HC Deb 10 March 1947 vol 434 cc958-62
Mr. Christopher Shaweross

With your permission, Mr. Speaker, I desire to ask whether you will give a Ruling on the question whether any act by the Secretary of State for the Home Department or the Colonies, in relation to the Royal Prerogative of mercy, can be made the subject of Questions in this House, or be raised in debate?

Mr. Speaker

This is a complicated question of Order, for which no direct guidance can be obtained from precedent. But I think it falls under certain general rules which have long been observed by the House. I apologise to the House for the fact that the statement I must make is going to be rather a long one.

There are really two questions here, which it is desirable to keep separate, and I feel that the Gold Coast controversy may help to illustrate the general principle. In the first place, the exercise of the Prerogative of mercy has been delegated to the Governor of the Gold Coast by the Letters Patent of 7th March, 1946, Clause 12; and, in the Instructions under the Sign Manual of the same date (Article 23), the manner in which this power is to be exercised is specifically indicated. It appears that this is a power which the Governor exercises on his own responsibility, and not under direction from the Secretary of State for the Colonies, who, therefore, is not responsible to the House for the manner in which it is exercised. In this aspect, I must hold that the Colonial Secretary is not responsible.

There is, however, the second aspect to this question. I am advised that, in delegating the Prerogative of mercy to a Colonial Governor, His Majesty has not entirely divested himself of the Prerogative. A reserve of power remains in the Crown, and the exercise of this power would be on the advice of the Colonial Secretary, in the same way as the exercise of the Prerogative of mercy in this country is on the advice of the Home Secretary. But a long series of cases has established the rule that the Home Secretary cannot be questioned upon the advice he proposes to tender to His Majesty as to the exercise of the Prerogative of mercy in any particular case. For one thing, a Minister is responsible to the King, and not to the House, for the advice he proposes to tender to His Majesty, though he is responsible to the House for the advice once it has been tendered. Moreover, it is obvious, as was laid down by Mr. Secretary Matthews in 1887 and 1889, in the Lipski and Maybrick cases, and has been consistently upheld by the Chair, that it is…injurious to the administration of justice that the circumstances of a criminal case, on which the exercise of the Prerogative of mercy depends, should he made the subject of discussion or of Questions in this House. The House would, in such case, be claiming to be a court of appeal from the sentences pronounced by the courts, if it allowed itself to discuss and decide on the circumstances of these cases.

Therefore, on one or other of these grounds, I must hold that the reprieve of the prisoners under sentence of death in the Gold Coast cannot be made the subject of a Question, or be raised on any of the forms of proceedings, such as the Adjournment, which are used specifically for the criticism of administration. Either the Colonial Secretary is not responsible, or he is in the same position as the Home Secretary, who, it has been long held, cannot be questioned on such matters.

Mr. Sydney Silverman

Are we to gather from the first sentence of your statement, Mr. Speaker, that, until today, there has been no definite Ruling of this kind; and, if the answer to that question be "Yes." may I ask whether it is not the case that it is a fallacy to suppose that the exercise of the Prerogative of mercy in any way reflects upon the court which passed the original sentence, or is properly described as an appeal from it, and that that is equally true, whether the Royal Prerogative is controlled in its exercise by this House or not, and whether control is exercised before or after? The Prerogative of mercy does not arise, I submit, until justice has gone its full course; and the question of whether the law should take its course after that, is not one which is a matter of appeal from the original court, but merely the exercise of sovereign power, and without any reflection on the authorities concerned, as to whether the sentence should be fully carried out or not. If that is so, and if the House remains responsible at same stage, and if the Minister advising the Crown remains responsible at some stage to this House, would it not be an abdication of the sovereignty of this House that we should be able to discuss it only when it would be too late to bring any influence to bear?

Mr. Speaker

The answer to the first question is "Yes," because no direct question of this kind has been asked before. In answer to the second, I can only say that I have looked up a great many precedents, starting from Sir Robert Peel, and, perhaps, the best one is the case of Mr. Smith and Sir William Harcourt. There it is laid down that a Debate in this House would be tending towards an interference with the administration of law. I have forgotten the exact words said by Sir William Harcourt, but they were very strong indeed.

Mr. Keeling

May I ask, Mr. Speaker, whether it follows from your Ruling that it was wholly inappropriate last Monday for hon. Members of this House to seek to put pressure on the Governor of the Gold Coast to grant a reprieve?

Mr. Speaker

It is a fact that a notice of Question was put in and refused, and then, I confess, I had only five minutes' notice of it. Then I was asked whether the Adjournment could be moved under Rule 8, and, when I refused that, the matter was raised on a point of Order. I, of course, had no chance of considering it in five minutes, and no chance of considering whether it should be raised on a point of Order. Had I known more about it, I might have stopped it earlier.

Mr. Keeling

I was not seeking to criticise you, Mr. Speaker, but merely suggesting that it follows from your Ruling that it was inappropriate for hon. Members of this House to put any pressure on the Governor to grant a reprieve.

Mr. Speaker

I do not think now that it could be raised as a point of Order.

Mr. S. Silverman

Did the House not understand you to say, Mr. Speaker, in the statement that you first made this afternoon, that after the Home Secretary or the appropriate Minister, whoever it might be, had exercised, or advised the Crown to exercise, or advised the Crown not to exercise, the Prerogative in a particular case, he was then at that stage responsible to the House for what he had done; and if he is responsible to the House is the House not competent to discuss it? In the case raised last Tuesday was it not the fact that the Colonial Secretary, prior to that date, had declined to advise His Majesty to exercise the residual Prerogative that he has?

Mr. Speaker

The Home Secretary cannot be challenged before he advises His Majesty, but after the sentence is executed, then he can be challenged, perhaps for not having given advice. That was the case of Smith and Sir William Harcourt which I quoted, where the man had been executed some months before, and it was raised in the House. But one cannot raise the matter with the Home Secretary until the sentence has been carried out one way or the other.

Mr. Shawcross

May I ask whether it is not the case, Mr. Speaker, that the Ruling which you have given applies only to the circumstances of the particular case, that there will be no similar objection to a Question or Debate on the general question of the respective powers of limitation of the Colonial Secretary and the Governor of the Colony, in relation to the Prerogative of mercy, and that that could be raised, for example, in Committee of Supply, provided the question of legislation did not arise?

Mr. Speaker

That is perfectly true. The general question, provided it does not involve legislation, is naturally the subject of Debate in the ordinary way without referring to the administration of a particular case under judgment now.