HC Deb 30 July 1956 vol 557 cc921-9
Mr. Speaker

I have a statement to make to the House on the question of the Chief Justice of the Seychelles. I apologise for the fact that it is rather longer than my usual statements, but the matter is not free from difficulty and it has been rather troublesome.

On Wednesday last, the hon. Member for Islington, East (Mr. E. Fletcher) and the hon. Member for Rugby (Mr. J. Johnson) had Questions on the Order Paper asking the Secretary of State for the Colonies what action he proposed to take on a petition from the Seychelles asking that the Chief Justice should not be reappointed. The answer was that the right hon. Gentleman was unable to accede to the request, whereupon the hon. Member for Islington, East asked a supplementary question in which he stated that grave allegations were made by large numbers of leading citizens of the Colony against the Chief Justice.

I must confess that I had some doubts about the propriety of the hon. Member's words about a judge, but I was inhibited at that moment from intervening by a general bias in favour of freedom of speech and by a doubt as to how the gentleman in question stood with regard to our general rule against criticising judges.

I remembered, and have now looked up, a debate which took place on the Adjournment on 3rd June, 1949, when the hon. Member for Hornsey (Sir D. Gammans) was criticising the Acting Attorney-General of the Seychelles. In support of his argument, the hon. Member quoted remarks made by the Chief Justice about the Acting Attorney-General. In his reply to the debate, in defence of the Acting Attorney-General, Mr. Rees-Williams, as he then was, who was then Under-Secretary of State for the Colonies, criticised the language used by the Chief Justice. He said, for example: I do not agree that that language was justified. I think it was extreme and flam-bouyant language for a judge to use, particularly as no personal matter was involved. Later, Mr. Rees-Williams said: I think that the language he used "— That was the Chief Justice— was extreme in view of the fact that there was no personal benefit to Mr. Collet."— Mr. Collet was the Acting Attorney-General. Therefore, to talk about a man as a blackmailer and the like when he is rather over-zealous as a public servant is not language which one would expect to be used."—[OFFICIAL REPORT, 3rd June, 1949; Vol. 465, c. 2471–2.] This criticism of a judge here might not have been permitted except on a substantive Motion, and this made me think that there was, in the view of the Colonial Office, something in the status of the Chief Justice in the Seychelles which distinguished him from a judge here. I could see that there were bound to be such differences.

High Court judges here are, by the Act of Settlement, removable only by an Address from both Houses of Parliament. Their salaries are charged on the Consolidated Fund. They are thus rendered independent of the Executive. This is a wise provision of our Constitution, because it has often been the duty of the courts to give judgments adverse to the claims of the Executive—notably by the issue of the writ of habeas corpus.

The appointment of the Chief Justice of the Seychelles was by a document under the Public Seal of the Colony, similar in form to Letters Patent. This was signed by the Governor in the name of His Majesty on 10th December, 1948. It is important, I think, to look at the powers which exist for his removal. In law, he holds office at the pleasure of the Crown, but, in fact, the procedure for his removal is governed by Colonial Regulations 63, 68 and 76.

These Regulations provide for the formulation of charges of misconduct, etc., and for their investigation by a judicial commission. Then, if the Governor is satisfied that the judge should be dismissed, Regulation 63 lays down that the question of dismissal or of inflicting any other penalties upon the judge must be referred by the Secretary of State for the Colonies to the Judicial Committee of the Privy Council, unless the judge in question requests that it should not be so referred.

It seems to me that the true purpose of these Regulations is to endeavour to maintain the independence of the judiciary against the Executive. It follows, therefore, I think, that the Colonial Secretary has not a free hand in dismissing the Chief Justice.

The only precedent which I can find, which seems to bear on this matter, occurred on 27th June, 1912. There was a debate on the Adjournment in which the hon. Member who had the Floor said of an Indian judge: …I do declare of this particular judge who passed this judgment, that his political feelings are so strong that— Mr. Speaker Lowther intervened and said: The hon. Member, if he is going to attack the judiciary in India, should bear in mind the rule which obtains in this country. If an attack is made on the judiciary here it must be made in due form after notice and on a separate Motion. The hon. Member referred just now to the criticism passed upon Mr. Justice Grantham. That was passed after due notice had been given and on a special Motion calling his action in question. I think the same procedure might properly be applied to judges in other parts of the Empire."—[OFFICIAL REPORT, 27th June, 1912; Vol. XL, c. 622.] Therefore, for the purposes of the Ruling which I have been asked to give, I rest myself on the deep constitutional principle of the independence of the judiciary from the Executive. It is the Executive which hon. Members are entitled to attack, on Supply, and the Executive only. I must rule that the complaint against the Chief Justice must be by way of Motion and should not be discussed on the Consolidated Fund Bill.

Mr. J. Griffiths

We are obliged, to you, Sir, for your statement. As I understand, your Ruling is that a debate concerning the Chief Justice could take place only on a Motion. May I put this point, with respect? This matter arose because a number of responsible citizens in the Seychelles presented a petition to the Secretary of State requesting the Secretary of State to give consideration to their complaints and, in particular, asking the Secretary of State not to renew the term of the appointment of the Chief Justice. Would it be in order for the debate to proceed on the question of a petition from those responsible citizens, and, if so, would hon. Members be in order, in that debate, in urging that the Secretary of State should proceed on the basis of that petition with regard to the judge's future?

Mr. Speaker

I think that the action of the Secretary of State in refusing to grant the prayer of the petition is a proper subject for debate but, as I have said, criticism of the Chief Justice as such would not be proper. If the debate could be conducted without infringing the Rule about a Motion being necessary in respect of the Chief Justice, it would be in order. However, hon. Members may think this over and reflect that what I am saying now is rather like the judgment of Portia in "The Merchant of Venice", when she said that Shylock could have his pound of flesh but must not shed any blood with it.

Mr. Griffiths

If the debate be proceeded with on the basis that there was a petition praying the Secretary of State not to reappoint the Chief Justice to his present position, then, clearly, the terms of the petition would have to be made known to the House by those who took part in the debate. Would that be in order?

Mr. Speaker

I must confess to the right hon. Gentleman that I have not seen the petition and, therefore, do not know what is in it. However, if it were possible to discuss the question without transgressing the rule about criticising the judiciary, except by notice and on a Motion, I can see nothing wrong, but I would not like to give a Ruling in advance on this subject.

Mr. S. Silverman

Will there not be a rather confused position arising, Sir, if it is regarded as being in order on the Consolidated Fund Bill to discuss the action or inaction of the Colonial Secretary on a petition to remove, or not to reappoint, a Chief Justice if, in the course of that debate, it is impossible to refer to the reasons for or against the petition or the Minister's decision? Is there any way in which the petition can then be discussed, and still be in order within the terms of your Ruling this afternoon?

Mr. Speaker

It seems to be very difficult. I did not like to prejudge the question, because I have not seen the petition and what it alleges, but I think myself that, from the point of view of the House, it would be more convenient to discuss the whole matter on a Motion, which would give the House perfect freedom in the matter and would not raise these awkward questions of order.

There is another aspect of the matter which is not necessary for my Ruling, but which the House may think of some importance. The allegations which the hon. Member for Islington, East repeated, were not his own allegations, but he mentioned them as relevant to the situation. They are of a grave character and, on reflection, perhaps the House may think that it is fair to the man concerned that the discussion of these allegations should take place on a Motion on which the House could express an opinion, rather than that it should be introduced on the Consolidated Fund Bill, when no Vote will be taken and an injustice may be done by aspersions which are not recorded as the view of the House. The purpose of a Motion is to ascertain the view of the House on the matter, and that is not gained by a discussion on the Consolidated Fund Bill.

Mr. E. Fletcher

As I understand, Mr. Speaker, what you have just been good enough to say raises a question of procedure. Would I be right in thinking that on the Consolidated Fund Bill it would be perfectly in order to criticise the action of the Secretary of State for the Colonies in reappointing the Chief Justice to the Seychelles, notwithstanding a petition lodged contrary to that decision by a large number of leading citizens in the Seychelles? Secondly, may I ask you to rule, Sir, whether, on the Consolidated Fund Bill, it would be in order to raise the entire question of the administration of justice in the Seychelles, including the conduct of the Chief Justice?

Mr. Speaker

That is the difficulty I foresee. I think it would be difficult for hon. Members to deal with this subject satisfactorily without being free to say what they want to say about the Chief Justice. I can foresee great difficulties about that, and I think that freedom can only be achieved by means of a Motion.

Mr. Gaitskell

May I thank you, Mr. Speaker, as did my right hon. Friend, for the very great care you have obviously taken in preparing the statement which you have just made? We are in a rather difficult position on this matter. The Chief Justice has been the subject of allegations of a fairly serious character, and I am sure it is the wish of all of us that this business should be cleared up. That is what we want to see done. That is why we asked the Colonial Secretary for an inquiry, and it would facilitate the situation enormously if the right hon. Gentleman would conduct that inquiry.

Failing that, it seems to me that there are great difficulties about putting down a "Motion to be discussed during the day on which we debate the Third Reading of the Consolidated Fund Bill. Traditionally, of course, it is the right of any hon. Member to raise any matter he likes on this Bill. Therefore, it would be interfering seriously with the rights of hon. Members if we were, so to speak, to take the Bill formally or to short-cut the proceedings, in order to debate a Motion of this kind.

On the other hand, if we do not put down a Motion, you yourself have pointed out that there are great difficulties in debating the matter during the Consolidated Fund Bill discussion itself. Therefore, apparently, we are left in the position of not being able to do anything about this matter until the autumn. That is itself very unsatisfactory. I would like to make an appeal to the Colonial Secretary—I am not asking him for an immediate statement—to consider, between now and the Recess, whether it would not be in the interests of everybody concerned, not least the Chief Justice of the Seychelles, to agree to the inquiry for which my hon. Friend the Member for Islington, East (Mr. E. Fletcher) has asked.

There is, however, one other point which I would like to put to you, if I may, Sir. You will recall that my hon. Friend the Member for Islington, East also raised the matter of Privilege. You ruled that prima facie this was not a matter of Privilege, on the ground, as I understood it—or largely on the ground—taking into account previous similar cases, that the person concerned, namely, the Chief Justice, was under the jurisdiction and authority of the Colonial Secretary, and that, therefore, there was a way out for hon. Members if they had a case where there had been interference with the right of a subject of Her Majesty to get into touch with Parliament; there was a way out because we could criticise the Minister concerned. If I recollect correctly, you instanced the case of the Secretary of State for War in connection with some instance where there had been some similar interference.

We have, however, been told by you this afternoon that the Chief Justice of the Seychelles is not under the authority of the Colonial Secretary in that sense, and it therefore appears that the grounds on which you ruled that this was not Privilege—if I have misunderstood you. Sir, you will tell me—are not quite so strong as when you made the Ruling a day or two ago. Failing that, may I put this to you? Is it the case, then, that a judge in the position of the Chief Justice of the Seychelles can, in fact, issue a general search warrant which appears to be related to the efforts of a subject of Her Majesty to get into touch with Parliament, and that no question of Privilege can arise, and, nevertheless, we find ourselves in the greatest possible difficulty even in debating his action?

Mr. Speaker

In answer to the right hon. Gentleman, I hope there is no misunderstanding about what I said on Privilege. On the Privilege issue, I said that it was not an issue of Privilege for any third party to interfere with the correspondent of a Member of Parliament because he had written to him. That would be quite irrespective of whether there was another remedy by way of administrative or legal action. I said that in this case the question which arose could be dealt with by administrative action or by legal action if it was an illegal warrant, but that was not the ground of my judgment on Privilege.

The ground of my judgment on Privilege is that there is no recorded case of the House ever having considered it a breach of its Privilege if a third party exercises pressure or influence upon the correspondent of a Member of Parliament. It rests solely on that ground, and not on the ground that there are alternative means of considering the matter.

I might say here that I realise the difficulties that hon. Members are in at this late part of the Session. That was in my mind when I was considering this complicated matter. If there is to be a Motion, as it looks as if there must be, it will have to go over until the autumn. However I cannot help that, because the matter was raised very late, only the other day. The House would perhaps agree with me that it would be better for us to wait a little, rather than to set a false precedent on this great constitutional principle of the independence of the judiciary.

Mr. E. Fletcher

Surely, Mr. Speaker, it must be in order, on the Consolidated Fund Bill, to raise the action of the Secretary of State for the Colonies in reappointing for a further period a Chief Justice of the Seychelles notwithstanding a petition against his reappointment, signed by a large number of citizens in the Seychelles? With great respect, I submit that it must be in order for the House, on the Consolidated Fund Bill, to criticise and censure, if it thinks right, the attitude of the Colonial Secretary in making a reappointment in those circumstances.

Mr. Speaker

That would be quite in order, but I am merely suggesting that the hon. Member might find it difficult to support his Motion without infringing the rule. If he thinks he can support his Motion without infringing the rule, he is welcome to try so far as I am concerned.

Mr. Bowles

Might I make a suggestion to my right hon. Friends on the Front Bench, Mr. Speaker? I suggest that they might, in agreement with the Government, put down a Motion to be debated for, say, an hour and a half or two hours and take the decision which you have rightly suggested, and then, as the first Order of the Day after, that we could have the Third Reading of the Consolidated Fund Bill.

Mr. Speaker

These matters are not for me.