HC Deb 09 February 1960 vol 617 cc221-5
32. Mr. Foot

asked the Secretary of State for the Colonies what communication there was between the Governor of Nyasaland and the Federal authorities before the latter arrived at their decision regarding the proposed interview between Sir John Moffat and Dr. Banda; and what views the Governor expressed.

38. Mr. Wade

asked the Secretary of State for the Colonies if he will summarise the communications which passed between the Governor of Nyasaland and tae Government of the Federation regarding the latter's decision not to allow Sir John Moffat to visit Dr. Banda; and what assurances were obtained as a result of these communications.

42. Mrs. Castle

asked the Secretary of State for the Colonies what representations have been made by the Governor of Nyasaland to the Federal Government requesting that Sir John Moffat be allowed to visit Dr. Banda in Gwelogaol.

Mr. Iain Macleod

I would refer the hon. Members to the reply given to the hon. Member for Flint, East (Mrs. White) on 10th December. As stated in that reply, the conditions under which Sir John Moffat could have seen Dr. Banda naturally formed the subject of consultation between the Federal and Nyasaland Governments. It is not customary, however, to divulge the nature of such discussions between Governments.

Mr. Foot

Can the right hon. Gentleman give the House an assurance that the Governor of Nyasaland was not overruled in this matter by the Federal authorities?

Mr. Macleod

The position is that the question of who interviews people who are held in prison is a matter entirely for the Federal authorities and not for the Governor of Nyasaland.

Mr. Wade

Would the Minister agree that Sir John Moffat is a man of great distinction who represents an important body of opinion in Central Africa? Surely, he should be encouraged to meet Dr. Banda, because it might lead to some very valuable result?

Mr. Macleod

Sir John Moffat is certainly a man of very considerable eminence. I do not deny that for a moment, but this is the only case that has caused this sort of difficulty, and I have no reason to think that there will be a recurrence.

Mrs. Castle

Is it not a fact that although Dr. Banda is in a Federal prison he is not a Federal prisoner, and that, in fact, he is being detained under emergency regulations for which the Minister is responsible? In view of that fact, is it not the duty of the Governor of Nyasaland to have a continuing responsibility for his prisoner, and can the Colonial Secretary tell us whether the Governor has discharged that responsibility by making representations demanding that Dr. Banda be allowed to see all reasonable persons, including Sir John Moffat?

Mr. Macleod

With respect, I do not think that the hon. Lady is wholly right, although I agree with much of what she has said. The position is that Dr. Banda, and for that matter any detainee, whether in Nyasaland or in Southern Rhodesia, is detained and can be freed by order of the Governor. When they are in prison, and in prisons in the Federation, again, whether they are in Nyasaland or in Southern Rhodesia, they are entirely a matter for the Federal Government, which makes the regulations.

Sir L. Ungoed-Thomas

Is that quite correct? Is not the responsibility for prisons a concurrent responsibility? Having regard to the fact that Dr. Banda is a political prisoner, is it not a matter of immense political importance and significance that he should be under the exclusive control in prison of Sir Roy Welensky, who is his greatest opponent on the Central Africa issue, and should not Dr. Banda be in prison under the exclusive control of the Governor of Nyasaland, who is directly responsible to the Minister?

Mr. Macleod

On the last point, he could not be in such a prison, because all prisons, whether in Nyasaland or not, are Federal. I will look into the point that the hon. and learned Gentleman has raised, but with great respect I think he is wrong. I think it is not a concurrent matter, but a matter which accrues to the Federal Government by the operation of Article 31 of the Constitution. I am saying that from memory, but I am fairly sure that it is right.

Mr. Callaghan

Is not the Colonial Secretary aware that my right hon. and learned Friend the Member for Newport (Sir F. Soskice) put to him just after Christmas a way in which it would be quite possible to frame a detention order by the Governor of Nyasaland so that Sir John Moffat could see Dr. Banda? Is not this the real position? Although the Governor has expressed his willingness to allow Sir John Moffat to see Dr. Banda, he is not willing to take the steps which he could legally take by varying the detention order to enable him to do so?

Mr. Macleod

The Governor can certainly vary the detention order, but I think that it is arguable whether that in its turn would overrule in those circumstances the Federal rule to which I have referred. I take it that the hon. Gentleman agrees with my interpretation of where responsibility there lies. It is certainly possible for the Governor of Nyasaland either to release or to make a change in a detention order, though, as I have said, I do not think that just because of this case, which took place many months ago, it is necessary to do so.

Mr. S. Silverman

Would the right hon. Gentleman explain a further point? Since he has said that Dr. Banda is held in detention only under the emergency order of the Governor, and since he has said that the Governor could order him to be released at any time, would he explain why, therefore, the Governor has not the power to determine the conditions under which he is detained; and, if he has such a power, why does not that dispose of the point raised by my hon. Friend?

Mr. Macleod

I do not think it does. He has the power to vary the conditions of the order, but this does not alter the position under the Federal law whereby anyone who is held in prison is subject to Federal administration.

Sir L. Ungoed-Thomas

Is the right hon. Gentleman aware that the Minister of State for Commonwealth Relations referred to prisons in this House the other day as being a concurrent matter? Will the Minister check this position, and if he is wrong in his assumption that they are not a concurrent matter, but exclusively under the jurisdiction of the Federal Government, will he then come back to the House and amend his attitude towards it?

Mr. Macleod

Certainly, if I am wrong. I have said that I was speaking from recollection, although my impression is that this is not concurrent, but operates under Article 31. Naturally, if I am wrong about this, I will tell the House tomorrow after Questions. I would not dream of doing anything else.


Mr. Iain Macleod

On a point of order. A short time ago in a supplementary answer to the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) and when discussing the question of prison legislation in the Federation of Rhodesia and Nyasaland, I said that my recollection was that the Federal Government have exclusive legislative power and that this was not a matter of concurrent legislation.

I have a list now of the division of functions and the position is that, although it is correct that the Federal Government in fact exercise this exclusive legislative power in relation to prisons, prisons and some other matters are items from the concurrent legislative list, Part II of the Second Schedule. It is therefore the fact that prison regulations are made by the Federal Government. My recollection was wrong in so far as I referred to Article 31 and also to the concurrent list.

I thought that I should take the earliest opportunity of saying so.

Sir L. Ungoed-Thomas

I thank the Minister for so promptly making that correction. Now that he realises that under the concurrent list he has power with regard to prisons, would he be so good as to look again at my suggestion that Dr. Banda should be brought to a prison under his own direct responsibility in Nyasaland?

Mr. Macleod

I think I will have to look into that matter in the light of the questions that were put today.

Mr. S. Silverman rose

Mr. Speaker

Does the hon. Member desire to pursue that topic, because I believe that we ought to bring it to an end?

Mr. Silverman

No, Sir.

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