HC Deb 15 November 1965 vol 720 cc824-52
Sir K. Pickthornm

I beg to move, in page 2, line 1, to leave out subsection (3).

The Attorney-General told us this afternoon that retrospection is bad legislation. There can be no doubt that, so far as it is regrettable, it is more regrettable when it is delegated legislation than when it is direct and when it directly conveys the authority of Parliament.

I can understand that there may be circumstances at the moment which would make it extremely inconvenient to the Government that legislation under subsection (3) should not be retrospective, and I do not wish to inflict on the Government in these circumstances any avoidable inconvenience. On the other hand. I do wish to make sure that the Government do not take power more than they foreseeably need, which is the practice of Governments and which I have resisted under Governments of all parties.

I refer to the taking of power to make Orders in Council which are not only retrospective immediately—in other words, which need to be retrospective to 11th November—but which may be succeeded continuously by more retrospections for at least the rest of this year. Retrospection of that type is a matter which should be plainly justified by the Government before the Committee accepts it. It is not a matter of course. It does not follow just because it is in the draft of the Bill.

We have not had long to table Amendments, and none of us has wished to put down more Amendments than might be necessary to ensure that certain points are on the record. The one I am making is one of them, and I hope that the Attorney-General—to whom I did make some attempt to teach history; though nothing would tempt me to teach the Solicitor-General—I hope that the Attorney-General will persuade his colleague to look up the word "nostalgia" in the Oxford Dictionary.

Mr. Thorpe

I wish briefly to oppose the Amendment on two counts. The first, to place the most favourable construction on the intervention of the right hon. Member for Carlton (Sir K. Pickthorn), is that he intervenes as a lawyer, as one who is opposed to retrospective legislation and as one who likes to see the House of Commons passing only legislation which has effect in the future. The right hon. Gentleman therefore raises this matter because he is opposed to any measure, even in the present circumstances, which smacks of retrospectivity.

I say at once that I am sure that the right hon. Gentleman raises this matter with the best possible motives. Indeed, from the point of view of retrospection, I well remember leading the opposition to the War Damage Bill—on the grounds that it was retrospective— and greatly regretting the fact that the entire Conservative Front Bench abstained from voting on that occasion. My quarrel is not with the right hon. Gentleman, but I respectfully suggest that there are two objections.

The first is that it is not as if we are changing the existing law retrospectively. We are dealing with a situation in which the established law has been violently trampled upon by the Rhodesian rebel Government as from 11th November. We are, therefore, compensating for the procedural inadequacies of this House to deal with a situation as at the very moment of 11th November when U.D.I. was declared. It is, therefore, a totally different situation from those in which arguments against retro-pective legislation are normally employed.

We are dealing with an act of rebellion. It is arguable that it is an act of treason. There has been far too much of the suggestion from certain quarters in the last few days that this is something with which we might compromise. I would say to those who are prepared to appease and to mollify, and who say, "We cannot have retrospectivity, and perhaps we could modify this sanction or the other", that we are dealing with treason. I believe that we cannot compromise with treason, and that the arguments against retrospection do not apply in this case.

Secondly, it is presumably suggested that …the supplemental, incidental and consequential provisions … could go very much beyond the purpose originally outlined in the Order in Council, but if that were done there would always be Parliamentary redress. The matter could then be raised in this House, because we in this country, at least, maintain democracy, even if they do not in Southern Rhodesia. I would therefore say that this is not a case in which lawyers should talk about the great dangers of retrospectivity. We are dealing with a case of treason, and I should like to suggest to members of Her Majesty's loyal Opposition that they might do a little more against compromising with treason.

Mr. Turton

The hon. Member for Devon, North (Mr. Thorpe) has clearly compromised with his principles. At one time he is in favour of retrospection and, at another, against it. I see the point in the subsection that for dealing with any matter regarding the Constitution of Southern Rhodesia it may well be necessary to have retrospective powers. In fact, the right hon. and learned Attorney-General, when justifying this retrospective power, said that it was necessary to establish the invalidity of the new Constitution. It is therefore quite right that, to that extent, we should have retrospective power.

I submit, however, that when dealing with …imposing prohibitions, restrictions or obligations in respect of transactions … this power is really an abuse of constitutional practice. This is not a question of dealing with the acts of a rebel Government but of dealing with transactions that have been conducted in good faith by people of this nation with other people in Rhodesia. That is where I think the retrospection becomes an odious form of legislation.

Let me give an example or two. I know that the Government have carefully chosen that the contentious ban on tobacco should be removed from Parliament by the device of using the 1939 Act, which was an emergency Act designed to last for the emergency. But suppose they wanted to put a ban on a commodity— let us say, beef—and were using the power under Clause 2(3) to prohibit it, it would be monstrously unfair to say that all transactions in beef that had been entered into by the businessmen of England with Rhodesian farmers were invalid and illegal because, a year later, the Government had put a ban on beef. That is an abuse that can be allowed for under this Bill. Equally, in three months' time the Government might say that it is illegal for people to fly scheduled air services to Rhodesia. If one could backdate the illegality to 11th November of this year it would clearly be an abuse, and I am sure that the Government and the right hon. and learned Attorney-General would not want to do that.

Therefore, if the Government cannot accept the deletion of the whole of the subsection they could limit the second part—line 4—by stating "…any provision made by or under subsection (2,a) or (2,b) of this section may have an effect from a date not earlier than 11th November, 1965." If they cannot do that here and now, they can do it in another place. We should be very careful not to break all constitutional principles when trying to deal with an illegal act by a rebel Government.

10.30 p.m.

Sir K. Pickthorn

May I ask a question which I put earlier in the day? I have been reminded of it by the hon. Member for Devon, North (Mr. Thorpe). He said that we need not worry because any regulations under the Orders in Council which purported to be retrospective would be magicked away by democracy. That does not necessarily follow. I inquired earlier this afternoon—

Mr. Thorpe rose

Sir K. Pickthorn

Perhaps the Attorney-General can tell me now. Is there to be provision to make sure that regulations—what he may remember were called "grandchildren" of Parliament not the Orders in Council but regulations under them—are we to understand that under this Bill those regulations will all come as a matter of course to our attention and all be open to control by this House?

The Attorney-General

The Amendment which has been proposed is to leave out subsection (3) of Clause 2. There are two limbs to subsection (3), but I understand from the speeches of those who have supported the Amendment that they are concerned with the second limb. dealing with retrospection.

The Committee will have noticed that the retrospection is limited to the date of the rebellion. If the Government could not make Orders with retrospective effect to that date, the Government could be gravely hampered in dealing with the actions taken by the illegal regime in the meantime. The right hon. Member for Thirsk and Malton (Mr. Turton) was sensitive of this point and referred in particular to the constitution which the illegal regime has purported to issue to the Rhodesian people. We need this retrospective power, and this is an admirable illustration of the need for it. to deal with that kind of action.

Orders in Council which will be issued under the authority of the enabling Bill when it becomes law will contain an express reference, if they include any element of retrospection, but without the general provision to make retrospective Orders in an enabling Bill, as the Committee knows, that power cannot be claimed for Orders in Council. These Orders will come before the House in due course and clearly they will not be exercised arbitrarily. This limited power of retrospection is necessary in the circumstances and I accordingly advise the Committee to reject the Amendment.

Mr. R. J. Maxwell-Hyslop (Tiverton)

Can the Attorney-General advise us on one point? Whereas, I think, the Budget comes into effect the moment it is read. at that time during the day, if I read this provision aright it would be possible by an Order made under the Council to be retrospective—not to the moment when the illegal declaration of independence was made, but to earlier in the day when there was still a legitimate Government. Is that correct? The provision merely gives the date of 11th November.

The Attorney-General

No. It is clearly intended not to antedate any retrospective proposal to a date earlier than 11th November. The terms of the subsection make that quite clear. The retrospection takes effect only in the period from 11th November to the date or the Order in Council when that in due course is issued.

Mr. Maxwell-Hyslop

The Attorney-General has missed the point. A considerable part of the day had gone by before this happened. The reason why I press the point is that in making any Orders which refer back to this date I wish the Government to make sure that those Orders are operative only from the time when the illegal declaration was made and not before. This is a point of some substance. Will the Attorney-General give an assurance to the Commiltee that this will not refer just to the date but from the time of the illegal declaration and before then?

The Attorney-General

I should have thought that I had made it clear that the retrospection will date from the moment when the illegal declaration of independence was made, namely, the date 11th November, 1965.

Amendment negatived.

Mr. Turton

I beg to move, in page 2. line 11, to leave out "twenty-eight" and to inser: "seven".

This is, to me, the whole kernel of the objection to the Bill. Normally, when we have the affirmative procedure it is a seven-day period, because these are important matters and it is right for Parliament to debate these matters as early as possible. Most of the Orders which have been mentioned by the Government are ones which I think are necessary and approve of. The one I object to is the ban, because I think it is wrong and I think it will be ineffective.

It is vital, if we are to preserve our Parliamentary democracy here, in the face of an unconstitutional act, that we should bring these matters to Parliament at once and discuss them, however inconvenient it may be to Parliament. In the old days it was always seven days for affirmative Resolutions. In 1939, when we had a war and there was the danger of bombing and the inconvenience of calling the House together quickly, that was extended under the Emergency Powers Act, 1939, to 28 days.

I agree that there is the precedent of the 1939 Act for this, but this is not a war. I hope it is not. This is a time when we constitutionally want to get the Government to bring these matters early to Parliament. It is no good the Solicitor- General saying, "It is all right. If the two Front Benches put their heads together, we will have this early". This is not the way to conduct matters in Parliament. The back benches, or even the Liberal Party, have occasionally to be consulted in these matters.

Therefore, I beg the Government to think again, because these are matters of great constitutional importance. If it is a trivial Order, of course there is no difficulty about the Government bringing it in in one or two days, because it will not be challenged. The only time a question will arise is when a great number of Members want to voice their doubts about an Order. Therefore, let us try to deal with an unconstitutional act in a constitutional way. It is a great pity that the House of Commons has lately got into the habit of saying, "It is all right. We have put it in the Bill, but the ' usual channels' and the old boy principle will preserve democracy". We should not tolerate this in a 1965 Parliament.

I beg the Government to think very carefully again about this. This is a matter to which many of us attach great importance. They will lose nothing by giving way on this point and making the 28 days 7 days. It may mean that the House has to sit a little late to get these Orders through, but these are important Orders. As these are matters which all of us, whatever varying views we hold on this, think are grievous matters which we want dispatched as quickly as possible, this change should be made.

Sir Knox Cunningham

I support the Amendment. On Second Reading the Solicitor-General said that any important Order would be brought in early. It would not take 28 days. If that is the case, surely there is no reason why seven days should not be substituted. In the case of Orders which were not important there would be no discussion in the House and they could go through without loss of time. I ask the Government to accept the Amendment. I am sure that if they did so it would make a considerable difference to the feelings of the Committee on this matter.

Sir C. Taylor

I contest the whole idea of the Order in Council procedure being used in a Bill of this kind. The Government would have been much wiser if they had introduced one-Clause Bills. Orders in Council are—

The Chairman

Order. All we are discussing now is whether the period should be 28 days or seven days.

Sir C. Taylor

Very well, Sir Samuel, I will wait until we are on the Question, "That the Clause stand part of the Bill". I intended to deal with the 28 days but if I catch your eye I will speak, if I may, on the main Motion.

Sir K. Pickthorn

I think that the point has been made clear enough. [HON. MEMBERS: "Hear, hear."] Hon. Members opposite are a little unreasonable. I have been kept up all night by them on a Bill very much like this one but not so bad. We on this side have been very good. We have kept ourselves as short as we could and have put down the absolute minimum of Amendments, but even now, with ingenuity, I can make the debate last a long time if I put my mind to it. A certain amount of decency in the exercise of excessive power on an occasion like this is the least we can expect, even from them. It is very dangerous when a Government start to identify themselves completely with the national interest. What is the minimum of special regulations which will protect the country against its enemies? What is the minimum here—28 days or seven? All the earlier words which I used after rebuking hon. Members opposite below the Gangway came from Sir Stafford Cripps.

The Attorney-General

The proposal it the Amendment is to reduce to seven days the period within which the Government would need to seek the leave of both Houses for Orders in Council that are proposed. I assure the Committee that, of course, the Government are determined to proceed constitutionally to deal with rebellion. Indeed, it would be a very strange turn of fate if it were to do otherwise, but the proposal is that the Orders in Council shall require the affirmative approval of both Houses within 28 days.

The right hon. Member for Thirsk and Malton (Mr. Turton) has referred to the precedent of the Emergency Powers (Defence) Act, 1939, which also had that period of 28 days, but perhaps I should remind him that the Orders referred to in that case, being Orders imposing charges, needed the approval only of the House of Commons, not of another place, so that the Government had more time to get Parliamentary approval than they are allowing themselves in the present case.

10.45 p.m.

My advice to the Committee is that a period of seven days would be an impossibly short time in which to get the necessary Resolutions through both Houses. I have more than once given the Government's assurance that it is, in fact, intended to introduce, in particular, the Orders in Council of substance at the earliest possible time, which will be very soon, and having given that assurance to the House and referred to the precedent of 1939—there is, incidentally, in the Agriculture and Horticulture Act, 1964 a precedent where the period is 40 days— I ask the House to reject the Amendment. We are not asking for 40 days or, indeed, for 40 nights. We are asking for 28 days. My advice to the Committee is that that is a reasonable period.

Amendment negatived.

Question proposed, That the Clause stand part of the Bill.

Sir C. Taylor

I deplore the principle of using Orders in Council in a Bill of this nature.

The Chairman

Order. I hope that hon. Members will carry on their conversations more quietly.

Sir C. Taylor

During the war, as a matter of emergency, the House accepted the principle of Orders in Council, but I should have thought that it would be more practical and far better on this occasion if the Government presented a series of one-Clause Bills which, if reasonable, the House would not hold up.

I remind the Committee that an Order in Council cannot be amended. It must be either accepted or rejected. That is a great disadvantage. If we had a series of one-clause Bills it might save the Government time eventually because there might not be opposition to such a Bill but only in matters of detail.

I should like an assurance on another point. I have had considerable experience of Orders in Council. As my right hon. Friend the Member for Carlton (Sir K. Pickthorn) has said, they can have grandchildren. An Order in Council can state that further subsidiary Orders can be made by the Minister concerned and that these are not liable to be vetted by the House.

I hope that the Attorney-General will assure us that, if there have to be Orders in Council, we shall not have such a ruse and that an Order in Council will not say that subsequent Orders to be brought in will not be subject to the vigilance of the House.

Mr. Peter Emery (Reading)

I have two purely Committee points with which I did not wish to bother the House at an earlier stage. The powers that are being granted under this Bill are as extensive as is possible and I ask for an assurance that the Government will use the Bill in all instances in the future for any action they intend to take in dealing with the Rhodesian problem.

It is obvious that so far—and this matter has been skirted round—emergency powers have been used. I believe that no one would suggest that the Defence Regulations were intended to deal with this sort of situation. However, I can understand the Government's position in having to use them until this Bill becomes law. But a number of us on this side of the Committee would feel it wrong, once we had given the Government this Bill, if they were not to use it to deal with any matters concerned with Rhodesia in the future and were to resort to powers that exist at the moment.

Secondly, in dealing with any Orders in Council as Statutory Instruments, I hope that the Government will fully consider that they should not use the power to revoke in certain agreements but shuld rather use suspension. I give a direct example. The powers under the Commonwealth Sugar Agreement allow the Government immediately unilaterally to revoke the present quota with any country. It would, I believe, be wrong for the Government to wish to revoke when, under this Bill, they could suspend.

If they revoke, they are taking away the direct carrot which might exist for the Government of the Governor in Southern Rhodesia to try to get people to gather round some form of administration in opposition to Mr. Smith. If they merely suspend, the Government, if they wished, could immediately restore the position. If they revoke, that may not be possible. I hope that the Government will fully consider that when drafting Statutory Instruments in order to try to ensure that suspension rather than revocation is the action taken.

My two points are quite simple: using the Bill rather than any previous powers and my direct question about revocation and suspension.

Mr. J. Amery

The Attorney-General has been extremely inflexible in his remarks so far, and the same has been true of the comments of the Solicitor-General. If the Government are to appeal for national unity in this matter, they should try to make a slightly greater effort to meet the very reasonable criticisms which have been made from this side of the Committee.

Having served in the Colonial Office and having had some experience of colonial emergencies, I fully appreciate that the Executive must have power to act swiftly where it has direct responsibility, but that is not yet the case with Her Majesty's Government. They do not have administrative responsibility inside Rhodesia, or, at any rate, the means to carry it out. It would help the Committee if the right hon. and learned Gentleman could give us some idea of the kind of circumstances in which he thinks that action would have to be taken very swiftly and yet the House of Commons need pass its judgment only 28 days later. This could not by any stretch of the imagination apply to the Commonwealth Sugar Agreement or the provisions of the Fugitive Offenders Act. Perhaps the right hon. and learned Gentleman will give us a hypothetical instance of the kind of circumstance in which the Government would have to act quickly and yet would not be able conveniently to come to the House for as long as 28 days.

I want also to refer to the power to make a new Order. The Solicitor-General said that the words could be interpreted in a way which would allow the Government to repeat an Order if it had not been automatically approved by the House, but that this would never happen. In that case, why do the words have to be there? Could the provision not be expressed differently? Having swallowed the 28-day period, if we are to swallow it, it is a little difficult on top of that to have to swallow this provision about a new Order.

The Solicitor-General was extremely unreasonable in refusing to give an assurance that if the Official Opposition asked for a recall of Parliament to discuss any Order which might arise in the three or four months of the Summer Recess, their request would be granted. The Government have appealed for national unity in all this matter, but if they are to go on like this they cannot expect the full co-operation of the House of Commons when we debate any Orders which may come forward.

11.0 p.m.

Sir David Renton (Huntingdonshire)

I wish to refer to the position of the Rhodesian police, and it may be in order for me to do so in view of the words in Clause 2(1): Her Majesty may by Order make such provision in relation to Southern Rhodesia, or persons or things in any way belonging to or connected with Southern Rhodesia … The Rhodesian police may well find themselves in quite a dilemma now and in the few weeks which are to follow. They, like the police in this country, are officers of the Crown, responsible for the enforcement of the law. One would hope that they would take the same view of their duties as the judges have taken of their jurisdiction, but above all—and this has already been conceded by the Prime Minister in an earlier debate—it is in the interests of all concerned, especially in the interests of the people of Rhodesia at large, that law and order should be mantained.

The police will find themselves in a somewhat unusual position. They may well find themselves attempting to enforce valid laws, but doing so at the behest of an illegal government. I think that the police are entitled to clarification of their position and they should have a good deal of indulgence from Her Majesty's Government. I hope that if any police officer in Rhodesia who has ties with the United Kingdom finds that he cannot conscientiously continue to do his duties, the United Kingdom Government will do something for him if he loses his position in the Rhodesian police. I would be grateful for enlightenment from the Attorney-General as to what the attitude of the Government would be towards such a police officer.

A further point I wish to raise arises from subsection (2,c) which gives power by Order in Council for imposing prohibitions, restrictions or obligations in respect of transactions relating to Southern Rhodesia or any such persons or things … I would be grateful if the Attorney-General would tell us quite clearly whether the proposed embargo on purchases of tobacco is on the basis of existing powers to restrict imports to this country or whether the Government propose to lay an Order in Council under this subsection. It is very important that we should know that. This is a very grave matter.

I am not totally opposed to all sanctions proposed by the Government, and I think that some of them follow from the circumstances in which we find ourselves, but this tobacco sanction is one which the House should consider very carefully before supporting it. The last tobacco crop, as I understand it, has already been sold and, therefore, it does not enter into the picture, and harvesting of the next crop will not start until next April. A great deal could happen between now and then, and one hopes that many of these matters will be resolved to the satisfaction of the United Kingdom and the people of Rhodesia. If not Her Majesty's Government will find themselves—and I would like clarification on this point—having to ask the people of this country drastically to reduce their tobacco smoking, or finding large sums of dollars, something in excess of £25 million, in order to replace—

The Chairman

Order. I think that the right hon. and learned Gentleman is getting very wide of the Clause which we are now discussing.

Sir D. Renton

I am sorry, Sir Samuel. It was quite unintentional. I hope that I have said enough on this Clause. We are giving the Government very wide powers to impose a complete embargo. I was merely raising this issue in order that the Committee might be certain of the character of the powers which it is giving to the Government, especially on this specific issue. Nothing affects the economy of Rhodesia more than the purchase of tobacco by this country from Rhodesia.

I hope that I have said enough to alert hon. Members to the very drastic nature of this power. Exercise of this power could not be said to be directed specifically against the illegal government in Rhodesia, but it would hurt us and the whole population of Rhodesia if it were stringently enforced.

Mr. Grieve

I hope that I shall not delay the passage of this very important matter too long if I take up again the point that I made when I intervened in the speech of the Solicitor-General in the debate on Second Reading. I refer to the inclusion of the power to revoke any provisions of the 1961 Constitution which is. contained in subsection (2,a) of Clause 2 of the Bill.

I am bound to say that I do not recollect having heard from any Government spokesman in the course of the debates on the Bill any satisfactory explanation as to why this extremely wide power should be contained in the Bill.1have asked the learned AttorneyGeneral what conceivable contingency which may arise in the extremely serious situation in which we find ourselves could not be met either by the suspension or by the amendment of the 1961 Constitution.

As it stands, subsection (2,a)of Clause 2 gives the Government power by executive act to review not only any part, but, since any part may include the whole if taken together, the whole of the 1961 Constitution, and to revoke it. When that is read with subsection (3,b)of Clause 3, which provides that the Constitution of Southern Rhodesia 1961 as in force immediately before the expiration of that section shall not be affected by the expiration of Section 2, the Government have power under that to revoke the 1961 Constitution entirely.

Why should the Government take that power? What conceivable contingency would not be met by the suspension, if necessary, of the whole of the 1961 Constitution for as long as is deemed expedient?

What worries me and a number of my hon. Friends is the effect that the inclusion of this power in the Bill will have upon moderate opinion in Rhodesia. Will many people of moderate opinion who might rally to the legally constituted Government of Rhodesia and oppose the rebellion not in the last resort not be very worried by the inclusion in the Bill of the power—because such it is—to revoke the 1961 Constitution by Order in Council under the Bill?

I ask the Attorney-General the direct question, would it not be better to sacrifice and strike out the revoking power, which I am boqnd to say seems to me to give the Government no further power than would be given to them by the power to suspend in any contingency that one might foresee?

I ask the learned Attorney-General to deal specifically with that point, on which I, for one, think that we have had no satisfactory explanation.

Rear-Admiral Morgan Giles (Winchester)

Before we leave the Clause, may I make a very short point about the terms in which it has been discussed in Committee?

Hon. Members on both sides will perhaps agree with me in deploring the frequency with which we have heard such words as "treason", "illegal regime", "rebel Government", and so on used by several hon. Members.

The Chairman

Order. It does not arise on the Clause.

Rear-Admiral Morgan Giles

Then may I pass on and say that, before we leave the Clause, such provocative words as we have heard used are really a very poor way of describing people who, for better or for worse, have had to make a most agonising decision.

The Chairman

Order. This really does not arise on the Clause.

Mr. Hugh Fraser (Stafford and Stone)

I wish to raise the question of the removal from Rhodesia, and from those trading with Rhodesia, of the export guarantee arrangements. Will the removal of these guarantees be under existing powers or by Order in Council? This is a very important point, because throughout these debates, which doubtless are going to be of an extended sort over the next month or two, we have to consider not merely the interests of the policy of this Government and of this House, but the effect that these sanctions may well have on the people of this country.

To put forward the removal of export guarantees from our own exporters seems, without any explanation, to be a possible blow to the economy of this country. Do not let us delude ourselves that there are not others who will step into this breach. Do not let us delude ourselves that we are not at this moment giving export guarantees to countries which are frequently hostile to our 'so-called grand alliance. We are giving export guarantees to Cuba, to Red China, and to many other parts of the world whose policies are entirely in opposition to our own grand policies.

To inflict on the exporters of this country this assault of sanctions, which will merely be against the interests of the British trader, without any effect on Rhodesia, needs the earnest consideration of this House, because there is no question but that the gap which we are creating by the removal of these guarantees will quickly be filled by others.

The Chairman

Order. The right hon. Gentleman is going much wider than what we are discussing.

Mr. Fraser

I am sorry, Sir Samuel, but I do not want to be put aside by a passing answer to this question. I am asking a vital question, namely, whether or not this is to be carried out under existing powers, or by a special Order in Council, and I am merely making it clear to the Attorney-General that what I am asking is not a trivial question, but one that is important to many people in this country, both workpeople and employers.

Mr. John Hall (Wycombe)

I rise to make one point. It relates to the problem of freedom of speech in this country. On Friday I raised this point in an intervention in the speech of the Attorney-General, when I said: 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 answer the House received seemed to be satisfactory, because the right hon. and learned Gentleman said: …it is not the intention of this Government to sufle the free expression of opinion, and clearly the free range of discussion about these matters conducted in the Press will be permitted."—[OFFICIAL REPORT, 12th November, 1965; Vol. 720, c. 521.] Today some doubt seems to be thrown on this, and the interpretation of absence of censorship seems to be rather narrow. It is important from the point of view of people outside this House who may wish to comment on events to know whether or not, if they write an article or make a speech, at the end of which they may come down on the side of the present illegal Government—

The Chairman

Order. I cannot see how this has anything to do with what we are discussing.

Mr. Hall

With respect, Sir Samuel, I would refer you to Clause 2(2,c) which I would have thought had considerable reference to what I am saying, because it provides power for imposing prohibitions, restrictions or obligations in respect of transactions relating to Southern Rhodesia or any such person or things, as appears to Her Majesty to be necessary or expedient as aforesaid", and so on. The Government may be prepared to impose a particular restriction on persons in this country who make certain speeches, or who write certain articles, outside the confines of this House. It is very important from the point of view of the Press and of authors of communications in this country that they should know exactly where they stand.

If, rightly or wrongly, something is said outside the House which is designed to show to the general public that the writer or speaker supports what is being done in Rhodesia, will that person be guilty of treason? If so, could they be impeached and brought before a court in this country? I am asking only because it is important that the House should be quite clear and that people outside the House who may wish to write or comment upon the events of the last few days should be clear where they stand.

11.15 p.m.

Mr. John Biggs-Davison (Chigwell)

I want to reinforce what has just been said by my hon. Friend the Member for Wycombe (Mr. John Hall). It is necessary that Her Majesty's Government should make it much clearer than has been made already what are the rights and liberties of the subject on the question of comments on the Rhodesian situation. It seems that Her Majesty's Government are now pursuing a course of intimidation by ambiguity. All this talk of treason, treachery and traitors to which reference has been made in this debate is becoming rather immoderate and is getting a little out of hand. There was never any such talk at the time when another group of colonists were actually at war with this country. People who sent the rebels money and gave them comfort were never indicted for treason. I have referred to a certain gentleman who was indicted for libel for sending money to the rebels. We should be clearer about this and not have this vague reference made in the hope that some people may be intimidated.

I want to say something about the question of revocation. The Committee is grateful to the learned Attorney-General for the courtesy with which he has met our points. This is in sharp distinction to the demagogic and irresponsible ranting with which his learned colleague wound up the Second Reading debate. It came ill from a Treasury Bench which was asking for national unity in these matters. We are grateful to the Attorney-General.

I simply want to ask him—because he is learned in the law and I am not— how the Government would be in any way disadvantaged if the word "revoking" ere omitted. The words "suspending, amending or adding to any of provisions of the Constitution" would give the Government all the powers they desire.

Reference has also been made to certain measures that the Government will take referring to further embargoes. I am alarmed on constitutional grounds at the wide extent of the prohibitions, restrictions or obligations, and the powers which the Government are proposing to take to themselves in respect of those prohibitions, restrictions or obligations. These, presumably, could include an oil embargo or a complete trade embargo. These are great questions, which should be brought to the House for legislation. I do not see any reason why they could not be. The House is quite capable of passing legislation with the necessary speed in the national interest. I am keenly concerned at the wide scope of Clause 2(2,c).

Mr. F. P. Crowder (Ruislip-North-wood)

I should be most grateful if the Attorney-General would tell the House exactly what constitutes treason and where people stand, whether they be in the public service or in the judicial department. It seems to me that people are genuinely worried about this situation.

Mr. W. T. Williams (Warrington)

On a point of order. So far as I know, there is nothing about treason in Clause 2. If there is, I shall be glad to be directed to it.

The Chairman

If the hon. and learned Gentleman is out of order, I shall call his attention to the fact.

Mr. Crowder

I appreciate that, Sir Samuel, and I am grateful. I do not wish to embarrass the Attorney-General, but the Committee should face this question. He was faced with this matter early last week. The House of Commons and the people of Rhodesia want to know what the Government's view and the Law Officers' view is of treason in law. I think that I know what it is, but I am not going to say so—

The Chairman

Order. The hon. and learned Gentleman is getting a little wide of the Clause.

Mr. Crowder

I am much obliged, Sir Samuel, but I have managed to put my point to the Attorney-General, that there is no reason, in my view—I say this subject to your Ruling—why he should not give that definition to the House tonight.

Sir J. Hobson

I am sorry to add to the burdens of the Attorney-General, who has so many questions to answer, but there is just one point which I should like to put to him. Can he assure me that a view I have formed is wholly wrong— which is an unusual request from me to him. I have formed the view that, under Clause 2 as it stands, it would be possible for the Orders in Council to provide that Ministers should be able to make subsequent Regulations. This is the point raised by my hon. Friend the Member for Eastbourne (Sir C. Taylor) and by my right hon. Friend the Member for Carlton (Sir K. Pickthorn).

This is important, as it affects Parliamentary procedure, because it would mean, if I am right in my view, that it would be impossible for the Government to arrange, under Orders in Council, for what are called "grandchildren" Regulations. I should like, first of all, to get the view of the Attorney-General as to whether it is correct to say that Orders in Council could allow Ministers to make delegated Regulations without any Parliamentary supervision. If that is the position in law, will he say that the Government will, on every possible occasion, avoid that procedure, and not put in Regulation-making powers for Ministers unless it is absolutely vital and there is no other way of dealing with the matter?

The Attorney-General

I have been asked a multiplicity of questions. Some of them raise matters which were debated at considerable length on Friday and again today. Accordingly, I must ask forgiveness if I do not go into those matters which have been traversed at some length already. But I will deal with two specific matters upon which my assistance has been sought by the Committee.

In regard to the position of "grandchildren"—which is a term of art to which I have become accustomed in the course of the day—these, I am instructed —or I am informed—[Laughter.]—I must not revert to the happier days when I was in receipt of instructions—I am informed that "grandchildren" are not within Clause 2(5). In particular, "grandchildren" can be subjected to Parliamentary scrutiny by express provision of the parent Order in Council. An Order in Council which will do that does precisely this, as the Committee will see in due course when the Order in Council is presented to the House.

I was asked by the hon. Member for Reading (Mr. Peter Emery) what the position was in regard to revocation. The broad position is that the only power of revocation which is provided for in the Bill relates to revocation of provisions of the Constitution. What will be done in regard to the sugar quotas will be suspension rather than revocation. So we are concerned, in this respect, entirely with revocation of provisions of the 1961 Constitution.

The necessity for the provision for revocation is that, when one amends one part of a Constitution, one may be left with residual "dead wood" which will call for revocation. I assure the Committee, as I have done before and as the Prime Minister has done, that it is not intended to engage upon any major revocation, or, in other words, to rewrite the 1961 Constitution, without the matter being brought before the House. I have said that several times, and I hope that the Committee will not think that there is any sinister purpose in the inclusion of the provision for revocation.

I was asked by the right hon. Member for Preston, North (Mr. J. Amery) whether I could give some hypothetical instances in which the Government might be faced with a situation requiring them quickly to introduce an Order in Council in which it would not be practical for the matter to be dealt with by requiring the leave of the House before the Order in Council could take effect. I think that that was his point. All I can say about that is that we are dealing with a rebellion, with a dangerous situation which is liable to change from day to day. I do not think that it would be right for me, whether as Attorney-General or in any other position which I might hold, to conjure up tigers from the dark or to speak of catastrophes which may not arise.

We hope that the strong position and firm stand being taken by the Government will still rally men of good will to the rule of law and proper, legal constitutional development. I feel that I should not be pressed by the Committee to describe the kind of hypothetical situation which the Government might find themselves in where these powers were necessary, and I am sure that the right hon. Gentleman, with his experience, will, on reflection, think that that is a reasonable position to take.

Sir C. Taylor


The Attorney-General

Will the hon. Gentleman allow me to continue? I hope he will not think me discourteous. He has not honoured the Committee or the House by his attendance today—

Sir C. Taylor

Yes, I have been here and I have spoken.

The Attorney-General

If that is so, I immediately withdraw what has been discourteous on my part. But I have been asked a lot of questions, the hon. Gentleman has had his run, and perhaps he will let me proceed.

Sir C. Taylor

I wanted only to clarify the point which the Attorney-General is making. If he thought it necessary to introduce an Order in Council, say, two days before the Easter Recess, the Whit-sun Recess or even the Summer Recess, what would be the position of the House at that time?

The Attorney-General

If a sudden crisis were to arise—again, I do not think that I ought to outline a hypothetical situation which may not arise; one does not want to put ideas into the heads of rebels or, indeed, anyone else in Rhodesia—but if a situation arose in which urgent action of that kind took place involving a fundamental Order in Council taking massive new powers, I have little doubt that the Government would want to consult the Opposition in the ordinary way, and the matter would have to be dealt with, perhaps by recall of the House. I know not. Certainly, we cannot exclude that from the possibilities of the future. But, as I say, I hope that it will not arise. It is because we want to deal with probable situations which may arise that we are seeking the general powers under the Bill.

The right hon. and learned Gentleman the Member for Huntingdonshire (Sir D. Renton) asked me questions about general matters regarding the agonising dilemmas of the police and public servants, and I can do no more than remind him of what my right hon. Friend the Prime Minister said in this connection on Friday. But there is one matter on which I can, I think, give some assistance. The right hon. Gentleman asked whether the proposed tobacco embargo would be based on existing powers. The answer is "Yes". The tobacco embargo came into force today, 15th November, under the Government's powers under the Import of Goods (Control) Order, 1954.

I make no party point in underlining the date 1954. The position is that the importation of goods into the United Kingdom generally is prohibited—and I confess that I found this a fascinating point, of which I was not aware until last night—except under the authority of Board of Trade licence. That is under the authority of the Import of Goods (Control) Order, 1954, which is made, in turn, under the authority of the Import, Export and Customs Powers (Defence) Act, 1939. I have no doubt that the right hon. Gentleman was familiar with those legislative provisions. Thus, a ban on the import of tobacco and sugar was made under the power of that 1954 Order and, as I have said, that has come into force today.

11.30 p.m.

Mr. Turton

Would the Attorney-General explain how that Order and the powers under the 1939 Act were excepted from the general repeal of all emergency legislation, with certain exceptions, under the Emergency Laws (Repeal) Act, 1959?

The Attorney-General

I do not have an immediate answer to that question. However, the position is that the Import of Goods (Control) Order, 1954, retained its validity and the ban on the import of tobacco has been operated under the terms of that Order. An instruction was issued taking effect today, 15th November, which was Amendment No. 4 to the open general licence dated 14th December, 1964, granted by the Board of Trade.

As the Government have that power already, it is proper that the power should be used to achieve this purpose, which the Government regard as essential and as showing the seriousness of our intentions in regard to economic sanctions.

It is true that it is not proposed to use the machinery of the Enabling Bill because, as I say, the Government have the legal power already. But, of course, this House has the means at its disposal, if it does not approve of the exercise of this power—by Motion, on a Supply Day or by various other means—to express its disapproval if it wishes to do so. Happily, the procedures of the House give abundant opportunity for disapproval to be expressed.

Mr. Peter Emery

Is the right hon. and learned Gentleman aware that I put a specific question to him on this point? One can understand that the Government would use these powers when they did not have the Bill before the Committee I asked whether the Government would give an assurance that, when dealing with Rhodesia in future, they would use the powers, extensive as they are, contained in the Bill and not use any powers contained under any other legislation.

Hon. Members


Mr. Peter Emery

Because the powers under the Bill are so wide and extensive and were, in any case, asked for by the Government specifically to deal with the Rhodesia problem.

The Attorney-General

The Government will have to consider the nature of any future action they may have to take. All I wish to say is that they will, of course, take the House into their confidence in regard to the actions they take, but what precise legal powers they exercise the Government themselves will have to determine. I cannot give an omnibus undertaking as to what legal powers in regard to any critical situation the Government may need to use. The Government have to govern, and govern in a position of danger and rebellion, and I am quite sure that right hon. and hon. Members would not wish to tie the hands of Government: when the dogs of rebellion begin to run wild, one knows not what the end of the day may bring forth. I respectfully submit that the Government have indicated their wish to be frank with the House and for the House to have a full opportunity of debating the matters that arise.

I have now received reinforcement of the information I tentatively expressed to the House, that the Import Etc. Act, 1939, was not repealed in 1959.

The right hon. Member for Stafford and Stone (Mr. Hugh Fraser) asked me about export guarantees. The Government are not seeking further powers in respect of export guarantees; they are just not going to give any more in respect of Rhodesia.

The hon. Member for Wycombe (Mr. John Hall) and the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) asked me a question about the law of treason, but fascinating as I would find a dissertation on the subject I doubt whether the Committee stage of this Bill is an appropriate occasion for the Attorney-General to make it.

A question was raised by several hon. Members about some observations I made, with astonishing innocence, when I made my statement on Friday on certain legal aspects resulting from the illegal declaration of independence. The hon. Member for Wycombe asked … 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? I gave the answer: 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 matters conducted in the Press will be permitted There was a great sigh from below the Gangway when I said that, as though I was very kindly permitting free discussion of opinion in the Press. The right hon. Gentleman the Leader of the Opposition intervened, saying: The right hon. and learned Gentleman refers to discussion in the Press. Presumably he means that discussion of any kind or on radio or television would obviously be covered. To that, I replied: Clearly that is so. Then I thought that I would explain my use of the word "permitted", which suggested that I was engaged in an act of generosity to the members of the Press by permitting them free expression of opinion. I said: 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."—[OFFICIAL REPORT, 12th November, 1965; Vol. 720, c. 521.] Now I am pressed about the use of the words: When I say ' permitted ' I mean that which is legal under the law. Of course, that is absolutely right. If, for instance, a newspaper in this country engaged in incitement to treason or sedition in relation to the Rhodesian rebellion, it might well be guilty of criminal acts and might well be liable to prosecution. That is the position under the law. It has always been the position under the law, and the position is unchanged by the circumstances of the rebellion. So one cannot give either as Attorney-General or in any way a free range to the Press either to engage in sedition or treason.

This Government are determined to proceed legally and constitutionally in this matter and to use legal and constitutional methods to meet illegal rebellious treason.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 3 and 4 ordered to stand part of the Bill.

Bill reported, without Amendment.

Motion made, and Question proposed, That the Bill be now read the Third time.

11.42 p.m.

Mr. Wall

I hope the Government realise that so far as I and, I believe, a number of my hon. Friends are concerned, they have been given the Bill reluctantly. They have been given it because it is established that penalties must flow from the illegal action of Mr. Smith in Rhodesia and that it is necessary to assist the Governor in maintaining constitutional government in Rhodesia.

I believe that the choice before the Government in their dealing with Rhodesia will lead either to chaos or conciliation. I must say that after the speech of the Attorney-General it seemed likely that they would choose chaos rather than conciliation. I wish to make clear that I and many hon. Members on this side of the House are wholly opposed to punitive sanctions, and if the Prime Minister comes to the House in a week or so, as I believe he may, and ask for the imposition of oil sanctions on the excuse that the United Nations will intervene unless these are imposed, then I hope that the request will be fought tooth and nail in this House and in the country. I hope that the message has got through to the Government, thus far and no further.

11.44 p.m.

Sir Peter Roberts (Sheffield, Heeley)

I do not propose to detain the House for long. I was unfortunate in not being able to get in during the Second Reading, but that is not the reason for my intervening now.

Having listened to arguments on both sides and arguments on the Amendments put forward in Committee, my experience leads me to believe that the sanctions which we are considering at the moment will not be effective. If that is so, the ultimate result of what we are doing may lead us unwillingly into force. This I am opposed to. As a result, I propose to negative the Third Reading.

11.45 p.m.

Mr. Edward M. Taylor

Having failed to get a supporter to oppose the Second Reading, I have no wish to try again. But I think I am entitled at this stage to ask for one point of clarification. It relates to the operation of Clause 4. I am completely convinced that the Government have powers to contain or control the present illegal regime in Southern Rhodesia, the one led by Mr. Smith. However, I am not at all convinced that the Bill as it stands gives the Government power to control the activities of other illegal regimes which might be introduced and operated out-with Southern Rhodesia. We all must know that there is a possibility, albeit a slight one, that at least two Governments in exile will be set up illegally, rather in the same way as Mr. Smith's. Can we have an assurance from the Government that the Bill gives them power to control the activities of other such r6gimes, and if they have the powers do they intend to use them?

11.46 p.m.

Commander Sir Peter Agnew (Worcestershire, South)

Tonight we have enacted, or almost enacted, a solemn tragedy. We have given to the Government awful powers. We have done so deliberately and almost unanimously. So the Bill will shortly go forward to another place as being the expressed will and determination of this House to assert the power of the Crown in relation to Rhodesia. I believe that these powers have been given in a spirit in which they should not be used—vindictively. They may inflict a small amount of suffering on the whole Rhodesian people, which they will do indiscriminately; or they could inflict a great deal of suffering.

I believe that in the end the restoration of a proper relation between Britain and Rhodesia will not come through the use and possession of these powers so rightly given. It will come, finally and eventually, through a reconciliation between reasonable people in Britain and reasonable political leaders in Rhodesia.

11.47 p.m.

Sir Charles Mott-Radclyfte (Windsor)

The House has accorded the Bill an unopposed Second Reading and Committee stage. We are now on the final stage—Third Reading.

I want to make one suggestion to right hon. and hon. Members opposite. I very much doubt whether some of the intemperate language which we have heard from hon. Members opposite in the course of to-day's debate, particularly language used, unfortunately, by both Law Officers of the Crown—[HON. MEMBERS: "Oh."]—the Attorney-General and the Solicitor-General, phrases such as "dogs of rebellion"— is calculated to encourage the moderate elements that we hope to encourage in Rhodesia. Indeed, I believe that such language will deeply offend many moderates of passionate loyalty to this country and will drive them into the extreme position which we do not want to drive them into.

The House should not be selective about the way in which we moralise in our advocacy of sanctions. There has been much loose talk of sanctions today. I suspect that there will be some even looser talk of sanctions in another place. There may be sanctions which automatically follow any declaration of independence; but the other type of sanctions, those of a punitive kind which the Prime Minister says he does not want to embark upon but which some of his colleagues do, are in a very different category.

If these sanctions are going to be imposed on a moral basis, do not let there be any cant about this. If Rhodesia is a police State there are other police States within the Commonwealth in Africa. If the will of the majority is being thwarted in Rhodesia, I can think of other countries in the Commonwealth where both the wishes of the majority and the rights of the minority are being similarly thwarted. Therefore, we must not be selective in the way we moralise about these things. We must do so without cant.

I hope that as a result of the passage of the Bill the Government will so conduct their affairs and phrase their statements as to narrow rather than widen, and mend rather than tear, otherwise we shall drive every single moderate into the extremist camp, and the last stage of Rhodesia will be worse than the first.

Question put and agreed to.

Bill accordingly read the Third time and passed.