HC Deb 24 March 1947 vol 435 cc1005-18

11.32 p.m.

Mr. Sydney Silverman (Nelson and Colne)

I desire to call the attention of the House, on the Second Reading of the Consolidated Fund Bill, to a totally different subject. May I preface my remarks by recalling to the House a Ruling which you, Mr. Speaker, gave on 10th March on the exercise of the Prerogative of mercy, either by the Home Secretary in the case of this country, or by any other Minister called upon to advise His Majesty in its exercise, on 10th March? You stated that: 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 the 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. Later, in answer to a supplementary question by me, you, Sir, said this: One cannot raise the matter with the Home Secretary until the sentence has been carried out one way or the other."—[OFFICIAL REPORT, 10th March, 1947; Vol. 434, c. 959–962.] The case out of which the question arises as to the rights of this House in the exercise of the Royal Prerogative is the case of certain native subjects of His Majesty in the Gold Coast. It appears that of the five men surviving—the sixth convicted man having died in prison earlier—three were executed this afternoon. It would therefore appear, according to your Ruling, that we are now entitled to look at the facts of these cases—

Mr. Speaker

Of those cases, three were executed and two have not been executed. The whole matter, therefore, is still sub judice.

Mr. Silverman

I refer, Sir, to the cases of the three men who are dead.

Mr. Speaker

Can the hon. Member differentiate between the three men who are dead and the two men who are still alive?

Mr. Silverman

There would appear to be one obvious distinction.

Mr. Speaker

One cannot differentiate between the two cases. They must be taken together, and while two are still sub judice the whole matter is still sub judice. That is my Ruling.

Mr. Silverman

So far as I know, there is no evidence that there is any judicial proceeding still extant in the case of the other two. I have no information whatever as to why the sentence has not been carried out.

Mr. Speaker

Then the hon. Member is criticising the Governor for his action.

Mr. Silverman

Unless your Ruling means, Sir, that one must wait until the breath of life itself has finally been extinguished, it would appear that when everything that can be done has been done, the fact that the man is on the gallows, but has not yet dropped, can hardly make any difference to whether the House wants to discuss it.

Mr. Speaker

That has nothing to do with me. That is the action of the Gover- nor. His salary does not come under the Consolidated Fund Bill, and, therefore, cannot be raised.

Mr. Silverman

But the administration of the Gold Coast is a part of the Colonial Office Vote, and what is complained of here is the whole machinery of justice.

Mr. Speaker

That is a matter of the Prerogative of mercy, which is not debatable in this House.

Mr. Quintin Hogg (Oxford)

Would one be in Order in raising this point? I understand that there have been six or seven separate stages in these proceedings to date. It would seem to some of us extraordinary that our system of law in that Colony should permit six or seven separate stages of reprieve in a capital sentence. I submit that a system of law which permitted this would be a matter which could properly be discussed on the Consolidated Fund Bill always understanding that we were bound to accept your Ruling, and did not endeavour to criticise the Secretary of State for the Colonies in respect of any advice he may have tendered to His Majesty in relation to the residual Prerogative of Mercy to these five men.

Dr. Morgan (Rochdale)

Is there any evidence that there have been four or five stages in the administration of justice concerning these men? Has it not been a clear case decided upon by a Committee of the Privy Council, the trial having been justly based on information given at the trial?

Mr. Hogg

May I indicate the basis upon which I made my submission to you, Mr. Speaker? I understand there was, first, some sort of a trial before a jury, then an appeal before the court of criminal appeal, or the equivalent in the Gold Coast, then an application for special leave to appeal to the Privy Council; following that, an attempt to get the fiat of the Attorney-General of the Gold Coast for the purpose of establishing proceedings in writ of error; then special leave to appeal to the Privy Council from the failure to establish proceedings in writ of error in the Gold Coast. Thereafter, there were two separate stays pending political intervention, and finally there was a rule nisi for habeas corpus granted today by one of the judges of the Gold Coast, which led to a further respite. That rule nisi was discharged during the course of the day after argument. Thereafter, there was another petition for leave to appeal to the Privy Council against the discharge of the rule nisi for habeas corpus in the Gold Coast Colony, and that led to the respite of the two men who are still alive. Now, if that does not amount to six or seven stages, I do not know what does. I do not think I have understated it. In my respectful submission, this is a state of the law in the Gold Coast Colony which is impossible to conceive of as taking place here, and one could, with respect, criticise the administration in the Gold Coast Colony for having permitted a state to continue where such protracted proceedings on a capital charge should be possible. As long as we respect your Ruling with regard to the five men, I would submit that they are all matters which come under the Consolidated Fund Bill.

Mr. Speaker

I am obliged to the hon. Gentleman for giving me a very good illustration of why I say this matter should not be raised now. As the hon. Gentleman has quite clearly put forward, how can this case be brought before the House at the moment without prejudice and without reference to this rather exciting action of five men, three of whom are hanged and two of whom are not? One cannot discuss it dispassionately. This is the last moment on which matters of that kind could be discussed in a reasonable atmosphere. I would have thought that while, later on, as I indicated to the right hon. Gentleman the Member for West Bristol (Mr. Stanley), these matters might be discussed on a Vote of the Colonial Secretary, when we have a case like this partly sub judice we cannot possibly discuss it without violating the rules. It is the last moment at which it ought to be discussed.

Mr. Silverman

Further to that point of Order, may I, with great respect, ask why you say two of the cases are sub judice? I do not know on what statement that view is taken. No statement has been made in the House, and I myself have no knowledge of any facts which would justify the view that two cases are sub judice now. Of course, if the Colonial Secretary is in a position to say that there are two cases now subject to judicial proceedings pending, which judicial proceed- ings might be prejudiced by any criticism of the administration of justice in the Gold Coast, I could see that that might raise a new point, but I know nothing of that, and the matters I want to raise today are not matters which involve the Royal Prerogative at all. They are matters concerning the administration of judicial proceedings on the Gold Coast for which the Colonial Secretary is responsible, and I would have thought that if it is not in Order to discuss them on the Second Reading of the Consolidated Fund Bill, that would be a somewhat new Ruling. In so far as the matters are general and not particular, and are illustrated only by reference to these three cases, it is difficult to understand why they are not debatable now.

Mr. Speaker

Unfortunately, there is no money for the courts in the Consolidated Fund Bill. That is a matter for the Governor-General and, therefore, does not come under the Consolidated Fund Bill. The hon. Member asked why these cases are considered to be sub judice. Of course, they must be. As they have been postponed, I can see no other answer. They have not been decided.

Mr. Silverman

If they had been postponed they would be sub judice. I respectfully repeat that I have no knowledge that they have been postponed. If the Colonial Secretary is prepared to say that they have been postponed and no execution will take place during the continuance of legal proceedings, I then say that a new situation has arisen. But so far this House is not in possession of any such information, and until we have it we are entitled to assume that such is not the case..

Mr. Speaker

I think that the House had better wait until they have the information in their possession before they discuss it.

Mr. Pritt (Hammersmith, North)

May I take up the question of whether these cases can actually be sub judice? In my submission a case cannot be sub judice unless it has been in some way before a court judge, and if the case has got to the point where it is only before the sheriff and not a judge then it is not sub judice. These cases are in this position. The only thing that can possibly be done now is to present a petition to the Privy Council for special leave to appeal from this last order on habeas corpus. The procedure in relation to the Privy Council is different from other procedure. If we present a formal notice of appeal to a court of appeal, it is done under a regular procedure and under a discretionary procedure, and there is immediately a legal proceeding brought into existence. It is immediately sub judice until the judges have heard of it actually themselves. When it is a question of the Privy Council there is nothing in existence, and no one has any cognisance of anything until the petition is presented to the Privy Council, and sometimes not even then. That is the universal practice throughout all the countries in which the Privy Council operates, including India. One thing that is impossible is that the case should be sub judice.

Mr. Speaker

Then I think that the only other answer is that if it has not yet gone to the Privy Council it depends on the Governor of the Colony and on whether he and his Council decide to dismiss the claim or send it to the Privy Council. If he decides one way or the other then the Royal Prerogative is involved.

Mr. Pritt

The Governor has nothing whatever to do with bringing the matter before the Privy Council. The only person who can do that is the litigant.

Mr. Hogg

May I make this submission? Suppose this is a question for the exercise of the Governor's discretion and not of the Royal Prerogative, as I think you ruled on a previous occasion, and suppose, as I understand it, a respite will be carried out on the advice of the Colonial Secretary; surely it is true in the abstract, as it is as a general proposition, that such matters, being within the Colonial Secretary's administration and following the general principles on which he administers his office, are matters which can be discussed on the Consolidated Fund Bill. Proceeding from that premise, surely it follows that it cannot be rendered out of Order, because particular cases of which we have not really any details happen to be pending. I submit that on the Consolidated Fund Bill one would be perfectly in Order in arguing as a general proposition that, as the sentences are about to be carried out, the Secretary of State's exercise of the function of issuing a respite is not a matter which comes under the Royal Prerogative.

Mr. Speaker

The Secretary of State has no power whatsoever. He can give advice to His Majesty, but no one can ask what is his advice or that he should give his advice in advance. Nor, after he has given advice in the matter, can it be queried at all.

Mr. Eric Fletcher (Islington, East)

On this point of Order, Mr. Speaker, may I make this further submission to you? I understand that it is in Order on the discussion of the Second Reading of the Consolidated Fund Bill to discuss the administration of justice in the Gold Coast—

Mr. Speaker

No, that does not come under the Consolidated Fund Bill.

Mr. Leslie Hale (Oldham)

I venture to submit, Sir, that in the particular case to which reference has been made five respites have been ordered by the Colonial Secretary and have been given effect to, and that one last respite was given on 3rd March following the discussion in this House. May I remind you of the Ruling you gave on 3rd March, when I sought to set down a Motion as a matter of urgency? On that occasion you ruled that the Motion was in Order but that it was not a matter of urgency. If the Motion was then in Order for discussion surely it may be discussed on the Consolidated Fund Bill?

Mr. Speaker

My recollection is not that I said that the Motion was in Order. I think I said the opposite.

Mr. Keeling

Is it not perfectly clear that whether or not the case of these two men who are said to be still alive is sub judice, their execution was postponed because of some legal process set on foot on their behalf and, that being so, is it not a matter entirely unsuitable for discussion in this House?

Mr. Speaker

Personally I think it is a great mistake for this House to consider and discuss a case which is still sub judice. It may be that a time will come later on when discussion can take place but we cannot discuss it now.

Wing-Commander Millington (Chelmsford)

May I submit, Sir, further to the general point of Order which we are discussing, that it is possible to separate under your Ruling the case of the three men who are dead and whose case is no longer sub judice, and that of the two men who are not dead? While not, of course, wishing to influence the course of justice in the case of the two men who are not dead, I think we might still discuss under this Bill the case of the three men.

Mr. Speaker

It would be quite impossible, I think, to discuss three men who are dead without possibly influencing the result in the case of the two men who are not dead and who are still sub judice.

Mr. Driberg (Maldon)

May I ask your guidance, Sir, not being a lawyer and not understanding these matters fully? Without going into the merits or the rights or wrongs of this case, may I ask if your Ruling means that we must wait until all these men are dead before this House may discuss their case?

Mr. Speaker

It means that the sentence must be executed one way or the other. The Royal Prerogative may be exercised or it may not. That has nothing to do with me, but until sentence one way or the other is executed this House has no right whatsoever to discuss the case.

Mr. S. Silverman

I think you are aware, Sir, that some of us are still inclined to ask for further advice with regard to the Ruling you gave. I do not want to appear to go, by a sidewind, into any things which I am not entitled to go into under your Ruling, but I hope you will permit me to say that if the information which I have is right, and if the arguments upon it which I had proposed to make, if you allowed me, are right, there is considerable danger that the event may take place—or perhaps has taken place—on the Gold Coast without any administrative or judicial authority of any kind, and therefore, there is no question of its being before any court or in pursuance of any properly taken legal proceeding. The three men may have been hanged without any authority from anybody under the law of the Commonwealth or under the Colonial Office, and unless the House does something quickly to stop it, two more such judicial murders may take place.

Mr. Speaker

That is, of course, a matter for the Governor and if the Governor has acted improperly, then, of course, the Vote of the Secretary of State for the Colonies can be challenged, and if he has proved himself not to have reprimanded the Governor, then the matter could be dealt with.

Mr. Silverman

That is what I want to debate tonight—whether the Governor has acted in accordance with any power.

Mr. Speaker

My point is that one cannot separate the three from the two. They all hang together.

Mr. Hogg

May I put this further point, Sir? There is an important matter of principle, and one is anxious to get your Ruling on it. As I understood the Home Secretary's statement on a previous occasion, he drew a sharp distinction—and he is here to correct me if I misinterpret him—between the exercise of the Royal Prerogative for mercy which, he submitted, was not a matter which could be properly discussed, and which you Ruled, and merely temporary respites which are granted by the order of the responsible Minister of the Crown pending the question being decided whether the Royal Prerogative should be exercised or not. I had understood the Home Secretary to draw that distinction, and if that distinction is a good one, my submission is that it would be proper—although it would be quite improper to tender criticism or suggestions regarding the ultimate exercise of the Royal Prerogative, which is outside the cognisance of this House until it has been exercised—and surely would be within Order, to tender criticism or comments concerning the purely Ministerial act of the Minister in respiting sentence pending the consideration of the Royal Prerogative. Supposing one were to do that in relation to these men, I submit that, on the Second Reading of the Consolidated Fund Bill, one would be entitled to offer comments on that matter which would come within this Bill in that they would reflect upon the conduct of the Secretary of State for the Colonies.

Mr. Speaker

The Royal Prerogative is not a matter for the Colonial Secretary. It is a matter for the Colonial Governor. One must be very careful about criticising or trying to anticipate any advice in any way about the Royal Prerogative. I can remember, having looked up the words—I know it is a long time ago—of Sir Robert Peel; but after all, he did say that when the House wished to give advice about the Royal Prerogative, that was the House trying to usurp powers which belonged alone to the Throne. I think we must be careful of that.

Mr. Hogg

Would I not be right in saying that it was clearly conceded on all sides on the previous occasion that, notwithstanding that the primary exercise of the Royal Prerogative rested with the Colonial Governor of the time—and again, I see the Attorney-General here to correct me if I am mistaken—was I not right in saying that, notwithstanding that there had been a delegation of the Royal Prerogative of the exercise of mercy by the King to the Colonial Governor, there still remained a residual Prerogative in the Crown itself of which the Crown was incapable of divesting itself, and as to the exercise of which the Colonial Secretary was responsible for tendering advice? I clearly conceive that I could not offer any comments or criticism with regard to any prospective advice which the Colonial Secretary might tender in relation to the exercise of that residual Prerogative, but I submit to you, nevertheless, that what I am now suggesting does not come within that rubric, because what I am now suggesting is that the purely Ministerial action of respiting a sentence pending the exercise of the Royal Prerogative which can be done by the Colonial Secretary is, in my submission, something which can be raised on the Consolidated Fund Bill.

Mr. Speaker

I should have thought that the exercise of advice by the Colonial Secretary or the Home Secretary is, by long long practice, only given for certain reasons, and that is because he is not satisfied that some legal injustice has been caused. On these grounds, and on these grounds alone, can the Colonial Secretary or Home Secretary offer advice to His Majesty to give his Prerogative. For example, no one has the right to say to the Home Secretary or the Colonial Secretary: "Please, I think that this case has been wrongly dealt with; advise His Majesty to use his Prerogative." That is a responsibility which is entirely between the Home Secretary or the Colonial Secretary and the Governor, and this House has no right to interfere.

Mr. Hale

May I respectfully submit. to you, Mr. Speaker, that the last observation as to the exercise of the Royal Prerogative does not quite cover the whole of the ground? Besides cases of injustice there are cases where cruelty is the ground, or tenderness for youth, or tenderness for age, or tenderness for infirmity. There are cases of infirmity of mind, such as in the case of Ronald True and the case of Mrs. Maybrick. It is the ordinary law of the land that a man must not meet his death during a period of insanity. May I, with great respect, call your attention to the Ruling you gave on 3rd March in answer to me: The Motion would be in Order, but the Secretary of State has just said he is communicating and I cannot see that there is any urgency left."—[OFFICIAL REPORT, 3rd March, 1947; Vol. 434, c. 49.] I raise that because I venture respectfully to suggest that the House was certainly left under the impression that no irrevocable step would be taken until an opportunity for discussion had taken place. The matter was raised again on 5th March, when the right hon. Member for Woodford (Mr. Churchill) said: I presume it is understood on all sides that these men will not be executed until there as been a further Debate in this House."—[OFFICIAL REPORT, 5th March; Vol. 434, c. 490.] Arising out of that, surely it is not in keeping with the dignity of this House, after it has discussed this matter, that the Governor should select a Monday afternoon to execute these men.

Mr. Speaker

The hon. Member must not discuss that on a point of Order. I may say that I gave that Ruling in order to clear the air and in order that everybody might hear exactly what the position is.

Mr. Hale

May I submit for your guidance two questions which I think are of importance? I would not in any way endeavour to argue with the Chair, but the theory that the Royal Prerogative is one that is an inherent Prerogative of His Majesty is untrue.

Mr. Speaker

This case cannot be discussed on a point of Order. That can be raised by a definite Motion; it cannot be raised on a point of Order.

Mr. Hale

The reason I am endeavouring to raise it is this. News has been received by this House this afternoon that these men are going to be executed tomorrow, and, if they are, the matter, in my submission, can be raised and discussed tonight, because if they are going to be executed tomorrow it is because of a defect in the cables between here and the Gold Coast or by a defect in the procedure of notifying the process of appeal. If they are not going to be executed tomorrow then three men have been illegally executed today. It is a matter which ought to be discussed, and it would be beneath the dignity of the House to wait until the irrevocable step was taken tomorrow. I respectfully submit that one way in which it could be raised would be on the intrinsic and specific question as to whether steps have been taken, and the Colonial Office could tell us at once what has happened. It would be a real help to the House if they could. The urgent matter to be discussed now is whether steps are now being taken, or are about to be taken, which are a 'breach of our judicial procedure, contrary to the rules of administrative justice in the Colonies, and matters in which we should interfere before it is too late.

Mr. Speaker

I rule that the Colonial Secretary has no authority whatsoever in this matter. It is a matter for the Colonial Governor, and I am bound to say that this discussion ought to end. So far as I am concerned I think that the whole matter is out of Order.

Mr. Silverman

I must apologise but, after all, if the lives of people are at stake we really must know exactly where the House of Commons stands in the matter. Supposing we had good reason to believe that a Governor—I do not name any Governor—under the control of any Department supported by the Consolidated Fund, proposed to commit judicial murder, could we do nothing to stop him? Could not we debate it in the House? Could not we instruct the Secretary of State to tell him, "You shall not do this thing and defy us in the House of Common," that the House of Commons remains sovereign and that these things shall not be done in its despite? Supposing we had information that three men had been hanged in defiance of the law, would it be quite wrong for the House of Commons to debate it on the Consolidated Fund? Supposing we were told that there was danger of a Governor committing two murders tomorrow morning unless we stopped him tonight, would it be impossible for the House of Commons to devise some means of letting the fact be known and deciding whether there was any thing in the charge or not? Or must we allow innocent men to be murdered and debate the matter over their graves?

Mr. Speaker

There is no answer to that. After all, a Governor is responsible. This is a matter for the Royal Prerogative.

Mr. Silverman

No, Sir.

Mr. Speaker

Therefore I must rule this whole discussion out of Order.

Mr. Pritt

You did, Mr. Speaker, on a previous occasion rule—you had reason for it which you gave the House—that a Motion for the Adjournment was prima facie in Order, but you would not accept it because it was not urgent. Surely, the same circumstances now exist tonight, or, at any rate, two-fifths of them with additional urgency. Would you not accept an Adjournment Motion in order that this matter may be discussed?

Mr. Speaker

I think that later I explained to the House that I had received only about five minutes' notice and I had had no time in which to consider the matter; and I therefore rejected the Motion. I had no knowledge whatever. Therefore, I took the first opportunity of studying the matter perfectly clearly before giving my Ruling showing what the position was. That is what I adhere to now, and this I would ask the House to accept as a definite Ruling.

Mr. Silverman

rose—

Mr. Speaker

I think we must go on to the next Business.

Mr. Silverman

I shall not take long. You said a moment ago that the matter I was putting to you would be a matter of the Royal Prerogative, but that would not be so at all because the hypothetical case I put to you would be, perhaps, a case in which there had never been any trial or sentence and the Royal Prerogative would never arise. If your Ruling is correct, it seems that once the intended criminal is a Governor no one can discuss his crimes until afterwards.

Mr. Speaker

If the hon. Gentleman puts a hypothetical case, I cannot give a Ruling on that.

Mr. Shawcross

May I ask, Mr. Speaker, whether the Ruling which you gave me a short time ago was not confined to the exercise of the Prerogative; and is not a Ministerial or executive act now being considered? For example, is this not a question of the administration of the Colonial Office in London, and in particular, the inadequate manner in which the Colonial Secretary has carried out his undertaking to convey the views of this House?

Mr. Speaker

That is something which cannot be discussed. That again raises the Royal Prerogative.