice and in future, when Letters Patent are issued, why should not this provision still remain on the Statute 1794 Book? It gives him no greater or less latitude than he desires. He does not want to get it off the Statute Book, but his action in taking it off the Statute Book is one which may well be misconstrued in Malta. People who have won what they regard as a right to justice by an independent judiciary are naturally nervous when they see a repeal of that Section of the Statute which has given them the right, and I suggest to the right hon. Gentleman that this is a case where, even if it is going to make no difference at all to the future government of Malta, it is essential that this House should not make this gesture of withdrawing something which is valued intensely by those people.
If all these regulations are to be continued as regards the judiciary of Malta it will be a most unfortunate thing that people should be allowed to make capital out of the fact that the House of Commons has repealed this Section, when in effect we all want it to remain in force. It is liable to misconstruction and may give people in Malta, discontented people perhaps, the opportunity of putting that misconstruction upon what we are doing in the House of Commons. For that reason I beg the right hon. Gentleman to allow this Section to remain. It will not embarrass him or anyone else if his intentions are those, as I am sure they are, which he has expressed to the Committee, but it may make a great deal of difference to the feelings of the people in Malta, especially now that, unfortunately, they are to have their Constitution taken away. Let them at least realise that the House of Commons is going to insist upon the retention of this independent judiciary. If that is insisted upon by the House of Commons, they will at least feel that this House had been active in guarding their interests, and has not merely been prepared to hand them over to the executive to do as it likes. I beg the right hon. Gentleman, for that reason, to say that this Section can remain on the Statute Book as a permanent guarantee to the people of Malta.
§ 9.45 p.m.
§ Mr. ORMSBY-GORE
I ought to say, in reply to the hon. and learned Gentleman, that I think he has got the wrong story. In 1921, the Constitution of Malta, a dyarchic Constitution, was established. As I explained on the Second 1795 Reading, when the Crown has parted with its prerogative to a local elected body, it loses power to amend that position except by Act of Parliament. Therefore when it became necessary, not so such to give the people of Malta but to give the judges in Malta, security of tenure and of income, and a clear statement that that was a reserved subject, it was put into the Bill, passed by Parliament, to amend the Letters Patent.
The object of the present Bill is to do away with the Constitution which gave rise to that doubt. We therefore take the view very strongly that to leave one Clause of an amending Bill of the Letters Patent, that are now to disappear entirely, upon the Imperial Statute Book is, quite frankly, ridiculous, and that it is essential and important, if the Crown is to resume the position that it occupied in regard to the Constitution, the judiciary and every other power, that the people of Malta should have, in their new Constitution, and their new Letters Patent, a clear statement that the judiciary is independent and is assured. I should regret that the new Constitution of Malta should not have in it a Clause, in the Letters Patent, assuring the position of the judiciary, and that it should be left as a last relic of the old story of constitutional change, and subject to the necessity, when any iota is to be altered, of passing a special Bill by both Houses of Parliament. I think that would be quite wrong, when the whole object is to place the judiciary of Malta in the same position as the judiciary of the Straits Settlements, Nigeria, Kenya and any other British Colony. That is the whole object of the Clause, and I must urge the House to resist the Amendment, in spite of what the hon. and learned Member has said.
§ 9.48 p.m.
§ Sir PERCY HARRIS
I listened to the right hon. Gentleman, ready to be convinced. I never questioned the sincerity of what the hon. Gentleman said, but I am rather afraid that, in his endeavour to be symmetrical, he is attempting to draw out of an Act of Parliament something that is to continue. What we want is greater security and greater assurance for the people of Malta to have this right secured in an Act of Parliament as well as in the Letters Patent. 1796 If it is in a Bill, it has more strength. As this matter has been raised and as the parties concerned, learned advocates in the island, have desired this right to remain in the Act of Parliament, it seems a pity that the right hon. Gentleman does not make this small concession. I have a shrewd suspicion that this is a draftsman's job. The draftsman brings in a Bill and in order to make it symmetrical includes everything. It would be far simpler to allow this right to have statutory force, rather than to be part of a new Letters Patent. I should have thought it would be much better than to drop these words.
§ 9.50 p.m.
§ Mr. PRITT
I too would like to appeal to the Government to leave this Section in the Act. Symmetry is very dangerous when you begin to sacrifice anything to it. The whole of our legislation consists in little bits of Sections of Acts left lying about for practical convenience and for their value. I think, in the Government of India Act, something was left in the Preamble. We can all accept without reservation what the right hon. Gentleman the Secretary of State says, but if at some time we had another Secretary of State, whether of the same party or of another party, who was minded to deprive the people of Malta of this independence, it would be very serious. As the right hon. Gentleman says, it may be inconvenient to come back to this House if an iota of something has to be altered, but it is a matter of very serious practical comfort for the judges and the people of Malta to be told that iotas cannot be altered by Secretaries of State because they have been secured in an Act of Parliament.
There is one further consideration. Once this is put upon the Statute Book as a Statute, no matter what the reasons and however convincing the explanation of the right hon. Gentleman of those reasons, the general public will know only that the words were put into an Act of Parliament and were taken out again. I have a recollection of a somewhat amusing story from the Foreign Office, of a British Ambassador in a foreign country who was entitled to expect letters addressed to him to be signed: "Your most humble and obedient Servant," or something of that 1797 sort. When similar letters were sent to him by a Minister, he discovered that the writer was: "Your most humble and obedient Servant," with the word "humble" crossed out, and he was most indignant. If the wording had been "Your most obedient Servant," and the word "humble" had not appeared at all, there would have been no trouble. Comparing small things with great, if it had never become necessary to say to the people of Malta, "The Imperial Parliament guarantees this," it would perhaps not matter very much, but once you have said to the people, "The Imperial Parliament guarantees this," it becomes very serious if, for the sake of symmetry, you say: "We do not mean that any longer, even if we did."
§ Mr. ORMSBY-GORE
May I remind the hon. and learned Gentleman once more of the history? By Letters Patent a Constitution of a dyarchic character was conferred upon Malta in 1921. Thereby, matters were placed in the control of the Maltese local parliament. In 1932, in order not to give the people of Malta more power over the judiciary, but to take it away, and in order to give security to the judges, these matters were transferred to the reserved side of the dyarchy and placed under the control of the Government. When Parliament withdraws the original Letters Patent, that requires an Act of Parliament. Before 1921, there was an independent judiciary in Malta; after 1921 there was an independent judiciary; now there is an independent judiciary in Malta, and there will be. I want to make it quite clear. It is not the people of Malta who are concerned; this is a question of the judges. I will call the hon. and learned Member's attention to one proviso in the Statute. It may be desirable to alter, without passing a Bill through all its stages in both Houses, the proviso of a Section which says that the annual remuneration of all the judges shall not exceed in the aggregate the amount required by the principal Letters Patent, that is to say, of 1921.
I cannot tell the Committee whether it may not be necessary in future to have an additional judge in Malta. It may be. If it is, unless we have freedom under the Letters Patent to alter this provision in the Statute, the only way in which that could be done would be by docking 1798 all the existing judges of part of their salary, because it is laid down in the Statute that the aggregate amount of the remuneration of the judges in Malta shall not exceed a particular sum, which was fixed in 1921. I say that it would be ridiculous to maintain on the Statute Book of this country a limitation of that kind, which does not obtain in any other colony. Our intention, both vis-a-vis the judges themselves and vis-a-vis the people of Malta, is to ensure in the future, as in the past, the same British tradition of the complete independence of the judiciary.
§ Mr. PRITT
I should like to point out, by way of explanation, that, although the right hon. Gentleman has reminded me of the position of the people, I did not say "the people"; I said, "the people and the judges." I meant thereby the people in their confidence in the judges, and not the people in their desire to control the judges.
§ 9.57 p.m.
§ Mr. FURNESS
I am reminded of the famous advice given by Sir Francis Bacon to James I, that the judges should be lions, but lions under the Throne. I think that there is a little constitutional point here. There must be a difference between the position of judges who are assured of independence by Parliament and the position of judges who are assured of independence under Letters Patent, and I would press the point, though I know that it is not, perhaps, popular for me to do so from this side, that it should be borne in mind that, when people have had something secured to them in an Act of Parliament, they resent its being taken away. Although I know nothing of Malta, I feel that the people of Malta, with their history and traditions, might consider that they were entitled to a little more constitutional assurance in regard to these important matters than the people of the Straits Settlements or the other Colonies which the right hon. Gentleman mentioned.
Another point, which I think the right hon. Gentleman raised himself, and which, perhaps, is rather important, is in regard to the judicial salaries. A few years ago in this country a very important point indeed was raised with regard to judicial salaries. I am sure that no one connected with the courts 1799 resented that judicial salaries should be reduced in the financial difficulties then prevailing, but it was very much resented that they should have been reduced by unilateral executive action. When the right hon. Gentleman says that it might later on be necessary to reconsider the arrangement of salaries—although, to be quite fair, he said in an upward direction—I think it is important that, if the salaries of holders of judicial office are to be fixed, they should be fixed by Act of Parliament, and not at the will of the Executive.
§ 9.59 p.m.
§ Mr. EDE
Surely it must be an indication of how hard pressed the Minister is to find an excuse for doing as he is doing, that the only answer he can put forward to my two hon. and learned Friends is that, if we persevere and succeed in our Amendment, it may mean in the future less employment for members of their profession. That exposed a poverty of argument which I should have thought the right hon. Gentleman would have been able to conceal. After what the hon. Member for Sunderland (Mr. Furness) has said, it must be clear that a very serious point is involved here. At the moment, the independence and the salaries of the judges in Malta are guaranteed by an
§ Act of Parliament. As I understand it, if the Act is repealed and new Letters Patent are issued, anything that is in those Letters Patent can be amended without again coming to the House of Commons. The right hon. Gentleman gives his personal assurance that, as long as he is Secretary of State, the judiciary will be in no worse a position than they are in to-day, but fortunately his Government will not be there very long. He himself is so popular a Member of the House that we might even wish that he might be permanently in his present position, no matter what was the colour of the Government, but he has not been there very long this time. When his friends go, he will go with them, and perhaps he may not feel as confident as we should be that right would be done after he had gone. If this country should ever be cursed by a future Tory Government, we do not know who the right hon. Gentleman's successor would be, and we might have very grave misgivings then. I hope the Minister will be able, even at this late stage, to accept the Amendment.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided: Ayes, 200; Noes, 119.1801
|Division No. 286.]||AYES.||[10.0 p.m.|
|Acland-Troyte, Lt.-Col. G. J.||Cary, R. A.||Ellis, Sir G.|
|Adams, S. V. T. (Leeds, W.)||Cayzer, Sir C. W. (City of Chester)||Emery, J. F.|
|Agnew, Lieut.-Comdr. P. G.||Cayzer, Sir H. R. (Portsmouth, S.)||Emmott, C. E. G. C.|
|Albery, Sir I. J.||Cazalet, Thelma (Islington, E.)||Emrys-Evans, P. V.|
|Allen, Lt.-Col. J. Sandeman (B'kn'hd)||Chamberlain, Rt. Hn. Sir A. (Br.W.)||Everard, W. L.|
|Anderson Sir A. Garrett (C. of Ldn.)||Chapman, A. (Rutherglen)||Fildes, Sir H.|
|Anstruther-Gray, W. J.||Colfox, Major W. P.||Fremantle, Sir F. E.|
|Apsley, Lord||Colman, N. C. D.||Ganzoni, Sir J.|
|Aske, Sir R. W.||Colville, Lt.-Col. Rt. Hon. D. J.||Gilmour, Lt.-Col. Rt. Hon. Sir J.|
|Assheton, R.||Cooke, J. D. (Hammersmith, S.)||Gluckstein, L. H.|
|Atholl, Duchess of||Cooper, Rt.Hn. T. M. (E'nburgh,W.)||Goldie, N. B.|
|Baldwin, Rt. Hon. Stanley||Courtauld, Major J. S.||Goodman, Col. A. W.|
|Baldwin-Webb, Col. J.||Craddock, Sir R. H.||Gower, Sir R. V.|
|Balfour, Capt. H. H. (Isle of Thanet)||Crooke, J. S.||Greene, W. P. C. (Worcester)|
|Barclay-Harvey, Sir C. M.||Cross, R. H.||Gretton, Col. Rt. Hon. J.|
|Beamish, Rear-Admiral T. P. H.||Cruddas, Col. B.||Gridley, Sir A. B.|
|Beauchamp, Sir B. C.||Davidson, Rt. Hon. Sir J. C. C.||Grimston, R. V.|
|Beaumont, M. W. (Aylesbury)||Davies, Major Sir G. F. (Yeovil)||Gritten, W. G. Howard|
|Beaumont, Hon. R. E. B. (Portsm'h)||Dawson, Sir P.||Guinness, T. L. E. B.|
|Blair, Sir R.||Denman, Hon. R. D.||Gunston, Capt. D. W.|
|Blindell, Sir J.||Denville, Alfred||Hannah, I. C.|
|Bossom, A. C.||Dodd, J. S.||Hannon, Sir P. J. H.|
|Boulton, W. W.||Dorman-Smith, Major R. H.||Haslam, Sir J. (Bolton)|
|Braithwaite, Major A. N.||Dower, Capt. A. V. G.||Heligers, Captain F. F. A.|
|Briscoe, Capt. R. G.||Drewe, C.||Hepworth, J.|
|Brocklebank, C. E. R.||Duckworth, G. A. V. (Salop)||Holmes, J. S.|
|Brown, Rt. Hon. E. (Leith)||Duckworth, W. R. (Moss Side)||Hope, Captain Hon. A. O. J.|
|Brown, Brig.-Gen. H. C. (Newbury)||Dugdale, Major T. L.||Hopkinson, A.|
|Bull, B. B.||Duggan, H. J.||Hudson, Capt. A. U. M. (Hack., N.)|
|Burghley, Lord||Duncan, J. A. L.||Hume, Sir G. H.|
|Butler, R. A.||Dunglass, Lord||Hunter, T.|
|Campbell, Sir E. T.||Eckersley, P. T.||Inskip, Rt. Hon. Sir T. W. H.|
|Carver, Major W. H.||Elliot, Rt. Hon. W. E.||Jackson, Sir H.|
|James, Wing-Commander A. W.||Mellor, Sir J. S. P. (Tamworth)||Shepperson, Sir E. W.|
|Joel, D. J. B.||Mills, Major J. D. (New Forest)||Shute, Colonel Sir J. J.|
|Jones, Sir G. W. H. (S'k N'w'gt'n)||Moreing, A. C.||Smiles, Lieut.-Colonel Sir W. D.|
|Keeling, E. H.||Morris-Jones, Dr. J. H.||Smith, Bracewell (Dulwich)|
|Kerr, H. W. (Oldham)||Muirhead, Lt.-Col. A.J.||Smith, Sir R. W. (Aberdeen)|
|Kimball, L.||Munro, P.||Somervell, Sir D. B. (Crewe)|
|Kirkpatrick, W. M.||Neven-Spence, Maj. B. H. H.||Spens, W. P.|
|Lamb, Sir J. Q.||O'Connor, Sir Terence J.||Storey, S.|
|Latham, Sir P.||Ormsby-Gore, Rt. Hon. W. G.||Strauss, E. A. (Southwark, N.)|
|Law, Sir A. J. (High Peak)||Orr-Ewing, I. L.||Strickland, Captain W. F.|
|Law, R. K. (Hull, S.W.)||Palmer, G. E. H.||Stuart, Hon. J. (Moray and Nairn)|
|Leckie, J. A.||Patrick, C. M.||Sueter, Rear-Admiral Sir M. F.|
|Leech, Dr. J. W.||Peake, O.||Sutcliffe, H.|
|Leighton, Major B. E. P.||Penny, Sir G.||Tasker, Sir R. I.|
|Levy, T.||Petherick, M.||Taylor, C. S. (Eastbourne)|
|Lewis, O.||Pilkington, R.||Taylor, Vice-Adm. E. A. (Padd., S.)|
|Liddall, W. S.||Plugge, L. F.||Thomas, J. P. L. (Hereford)|
|Llewellin, Lieut.-Col. J. J.||Pownall, Sir Assheton||Titchfieid, Marquess of|
|Lloyd, G. W.||Raikes, H. V. A. M.||Touche, G. C|
|Lumley, Capt. L. R.||Ramsay, Captain A. H. M.||Turton, R. H.|
|Lyons, A. M.||Ramsbotham, H.||Wakefield, W. W.|
|Mabane, W. (Huddersfield)||Ramsden, Sir E.||Walker-Smith, Sir J.|
|MacAndrew, Colonel Sir C. G.||Rankin, R.||Warrender, Sir V.|
|McCorquodale, M. S.||Reed, A. C. (Exeter)||Waterhouse, Captain C.|
|MacDonald, Sir Murdoch (Inverness)||Reid, W. Allan (Derby)||Wedderburn, H. J. S.|
|McKie, J. H.||Remer, J. R.||Wells, S. R.|
|Macnamara, Capt. J. R. J.||Rickards, G. W. (Skipton)||Williams, H. G. (Croydon, S.)|
|Magnay, T.||Ropner, Colonel L.||Wilson, Lt.-Col. Sir A. T. (Hitchih)|
|Maitland, A.||Ross Taylor, W. (Woodbridge)||Windsor-Clive, Lieut.-Colonel G.|
|Manningham-Buller, Sir M.||Salmon, Sir I.||Winterton, Rt. Hon. Earl|
|Margesson, Capt. Rt. Hon. H. D. R.||Samuel, M. R. A. (Putney)||Womersley, Sir W. J.|
|Markham, S. F.||Sanderson, Sir F. B.|
|Mason, Lt.-Col. Hon. G. K. M.||Scott, Lord William||TELLERS FOR THE AYES.—|
|Maxwell, S. A.||Shakespeare, G. H.||Lieut.-Colonel Sir A. Lambert|
|Mayhew, Lt.-Col. J.||Shaw, Major P. S. (Wavertree)||Ward and Commander Southby.|
|Acland, Rt. Hon. Sir F. Dyke||Groves, T. E.||Potts, J.|
|Acland, R. T. D. (Barnstaple)||Hall, G. H. (Aberdare)||Price, M. P.|
|Adams, D. (Consett)||Hall, J. H. (Whitechapel)||Pritt, D. N.|
|Adams, D. M. (Poplar, S.)||Hardie, G. D.||Richards, R. (Wrexham)|
|Adamson, W. M||Harris, Sir P. A.||Riley, B.|
|Alexander, Rt. Hon. A. V. (H'lsbr.)||Henderson, A. (Kingswinford)||Ritson, J.|
|Ammon, C. G.||Henderson, T. (Tradeston)||Roberts, Rt. Hon. F. O. (W. Brom.)|
|Anderson, F. (Whitehaven)||Hills, A. (Pontefract)||Roberts, W. (Cumberland, N.)|
|Attlee, Rt. Hon. C. R.||Jagger, J.||Robinson, W. A. (St. Helens)|
|Banfield, J. W.||Jenkins, A. (Pontypool)||Rowson, G.|
|Barnes, A. J.||Johnston, Rt. Hon. T.||Seely, Sir H. M.|
|Barr, J.||Jones, A. C. (Shipley)||Sexton, T. M.|
|Batey, J.||Jones, H. Haydn (Merioneth)||Shinwell, E.|
|Bellenger, F.||Jones, Morgan (Caerphilly)||Short, A.|
|Benson, G.||Kelly, W. T.||Silkin, L.|
|Bevan, A.||Kennedy, Rt. Hon. T.||Simpson, F. B.|
|Broad, F. A.||Lansbury, Rt. Hon. G.||Smith, E. (Stoke)|
|Bromfield, W.||Lathan, G.||Smith, T. (Normanton)|
|Brown, Rt. Hon. J. (S. Ayrshire)||Lawson, J. J.||Sorensen, R. W.|
|Cape, T.||Lee, F.||Stephen, C.|
|Cluse, W. S.||Leonard, W.||Stewart, W. J. (H'ght'n-le-Sp'ng)|
|Cocks, F. S.||Leslie, J. R.||Strauss, G. R. (Lambeth, N.)|
|Cripps, Hon. Sir Stafford||Logan, D. G.||Taylor, R. J. (Morpeth)|
|Daggar, G.||Lunn, W.||Tinker, J. J.|
|Dalton, H.||McEntee, V. La T.||Viant, S. P.|
|Day, H.||McGhee, H. G.||Walkden, A. G.|
|Dobbie, W.||Mac Laren, A.||Walker, J.|
|Dunn, E. (Rother Valley)||Maclean, N.||Watkins, F. C.|
|Ede, J. C.||Mander, G. le M.||Watson, W. McL.|
|Edwards, A. (Middlesbrough E.)||Marklew, E.||Whiteley, W.|
|Edwards, Sir C. (Bedwellty)||Marshall, F.||Wilkinson, Ellen|
|Evans, D.O. (Cardigan)||Mathers, G.||Williams, D. (Swansea, E.)|
|Fletcher, Lt.-Comdr. R. T. H.||Messer, F.||Williams, E. J. (Ogmore)|
|Frankel, D.||Morrison, Rt. Hn. H. (Ha'kn'y, S.)||Williams, T. (Don Valley)|
|Gardner, B. W.||Morrison, R. C. (Tottenham, N.)||Wilson, C. H. (Attercliffe)|
|Green, W. H. (Deptford)||Naylor, T. E.||Woods, G. S. (Finsbury)|
|Greenwood, Rt. Hon. A.||Noel-Baker, P. J.||Young, Sir R. (Newton)|
|Grenfell, D. R.||Oliver, G. H.|
|Griffith, F. Kingsley (M'ddl'sbro, W.)||Paling, W.||TELLERS FOR THE NOES.—|
|Griffiths, G. A. (Hemsworth)||Parker, J.||Mr. Charleton and Mr. John.|
|Griffiths, J. (Llanelly)||Pethick-Lawrence, F. W.|
Question, "That the Clause stand part of the Bill," put, and agreed to.
§ 10.10 p.m.
§ Mr. T. WILLIAMS
I beg to move, in page 2, line 5, at the end, to add: 1802This Act shall not operate to withdraw any litigation as to which appearance has already been entered by both sides before the judicial committee of His Majesty's 1803 Privy Council and no delay or impediment caused by the passing of this Act shall cause costs to be ruled againt either party.This Amendment is to deal with those ordinances that were passed by the Governor subsequent to the suspension of the Constitution. In at least one case the ordinance was opposed by interested persons and submitted to the Maltese courts. Thenceforward it proceeded to the Judicial Committee of the Privy Council. The case is still sub judice and, unless my Amendment is accepted, the Bill not only validates any ordinance introduced by the Government but also validates the case that is sub judice before the Privy Council at present. I am not an expert in legal niceties, but I can very well imagine that, if this Government grants to any one of our Colonies a Constitution, and for some reason, religious or otherwise, finds it necessary to suspend the Contitution and the Governor promulgates ordinance after ordinance, right or wrong, any one of those ordinances may be contested in the courts and transmitted to the Privy Council, and then His Majesty's Government introduces a Bill to suspend the Constitution and to validate all those ordinances, that will at least be contrary to the general practice and would make things extremely difficult throughout our Colonial Empire.
I understand that the Canadian Government at the moment is contemplating submitting several pieces of legislation, or ordinances, passed by its predecessor, to the Privy Council to contest their validity. If it is fair to validate ordinances and to cancel out cases which are sub judice for the Privy Council in Malta, why not the same process with regard to Canada? That, of course would be ludicrous. Just as it would be ludicrous in the case of Canada, so does it seem to me to be ludicrous in the case of Malta. In any case retrospective legislation of this kind validating the action of the Government and completely disposing of the normal legal procedure is contrary to the best practice of this country with regard to the government of our Colonies. I hope the right hon. Gentleman will accept the Amendment and allow the case before the Privy Council to proceed in the ordinary course, and not dispose of the case that is sub 1804 judice in this extraordinary fashion, for it would be bound to reflect itself in anxiety in every other part of our Colonial possessions. I do not think, first, that Malta deserves it, and secondly that the Colonies as a whole deserve to be placed in this position. For these reasons, I hope that the right hon. Gentleman will see the wisdom of accepting the Amendment and, at all events, allowing the case that is now sub judice to pass through the normal channels and the right or wrong of that particular ordinance to be contested in the ordinary manner.
§ 10.16 p.m.
§ Mr. ORMSBY-GORE
In general principles I agree with tae hon. Gentleman the Member for Don Valley (Mr. T. Williams), who moved the Amendment, that it is undesirable, when cases have got so far, to interfere with them, unless one can show good cause why one should. In endeavouring to convince the Committee that in this particular case I have reasonable ground for adopting the line which I would like the Committee to adopt, perhaps I had better explain that the effect of the proposed Amendment would be to validate all the ordinances passed by the Governor since the Constitution has been suspended, with the single exception of the case which Lord Strickland has brought against the ordinance passed by the Governor in 1934, which he is carrying through the courts. Let me make it perfectly clear that I have been advised by all my advisers, and I am completely convinced, that, under existing Letters Patent during the suspensory period, the Governor, with the assent of the Secretary of State, has been fully entitled to act and that these ordinances are valid. That is the view which has been upheld by the Maltese courts, both the Court of first instance and the Court of Appeal in every single case; but it is clear that, if the validating Clause had not been inserted in this Bill, and if in the present case Lord Strickland were to secure a reversion of the decision of the Court of Appeal, the Government would immediately have to come to Parliament and pass a special Bill to validate that ordinance. We had much better do it in this Bill rather than trouble the House of Commons with a wholly new Bill inserting an order to validate that particular ordinance.
1805 Parliament has always been very chary of interfering in matters of this kind, where it can be shown that an appellant has some personal right or personal interest in the matter. I want to make it perfectly clear that that does not and cannot arise in this case. The ordinance has not been aimed at, nor does it affect, Lord Strickland individually in his personal interest rights, any more than it affects any other Maltese constituent. I must give particulars of the case in order to justify our proposal. I do so all the more readily because I have recently come from the Office of Works. This particular advertisement ordinance is probably one of the first ordinances that has ever been passed by any governor or Government in Malta. This is an ordinance the validity of which Lord Strickland is impugning as being outside the power of the Governor.
§ The CHAIRMAN (Sir Dennis Herbert)
The right hon. Gentleman is now discussing a matter which is sub judice. He cannot go into the merits of that case.
§ Mr. ORMSBY-GORE
It is very difficult, then, to explain why one wishes to validate a particular ordinance when that ordinance is being questioned. I think, however, I can obey your Ruling without making any direct reference to this particular case. Perhaps I can state exactly what is the position that exists to-day. On the famous walls of Valetta there are extremely ugly hoardings advertising particular individual newspapers. In this country we have for some time past empowered local authorities to abate such nuisances, which disfigure prominent public buildings. As First Commissioner of Works I had power, for instance, to prohibit sky-lights and the like in Parliament Square. Therefore, it is desirable, in the interests of Malta and of everybody, that the very fine views of Malta and its famous monuments and public buildings should not be disfigured in this manner.
§ Mr. MORGAN JONES
On a point of Order. Is not the right hon. Gentleman now discussing the case? He uses the words "disfigured in this manner." That is a direct reference to the case.
§ The CHAIRMAN
I was following the right hon. Gentleman very carefully and he was certainly very near the line. It is common knowledge that certain legal 1806 proceedings are going on, but there must be no direct reference to them, nor anything said in the nature of a statement, pro or con, which might be held to prejudice the issues involved in that litigation.
§ Sir JOSEPH NALL
Is it not the whole object of the Bill to frustrate the judicial proceedings to which you have referred?
§ The CHAIRMAN
I have no knowledge of what may be the object of anybody in regard to this Bill. I have only before me the text of the Bill, and it makes no reference to any particular pending legal proceedings.
§ Mr. ORMSBY-GORE
I think I have said quite enough on the individual case which is raised by the Amendment moved by the hon. Member opposite. He seeks to exempt from the general validation one of the Ordinances which has been passed by the Governor. I will not pursue that matter any more, except to refer more specifically to the last few words of the Amendment, because I am asking the House to make no exception to the validation of the Ordinances which have been passed.
I think it is only fair that there should be a statement regarding the position which will arise in connection with the court case. The appellant has been put to certain costs in bringing this case from Malta to this country, and His Majesty's Government have no desire to involve him in any loss of this character. They are quite prepared to consider most sympathetically the claim which in due course the appellant may put forward in respect of these expenses. I think that should be done, and if I am invited by the Amendment to make an exception in the validation of the Ordinances, I maintain that we should not exempt, as the Amendment seeks to exempt, Ordinance No. 11 dealing with public advertisements in Malta from the validation, which, I think, the whole Committee wishes to accord to the various other acts of the Governor, which have been absolutely essential during the period of the suspension of the Malta Constitution.
§ Sir J. NALL
As I understand the matter, the Ordinances which have been 1807 made were supposed to be related to matters of defence. The right hon. Gentleman has referred to matters of local amenities and to domestic matters, such as might be the concern of local authorities here. But the Ordinances which are the cause of a certain action are supposed to be matters of defence and, therefore, it seems to me that the Bill is altogether irregular.
§ Mr. ORMSBY-GORE
I want to make it perfectly clear that since the Constitution has been suspended the only person who has had power to make laws in regard to local matters as well as defence has been the Governor. This is a matter of purely local amenities, and it is the Ordinance among a large number which has been selected for question.
§ 10.28 p.m.
§ Mr. A. HENDERSON
The speech of the right hon. Gentleman is extremely unsatisfactory from the constitutional point of view. As far as I know there is no precedent for a Government coming to this House when a case has reached its appellate stage and introducing legislation which would have the effect of neutralising any decision which may be arrived at by the Court of Appeal, and then calmly telling the House that it will be quite all right, because they will indemnify the litigant in respect of his costs in the event of the Court of Appeal finding in his favour. That is an important constitutional point, and I hope the Committee will think twice before they allow the Government to get away with it. The Minister has said that it would be easy to allow this case to be carried through its various stages, to allow the Privy Council to find in favour of the litigant, which would compel the Government to come to the House and introduce a Bill of indemnity. That is the proper course which should be taken in the event of the Government desiring to neutralise any judgment of the Privy Council; but to come to the House prior to the Privy Council having arrived at its determination is absolutely without precedent, and I hope the Committee will not allow the Government to neutralise the decision of the Privy Council, whatever it may be, in this way. The object of this Amendment is merely to protect the rights of 1808 the litigant in the last stage of the litigation when the case is actually before the final Court of Appeal, that is to say, the Privy Council. It is no consolation to the litigant to know that, having expended time and money in seeking to ensure his rights, the Government should be allowed to take this course. I hope the Committee will accept this Amendment.
§ 10.31 p.m.
§ Mr. SPENS
The hon. Gentleman opposite has told us what is the object of the Amendment, but he has not told us how the Amendment will carry out that object. The Committee will see that the Amendment begins by saying:This Act shall not operate to withdraw any litigation …The Act does not say anything about withdrawing litigation; it is entirely a question for the litigant as to whether or not he withdraws it. The Amendment has no effect on existing litigation unless the litigant thinks fit to withdraw it. Moreover, the last words of the Amendment are:and no delay or impediment caused by the passing of this Act shall cause costs to be ruled against either party.No delay or impediment is caused by the passing of this Act unless either of the parties chooses to make a delay or impediment. I respectfully submit to the Committee that this Amendment would not have the effect which hon. Members opposite think it would have.
§ 10.33 p.m.
§ The CHAIRMAN
From the discussion which has taken place so far, it would appear that this Amendment is out of Order. Either it is without effect or it is contrary to Clause 2, which has already been passed.
§ Mr. T. WILLIAMS
Further to that point of Order, the Minister informed the Committee that 11 ordinances had been passed by the Government. The Amendment is merely an exception to Clause 2, and deals exclusively with that case, or those cases, actually before the Privy Council. The Amendment was not put down to Clause 3 without a good deal of consideration, and with full knowledge that it is intended to apply as an exception to Clause 2, such exception being only for that case, or those cases, actually before the Privy Council.
§ The CHAIRMAN
The hon. Member rather confirms my view. He says that this is a matter of adding a proviso to Clause 2, which has alrealy been dealt with and passed. In the circumstances, I have no option but to rule the Amendment out of order. As regards the next Amendment, in the name of the hon. Member for Caerphilly (Mr. Morgan Jones)—in page 2, line 5, at the end, to add:This repeal shall not affect the continuation of any established function or right of the Malta Trades Union Council other than the function of electing two members as senators.I am afraid I hold very much the same view, unless the hon. Member can show me that I should take another view.
§ Mr. MORGAN JONES
I do not mind admitting that I rather anticipated that you would take that view. Perhaps you will forgive me if I ask the right hon. Gentleman a question with a view to making the position clear.
§ The CHAIRMAN
Does the hon. Member wish to ask a question on the point of Order which has been raised, or is it one that could be better discussed on the Question, "That the Clause stand part"?
§ 10.35 p.m.
§ Mr. J0NES
If you would allow me to put it on your Ruling, then I would know whether to ask leave to withdraw the Amendment, if you do not rule it out of order. I appreciate that under the decision we have already taken we have withdrawn from the Malta Trade Union Council the function of electing two members to the senate and I do not wish to argue that point now. But can I have an undertaking or assurance from the right hon. Gentleman that there is nothing to prevent the Trade Union Council from continuing to function in other respects?
§ The CHAIRMAN
That is a matter which must be dealt with on the Question, "That the Clause stand part of the Bill."
§ Motion made, and Question proposed, "That the Clause stand part of the Bill."1810
§ 10.36 p.m.
§ Mr. ORMSBY-GORE
There is no ground for the apprehension that anything in this Clause affects the Trade Union Council or trade unions in Malta in any way other than that it deprives them of representation on a Senate which has ceased to exist. They are not affected in any other way. Maltese trade union rights are governed by a local ordinance passed by the Maltese Parliament in 1929 very soon after the Government of which the hon. Gentleman was a Member came into office here, and that is quite unaffected by this Clause or anything in the Bill.
§ 10.37 p.m.
§ Mr. MORGAN JONES
While thanking the right hon. Gentleman for that explanation, may I remind him that he said that this Trade Union Council had been specifically created in 1921 for the purpose of electing members to the Senate. I understood him to say that it was an ad hoc body. We are now withdrawing the function for which the Council was created. That is to say that, as far as the law is concerned, there is no Trade Union Council in being from now onwards. Do I understand that nothwithstanding that fact there will be no impediment in the way of the trade unions creating a Trade Union Council to function for any other purposes for which they may wish such a body to function?
§ 10.38 p.m.
§ Mr. KELLY
The Trade Union Council was set up not only for the purpose of appointing senators but for other purposes connected with the general life and working conditions on the island. Am I to understand that that council is still to be considered, in its registration aspect, as in the same position that it was previously. I am leaving out of account the appointment of the senators. Personally, I am not at ail sorry that the two members are no longer senators and perhaps it would have been better if they never had been senators, but that is not a matter with which we are dealing at the moment. I want to be assured that the council are not going to have their powers restricted or have opportunities denied to them of playing their part as regards the general life and well-being of the people of the island.
§ Bill reported, without Amendment.
§ Motion made, and Question proposed, "That the Bill be now read the Third time."
§ 10.43 p.m.
§ Mr. MORGAN JONES
Before we take leave of this Bill, I think it right to make a few observations upon its general character. As I said last week, when this subject was under discussion, this matter is not a matter of recent interest to us. We have been discussing the question of the constitution of Malta on other occasions during the lifetime of the previous Parliament, and I would recall to the right hon. Gentleman that when his predecessor, now Lord Swinton, commended his action to the House in 1932, he based his action upon two main considerations. One was that there was a controversy, as indeed was the case, between him and the Maltese Parliament in relation to the question of the English language. Secondly, he alleged that the financial situation in Malta was such as to demand the action which he then took. Curiously enough, we have heard nothing at all on this occasion about the language difficulty, which seems to have been completely forgotten, and therefore that is not one of the grounds on this occasion for this action. We have heard something, it is true, of the financial difficulty, but I ventured to say to the right hon Gentleman on the last occasion that it was not true to say that when the Maltese Government actually went out of office there was anything like a financial deficit In point of fact, there was a substantial surplus, so that really the second ground which was adduced in 1932 no longer applies.
There emerged in the course of the discussion last week a third and newer ground, and that was the problem of the defence of Malta as it had presented itself to us in the course of the recent difficulties in the Mediterranean. As a matter of fact, the right hon. Gentleman did not refer to that subject in his opening statement. It was dragged out of him by other people in the course of their observations. I do not express a personal opinion on that matter one way or the other. It may very well be—and I accept it from the right hon. Gentle- 1812 man if he says so—that there are certain strategic difficulties which have arisen as a consequence of the situation in the Mediterranean in the last few months, but those difficulties do not justify the action that the right hon. Gentleman has taken to-night. Whatever strategic difficulties present themselves in relation to Malta, they are difficulties over which the Maltese Legislature, even if they had the whole of the powers they possessed in 1921, would have little to do, because the Maltese Legislature of 1921 had no power over defence. It was a wholly reserved subject. All the power they had was to deal with purely local and internal problems.
I cannot understand what the haste can be for withdrawing from the Maltese people so completely as is now done all power over their interral administration, as my hon. Friend the Member for Don Valley (Mr. T. Williams) was able to show on the Second Reading of the Bill. The Maltese people can show that while they possessed the powers of self-government they were able to register a substantial advance in social legislation. Therefore, it seems to me unjust to withdraw so completely all the powers which they possessed in 1921. To-night we have been told by the right hon. Gentleman in the most specific and emphatic terms the nature of the government which is to be offered to these people. He spoke of having the power to go back to a government comparable to what is possessed in Kenya, Nigeria and other places.
§ Mr. ORMSBY-GORE
I mentioned neither Kenya nor Nigeria. The two I mentioned were Straits Settlements and Ceylon.
§ Mr. JONES
We will not quarrel about that, but I could have sworn I heard the right hon. Gentleman mention Kenya. Any way, they are going back, not to the government they possessed in 1921, but to something comparable to Crown Colony government. People who have enjoyed the powers that Malta enjoyed in 1921 must inevitably resent being pushed back into some status lower than that of 1921. I suggest to the right hon. Gentleman that in commending a Bill of this sort to the House he ought to have given far more powerful and overwhelming arguments than he has given. He has given no guarantee at all as to the future of the island from the standpoint of the government.
1813 Section 2 is one which, had our Amendmen been deemed in order, might have caused us a long discussion to-night. I will not discuss it now, but I will say this, without reference to the case that is before the Privy Council, that it is undesirable that this kind of retrospective legislation should be presented to the House. One of the great privileges and rights on which the ordinary citizen of the old Roman Republic used to pride himself was that he was a citizen of Rome—civis Romanus sum. It is right that these people, if they find themselves in conflict with the administration, should have reserved to them the power of making an appeal to the courts in their own country. That appeal has been made in this case, and half-way between success and failure the Government intervene, and intercept them in their journey towards the vindication of their rights by introducing a Clause such as this. It is an evil precedent for the Government to initiate. We dislike these tendencies, which have made themselves only too frequently apparent in the last three or four years on the part of the Government now in office, to step in here and there in relation to this or that portion of the Commonwealth and to withdraw rights or privileges which have long been enjoyed. It is a bad procedure to embark on, and for that reason we will challenge the Motion for the Third Reading.
§ 10.53 p.m.
§ Commander BOWER
The people of Malta will be gravely disappointed with this Bill. I cannot agree with the hon. Member who has just spoken, because I think that the 1921 Constitution, complicated diarchy as it was, was bound to prove unworkable. I am doubtful also whether the Maltese people have yet reached a state of political development permitting of their having full responsible government. But they should have representative government, and I had hoped that the right hon. Gentleman would have been able to give us some more definite promise than he has done. There has been a see-saw between Crown Colony and some form of representative government going on for 120 years, and that merely serves to prove that this experiment of giving responsible government was bound to fail. But the Maltese people are rapidly developing, education is going ahead, there is a 1814 vernacular Press, the language question we hope is practically settled, and in a short time they should be made to feel that responsible government is again in sight, and that for the present they should be told that they are to get representative government at once, or as soon as may be. After all, it is 2½ years since the Constitution was suspended, and in the interval the Colonial Office must have had in their minds replacing this strict Crown Colony government by something else, and I think the Maltese people will be grievously disappointed that they have not been given something better than the airy hopes held out to them by the right hon. Gentleman.
As regards retrospective legislation, I feel that we may be setting up a very grave precedent; at any rate that this case will have repercussions in other parts of the Empire. The hon. Member for Don Valley (Mr. T. Williams) referred to the fact that in Canada eight ordinances have been challenged in the courts of first instance and the courts of appeal, and I think the Prime Minister is now going to carry them to the Privy Council of this country. I imagine that Canada is in a very different position from Malta, particularly since the passing of the Statute of Westminster, but there are other Colonies where similar cases may arise, and I think it is very regrettable that Parliament should adopt this high-handed attitude towards the Privy Council. On Second Reading I asked whether one of the Law Officers of the Crown could give us a little elucidation on this matter. Not one of them is present on the Treasury Bench this evening. I think one ought to have been here, and if a certain Amendment had not been ruled out of order I should have raised the matter then. In this case we are establishing what may be a dangerous precedent. It may turn out to be one of those cases which, in future, will be quoted in the text-books in not very flattering terms.
In conclusion, I shall not envy the right hon. Gentleman when he does bring forward his proposals for the government of the Island of Malta, but I hope due regard will be had to giving the Maltese real control, so far as possible, over their own affairs, not only because they would like it, but because it is going to be a very difficult matter to control it 1815 from here. In that small island, only about 17 miles Jong and 12 miles wide, there are 250,000 people, the great majority living in a state of poverty such as is absolutely unknown in this country. They are multiplying rapidly and with emigration largely stopped they are going to be faced with the most appalling problems. I am bound to say that some of my Maltese friends have shown rather a lack of responsibility in not appreciating that their principal problems are economic. They have spent their time for the last 14 years, and for many years before, fighting about the language question and things of that sort, which do not affect the lives of the people one little bit. It is the lives of their own people they have to think of, and I hope that when they get their responsible government or their representative government they will settle down to looking after their own people and finding out means of providing a living for them.
§ 10.59 p.m.
§ Sir S. CRIPPS
There are two matters on which I should like to make some remarks. One of the most extraordinary things about this discussion has been the complete lack of its excuse on the part of the Government for this Measure to deprive the Maltese of any form of representative or responsible government. It is quite clear that this is forced upon Malta as a result of the position of British Imperialism in the Mediterranean. "Evil communications corrupt good manners." Malta is too close to Italy, and this is the application of some of the principles of Signor Mussolini to the Government of a British dependency. We have not had any other excuse put forward for this step, which is an extremely serious step for the people of Malta. They are being victimised in order that we may have a more effective naval base in the Mediterranean. That, we believe, is not a good reason or a good cause for taking away self-government from any people who have once enjoyed it.
The second point I wanted to say a word about was Clause 2, which validates a number of ordinances which may or may not be invalid. One must assume that the Government have been advised that there is a risk of those ordinances being declared invalid, otherwise they would 1816 not have included Clause 2 in the Bill. That raises a very serious question as to whether, when the Government take urgent Measures in one or other part of the Empire, by which a Constitution is suspended, they ought not to come to this House at the time when they suspend the Constitution in order, before the ordinances are passed, that this House might give them the necessary validation. In this case that was not done. For two and a-half years the Government continued to legislate for Malta in a manner which, it is now discovered, might or might not be valid. The Government, therefore, seek to bring in retrospective legislation to make those ordinances valid, whatever legal power the Governor had to pass them at the time when they were enacted. If that method is to be pursued, every kind of illegality may be committed in every part of the Empire. There is no security, if retrospective legislation of this kind is to become the habit or the custom of this House, in any part of the Empire, that the Constitution which has been laid down with the approval of this House will be valid in governing the people of that area.
Therefore, when we are asked, as we are to-night, to pass a Bill of this kind, it is to do something which, in my submission, we should consider with the very greatest care before embarking upon such legislation. The particular case which has been mentioned of one such Ordinance being challenged in the courts, illustrates the danger of such legislation. The right hon. Gentleman stated, upon the Amendment which was ruled out of order, that this House had always been very jealous of personal rights and was unwilling, by retrospective legislation, to upset such personal rights. Does he suggest that this House is less jealous of public rights than of personal rights? I presume that he does not suggest that there is no difference between a case of personal rights vindicated in the courts, and of public rights vindicated in the courts. The argument would be far stronger where some citizen, whoever he may be, comes forward to vindicate a public right, than where a citizen comes forward merely to vindicate some personal right of his own. If that be so, where, as at present, a public right is being vindicated as regards certain events that have occurred during this interregnum in Malta, it is of the very essence 1817 of good government that the opportunity of vindication of justice should be given and not withheld, whatever the consequences may be.
The right hon. Gentleman excuses himself because, he says, it would be awkward if another Bill had to be passed in order to validate this particular Ordinance. But surely that is a very small matter compared with the vindication of justice. It is not to be weighed in the same balance; and, incidentally, it is not the fact, because, under the new Constitution, the Governor can pass a new Ordinance of precisely the same kind if it is found that the old one is illegal, and he will, therefore, not be embarrassed in any way as regard cleaning the walls of Valetta. But his past illegal act will have to be paid for, and that is the right and proper thing, upon which the House ought to insist in a case of this sort, rather than saying, "Although you can put it right by a new Ordinance if you like, we are nevertheless going to say that we are going to put our imprimatur upon the injustice which you have performed in these two and a-half years." There can be no conceivable excuse as regards good government for getting rid of the present litigation.
As for the terms which the right hon. Gentleman has offered the litigants, they are really hardly worthy of even this Government. The right hon. Gentleman does not seem to realise that, when there is an appeal pending before a court, if you want to settle with your adversary so as to be in the position of winning the appeal, you invariably have to pay the whole of his costs from the beginning of the litigation, and not merely the extra costs to which he has been put by going to the court of appeal. If you
§ are going by some device to get yourself into the right then you have to be prepared to pay the person who has challenged the right all the costs that he has incurred in challenging that right. Clearly, if the Government are going to pass such a Bill as this, the only just thing that they could possibly do would be to say to the ligitant, "You have been put to expense in trying to uphold a public right in Malta. We are now going to say that it is not a public right; in other words, we are going to validate the ordinance; and, therefore, we will indemnify you against all the expense to which you have been put in trying to uphold that public right." That is the barest justice in such a case as this.
§ But I am not suggesting to the right hon. Gentleman that he should adopt that course. What I am suggesting is that it is vital to the good government of our Colonial Empire—which I do not want to perpetuate, but which, as long as it is there, should be governed well—that retrospective legislation as regards illegal acts by Governors should not be passed by this House of Commons, and especially in a case where, on the right hon. Gentleman's own showing, it is absolutely unnecessary from the point of view of doing whatever he wants to do with advertisements in Malta, because that can be cured by a new Ordinance. It is too late to consider the matter now, but I suggest that, if the House passes the Bill in this form, it will regret laying down a precedent which may prove very disastrous in other cases in future.
§ Question put, "That the Bill be now read the Third time."
§ The House divided: Ayes, 210; Noes, 118.1821
|Division No. 287.]||AYES.||[11.10 p.m.|
|Acland-Troyte, Lt.-Col. G. J.||Blair, Sir R.||Cayzer, Sir H. R. (Portsmouth, S.)|
|Adams, S. V. T. (Leeds, W.)||Blindell, Sir J.||Cazalet, Thelma (Islington, E.)|
|Agnew, Lieut. Comdr. P. G.||Bossom, A. C.||Chapman, A. (Rutherglen)|
|Albery, Sir I. J.||Boulton, W. W.||Colfox, Major W. P.|
|Allen, Lt.-Col. J. Sandeman (B'kn'hd)||Bower, Comdr. R. T.||Colman, N. C. D.|
|Anderson, Sir A. Garrett (C. of Ldn.)||Braithwaite, Major A. N.||Colville, Lt.-Col. Rt. Hon. D. J.|
|Anstruther-Gray, W. J.||Briscoe, Capt. R. G.||Cooper, Rt. Hn. A. Duff(W'st'r S.G'gs)|
|Apsley, Lord||Brocklebank, C. E. R.||Courtauld, Major J. S.|
|Aske, Sir R. W||Brown, Rt. Hon. E. (Leith)||Craddock, Sir R. H.|
|Assheton, R.||Brown, Brig.-Gen. H. C. (Newbury)||Cranborne, Viscount|
|Atholl, Duchess of||Bull, B. B.||Craven-Ellis, W.|
|Baldwin-Webb, Col, J.||Bullock, Capt. M.||Crooke, J. S.|
|Balfour, Capt. H. H. (Isle of Thanet)||Burghley, Lord||Cross, R. H.|
|Barclay-Harvey, Sir C. M.||Butler, R. A.||Cruddas, Col. B.|
|Beamish, Rear-Admiral T. P. H.||Campbell, Sir E. T.||Davidson, Rt. Hon. Sir J. C. C.|
|Beauchamp, Sir B. C.||Cartland, J. R. H.||Davies, C. (Montgomery)|
|Beaumont, M. W. (Aylesbury)||Carver, Major W. H.||Davies, Major Sir G. F. (Yeovil)|
|Beaumont, Hon. R. E. B. (Portsm'h)||Cary, R. A.||Dawson, Sir P.|
|Bernays, R. H.||Cayzer, Sir C. W. (City of Chester)||Denman, Hon. R. D.|
|Denville, Alfred||Jackson, Sir H.||Ramsay, Captain A. H. M.|
|Dodd, J. S.||James, Wing-Commander A. W.||Ramsbotham, H.|
|Donner, P. W.||Joel, D. J. B.||Ramsden, Sir E.|
|Dorman-Smith, Major R. H.||Keeling, E. H.||Rankin, R.|
|Dower, Capt. A. V. G.||Kerr, H. W. (Oldham)||Reed, A. C. (Exeter)|
|Duckworth, G. A. V. (Salop)||Kimball, L.||Reid, W. Allan (Derby)|
|Duckworth, W. R. (Moss Side)||Kirkpatrick, W. M.||Remer, J. R.|
|Dugdale, Major T. L.||Lamb, Sir J. Q.||Rickards, G. W. (Skipton)|
|Duggan, H. J.||Law, R. K. (Hull, S.W.)||Ropner, Colonel L.|
|Duncan, J. A. L.||Leckie, J. A.||Ross Taylor, W. (Woodbridge)|
|Eckersley, P. T.||Leech, Dr. J. W.||Russell, S. H. M. (Darwen)|
|Edmondson, Major Sir J.||Lennox-Boyd, A. T. L.||Salmon, Sir I.|
|Elliot, Rt. Hon. W. E.||Levy, T.||Samuel, M. R. A. (Putney)|
|Ellis, Sir G.||Liddall, W. S.||Sanderson, Sir F. B.|
|Emery, J. F.||Llewellin, Lieut.-Col. J. J.||Scott, Lord William|
|Emmott, C. E. G. C.||Lloyd, G. W.||Shakespeare, G. H.|
|Emrys-Evans, P. V.||Lumley, Capt. L. R.||Shaw, Major P. S. (Wavertree)|
|Everard, W. L.||Lyons, A. M.||Shepperson, Sir E. W.|
|Fraser, Capt. Sir I.||Mabane, W. (Huddersfield)||Simon, Rt. Hon. Sir J. A.|
|Fremantle, Sir F. E.||MacAndrew, Colonel Sir C. G.||Smith, Bracewell (Dulwich)|
|Furness, S. N.||McCorquodale, M. S.||Smith, Sir R. W. (Aberdeen)|
|Fyfe, D. P. M.||MacDonald, Sir Murdoch (Inverness)||Somervell, Sir D. B. (Crewe)|
|Ganzoni, Sir J.||McKie, J. H.||Southby, Comdr. A. R. J.|
|Gilmour, Lt.-Col. Rt. Hon. Sir J.||Macnamara, Capt. J. R. J.||Spears, Brig.-Gen. E. L.|
|Gluckstein, L. H.||Magnay, T.||Spens, W. P.|
|Goldie, N. B.||Maitland, A.||Storey, S.|
|Goodman, Col. A. W.||Manningham-Buller, Sir M.||Strauss, H. G. (Norwich)|
|Gower, Sir R. V.||Margesson, Capt. Rt. Hon. H. D. R.||Strickland, Captain W. F.|
|Graham, Captain A. C. (Wirral)||Markham, S. F.||Sueter, Rear-Admiral Sir M. F.|
|Greene, W. P. C. (Worcester)||Mason, Lt.-Col. Hon. G. K. M.||Sutcliffe, H.|
|Gretton, Col. Rt. Hon. J.||Mayhew, Lt.-Col. J.||Tate, Mavis C.|
|Gridley, Sir A. B.||Mellor, Sir J. S. P. (Tamworth)||Taylor, C. S. (Eastbourne)|
|Grimston, R. V.||Mills, Major J. D. (New Forest)||Taylor, Vice-Adm. E. A. (Padd., S.)|
|Gritten, W. G. Howard||Moore, Lieut.-Col. T. C. R.||Thomas, J. P. L. (Hereford)|
|Guest,Maj. Hon. O.(C'mb'rw'll,N.W.)||Moreing, A. C.||Titchfield, Marquess of|
|Guinness, T. L. E. B.||Morgan, R. H.||Touche, G. C.|
|Gunston, Capt. D. W.||Morrison, G. A. (Scottish Univ's.)||Turton, R. H.|
|Hanbury, Sir C.||Muirhead, Lt.-Col. A. J.||Wakefield, W. W.|
|Hannah, I. C.||Munro, P.||Walker-Smith, Sir J.|
|Hannon, Sir P. J. H.||Nall, Sir J.||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Haslam, Sir J. (Bolton)||Neven-Spence, Maj. B. H. H.||Ward, Irene (Wallsend)|
|Heilgers, Captain F. F. A.||O'Connor, Sir Terence J.||Warrender, Sir V.|
|Heneage, Lieut.-Colonel A. P.||Ormsby-Gore, Rt. Hon. W. G.||Waterhouse, Captain C.|
|Hepworth, J.||Orr-Ewing, I. L.||Wedderburn, H. J. S.|
|Holmes, J. S.||Palmer, G. E. H.||Wells, S. R.|
|Hope, Captain Hon. A. O. J.||Patrick, C. M.||Williams, H. G. (Croydon, S.)|
|Hopkinson, A.||Peake, O.||Wilson, Lt.-Col. Sir A. T. (Hitchin)|
|Horsbrugh, Florence||Penny, Sir G.||Windsor-Clive, Lieut.-Colonel G.|
|Hudson, Capt. A. U. M. (Hack., N.)||Petherick, M.||Womersley, Sir W. J.|
|Hume, Sir G. H.||Plugge, L. F.|
|Hunter, T.||Pownall, Sir Assheton||TELLERS FOR THE AYES.—|
|Inskip, Rt. Hon. Sir T. W. H.||Raikes, H. V. A. M||Mr. James Stuart and Dr. Morris-|
|Acland, Rt. Hon. Sir F. Dyke||Edwards, A. (Middlesbrough E.)||Lathan, G.|
|Adams, D. (Consett)||Edwards, Sir C. (Bedwellty)||Lawson, J. J.|
|Adams, D. M. (Poplar, S.)||Evans, D. O. (Cardigan)||Lee, F.|
|Adamson, W. M.||Fletcher, Lt.-Comdr. R. T. H.||Leslie, J. R.|
|Alexander, Rt. Hon. A. V. (H'lsbr.)||Gardner, B. W.||Logan, D. G.|
|Ammon, C. G.||Garro Jones, G. M.||Lunn, W.|
|Anderson, F. (Whitehaven)||Green, W. H. (Deptford)||McEntee, V. La T.|
|Attlee, Rt. Hon. C. R.||Greenwood, Rt. Hon. A||McGhee, H. G.|
|Banfield, J. W.||Griffith, F. Kingsley (M'ddl'sbro, W.)||Maclean, N.|
|Barnes, A. J.||Griffiths, G. A. (Hemsworth)||Mainwaring, W. H.|
|Barr, J.||Griffiths, J. (Llanelly)||Mander, G. le M.|
|Batey, J.||Groves, T. E.||Marklew, E.|
|Bellenger, F.||Hall, G. H. (Aberdare)||Marshall, F.|
|Benson, G.||Hall, J. H. (Whitechapel)||Messer, F.|
|Bevan, A.||Hardie, G. D.||Morrison, Rt. Hon. H. (Ha'kn'y, S.)|
|Broad, F. A.||Harris, Sir P. A.||Morrison, R. C. (Tottenham, N.)|
|Bromfield, W.||Henderson, A. (Kingswinford)||Naylor, T. E.|
|Brown, Rt. Hon. J. (S. Ayrshire)||Henderson, T. (Tradeston)||Noel-Baker, P. J.|
|Cape, T.||Hills, A. (Pontefract)||Oliver, G. H.|
|Charleton, H. C.||Jagger, J.||Paling, W.|
|Chater, D.||Jenkins, A. (Pontypool)||Parker, J.|
|Cluse, W. S.||John, W.||Pethick-Lawrence, F. W.|
|Cocks, F. S.||Johnston, Rt. Hon. T.||Potts, J.|
|Cripps, Hon. Sir Stafford||Jones, A. C. (Shipley)||Price, M. P.|
|Daggar, G.||Jones, H. Haydn (Merioneth)||Pritt, D. N.|
|Dalton, H.||Jones, Morgan (Caerphilly)||Riley, B.|
|Day, H.||Kelly, W. T.||Ritson, J.|
|Dobbie, W.||Kennedy, Rt. Hon. T.||Roberts, Rt. Hon. F. O. (W. Brom.)|
|Dunn, E. (Rother Valley)||Kirby, B. V||Roberts, W. (Cumberland, N.)|
|Ede, J. C.||Lansbury, Rt. Hon. G.||Robinson, W. A. (St. Helens)|
|Rowson, G.||Sorensen, R. W.||Watson, W. McL.|
|Salter, Dr. A.||Stephen, C.||Wilkinson, Ellen|
|Seely, Sir H. M.||Stewart, W. J. (H'ght'n-le-Sp'ng)||Williams, E. J. (Ogmore)|
|Sexton, T. M.||Strauss, G. R. (Lambeth, N.)||Williams, T. (Don Valley)|
|Short, A||Taylor, R. J. (Morpeth)||Wilson, C. H. (Attercliffe)|
|Silkin, L.||Tinker, J. J.||Windsor, W. (Hull, C.)|
|Simpson, F. B.||Viant, S. P.||Woods, G. S. (Finsbury)|
|Smith, Ben (Rotherhithe)||Walkden, A. G.||Young, Sir R. (Newton)|
|Smith, E. (Stoke)||Walker, J.|
|Smith, T. (Normanton)||Watkins, F. C.||TELLERS FOR THE NOES.—|
|Mr. Whiteley and Mr. Mathers.|
Lords Amendments considered accordingly, and agreed to.
§ Bill accordingly read the Third time, and passed, without Amendment.