HC Deb 12 November 1953 vol 520 cc1148-63

Any reference in this Act or the Regency Acts, 1937 and 1943, to persons to whom Royal functions may be delegated as Counsellors of State shall be construed in such a way as not to exclude one such person.—[Mr. Gordon Walker.]

Brought up, and read the First time.

3.47 p.m.

Mr. Gordon Walker (Smethwick)

I beg to move, "That the Clause be read a Second time."

I am grateful to you, Sir Charles, for allowing me to move a new Clause in manuscript. If I may, I shall read it to the House, because nobody but the Home Secretary, yourself and myself has had it in their possession. It reads as follows: Any reference in this Act or the Regency Acts, 1937 and 1943, to persons to whom Royal functions may be delegated as Counsellors of State shall be construed in such a way as not to exclude one such person. I am not sure if I have the right sort of wording, because I had to draft it very quickly, but the purpose is to carry out the proposition which I made in detail in a speech yesterday and which I shall not now repeat. Indeed, I think it also carries out what the Home Secretary said was his general feeling about the proposition which I made, namely, that it should not be written into this Bill in so many words—because it was too big a thing to write into a Bill like this at such short notice—but should be left open for further consideration and, if necessary, discussion with other Commonwealth Governments.

This new Clause seeks to ensure that the Bill shall not be a statutory bar in the way of appointing a single person or Governor-General here, in the Queen's absence, in such a way that it would need a new Act to be passed were we to decide to do it in the future. I am trying to leave this possibility open and avoid putting a statutory bar in the way of such action. As I understand the position, if we could leave it open in this Bill whether the Queen would appoint a single Governor-General or a number of Counsellors of State, the Queen would have the power to appoint a single Governor-General if she were so advised by her then Ministers.

It seems to me that the provision for representing the Crown here in this Kingdom during the Queen's absence derives from two sources. One is statutory, namely, the Act of 1937, which has been carried on in later legislation. The second is the Royal Prerogative, because there were at least three occasions on which King George V appointed Counsellors of State before the Act of 1937, which was, of course, passed after his death. Nobody has questioned the legality of setting up the Counsellors of State at that time. It must, therefore, have been done by virtue of the Royal Prerogative, because no statutory authority empowered the King to do it or his Ministers to advise him to do it.

If we leave it open in this Bill for either of these courses to be used, it would be possible for the Queen, on the advice of her Ministers, to take that course if it were thought desirable at a later stage. The new Clause does not in any way prescribe that it should be done, but merely that it could be done. I think it is a very desirable change to make, as I argued yesterday, and it is, therefore, all the more desirable that it should be left open for it to be made.

I do not know whether the words I have chosen are the best. It is very difficult to alter such a complicated Bill, with many references in it to Counsellors of State. I do not doubt that I have chosen the wrong words, but what I should like to hear from the Home Secretary is that he will consider the drafting of the new Clause and the re-drafting of the Bill when it goes to another place, to leave the course I propose open, so that no statutory bar is put in the way of it by this Bill.

The Secretary of State for the Home Department (Sir David Maxwell Fyfe)

The right hon. Gentleman, I am sure, gave me all the notice that he possibly could in view of his own difficulties with the drafting, but it was not long notice. I am not blaming him, but I want to explain that to the Committee. However, I think the Committee will appreciate that it does not require a great deal of notice to see the difficulties of the course proposed. What requires much more notice is to find another course which will be satisfactory.

I am advised, and my own view coincides, so far as I have had time to form it, that there are two difficulties in the new Clause, which the right hon. Gentleman foresaw, because Section 6 of the Act of 1937 provides specifically for the delegation to Counsellors of State, provides their number, and provides how the functions delegated should be exercised jointly by the Counsellors or by such number as may be specified in the Letters Patent. It would be very difficult for that to co-exist with the words the right hon. Gentleman puts forward, and I could not advise the Committee as a technical matter to incorporate them in the Bill.

I appreciate—the right hon. Gentleman has frankly said so—that he wants not only to ventilate the point but to bring it before the Government and to ask the Government for their intentions. I said yesterday, and I repeat, that I was very struck by the basis of the right hon. Gentleman's suggestion, namely, that we should not monopolise the symbol of the Commonwealth. I say that, and I think it is a point which we have got very seriously to consider. On the other hand, one is bound to consider in juxtaposition to that the special position of this country as the cradle and centre of the Commonwealth. I do not think there is any necessary division between these things, but I think that they have to be considered very carefully because both are important points.

As the right hon. Gentleman knows, and as the right hon. Gentleman the Member for South Shields (Mr. Ede), as my predecessor, will appreciate, one of the things for which we have always stood is that any member of the Commonwealth and Empire, of any Colony, can come here and be admitted here, and the Home Secretary has no power to deport him. He is in the special position of coming to the centre of the Commonwealth. As the right hon. Gentleman knows, that does not apply in all the Dominions, because they are entitled to form their own views of the problem. I give that only as an illustration of the difficulties which have to be carefully considered; on the one hand, as the right hon. Gentleman said, we must not monopolise; on the other hand, the duty which we have generously and willingly performed of being the metropolis or centre of the Commonwealth and Empire.

I think the right hon. Gentleman will appreciate that that double basis is reflected in the difference between a Governor-General and the Counsellors of State. If one takes just one or two examples, one sees that the Governor-General continues to exercise the Royal functions when the Sovereign is in that Realm except in so far as the Sovereign undertakes special functions and duties during the visit; and from the other point of view, a Governor-General is selected to represent the Sovereign for a fixed period of years for the very reason that the Sovereign is not present in person. I think that if the right hon. Gentleman considers this point, as I am sure he will—and I shall be very happy to discuss it with him—he will see that there is a considerable argument that if his course were to be followed there would have to be a permanent Governor-General in this country in order to get the equation and equality which he has in mind.

I hope that the Committee will not think that I am being obstructive. What I am trying to do is to show that there are a number of difficult points raised by this suggestion, and I mention, without developing, the point which was raised by my right hon. Friend the Member for Kelvingrove (Mr. Elliot) and my hon. Friend the Member for Down, North (Mrs. Ford), that there might be a special position, first of all from the fact that the United Kingdom was formed out of two Kingdoms, and, second, with regard to the position of Northern Ireland. These are other points which have to be considered and which I also ask the right hon. Gentleman to note.

I have dealt with the position as regards the Governor-General. Now let us look at it from the point of view of the Counsellors of State. The purpose of the Counsellors of State is to ensure the discharge of Royal functions in the event of the Sovereign's temporary inability through illness or absence to discharge them in person. I stress the point "temporary inability." When the Sovereign is totally unable or totally unavailable to discharge the Royal functions in the United Kingdom they are discharged by one person, the Regent. The total incapacity or total unavailability of the Sovereign in the United Kingdom does not, however, affect or impair the authority of the Governor-General in a Commonwealth country unless the reason for the Sovereign's total unavailability in the United Kingdom should be her presence in that particular Commonwealth country and, as I said, her performing certain duties usually performed by the Governor-General.

4.0 p.m.

These are some of the points, and there are many more. Therefore, I ask the right hon. Member for Smethwick to rest content with the assurance which I gave him, and from which I do not deviate, that this matter will receive serious consideration. I think there is great sympathy in the House with his warning to us about monopolising the symbol of the Commonwealth, but I think I have said enough to show that there is also a special position relating to this country which one must bear in mind. I also remind him, and I think he agrees, that it would require not only consideration but very careful and elaborate consultation with all the countries of the Commonwealth before we could make a change of this kind.

Therefore, I suggest to him that he rests content at the moment with the promise of consideration and does not press his new Clause which, as I have informed the Committee, is in my view technically very difficult to square with the existing legislation. I do not wish to mislead the right hon. Gentleman or the House in any way. I cannot promise that this alteration will be made in another place. I do not think that a Bill of this sort, which on this point, as opposed to the Regency point, merely adds one to five Counsellors of State, is an occasion when a great constitutional change of this kind should be put forward. Therefore, while thanking the right hon. Gentleman, as I do sincerely, I believe on behalf of everyone in the Committee, for having raised an interesting point for our consideration, I ask him not to press this change on the occasion of this Bill.

Mr. Eric Fletcher (Islington, East)

I am sure that both sides of the Committee will appreciate the sympathetic response of the Home Secretary to the new Clause proposed by my right hon. Friend. I am sure that we all understand the technical difficulties about accepting this new Clause which stand in the Home Secretary's way. There are, however, one or two observations which fell from the Home Secretary which seem to me worthy of somewhat further exploration now that we have this opportunity of ventilating the suggestion which my right hon. Friend made yesterday and which, it seems to me, has commanded a good deal of support not only on both sides of the House but in the country.

The thought which provoked this suggestion is, of course, not merely the thought that we in this country should not monopolise the Monarch; it is also partly due to a desire to preserve complete equality between the various parts of the Commonwealth, consistent, of course, with the special characteristics of this country as the metropolis of the Commonwealth.

One of the objections which the Home Secretary advanced, was, as I understood, the fact that if we ever adopted in this country the suggestion of having a Governor-General in order to fulfil Royal functions during the Monarch's absence, as distinct from having Counsellors of State, it would be necessary to have a permanent Governor-General. That does not seem to follow at all. I thought that was the weakest of the objections which the Home Secretary put forward.

Sir D. Maxwell Fyfe

I wish to make it clear that I said that it raised the point for consideration. I only had an hour to consider this point, and I do not pretend that it is a final objection, but it is a point which will have to be considered in changing the conception from someone who temporarily performs Royal functions to that of a Governor-General. I do not want to go further, and I do not want the House to think that I did.

Mr. Ede (South Shields)

Unless it is a permanent appointment, how is there to be equality with the Dominions, where the Governors-General are permanent?

Mr. Gordon Walker

They are not permanent.

Mr. Fletcher

The Home Secretary said that he had had only an hour to consider this point. I had no notice about it at all. Therefore, in a sense, we are all speaking spontaneously and anything we say must be regarded in that context.

There was another aspect of the Home Secretary's remarks which disturbed me. He seemed to suggest that when the Monarch was visiting a part of the Commonwealth overseas, the whole of the Governor-General's functions continued to exist. That also is a subject which I should have thought was worth exploring at the same time.

If, for example, one can imagine a hypothetical case of the problem of a Dissolution arising in a Commonwealth country during the time of the Monarch's visit, and if one can imagine the unhappy circumstances of there perhaps being a change in the office of Prime Minister because of death or some other reason while the Monarch is visiting a Commonwealth country, quite a serious constitutional problem would arise—whether in those circumstances the Royal functions should be exercised by the Monarch who happened to be present in that Commonwealth country or whether they should be exercised by the Governor-General. Speaking for myself, I should have thought that, if such a set of circumstances were to arise, a good many people in any Commonwealth country so concerned might well expect the Monarch to give his or her attention to such a serious constitutional problem.

Therefore, as travel becomes increasingly easy and increasingly common, I should have hoped that, if we arrive at the time when the Monarch travels much more frequently throughout the Commonwealth than has been possible in the past, we might also have arrived at the time when it would be natural for the Monarch, when in a particular country, to exercise there during the time of that visit, discretionary Royal functions at least as well as the purely ceremonial functions, the Governor-General to be in obeyance.

Then it would be consistent with that arrangement in the Commonwealth for any Governor-General who might be appointed to the United Kingdom only to function during the time of the Monarch's absence from this country. That would be the ideal system of equality. Therefore, as all that we are doing at the moment is to put forward suggestions about this matter for future consideration, I hope that suggestion will also be taken into consideration.

I am fully aware that this is a matter on which eventually full consultation will be required among all Commonwealth countries. In the discussions that are presumably to take place as a result of the sympathetic consideration promised by the Home Secretary yesterday and again today, I hope that the whole of the possibilities that leap to the mind will be considered with a view to doing whatever is necessary and appropriate to bring the changing Constitution of the British Commonwealth into line with the changing conditions of our time.

I am sure that in the long run it will cement both the relations in the Commonwealth and the loyalty and respect for the Crown if the greatest possible measure of equality among all the nations of the Commonwealth is brought about. Therefore, I hope we shall not have heard the last of this matter today. I myself am very much indebted, as I am sure other hon. Members are, to my right hon. Friend for having drawn this matter to the attention of the Committee.

Viscount Hinchingbrooke (Dorset, South)

I did not have the advantage of hearing my right hon. and learned Friend yesterday, but I shall certainly read what he said with the greatest attention. I listened to his words with great care just now, and I did not gather from him that any pledge had been given to canvass the Commonwealth on this idea which has emanated from the party opposite.

I should have thought that this country would have been the last country that would have wanted to create any equalitarian arrangement of this kind. One of the things which holds the Empire so firmly together is the higher authority, the greater prestige and the more ancient history and symbolism that this country has been able to evince.

If members of the Commonwealth were to come to Her Majesty's Government in the United Kingdom and ask for the new arrangement to be made, and indicated that it was essential to them, or that the people in their own countries desired it to be a Commonwealth change, then I think there would be something to be said for giving it very earnest consideration. But I am opposed to any idea that we should engender in this House an arrangement of this kind, particularly when emanating from an egalitarian party. I would regard any such idea as absolutely deplorable.

I hope that my right hon. and learned Friend, behind the carefully chosen words which he used this afternoon, has no intention of promoting the canvassing of this idea throughout the Commonwealth and Empire.

Mr. Ede

I should not have risen but for the speech just made by the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke). I do not think that it is playing fair to suggest, and I am sure that my right hon. Friend the Member for Smethwick (Mr. Gordon Walker) would be the last person to suggest, that there was any party significance in the speech which he made. He did not make that claim for it when he was speaking, and I do not think that the Home Secretary took any partisan view in dealing with it.

Here was an idea thrown out by a Member of the House of Commons who has held the high and responsible position of Secretary of State for Commonwealth Relations, and to that extent it must be regarded as rather more authoritatively personal than any put forward by an hon. Member on either side of the House who has never shouldered that kind of responsibility. It would be very wrong indeed, I think, to suggest that it had any party significance at all—any more, apparently, than the fact that the Prayer last night was moved by an hon. Member sitting on the Government benches had any weight politically in the mind of the Prime Minister this afternoon.

4.15 p.m.

Therefore, I would suggest that it is desirable on these occasions, when we are dealing with a matter on which general agreement has been very marked in the House, that hon. Members should not be inhibited from putting forward personal points of view for fear that they might be creating a partisan atmosphere.

As I have previously indicated, I think that this matter is so complicated that it would take a great deal of thinking out. There has recently been published a book by Mr. Nevile Shute.

Mr. M. Follick (Loughborough)

"In the Wet."

Mr. Ede

I think that he must have been very wet himself when be brought it out. One of the arguments put to us in that book was the way in which the author worked out my right hon. Friend's idea which, he alleged, had been caused by a coalition between the present Foreign Secretary and my right hon. Friend the Member for Ebbw Vale (Mr. Bevan). I would ask the noble Lord to believe that my right hon. Friend was putting forward an idea that occurred to him. I do not think that he had any consultation with anyone which would have entitled him, even had he wished to do so, to say that he was speaking on behalf of the party.

I hope that we shall on these occasions, and on this very delicate matter of the development of relationships within the Commonwealth, be able to put forward views which are worth canvassing or worth considering, and which, in any event, owing to the great variety of Governments we now have within the Commonwealth, will need a good many months and possibly years of consideration before they can be put into a form that could be put to this House by a Government, or accepted by a Government.

Mr. Charles Williams (Torquay)

It is very seldom that I agree wholeheartedly with the right hon. Member for South Shields (Mr. Ede), but I must say that I rarely intervene in this sort of debate, and I certainly should not have entered into it unless I thought there was a slight misconception as to what the right hon. Gentleman said yesterday on this matter.

I listened to the whole of his speech, which, I think, if I may say so with respect, was extremely tactful, on a very difficult matter. He brought forward a new idea to many of us and one which quite obviously interested everyone who heard it; and one which is worthy of the deepest consideration. It is one which, so far as I am concerned, I am only too glad to hear brought up again today. Having gone so far as that, I think that there was no other course which the Home Secretary could possibly have taken than to refuse to put this new Clause in the Bill, and I am glad that the Home Secretary has said that for practical reasons it is unlikely that this can be inserted in another place.

I am sure that a very great change such as this must be is one which calls for the fullest possible consideration not only by the Government of the day, and not only after consultation with the other Governments in the Commonwealth countries; on a matter of this sort I should like to see, as I think all hon. Members in the House would, the closest collaboration between the Government and the Opposition so that we can get an agreed policy on this matter.

I was shocked by only one thing, and that not too much, in what the right hon. Gentleman said. On a matter of this importance, I do not think an Amendment to this sort of Bill should be inserted in another place. I happen to be an extremely strong House of Commons man and have served here for many years, and on the greatest constitutional questions I have always held that if anything has to be done, the House of Commons should originate it. I am glad to see that, at any rate so far as the Leader of the Liberal Party is concerned, he acknowledges that even his diluted form of Liberalism is in co-ordination with my thorough-going Liberalism in the widest sense.

I think almost everyone who has heard the debate will realise that the House of Commons has had a considerable service rendered to it by the right hon. Member for Smethwick (Mr. Gordon Walker) on a matter in which deep thought is required. I think that, from what my right hon. and learned Friend the Home Secretary said, it is almost impossible to carry out the suggestion, and the whole balance is on the other side of the new Clause. At the same time, one cannot help feeling that the House on this occasion has used its time well in a matter which certainly ought to have been ventilated.

Mr. Godfrey Nicholson (Farnham)

I am sorry that I cannot join in the general chorus of praise for the right hon. Member for Smethwick (Mr. Gordon Walker). This is obviously a most important question, to which every Member of the House of Commons would like to give deep thought and on which many Members would like to intervene. It is quite impossible to have a satisfactory debate on a manuscript new Clause, and it is a pity that this little truncated debate has taken place. It is not representative of the House. No Member of the House, except those few who were present 20 minutes ago, knew that the right hon. Member was going to raise the matter, and I venture to protest.

Mr. Gordon Walker

The hon. Member will know that I have not set the time-table for the House. I have not set two days consecutively for the discussion of the Bill. I am not responsible for that.

Mr. Nicholson

I know that the right hon. Member did not set the time-table, but had he wished to raise this important question, which he raised in an admirable and ideal manner, he could have made representations through the usual channels to the effect that he wanted a serious debate, with previous notice given, so that it could be properly considered by the House of Commons.

Mr. C. J. M. Alport (Colchester)

I am at a disadvantage with other hon. Members in not, perhaps inevitably, having any warning that this subject was to be discussed at this stage of our consideration of the Bill. As I understand it, one of the processes of change in the Constitution is the constant reiteration of a particular subject by those who happen to be interested in that subject until it gradually becomes of greater interest to those who were not initially interested in it at all. Therefore, I say that the right hon. Member for Smethwick (Mr. Gordon Walker) has done a service, because there are not many opportunities when it is possible to ventilate a subject like this in the House of Commons.

I intervene merely to say that one of the services that this little debate can render is, perhaps, to lay by the heels the misunderstanding which appeared to me to be inherent in the contribution made by my noble Friend the Member for Dorset, South (Viscount Hinchingbrooke). The constitutional precedent which was followed in the case of the Commonwealth countries in the appointment of a Governor-General—a single individual—is a far better constitutional precedent for the representation of the Sovereign than the present system—I here correct myself after the remarks yesterday of my right hon. and learned Friend the Home Secretary—of the institution of the Counsellors of State.

Therefore, it would not be a question of equalising ourselves down, so to speak, to the constitutional practice of the Commonwealth countries; it would be recovering the theme of constitutional development which has been followed in the Constitutions of the Commonwealth Territories but from which we in this country have departed in very recent times.

I hope that this matter, which has very great importance from a sentimental, a symbolic and also a practical political point of view as far as this country and the Commonwealth as a whole are concerned, will, as a result of this debate, at any rate again be brought to the notice of those who are interested and perhaps be advanced a little further in the long evolution that inevitably takes place when public opinion generally has to be brought to understand the particular importance of what is perhaps a rather complicated point of constitutional development.

Mr. Malcolm MacPherson (Stirling and Falkirk Burghs)

This is undoubtedly a very complicated point of constitutional development and I rise simply to stress one aspect of the complication which is, perhaps, inclined to be overlooked. The suggestion of my right hon. Friend the Member for Smethwick (Mr. Gordon Walker) seems to me just a little too formalistic, a little too much a matter of form, rather than a matter of realities. I find that to be particularly true when I try to work out some of the implications of it in practice which we have just been considering; for example, the implication resulting from the change of location of the Sovereign and the discharge of the functions of Sovereignty in the particular Dominion where the Sovereign is residing.

We have to keep in mind in that connection not merely that the nature of the Crown itself changes, has changed in the past, and is likely to change in the course of the present reign; but when we think of the Queen being present in another Dominion and herself, instead of the Governor-General, discharging some of the functions of the Crown there, what we must also remember is that the constitutional systems inside the Dominions are themselves subject to change.

There is no certainty that the Canadian Cabinet system, the Canadian constitutional methods, will develop along exactly the same lines as our own, and it may simply not be possible for the one individual to exercise within the individual nations of the Commonwealth the functions of Sovereignty with anything like correctness or accuracy. We have to remember, that is to say, that while the Crown represents and symbolises the unity that there is in the Commonwealth, it does not necessarily mean that we have to think of it as representing complete similarity among the nations of the Commonwealth.

The Commonwealth may well remain one, it may develop a greater and greater unity, while at the same time the individual nations of the Commonwealth are developing more and more diverse constitutional practices. It seems to me, therefore, that while my right hon. Friend has made a suggestion that brings up a large number of matters, to which we should give serious consideration, it is not on the whole a suggestion that we ought just now to put into effect, for the reasons I have suggested.

Mr. Gordon Walker

I apologise to hon. Members that I had not given greater notice. It was only late in the morning that I found I could not, as I had hoped, raise the matter on one or other of the Clauses, and the only way of bringing it in order was to move a new Clause.

I agree that the Home Secretary has not had time to think it all out, but I should not agree that it is proper constitutional doctrine to think that the Governor-General goes on functioning in a Commonwealth country when the Monarch is present; it certainly is not the Canadian idea. I know that that is so from my knowledge of the facts. Whether it is the case in Australia that the Governor-General surrenders only some of the functions that he would discharge in the Queen's absence when she is present, I am not sure. Certainly in Canada the doctrine is held that the Queen eclipses altogether her deputy when she is present and discharges all the functions of the Crown. It certainly is not true that the Governor-General is in all cases appointed for a fixed number of years.

I do not think the proposal would involve in any way the necessity to have a permanent Governor-General in this country. "Temporary," as far as I understand it, merely means "not total." It is anything short of complete incapacity; it could be any length of time; it could be one month, or six months.

4.30 p.m.

Indeed, one could imagine a situation which might develop during the present Queen's reign in which she might be for six months of one year in Australia or Canada and for six months in this country. Then she would be equally temporarily absent from both. Then the Governor-General, if we had one here, would be in exactly the same position as the Governor-General of Canada or of Australia.

I was sorry that the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke) made his intervention. There is no party attitude on this matter from this side of the Committee. I was certainly not speaking for my party. It was an idea that I put forward personally. It seems to me that he really has got egalitarianism on the brain. To compare the egalitarianism of the sort which. I understand he does not like—that two people should be treated as equal—with the egalitarianism that two nations should be treated as equal is carrying his anti-egalitarian doctrine to ludicrous extremes.

I do not know how far the noble Lord keeps up with these matters, but what I was suggesting—namely, that there should be a Governor-General in this country—is wholly in line with the various Acts about Royal Titles. The present Queen is the first Monarch to have ascended the Throne with a different Royal Title in every Realm—a Royal Title settled by that Realm. This would be a small change to come in line with that. I will not press the matter. I agree that these steps cannot be taken except in very proper ways after great discussion. My point is not to make the change by this means but merely to leave the question open so that the change could be made in future.

This is not really such a very great change. If all references to Counsellors of State were dropped from all these Acts, the power of the Crown to appoint Counsellors of State would remain the same as it is today, because the Crown could appoint Counsellors of State before the first Act was passed.

Sir D. Maxwell Fyfe

I hesitate to interrupt, tout we are discussing this matter in a somewhat informal manner. I have not checked that point, but there is the doctrine, which the hon. Member for Islington, East (Mr. E. Fletcher) will remember, that when a prerogative is canalised in legislation it is doubtful how far the pre-existing prerogative exists. That is another point which would require very serious consideration.

Mr. Gordon Walker

I thought that it was possible for the Royal Prerogative and a statutory power to run side by side, but I may well be wrong. I do not press the matter, but I hope that the Home Secretary will think about it. I beg to ask leave to withdraw the Motion.

Motion, and Clause, by leave, withdrawn.

Preamble agreed to.

Bill reported, without Amendment; read the Third time, and passed.