HC Deb 15 July 1953 vol 517 cc2064-8
Mr. Benn

Mr. Speaker, I wish to ask your guidance on a situation which has arisen as a result of the decision of the Supreme Court of Kenya to set aside the trial of Jomo Kenyatta. My reason for raising it is that, as a result of this decision, one of two things will happen. Either the trial of Kenyatta will be begun again on the lower level in Kenya, or, if the Government choose to appeal, it will be heard in the Privy Council in this country. In either case there remains on the record of this House the statement by the Secretary of State for the Colonies that it had been found in the course of the Kenyatta trial that K.A.U."— that is, the Kenya African Union— was being used as a cover for the organisation of Mau Mau."—[OFFICIAL REPORT, 11th June, 1953; Vol. 516, c. 456.] This matter was raised at the time by various hon. Members, and you gave the Ruling, Sir, that it would be wiser if the Colonial Secretary began again at a later part of his statement.

I submit that the situation has now totally altered as a result of the decision of the Supreme Court of Kenya. My reason for saying this is that no trial of Jomo Kenyatta ever took place at all if the decision of the Kenya Supreme Court is held to be valid, and that if an attempt is made to re-try him in Kenya the magistrate is bound to have regard to his superior officer, who is the Colonial Secretary. Indeed, I would remind you, Mr. Speaker, of a Question which was answered this afternoon relating to Mr. Terrell, who is a justice in Malaya, which points significantly to the fact that colonial judges are under the control of the Colonial Secretary.

The second point is that if the Government do decide to appeal against this decision of the Supreme Court, the matter will go to the Judicial Committee of the Privy Council of which the Lord Chancellor, who is a Cabinet colleague of the right hon. Gentleman, will or may be a member.

I should like to ask you, Mr. Speaker, whether, as this was one of the most hotly contested issues in the original trial, you will rule, first of all, that it was an improper thing for the Colonial Secretary to have said, and secondly that it is not to be referred to again, nor indeed to be quoted or used by the Secretary of State in further statements on the Kenya situation.

Sir H. Williams

On a point of order, Mr. Speaker. Is it proper to impugn the head of the Judiciary in this country?

Mr. Speaker

I was about to deal with that. The hon. Member should not cast any reflections, however oblique, upon the Lord Chancellor.

Mr. Benn

Mr. Speaker, I am grateful to you for allowing me to explain that I intended no imputation, nor indeed, I venture to suggest, did I make any imputation. I simply stated as a matter of fact that if the Government appeal they can appeal only to a body in this country which contains the Lord Chancellor.

Mr. Speaker

All I would say is that the hon. Member really should not suggest about the Lord Chancellor that because he is a member of the same Government or Cabinet, therefore his judicial capacity would be affected by that. Surely everyone in the House knows that is not the case.

In reply to the hon. Member's point, it is difficult for me to know how I can help him. I am certainly going to make no retrospective Ruling. All I can say is that I understand the position in Kenya to be this—I hope the Secretary of State will correct me if I am wrong—that the decision of the Kenya Court was to order a new trial of this man. I believe that is the position. Am I right?

Mr. Lyttelton

I have no information other than that which appeared on the tape, which is that the High Court ruled that the magistrate had no jurisdiction, and ordered a re-trial. That is all I have seen.

Mr. Speaker

The point is that if there is to be a new trial the matter is still sub judice. If that is the case, there is nothing that we can do about it now.

Mr. Bing

Further to that point of order, Mr. Speaker. As you know, I did submit to you the possibility of asking the Secretary of State a Private Notice Question in order that he might make a statement to the House on this matter. With great respect, it is surely impossible for the Kenya Supreme Court to order a new trial. All it can say is that no trial has taken place, and therefore, if the Government so desire, they can in fact prosecute again. All that has been said is that this magistrate was completely incapable and incompetent of holding this trial and the whole proceedings were an entire nullity.

If I may address this as a point of order to you, Mr. Speaker, the question which I wished to address to the Secretary of State was cast in the most broad terms because I hoped that he would make some statement with reference, for example, to the costs which have been thrown away by the defendant in being compelled to appear before a magistrate who had no authority whatever to hear the matter, and with reference to who had the responsibility of persuading these various persons to appear before somebody who was not entitled in any circumstances to hear the matter at all.

Mr. Speaker

I am not clear what has happened in Kenya. It has only come out this morning, I understand. I would certainly defer any decision on a matter of this sort until I have the actual facts of what has happened and the legal position in Kenya. I think that in the absence of precise knowledge it would be very wrong to proceed to discuss this matter. It may very conceivably be sub judice, and in my preliminary view it is. Therefore, I do not think we can discuss it here.

Mr. Bing

With great respect, in those circumstances, if you are not in possession of the facts, perhaps you would permit me to address my question as a Private Notice Question to the Secretary of State so that if he feels that the matter is sub judice he will be in a position to reply in exactly those terms. If you are not in a position to say that the matter is sub judice, surely, Mr. Speaker, you cannot rule it out of order on the ground that it is sub judice.

Mr. Speaker

My view on the information before me is that it is sub judice. I may change that opinion if I get further information to the contrary, but holding, as I do, that the matter is sub judice, I have to rule the hon. and learned Member's question out of order and I must, therefore, rule that there can be no further discussion of the matter now.

Mr. Paget

On a point of order, Mr. Speaker. Will it be in order when you have further information on this matter to submit the Private Notice Question again on the ground that your having information on the matter will be the first opportunity of raising it?

Mr. Speaker

That depends entirely upon the information which I receive.

Mr. Bowles

Mr. Speaker, if you are going to rule any further discussion of this matter out of order because you think it is sub judice, how are you going to get the information which may make you change your mind—from a newspaper, or how?

Mr. Speaker

I shall ask official sources to tell me. Believing, as I do, that this is still sub judice, I feel that we must proceed to other business.

Mr. S. Silverman

Would it be in order to ask you, Mr. Speaker, when you are considering this matter at a later stage— and without discussing it now—to consider also the question whether there is any action which can possibly be taken to deal with this aspect of the matter, namely, that the Colonial Secretary, in the statement he made to the House, did rely upon something which was alleged to have taken place in the original trial for subsequent action of a judicial or quasi-judicial kind in Kenya? The position now appears to be—subject to what later may be discovered—that in fact there were no such judicial proceedings or trial, the whole matter was a nullity, and therefore the action taken was taken on a complete misconception of what the facts were.

Mr. Speaker

That is a very interesting hypothetical question which I shall consider when the hypothesis has become precipitated.

Mr. Wigg

On 18th December I raised the question of this trial as a matter of Privilege. On 19th December, having got the facts from the Attorney-General, you then proceeded to give a Ruling. It subsequently transpired that the information supplied to you by the Attorney-General was incorrect, certainly in one respect. I hope, therefore, that I can ask you to take great care on this occasion that the information upon which you act is 100 per cent. correct.

Mr. Speaker

I shall certainly scrutinise any information I receive on this matter with the same care as I scrutinised the submission of the hon. Member for Dudley (Mr. Wigg) relating to the question of Privilege.

Mr. Hale

Quite briefly, the decision of the Supreme Court of Kenya is that this matter was never sub judice because there was never a judex that was competent.

Mr. Speaker

That is the hon. Member's view, but we must wait for further information.