HC Deb 04 July 1963 vol 680 cc719-28

Motion made, and Question proposed, That this House do now adjourn.—[Mr. I. Fraser.]

10.25 p.m.

Mr. Norman Pannell (Liverpool, Kirkdale)

The matter which I have to raise is a complicated one and I hope, therefore, that the House will permit me to refer rather freely to my notes in order that I may give a concise account of it in the very short time at my disposal.

On 28th May this year, my right hon. Friend the Secretary of State for the Colonies announced in the House, in reply to a Question by the hon. Lady the Member for Flint, East (Mrs. White), that he had advised the use of an Order in Council the effect of which would be to set aside the judgment of the Gambia Court of Appeal which had declared certain elections in the Gambia general elections of 1962 to be invalid. The decision of the Court of Appeal reversed an earlier decision by the Gambia High Court which had, in fact, upheld the validity of the elections.

The Order in Council came into operation on 6th June, when the House was inrecess. There was, therefore, no opportunity to discuss the matter in the House, apart from the brief exchanges on 28th May. I am, therefore, grateful for this opportunity to ventilate the matter.

The issue before both courts turned on the validity of the1961 register on which the 1962 elections had been held. This 1961 register of electors was quite distinct from the 1959 register on which the 1960 elections had been held. Indeed, the 1959 register of electors should have had validity until 1969, subject, of course, to certain amendments, deletions and additions. However, an amending Ordinance was introduced in Gambia in 1961, the purpose of which was to amend certain provisions of the electoral law in view of the impending general elections in 1962. My right hon. Friend the Secretary of State has said that the object of the amending Ordinance of 1961 was to provide for the compilation of entirely new registers and that imprecise wording of one phrase in the Ordinance had given rise to the Court of Appeal's decision which had invalidated the register.

A perusal of the 1961 Ordinance does not support this view. There is nothing in it specifically or by inference authorising the compilation of new registers. Furthermore, the Chief Justice in the High Court in his judgment described the making of the 1961 register as a sheer waste of time and energy. However, he declined to declare the register invalid because he thought that Section 10(e) of the 1961 Ordinance had the effect of validating this irregularity. The Court of Appeal unanimously ruled that this was not so and accordingly declared certain elections in the Protectorate, not the Colony, invalid.

There has been quoted in support of the 1961 register Section 6(a) of the 1961 Ordinance which provided for certifying registrations and said that upon such certification such registers shall be deemed to have been lawfully compiled. Even so, it seems clear to me that the intention was that the 1962 elections should be held on the 1959 register, subject to certain amendments. In spite of this, a completely new register known as the 1961 register, was drawn up.

This register, by the way, was the subject of many criticisms during the court hearing and several gross irregularities have been alleged. In particular, I might mention, it was alleged that six of the registration clerks were actually potential candidates at the forthcoming elections. Whether those charges have been investigated or not, I do not know.

In any case, the appeal judge confirmed the view of the High Court that the 1961 register should never have been drawn up, and it was on this point that he declared the elections in certain constituencies invalid. He concluded that Section 6(a) of the 1961 Ordinance, which has been quoted as validating the1961 register, did not, in fact, have this effect since its purpose was to validate only the lists of voters which would operate in amendment of the 1959 register.

The effect of the Appeal Court's decision is that the elections to all the 25 seats in the Protectorate have been rendered invalid, leaving only the seven Colony members and the four Chief's representatives validly elected. Clearly, this"rump", as it has been called, cannot legislate for the territory or operate effectively as a government, neither can it validate the 1961 register.

The opposition party, headed by Mr. P. S. N'Jie, which was, incidentally, defeated at the elections, feels very strongly that the Appeal Court's decision should be upheld and that fresh elections should take place. My right hon. Friend the Secretary of State said on 28th May that Mr. N'Jie's opposition party, the United Party, which was defeated at the 1962 elections, was in power when the 1961 register was drawn up, and therefore, since it did not object to that register at the time, it had no case now.

I do not wish to speak at any length on that point, because my right hon. Friend the Member for Reigate (Sir J. Vaughan-Morgan), if he catches your eye, Mr. Speaker, will say some words about that. I just want to say that Mr. N'Jie, who was then Chief Minister, says that he had no influence at all on the compilation of the register since he was in that respect regarded as only the head of a political party.

But in view of what I have said it seems to me a serious matter that Her Majesty's Government should validate registrations which have been declared invalid by the highest court of law in the Gambia. It further appears that the 1961 register was not declared invalid owing to the imprecise drafting of one phrase in the 1961 ordinance as my right hon. Friend alleged, but rather that a phrase in that Ordinance was wrongly assumed by the High Court judge to validate the 1961 register, and this view was rejected by the Appeal Court.

I think that I should mention here that the validity of the Order in Council itself could be challenged, owing to the dual character of the territory, which comprises both a Colony and a Protectorate, but I do not wish—I am not, indeed, competent—to argue that point, which is a purely legal one.

I should like to say that the future of the Gambia is at present in the balance. It is recognised that it is a small unviable territory with a very uncertain future should it become an independent State and, indeed, moves are afoot for it either to join the neighbouring French-speaking territory of the Senegal or associate with it in some sort of federation.

This is a matter of the highest possible constitutional importance to the Gambia, and, in my view, the negotiations for this should not be left to a Government who have been declared to be invalidly constituted. I freely admit that it is essential that the actions of the present Gambian Government should be validated till a new Government can be elected. But there would seem to be a very strong case for the argument that a new Government validly elected should bear the responsibility of negotiating the future of the territory.

In view of this, I urge that a new Order in Council should be introduced arranging for the drawing up of entirely new registers under independent control, and that a new Government should be elected under these new registers. Obviously, this will occasion considerable delay, but in a matter of such importance it is, in my view, essential that Her Majesty's Government should be seen to act impartially and not proceed in an apparently arbitrary manner to flout the decisions of the highest court of law in Gambia. The opposition party in the Gambia feels very deeply aggrieved at the action of the Secretary of State, and takes the view—which I must admit I share—that the future of the territory should be decided only by a validly elected Government clearly reflecting the views of the electorate.

10.36 p.m.

Sir John Vaughan-Morgan (Reigate)

Not very many hon. Members have been to the Gambia, but those who have will hold this oldest Colony in West Africa, with so long a history and so loyal for so many centuries, in great affection.

I do not want to add very much to what my hon. Friend the Member for Liverpool, Kirkdale (Mr. N. Pannell) has said. The only point I want to emphasise is that I rather dislike the attitude which the Secretary of State took when he kind of threw the blame on to the then Government of the country, headed as it was then by Mr. N'Jie.

This, as my hon. Friend said, does not seem to be right or relevant. This is, and was then, a colonial administration. These are matters which fall in the main, as I understand it, within the province of the colonial Government and the colonial Governor. If we are to establish this Colony on the road to democracy, we must ensure, as my hon. Friend said, that the Government are elected on a duly constituted franchise and a duly constituted register.

I must say that the action that my right hon. Friend has taken so far is right and proper and, indeed, inevitable in the circumstances, but we have to clear the decks for a different approach in the future. I hope that my hon. Friend will find it possible to withdraw in the main the suggestion that the then party in power was in any way responsible for what happened.

10.38 p.m.

The Under-Secretary of State for the Colonies (Mr. Nigel Fisher)

I see that my hon. Friend the Member for Liverpool, Kirkdale (Mr. N. Pannell) has called this debate"The Gambia Constitution"; and in view of this, although it has no connection whatever with the points that he has raised, I would like, first, to take this opportunity of informing the House—because I do not think that it has appeared in the British newspapers—of an announcement made by the Governor of the Gambia in the House of Representatives on Tuesday, that important constitutional changes will shortly take place in the Colony.

The Governor has, in fact, announced that the Secretary of State has agreed to grant full internal self-government to the Gambia, and that an Order in Council will be submitted to Her Majesty later this year. I thought that it might be of interest to the House if I drew attention to that point.

Mr. A. G. Bottomley (Middlesbrough, East)

Does that mean that in some ways the hon. Gentleman is forestalling the claim made tonight that it will not be possible for him to take action as requested by the hon. Member for Liverpool, Kirkdale (Mr. K Pannell)?

Mr. Fisher

That was certainly not my intention. What action I propose to take, or my lack of action, will become apparent as I come to my hon. Friend's arguments. No, this was quite innocent. I just thought that the House should be informed of this important development in the Gambia.

I am grateful to my hon. Friend the Member for Kirkdale for raising this, as he said, very complicated matter, because it is of some importance to the Gambia and deserves, I think, to be ventilated and clarified. Of course, the opportunity my right hon. Friend had to do this on 28th May was inevitably circumscribed by the limitations of time and form which a statement after Question Time imposes.

As my right hon. Friend then explained, the 1959 register of electors was, by common consent—and I do not think that this is disputed—unsatisfactory. It was therefore decided, in 1961, to prepare an entirely new register—the one which was, in fact, used for the 1962 elections. I will try to explain this as best I can, but it is really very complicated.

My hon. Friend has told the House that the intention was to hold the elections on the 1959 register. With respect, I do not agree. In law, this may be the legal interpretation of the apparent legal intention, but the actual intention in the minds of the people who did it was to hold the elections on the new 1961 register, which had already been prepared by that time, and the trouble arose because of a drafting error in the 1961 Ordinance.

My hon. Friend is absolutely right in saying, in effect, that the law as it was in 1961 provided for amendments to the existing 1959 register, but did not provide for a new register. In fact, the registering officers had legislative authority to compile a new register every tenth year, but for the intervening nine years they only had authority to bring the existing register up to date. So the 1961 register was not legally authorised.

If the Gambia Amendment Ordinance, 1961, had specifically validated the new 1961 register as such—which it could have done and should have done—all would have been well and we would not have been in this difficulty. But it did not do that. All it did was to provide for registering officers to certify the accuracy of their lists and upon such certification, such registers ..shall be deemed to have been lawfully compiled and shall not be open to challenge. What the Ordinance did not do was to legalise the 1961 voters lists as legal registers. That was the sole respect in which the error in the Ordinance occurred.

Mr. N. Pannell

Since the 1961 registers were drawn up several months before the amending Ordinance, and if it was the purpose of the Ordinance to regularise these registers, surely a simple clause would have had that effect.

Mr. Fisher

Of course it could. That is what I have been saying. There was absolutely no reason why this register, which had already been drawn up, should not have been specifically validated as such by the Ordinance, but this was the error. It was a drafting error. They failed to put in this most important provision.

My right hon. Friend has been into this personally and with very great care. He is satisfied—and his view is endorsed by the Governor—that there is no doubt at all that the intention of both parties in the Gambia House of Representatives at the time was to hold the 1962 elections on this new 1961 register, which was, of course, what happened. But validation of the 1961 register was, in fact, frustrated by this faulty form of words used in the Ordinance. In short, the Ordinance was very badly drafted and the confusion arises from this legal and technical flaw which was missed by the High Court of Gambia, but spotted by the Court of Appeal.

Mr. N. Pannell

I am sorry to interrupt again, but this is not just a slight technical flaw. It is a grave omission. It is leaving out the essential element required to validate the 1961 register.

Mr. Fisher

I will not quarrel with my hon. Friend about the words we use to describe this. He is on one side of the case and I am on the other. I did not say that it was a slight flaw. I said that it was a legal and technical flaw. He says that it was a major omission. We shall not fall out about this. I do not mind what words are used. This is what happened.

My submission to the House is that regrettable as this drafting error may be, it made no difference in fact to the 1961 register or to the result of the 1962 election which was fought upon that register.

My hon. Friend said that the important issue of Gambia's future, in union with or federated to Senegal should not be decided by a Government which had been improperly elected. If that were the position, I would, of course, fully agree with him, because that is an immensely important issue for the Gambia and one on which there is, I think, some element of controversy between the Gambia Government and the opposition party there. If I thought that there was any substance whatever in the allegation, expressed or implied, that the present Government of the Gambia did not, owing to the1961 register, reflect the democratic wishes of the Gambian people, I assure the House that I would be the first to press for a new register, new elections and, if it so resulted, a new Government. Indeed, it would be my duty and the duty of Her Majesty's Government to insist upon these things.

But that is not the position. The use of the 1961 as opposed to the 1959 register had no effect on the result of the 1962 elections. I will show why I say that. In the Protectorate, the P.P.P., that is, the Government party, quite apart from one unopposed candidate, polled 54,600 votes, while the United Party, the opposition party, and the independents polled together 27,200 votes, only half as many. It was a sweeping victory. In not a single constituency were the votes so close that the errors, if there were errors, in the 1961 register could possibly or conceivably have made any difference to the result. Indeed, except in one constituency large majorities prevailed, I think, throughout the Protectorate. Nor has there been any change in the popular will since the election. In fact, the Gambia's government's party majority has actually increased, because several opposition members have crossed the Floor since the general election.

If new registers were compiled and new elections were held, I am sure that there would not be a result different from the position at present, so what is the point of doing so? Of course we considered doing it, but it would have been very difficult since the validity of the present membership of the legislature would be in question and the law to establish a new register could not have been passed by the present Gambia House. We should have had to do it here by an Order in Council. We could have done it perfectly well and we could have ordered the compilation of a new register and the holding of new elections upon it. But as there is nothing to suggest that there is anything wrong with the 1961 register, that would have been a very time-taking, inconvenient and expensive procedure, and it would have produced a result which would not have been different from the Gambia which now exists.

My hon. Friend made one criticism. He referred to the fact that some registration clerks stood as candidates at the subsequent elections. Registration clerks did stand as candidates, but there was nothing improper in this. They were not candidates when they were appointed registration clerks, nor were they registration clerks when they became candidates. I am informed, I think reliably, that some registration clerks became U.P. candidates and others P.P.P. candidates, so that this cancels itself out.

I should remind the House that the 1961 Ordinance provided for appeals against any mistakes in the register of electors. Therefore, if there had been any criticisms of the register, they should have been made and presumably would have been made at the time under the proper appeal machinery. I understand that what happened was this. About three months after the 1962 elections had been held, one of the defeated candidates discovered, rather brightly, the legal and technical flaw in the 1961 Ordinance to which I have referred. He used it to go to court and eventually to get a legal verdict from the Appeal Court of invalidation of the register on a technicality. That is really all it is.

That is the position. There is no great issue of principle here and there is certainly no infringement whatever of democracy. There is a drafting error in a Gambia Ordinance, which we have sought to put right with the minimum inconvenience and the minimum delay to the people concerned. I hope that the House will accept this really perfectly innocent explanation of this drafting error, which has in some people's minds, quite genuinely—I am not complaining—been blown up into a great constitutional issue. It is not that at all.

There is one other point to which I should briefly refer, because it has been mentioned not only by my hon. Friend the Member for Kirkdale but also my right hon. and learned Friend the Member for Reigate (Sir J. Vaughan-Morgan). They have both pointed out that Mr. N'Jei was not responsible, when in office at the time, for the 1961 Ordinance or for the 1961 register. That is perfectly true. No local Minister was constitutionally responsible at that time. The Commissioner for Local Government was responsible. But it is equally true to say that the decision to compile a new register was taken at an Executive Council meeting at which Mr. N'Jei was present. He therefore knew of the decision and agreed to it, even though he may not fully have understood it. I cannot say that I blame him; it is an extremely complicated matter. But he was cognisant of it in theory, because he was present, and so, although I do not in any way attach responsibility to him, because he was not responsible at the time, he did not object, nor did either of the political parties object, to what was being done. It was the intention that this should be done.

Even though it is a complicated matter there is no substance in all this. I ask my hon. Friend to accept that whatever method had been adopted to put it right—whatever method we could have used, other than the one we chose—the practical result, in the membership of the House of Representatives, would have been no different at all from what it is today. That is the point from a democratic point of view, and the point of importance so far as the Gambia is concerned.

Nevertheless, having said that, I am grateful to my hon. Friend for raising the matter in the House, because it has enabled me to try—in so far as it is comprehensible to anyone who has not studied it—to correct the impression that might have gained currency in the Gambia that some injustice had somehow been perpetrated, or some democratic principle somehow flouted. That is not the case, and I very much hope that my hon. Friend will accept my explanation of the position.

Question put and agreed to.

Adjourned accordingly at seven minutes to Eleven o'clock