§ The Attorney-General (Sir Elwyn Jones)
Mr. Speaker, with permission, I desire to make a statement which, as Attorney-General, I have been asked to make on the position in law resulting from the declaration of independence by the Smith regime in Rhodesia and the legal measures which the Government have taken and propose to take.
I apologise for the fact that no copy of this statement is available at the moment;it will appear at any minute now.
As the: Prime Minister said yesterday, we propose to invite the House on Monday to pass a general Enabling Bill to give the Government the powers that are needed in the light of the declaration made by the Smith Government yesterday. I hope that hon. Members now have the text of the Bill. If not, it will be available in the course of the day.
The Bill, which is expressed to be of temporary duration, is designed to achieve two purposes. In the first place, it declares the legal position, which is that Southern Rhodesia is part of Her Majesty's Dominions, and that the Government and Parliament of the United Kingdom have responsibility and jurisdiction in respect of it. This is, of course, merely declaratory of the present law, done in future by an illegal regime, can alter the fact that in law Rhodesia remains part of Her Majesty's Dominions and under the authority of this Parliament. This Parliament alone can grant Rhodesia independence. Hon. Members will not expect me to recite authority for that proposition. It is axiomatic. It is an inherent part of our Constitution. We have now on the Statute Book a series of Acts granting independence to numerous countries. Until such an Act is passed by this Parliament, any Rhodesian legislation repugnant to any Act of this Parlia- 514 ment extending to Southern Rhodesia is void under the Colonial Laws Validity Act, 1865. All this is a constitutional truism. But it is as well to reaffirm it in order to dispel any doubts about the constitutional results of yesterday's declaration. Both the declaration itself, and all actions by the Smith regime flowing from it, are illegal.
The second purpose of the Bill is to give power to make Orders in Council requisite in relation to Southern Rhodesia. We propose to take a general power to make any Order which appears to be necessary or expedient in consequence of the illegal declaration of independence. The Government have in mind four classes of Order in Council in particular.
In the first place, it is necessary to amend the present Constitution of Rhodesia in certain respects. I would remind the House that, under the Southern Rhodesia (Constitution) Act, 1961, and the Constitution issued thereunder, the powers reserved to Her Majesty to amend the Constitution were limited and restricted mainly to provisions relating to the position of the Governor. We must now take further power to amend the Constitution. More will be said on this subject when the Bill is introduced on Monday. All I need now say is that we propose to make an Order invalidating any laws which have been or may be passed or business which has been or may be transacted by the Legislative Assembly in Southern Rhodesia at any time after the declaration of independence. The Order will also confer certain powers on the Secretary of State; for example, to prorogue the Legislative Assembly. As the Prime Minister said yesterday, this Order will not extend to the revocation and replacement of the Constitution as a whole. This would require the introduction of a separate Bill in this House. The Order will also empower the Secretary of State to exercise executive authority in Rhodesia. The Government will further take a general power to make laws for the peace, order and good government of Southern Rhodesia.
The second class of Order it is proposed to make will amend certain United Kingdom legislation as far as it relates to Rhodesia. It is proposed to amend the British 515 Nationality Act of 1948 so as to make it easier for loyal Rhodesian citizens to obtain citizenship of the United Kingdom and Colonies; and to amend the Fugitive Offenders Act, 1881, so as to prevent the return of alleged fugitive offenders to Rhodesia unless the Secretary of State or other person issuing the warrant for his return is satisfied that it is not inexpedient that the fugitive should be so returned, having regard to the present circumstances.
The third class of Orders under the Bill will authorise some of the economic measures which were outlined by the Prime Minister yesterday. We shall amend the Import Duties Act, 1958, to remove Rhodesia from the Commonwealth Preference Area. Another Order will suspend the operation of the Commonwealth Sugar Agreement in relation to Southern Rhodesia.
A fourth class of Order will relate to the decision of the Government not to recognise passports issued or renewed by the illegal regime in Rhodesia. An Order enables the immigration authorities to confiscate passport documents issued or renewed by the illegal regime. Another Order provides that Part I of the Commonwealth Immigrants Act will apply to a citizen of Southern Rhodesia even though he has been issued with a United Kingdom passport in this country.
The Enabling Bill provides that the proposed Orders in Council should take effect as soon as they are made. They will, however, require to be approved by Resolution of each House of Parliament within 28 days.
Other measures the Prime Minister indicated do not need any new legislative authority. For example, the import of Rhodesian tobacco and sugar has been banned under existing statutory powers by Order under the Import, Export and Customs Powers (Defence) Act, 1939. We can exclude Rhodesia from the ability to borrow on the London Market under the Control of Borrowing Order, 1958.
The Government have also taken certain exchange control action announced yesterday, under existing powers available under the Exchange Control Act, 1947, and the Emergency Laws (Re-enactments and Repeals) Act, 1964. 516 Rhodesia has been excluded from the sterling area. All transactions between residents of the United Kingdom and residents of Rhodesia are now subject to exchange control. Exports of United Kingdom capital to Rhodesia will not be allowed. Control will be exercised over current payments and over cash, securities and gold held in the United Kingdom by Rhodesians.
I must turn finally to a grave aspect of this rebellion. We now know that not only has the illegal regime proposed to make a declaration of independence. They have gone further and pretended to give to the people of Rhodesia a new Constitution. We have not yet seen this document, but it would seem that one of its objects is evidently to usurp the authority of the United Kingdom Government and the sovereignty of Parliament.
In view of my responsibility as Attorney-General, it would not be appropriate for me to indicate here any conclusion on criminal liability in any individual case. But it is right that I should point out in general terms that there is abundant authority for the conclusion that conduct of the kind that has taken place is treasonable. So would be steps taken by anyone whether in Rhodesia or in this country, or by anyone else owing allegiance to the Crown, with the intention of furthering the objectives of the illegal regime or inciting others to take such steps.
I may say that nothing that I have said or that is proposed affects the complete independence of the Judiciary of Rhodesia or the duty of all lawyers in Rhodesia to play their part in upholding the rule of law.
§ Sir John Hobson
We are grateful to the Attorney-General for the statement he has made, largely about the legislative intentions of the Government. We shall need time to study the statement which we had not seen until a moment ago, and we shall no doubt be debating the legislative features of this on Monday and on future occasions when different Orders are brought forward.
517 I should like to ask the right hon. and learned Gentleman the following questions: first, does he regard the legal position in Rhodesia at present to be subject to the 1961 Constitution, although de facto it has ceased to operate or to be carried out by the Ministers who are now apparently in charge of matters there?
Secondly, could he confirm that when he speaks of the rights of the Government of the United Kingdom he means the Crown in the United Kingdom, and that the rights and jurisdictions as between this country and Rhodesia affect not Governments but the Crown and the Parliament of the United Kingdom—and that it is perhaps more accurate to speak of the rights of the Crown?
Thirdly)', could he elaborate what he said about the position of those who aid and abet those who have unconstitutionally taken control of the country of Rhodesia, in particular in relation to what the Prime Minister said yesterday about the position of the police, the armed forces and civil servants? The Prime Minister seemed to think that it was a matter of individual judgment for civil servants and the police in Rhodesia to decide whether they were or were not assisting the illegal Government. Is not any action that maintains law and order, that continues essential services, that assists in censorship, and that enables the present Ministers in Rhodesia to exercise export and import controls— is not every single one furthering the maintenance and stability of the illegal regime in Rhodesia?
If so, how can it be that civil servants and the police are under a duty and are advised to carry on until they get to a stage at which they, in their consciences, think that they ought not to carry on any further? In the individual case, what is the position of a policeman who, under the emergency powers that were passed before the illegal declaration of independence by a Minister in Rhodesia at present, is asked to arrest one of his political opponents? Would he have any defence to an action for false imprisonment? What is the position of these unfortunate persons who owe allegiance to the Crown who are now left and told by the Prime Minister to rely on their judgment? May we have advice from the right hon. and learned Gentleman as to 518 what is the true legal position affecting them?
The only other point is, why do we need to do anything about the Fugitive Offenders Act? Surely the Home Secretary already has discretion not to return fugitive offenders for political reasons and, presumably, no Home Secretary would receive or consider a request from the illegal Government and, certainly, I would suppose, the Home Secretary would never make a request to the illegal Ministers to return one of our fugitive offenders from that country. Why do we need to do anything on these lines?
§ The Attorney-General
It may be convenient to deal with the right hon. and learned Gentleman's four questions at one time. The answer to the first question he put to me is that the legal position is that the 1961 Constitution is still the legal Constitution of Southern Rhodesia. It remains so and, as I have said, it can be amended only by a Bill in this House. The right hon. and learned Gentleman was quite accurate in his constitutional reference to the rights of the Crown and Parliament.
In regard to the position in which the action of the illegal r6gime has placed the public servants in that country, as the Prime Minister said yesterday, the rebellion has imposed a cruel dilemma upon the public servants in Southern Rhodesia with, on the one hand, the duty to sustain law and order and, on the other hand, the duty to do nothing to further this illegal rebellion. It is a cruel dilemma. The Prime Minister will speak upon the matter in some detail in the course of today's debate. I do not think it would be proper for me, as Attorney-General, to spell out in any individual case, "Yes, there we should be in the presence of treason." It is a matter upon which general and specific guidance is admittedly difficult to give, but it is the responsibility fairly and squarely on the illegal regime that they have imposed this intolerable dilemma upon the citizens of Rhodesia.
519 With regard to the proposal about fugitive offenders, it is thought necessary to add to the discretion of the Secretary of State in the way in which the Order proposes. It is felt that the discretion should be extended wider than is presently available to the Secretary of State under the Fugitive Offenders Act.
§ Mr. Sydney Silverman
May I ask my right hon. and learned Friend two questions? First, in view of the embargo which the rebel Administration in Rhodesia has placed upon the dissemination of news, what steps do the Government contemplate taking to make known to the citizens of Rhodesia the effect of what he has just told the House? Secondly, what steps do the Government propose to take to protect the loyal inhabitants of Rhodesia against any exercise of illegal, tyrannical or oppressive power against them by the rebel Administration?
§ The Attorney-General
As to the first question, which is perhaps not a matter within the immediate responsibility of the Attorney-General, my right hon. Friend the Prime Minister will have something to say about this in due course. I know that my hon. Friend will not think me discourteous if I leave it in that way. As to steps to protect the loyal inhabitants of Rhodesia, the executive authority in Rhodesia at this stage rests in the Governor and there is clearly a duty upon those exercising authority in Rhodesia to protect the interests of loyal inhabitants.
§ Mr. Thorpe
May I ask the right hon. and learned Gentleman a question on one matter, namely, the power which will be granted under the Order to the Secretary of State to exercise executive authority? Is it not right that, technically, the Governor is empowered under the 1961 Constitution, Section 42, to exercise such authority at the moment and is therefore de jure the legal Government at this moment of Rhodesia? Is it suggested, therefore, that the executive authority will be concurrently exercised with the Governor? Is it suggested that if the Governor becomes incapable of acting those powers will then be taken over by the Secretary of State? In that event, will it not also call for a further amendment to the 1961 Constitution, 520 which specifically provides for named deputies or acting governors to be appointed in the event of the Governor being unable to act?
§ The Attorney-General
The hon. Gentleman has correctly stated the present position and what is contemplated. At present, the legal executive authority in Rhodesia rests in the Governor, but it is thought necessary in the circumstances in which the Governor finds himself or may find himself, to give power to grant to the Secretary of State what has been correctly described as concurrent authority with the Governor to exercise executive power in Rhodesia, to provide for a contingency in which the Governor may be unable to act.
§ Sir D. Walker-Smith
Like my right hon. and learned Friend and in common with other hon. Members, I should, of course, wish to study carefully the effect of the legal announcement which the right hon. and learned Gentleman has been good enough to make in the context of the factors which he has quoted. Might I ask him one question for clarification only? In regard to what he said in respect of measures to control or prohibit the importation of tobacco and sugar, is it his understanding of the position that, under the Act of 1939, imports are prohibited in the absence of a licence and that there now operates an open general licence in respect of these commodities and that that can be revoked by administrative action of the Board of Trade? Therefore, is it his understanding that action in respect of these matters will not be expressly subject to the sanction of Parliament, save only for the ordinary rights of hon. Members in Parliamentary interrogation of the President of the Board of Trade?
§ The Attorney-General
That is quite accurate. The action is taken administratively by the Board of Trade, by means of the control of export and import licences.
§ Mr. Taverne
Can the Attorney-General inform the House whether it is not the automatic consequence of the rebellion that any person who trades with or deals with or aids the rebel Government or those who support the rebel Government is aiding, dealing with and trading with the enemy?
§ The Attorney-General
I doubt whether I should commit myself to quite so all-embracing a proposition, but I would say, in all seriousness, that, the Government having prohibited certain transactions with the Rhodesians, engagement in those transactions would obviously be criminal participation. Those who wish to engage in other transactions may well find it prudent, in view of the risk to which they may expose themselves, to take legal advice before doing so.
§ Mr. John Hall
I understood the right hon. and learned Gentleman to indicate that those who gave succour or support or encouragement to the present illegal Government in Rhodesia, whether in Rhodesia or in this country, would be guilty of a treasonable offence. For the guidance of those outside the House and who cannot command the privileges of this House, can the Attorney-General say whether anyone who speaks outside or writes articles in support of the point of view of the present illegal Government could be impeached for treason?
§ The Attorney-General
Unlike the Rhodesian Government, it is not the intention of this Government to stifle the free expression of opinion, and clearly the free range of discussion about these 522 matters conducted in the Press will be permitted.
§ The Attorney-General
Clearly that is so. When I say "permitted" I mean that which is legal under the law. We are not going to set up any kind of censorship in this situation.
§ Mr. Speaker
Order. I know that hon. Members want to continue with this important aspect, but we shall shortly begin a general debate on Rhodesia.