HC Deb 03 March 1959 vol 601 cc223-7
Mr. Wedgwood Benn (Bristol, South-East)

Mr. Speaker, I rise on a separate point, namely, to call your attention to a breach of Privilege, which, in my submission, has taken place owing to the arrest of my hon. Friend the Member for Wednesbury (Mr. Stonehouse). If I may, I will briefly refer you to the authorities on this matter in Erskine May. To some of them I have already drawn your attention.

I base my complaint on the official statement which appears in the Star of this evening's date. It is a statement from the Chief Secretary of Northern Rhodesia and refers to The arrest of Mr. Stonehouse"—

Mr. Speaker

Order, order. I cannot hear the hon. Member's submission.

Mr. Benn

It refers to The arrest of Mr. Stonehouse and his subsequent placing on an aircraft for Dar-es-Salaam". May I refer you first to page 120 of Erskine May, in which it is stated quite specifically: It is a contempt to cause or effect the arrest, save on a criminal charge, of a member of the House of Commons during a session of Parliament". Lest there be any question that this might not be a criminal charge, I also refer you to the reference in Eskine May which says that where a Member is arrested on a criminal charge, the Speaker of the House of Commons must be so informed. Unless you have received official notification from the Federation that such a thing has occurred, I do not believe that we can accept it in those circumstances.

I also refer you to page 43 of Erskine May, which lays down that certain rights and amenities, such as freedom from arrest or of speech, belong primarily to the individual Members of the House and only secondarily and indirectly to the House itself. Therefore, the hon. Member for Wednesbury is entitled in his own person to freedom from arrest, save on a criminal charge, during a Session of the House.

Now I come to the question of jurisdiction which arose yesterday on the duty and responsibility of the Government. There is no doubt, and the Government have made it clear both yesterday and today in answer to questions in another place, that in their view the control of immigration and emigration was conferred on the Federal Government by the 1953 Act and, therefore, administratively the Government have no authority for the actions of the Federal Government.

However, the privileges of the House do not depend on the administrative writ of the Government of the day. They depend on a very different thing. They depend on the legislative authority of the House of Commons. The legislative authority of the House of Commons was quite unaffected, if anything it was reinforced, by the 1953 Act. In the Act under which the Federation was set up this House stated, by implication, and subsequently confirmed its view, that it was itself the supreme law-making and constitution-making body for the Federation of Central Africa.

If I may refer you, Mr. Speaker, to page 28 of Erskine May you will find that Sir Edward Coke is quoted as saying that the power of Parliament 'is so transcendant and absolute, as it cannot be confined either for causes or persons within any bounds'. Should any doubt be expressed on this, Erskine May, in subsequent pages, says: As regards the Colonies, the legislative competence of Parliament is absolute. and, further: The legislative authority of Parliament also extends over Protectorates and over the territories administered by His Majesty's Government of the United Kingdom under the trusteeship system of the United Nations. Therefore, I submit that two quite separate questions arise here. One is: have the Government any administrative responsibility over the actions of the Federal Government in Central Africa? You have ruled, Mr. Speaker, that they have not, and it is not my purpose to dispute or challenge that in any way today. Secondly, as to the legislative authority of this House from which we derive our privileges, there is no doubt whatsoever that it would be in order for the Government tomorrow to present a Bill to dissolve the Central African Federation and that if that Bill were passed by the House, and received the Royal Assent, the Central African Federation would come to an end.

While the House retains its absolute supreme legislative authority, the privilege of hon. Members to go and travel about the area where this legislative authority exists must also be absolute. It is my submission that the arrest of a Member of Parliament, not on a criminal charge, not reported to the House and to you, Mr. Speaker, in a territory over which the House has absolute legislative authority, raises a question of the Privilege of Parliament so serious that it deserves reference to the Committee of Privileges.

Mr. Speaker

The hon. Member asks me whether I would say that there was a prima facie case in what he said was a breach of Privilege, I suppose by the Federation of Rhodesia and Nyasaland, or by its servants, in what has happened to the hon. Member for Wednesbury (Mr. Stonehouse). The hon. Member for Bristol, South-East (Mr. Benn) referred me to a number of instances and passages in Erskine May.

It is not my duty to declare whether or not there has been a breach of Privilege. That is a matter for the House. I am only engaged in discharging the procedural duty of saying whether there is a prima facie case so as to give the hon. Member's Motion priority over the Orders of the Day. It is to that matter that I am confining myself.

In my view, there is not such a prima facie case and I shall give my reasons in brief. The origin of the doctrine of freedom from arrest which attaches to all Members of Parliament during a Session of Parliament lies in the fact that this House is entitled to have a first claim upon their services and that any person who, by any action of arrest or hindrance prevents a Member from attending in his place to do his duty is guilty of contempt of the whole House.

I made inquiries to find out whether or not the hon. Member for Wednesbury was under arrest because I am concerned, naturally enough, in what happens to any hon. Member of this House—and I am told that he is not. He has been deported, if that is the proper word in consequence of non-compliance with an order declaring him to be a prohibited immigrant. I am told that he is now in Dar-es-Salaam and free to go wherever he likes. I cannot see that the Federal Government have done anything to prevent or hinder the attendance of the hon. Member for Wednesbury in his place here. On that ground, I should say that they have not acted in contempt of Parliament.

The hon. Member for Bristol, South-East put the matter a little too wide, I think, when he said that the only exclusion from prohibition from arrest was in the case of a criminal charge. If he reads further the passage of Erskine May to which he has referred me, he will find that it also says that, similarly, an order made by the Secretary of State for Home Affairs detaining a Member of Parliament in pursuance of the Defence of the Realm Regulations is not a breach of Privilege. That is really an administrative act and I see very little difference.

It is true that there is no criminal charge against the hon. Member for Wednesbury, but neither was there in the case of that hon. Member which gave rise to the Privilege Motion under Regulation 18B. So I do not think that I am at liberty to judge that here a prima facie case of breach of Privilege has been made out so as to give the hon. Member's Motion priority over the business of the day. But that does not debar him, if he holds a contrary view, from putting a Motion on the Order Paper for the judgment of the House. It is really a matter for the House, and not for me, to decide.

Mr. Benn

May I point out, Sir, that there is no state of emergency in the Federation of Central Africa and Rhodesia? There is a state of emergency in Southern Rhodesia and in Nyasaland, but there is no Federal state of emergency and the parallel which you, Mr. Speaker, draw concerning the detention of Captain Ramsey under Regulation 18B does not, I submit, apply.

If, in your view, only arrests which affect the attendance of a Member in the House are to be held to be breaches of Privilege then it would be in order for people to wait outside the House and detain Members at night and release them in time to ask Questions on the following day. I submit that since the protection of Parliament extends from 40 days preceding to 40 days following the Session your interpretation of the purposes of it does, therefore, need some further clarification.

Mr. Speaker

It possibly does. Like all statements made on the spur of the moment it may need further clarification, but I am perfectly certain that the gist of the matter is what I have said.

The hon. Member points out that there is no state of emergency in the Federation as a whole. I was not basing the argument that I put to him upon the question of a state of emergency. I was saying that this House has ruled that where a Member is detained under an administrative action which has the sanction of law in the place concerned, that, also, is not a breach of Privilege. I think that that is what has happened here. The House takes a very broad view—and I hope that it will always take a broad view—of what is likely to prejudice the attendance of a Member of this House, but I see nothing here which would enable me to give the hon. Member the priority which he seeks.

Mr. Benn

Is it your view, Mr. Speaker, that the arrest of a Member of Parliament in circumstances not reported to you personally does not raise the question of Privilege appropriate to immediate action?

Mr. Speaker

I would make no such pronouncement as that.