HC Deb 04 December 1952 vol 508 cc1764-70
Mr. Snow

(by Private Notice) asked the Secretary of State for the Colonies why the Government of Kenya have excluded Mr. Cobina Kessie, a Gold Coast barrister, and Mr. Kola Balogun, a barrister of the Nigerian Supreme Court, from Kenya, to which country they had intended to proceed in order to assist in the defence of Jomo Kenyatta and five others, now on trial.

The Secretary of State for the Colonies (Mr. Oliver Lyttelton)

There is no evidence that either of these gentlemen had received instructions by or on behalf of the accused, whose defence is already adequately provided for.

Mr. Snow

May I ask the right hon. Gentleman whether he is in fact stating that defence counsel have expressed a desire not to use the services of these two gentlemen, or is he saying that the Kenya Government are now setting themselves up as the arbiters to decide what the composition of the defence counsel shall be?

Mr. Lyttelton

Certainly not. Perhaps I can help to clear the hon. Member's mind if I say, first, that there are three principles involved. First, the Governor of Kenya must reserve the right, on security grounds, of ordinary powers to refuse entry to any person—

Mr. Nally

Defence counsel or not?

Mr. Lyttelton

Certainly, the Governor must preserve that right. Second, there is a considerable danger of this trial, which is an ordinary criminal trial, degenerating into a political forum—

Mr. J. Griffiths

On a point of order. This trial is now pending. May I ask you, Mr. Speaker, whether it is really in order or proper that any Member of this House should make comments on a trial which is now proceeding?

Mr. Speaker

Comment should not be made on matters which are sub judice. I did not get exactly that impression, but I would ask Members on all sides of the House to remember that it is an old practice of ours that if a trial is in progress, no comments should be made which could in any way interfere with the course of justice.

Mr. Lyttelton

I have no intention of referring in any way, nor did I do so, to a matter which is sub judice—

Mr. Nally

On a point of order. I made an interjection which the right hon. Gentleman quite clearly heard, in which I asked, "Does that apply to defence counsel?" when the right hon. Gentleman was making the point that even when they are defence counsel the Kenya Government have this right, on security grounds, to refuse them leave to enter. The right hon. Gentleman went on to say that there was a great danger of these trials being made a political forum. Further to the point of order raised by my right hon. Friend the Member for Llanelly (Mr. J. Griffiths), in respect of a clear case in which proceedings in accordance with your Ruling are taking place, I should have thought that the right hon. Gentleman should have withdrawn the reference to which I raised objection, and to which, with much more authority, objection was raised by my right hon. Friend the Member for Llanelly from the Opposition Front Bench.

Mr. Speaker

I have already ruled on that point of order. I do not think that anything said by the right hon. Gentleman could possibly interfere with the course of justice.

Mr. S. Silverman

On a point of order. I confess that I have some difficulty in following that Ruling, and I should like some assistance in understanding it. The right hon. Gentleman said that the trial was in danger of degenerating into a political forum. Surely that is quite plainly not merely a statement which could prejudice the defence of the men now on trial, but is a positive attack on the bench who are actually conducting and are in charge of that trial. How, therefore, can it possibly be said that it is in order for the right hon. Gentleman to make a remark of that kind, because if he can make remarks of that kind with regard to a trial now actually in progress, there are many others who would like to make other remarks which would be no more out of order than that.

Mr. Speaker

The hon. Member puts one interpretation on what was said; I put another. I have no doubt that the right hon. Gentleman can make it quite clear what was in his mind.

Mr. Hector Hughes

On a point of order. Is the same rule not to be applied to a criminal trial in Kenya as would be applied to a criminal trial at the Old Bailey? Further, if an observation of that kind were made concerning a trial at the Old Bailey, would it not be regarded as improper?

Mr. Speaker

Every case must stand on its own merits. The answer to the point of order put by the hon. and learned Gentleman is that the same rules apply wherever the trials are held.

Mr. Lyttelton rose—

Hon. Members

Withdraw.

Mr. Lyttelton

If the House will listen to what I have to say, I think they may get this matter into proper proportion. I take this matter very seriously, and the last thing I am intending to do is in any way to suggest that the proceedings are not properly taken. It is quite obvious that if counsel not instructed by the defence were allowed to take part in these trials, there would then be a danger—that is what I confined my remarks to—of the trials degenerating into a political forum. I hope I am not out of order in saying that. If I have in any way offended, I naturally apologise. I am pointing out a danger, not a fact.

I say, with a great sense of responsibility, that I do not think that any Member of this House would wish an ordinary criminal trial in which the accused person is accused of having broken the law to degenerate into a white versus black trial or a political forum. Therefore, at the present moment the Government of Kenya will not give visitor permits to counsel who come without instructions for or on behalf of the defence. That is a perfectly clear decision. I must, in all candour, add a third principle. If the number of people instructed from all over the world by or on behalf of the defence should exceed a reasonable number, the Government of Kenya must in their discretion decide whether they can all be admitted or not.

Mr. J. Griffiths

May I ask the right hon. Gentleman whether he agrees that it is of the utmost importance that all the men brought to trial shall have the opportunity of being defended by those whom they think are best able to defend them? May I ask him, therefore, whether permission will be given to all those who are instructed to appear for the defence to go to Kenya for that purpose?

Mr. Lyttelton

I have already given a very full answer on that matter but I must make the qualification that if an entirely unreasonable number of counsel from all over the world are instructed, some of them may have to be refused, but each case will be judged on its merits. Might I mention that the counsel at present available for Jomo Kenyatta are Mr. Pritt, Mr. Thompson, a West Indian barrister from Tanganyika, Mr. Davies, a Nigerian barrister, Mr. Kopila, a member of the local bar and all the local bar.

Mr. Snow

My question related not only to Jomo Kenyatta but to five others. Is the right hon. Gentleman aware, when he talks of security considerations, that one of the barristers whom I have mentioned in my original question, Mr. Cobina Kessie, was a member of the 1949 Constitutional Reform Committee for the Gold Coast? Furthermore, since when has it been necessary for ordinary members of the Commonwealth, whether white or black, to ask permission to enter another part of the Commonwealth?

Mr. Lyttelton

The hon. Gentleman is trying to read into my statement something which I specifically avoided saying. What I said was that the ordinary security considerations must remain intact whether the person asking for admission happened to be a barrister or not. That is perfectly clear. I made no allegations against either of the two gentlemen who have been mentioned. They were not admitted because they were not instructed by or on behalf of the defence. That is the first thing, and I have made the other two considerations quite clear.

Mr. Fenner Brockway

Quite apart from the trial which is now proceeding, the right hon. Gentleman said that these two gentlemen had been refused permission on security grounds—

Mr. Lyttelton

I am sorry to interrupt, but I am sure the hon. Member does not want to misrepresent me, for he never does. I never said anything of the kind. I said that in these matters three things must be preserved. The first was that the Governor must have the ordinary right to refuse permission on security grounds. I was most careful not to say that these two gentlemen had been excluded on security grounds. They were excluded because they were not instructed by or on behalf of the defence.

Mr. Fenner Brockway

On a point of order, Mr. Speaker. I was putting a supplementary question and was interrupted in the course of it by the Minister. May I conclude the question?

Mr. Speaker

Yes.

Mr. Fenner Brockway

The standing of one of these gentlemen has already been mentioned. Is not the second gentleman the secretary of the National Council of Nigeria and the Cameroons which is at this moment represented in the Executive Council of Nigeria?

Mr. Lyttelton

The hon. Gentleman is still neglecting the point, which is that no one of whatever standing is going to be admitted to Kenya on a visitor's pass as a defence counsel unless he is to take part in the trial—which both gentlemen claimed—and unless he is instructed by the defence. Surely that is perfectly clear.

Mr. Snow

On a point of order, Mr. Speaker. I wish to ask your advice on a constitutional issue. It appears to me, and has appeared to me for some days past, that the Government are—I hesitate to use the word—shuffling away from their responsibility about Kenya by saying that this is a responsibility vested in the Governor. This Parliament is sovereign and is responsible for what goes on in Kenya. Surely it is wrong to say that the discretion lies with the Governor and that we have no responsibility.

Mr. Speaker

I think the position is that, on the spot, by his Letters-Patent, the Governor is responsible for day-to-day decisions, but, on the other hand, a matter affecting, colonial policy can always be raised in this House in the appropriate manner, on the Estimates or on anything else. That is the distinction, if one exists.

Mr. Lyttelton

If it gives the hon. Gentleman the slightest satisfaction, I am willing to say here and now that I accept full responsibility for the three categories which are being applied. But the immediate responsibility is, of course, that of the Governor, who has been in communication with me, and these are the matters I have approved.

Mr. Paget

Can the right hon. Gentleman tell us how somebody takes part in a trial unless he is instructed either by the prosecution or by the defence? Secondly, will the right hon. Gentleman tell us whether there is a total embargo on entry into Kenya except for defence counsel, and, if there is not such a total embargo, why are these people excluded?

Mr. Lyttelton

I thought for a moment that the hon. Gentleman was about to contradict some of my arguments. I now understand that he was merely wishing to reinforce them. To begin with, he asked how somebody who is not instructed by either the defence or the prosecution can take part in a trial. That is one of the reasons why these gentlemen have been refused entry. They said they were going to take part in the trial, but they had no grounds for doing so.

Mr. Paget

Is there a general embargo upon everybody who is not a defence counsel?

Mr. Lyttelton

The hon. and learned Gentleman cannot have been listening. I said, first, that the Governor must retain the ordinary right to refuse entry on security grounds; second, that he was not going to give an entry permit to barristers who wished to take part in the trial but were not briefed or instructed by the defence; and, third, if the number of counsel became altogether out of proportion, then he must have the right to judge each case on its merits.

Mr. Paget

I am a barrister. Am I not allowed to go to Kenya in connection with this trial?

Mr. Lyttelton

If the hon. and learned Gentleman is instructed by the defence, we shall be very glad to give him facilities.

Mr. S. Silverman

Will the right hon. Gentleman remember that this is not the only trial in history which, though it takes the form of an ordinary criminal trial, and no doubt is one, nevertheless has political implications and a political background, as frequently happens? Will he further bear in mind that in precisely such a trial it would do the greatest possible harm to the reputation of impartiality of the court if the Executive Government on the spot took any responsibility whatever or made any kind of intervention of any sort in the free choice by the defendants to be represented by whatever counsel they choose? Therefore, will he undertake to the House that the Governor on the spot will not in any way impede the entry into the territory of any counsel who may be instructed or who may be acceptable to the defence on the spot? The right hon. Gentleman said that the Government would be influenced by the number of counsel engaged. Will he bear in mind that that would be a wholly improper thing for the Executive to do?

Mr. Walker-Smith

Before my right hon. Friend answers that supplementary question—

Mr. Silverman

Why should the right hon. Gentleman not answer the supplementary question?

Mr. Walker-Smith

Before my right hon. Friend answers that lengthy supplementary question, does he appreciate that barristers should not be in any position of preference as compared with other citizens because, apart from any other reason, it would be a clear breach of professional etiquette for any barrister to take any steps which might be interpretated as a soliciting of professional employment?

Mr. Silverman

I hope the hon. Gentleman will remember that when he gets outside.

Mr. Walker-Smith

I will.

Mr. Lyttelton

That was an extremely offensive interjection. I think everybody knows quite well where we stand in this matter. Every reasonable facility will be given to the defence. That may be quite clear, but I should like just to give an answer to the hon. Gentleman's question in the form, perhaps, of a fantastic analogy. Suppose 40 counsel from Harlem and three from Moscow were ininstructed—[HON. MEMBERS: "Oh!"]. This is entirely hypothetical, but it illustrates the point. [Interruption.] I want to make this quite clear. The House asked for an answer and I am trying to give it. I think the Governor would be entitled to exercise his discretion whether he would let all those people in or not.

Several Hon. Members rose—

Mr. Speaker

Order. We must pass from this subject.