HL Deb 25 July 1910 vol 6 cc401-14

*LORD NORTHCOTE rose to ask the Secretary of State for the Colonies whether he would consider the advisability of issuing detailed instructions to Governors-General and Governors in the self-governing Dominions of the Crown as to limits of their authority when acting its Governors-General or Governors in Council.

The noble Lord said: My Lords, my reason for putting the Question on the Paper which I am about to address to the noble Earl opposite is that circumstances have recently occurred which, I think, justify this House in asking that the position of Governors-General and Governors in Council in the self-governing Dominions shall be re-emphasised and fully explained. The circumstances to which I refer are the recent action of the Transvaal Legislature, which has already occupied the attention of His Majesty's Government in another place; but I think the discussion which took place in the House of Commons was inconclusive and unsatisfactory in its results, or, if it is to be deemed as conclusive, then I think the conclusion was so unsatisfactory as to warrant its further consideration by your Lordships. It is not my intention, on the present occasion, to enter into any close examination of the conduct of the late Transvaal Assembly, because, in the first place, that Assembly is defunct and no censure that we could pass upon it would be of any weight, and, in the second place, the time has passed when the Home Government could interfere with any effect in the matters with which it was then concerned.

It is possible that some of your Lordships and certainly a good many of the outside public are unfamiliar with the action of that Assembly, and therefore, with your Lordships' permission, I will very briefly refer to some of the salient: points of the case. I have in my possession an enormous mass of information which, if I desired to make any attack upon the Transvaal Assembly, would occupy more time than I should care to devote to the subject in your Lordships' House; but the main features of the case are these. By the Act of 1907 the members of the Transvaal Legislature were entitled to receive a salary of£300 a year, subject to certain deductions for non-attendance, in recompense for their Parliamentary services, and an ordinary session was defined to be a session in which the ordinary estimates of expenditure fur the administrative services of the year were considered. The second class of session was that described as extraordinary or special, upon which members were remunerated on a different basis; and according to the figures supplied to me the extraordinary session of that Assembly to which I am now seeking to draw attention would have entitled the members of the Lower House to a payment of£42, and the members of the Upper Chamber to a payment of£30. Nevertheless, the late Transvaal Assembly saw fit to pass a resolution transforming the extraordinary into an ordinary session, thereby putting into their pockets the difference between£42 and£32 and the£300 to which they would be entitled in an ordinary session.

And it is to be noted, in connection with this, that the Assembly was politically on its death-bed. Its last few weeks of existence were running out, and its members had nothing to fear from any adverse criticism or judgment at the hands of the electors at the approaching polls, because the Transvaal Assembly was about to be merged into that larger body which was created by the establishment of the South African Constitution. Certain members of the Legislative Council took strong exception to the attitude of the majority of the Assembly and of the Ministers, and they took that exception on the ground that the provisions of the resolution were in direct conflict with the terms of the Payment of Members Act and the Audit and Exchequer Act of 1907. They held that if the terms of those Acts were to be in any way altered or amended, it was proper and constitutional that it should be done by means of a Bill regularly introduced and passed in both branches of the Legislature, and they further held that the Governor's power to sanction extra expenditure by warrant was not applicable in a case when the House was actually in session, and when the matter could be constitutionally dealt with by Bill. Accordingly they raised this objection in the highest Court of the land, before the Chief Justice of the Transvaal, and with your Lordships' permission I will venture to read the expression of opinion delivered by the Chief Justice. He said— Necessary expenditure cannot be met by special warrant unless it occurs whet Parliament is not in session. The terms of Section 20 of the Act are perfectly clear upon that point. The breach of the law has therefore been proved.

The action was, however, dismissed by the Chief Justice and his colleagues on the technical ground that the appealing members of the Legislative Council had no locus standi in that Court as mere taxpayers. But it is somewhat significant to note that the costs of the appeal were not, as I believe is usual, imposed upon the appellants, but their appeal was dismissed without costs. And in dismissing the appeal the Chief Justice said that, though they had no locus standi in their capacity as taxpayers— The Constitution provides a remedy, and that remedy lies, in my judgment, in the intervention either of the Crown or of Parliament.

I do not wish to go further into ancient history than just to say this, that I conceive that it is incredible that any person outside the ranks of those Transvaal Members who voted themselves increased salaries would contend that the payment of such increased salaries to themselves constituted any such grave case of public necessity or expediency as to justify any exceptional action by the Governor or anybody else in this case.

The more important point, however, which I wish briefly to discuss is not whether the Transvaal Assembly were right or wrong, but what is to be the future position of His Majesty's personal representatives in self-governing Dominions in their respective capacities of Governor-General personally and Governor in Council. So far as the personal authority of a Governor or Governor-General is concerned, I do not propose to trouble your Lordships to-night. I think that upon the whole his personal position is fairly well defined; and, after all, his personal authority must always depend a great deal upon the man himself, upon how long an experience he has had with the Dominion in which he resides, and the extent to which he may be fortunate enough to find himself in possession of public confidence in his desire and attempts to discharge his duties honestly and efficiently. But the position of the Governor in Council is very much less simple, unless the latest pronouncements of His Majesty's Ministers in the House of Commons are to be taken as a definite and determined expression of policy, in which case his position will, indeed, be an extraordinary simple one, but one in which no previous Governor to my knowledge has ever yet found himself. On June 29, when the matter was being discussed in the House of Commons, Mr. Balfour asked whether it was the case that within a few days of the highest Court in the land saying that a course was illegal that course was to be taken by the Governor if his Ministers thought it right for him to do so, and the Under-Secretary of State for the Colonies interjected "Yes." Well, my Lords, all I can say is that I cannot conceive that His Majesty's Government or any set of Ministers will allow so grave a constitutional position to be disposed of in so very summary a fashion. I do not wish to attach any undue or excessive importance to what may have been a mere interjection in the course of debate in another place, and my particular reason for calling attention to that interjection is that unless it is in some way explained or qualified by His Majesty's Government, it is quite certain to be quoted by self-governing Dominions as an expression of deliberate opinion by the Colonial Office upon any constitutional difficulties which may arise between the Governor representing His Majesty and the politicians in his particular Dominion; and, moreover, if that is to be considered as the final expression of opinion by His Majesty's Government I really fail to see what is the particular value of the Oath of Office which Governors-General and Governors are required to take when they assume responsibility over the seas. I think it might be really modified into this, "I swear to do whatever my Ministers tell me I am to do."

I may say, in connection with my own particular case, that whenever a Bill was presented to me when I had the honour to occupy office in Australia for signature as Governor-General in Council, it was my duty, and it was according to regulations, that I should obtain a certificate from the Attorney-General, acting in his legal capacity, that I might sign such a Bill constitutionally and without any violation of the law. But what is to become of that power or what is the use of that rule if it is to be overborne by the simple expression of Ministers' opinions? This doctrine is not only an entirely novel one, but it is absolutely inconsistent with all the precedents which have hitherto, I believe, guided His Majesty's representatives in the Dominions. I will venture to detain your Lordships with a few very brief quotations, and I do so with the less apology because they set forth the case which I wish to lay before His Majesty's Government more clearly and ably than I could hope to do myself.

The first quotation I will take is one from a Despatch addressed by Lord Cardwell to Sir Charles Darling in 1865. Lord Cardwell wrote— In paying salaries without sanction of law you have departed from the principle of conduct announced by yourself and approved by us—the principle of rigid adherence to the law. It is for you to take care that all proceedings taken in the Queen's name and under your authority arc consistent with the laws of the Colony.

And in a Despatch addressed to Sir Charles Darling in 1866 Lord Cardwell wrote— It is always the plain and paramount duty of the Queen's representative to obey the law and to take care that the authority of the Crown devised to his Ministers through him is exercised in conformity with the law.

The Duke of Buckingham wrote to Lord Belmore, then in New South Wales, in 1868— You would he prima facie bound to refuse to sign a warrant sanctioning any expenditure of public money which has not been sanctioned by law.''

The only exceptions which the Duke of Buckingham made in that Despatch were cases of grave public emergency or great public expediency, and, as I have ventured to suggest to your Lordships, the payment of a few hundred pounds of self-voted money to Members of Parliament can hardly come under either of these categories. Then Lord Granville wrote in 1869, also to Lord Belmore— To require the Governor's warrant as a condition of the expenditure of public money would be merely nugatory if the Governor was at liberty to issue that warrant for expenditure not justified by law. The mere fact that a certain number of public, officers would be put to a temporary inconvenience cannot be viewed as an unforeseen emergency, nor is it such a case of expediency as justifies a violation of the law.

And in another Despatch Lord Granville wrote— The obstacle imposed on Ministerial expenditure by requiring first the personal sanction of the Governor, in addition, of course, to the judgment of his Ministers, is a useful obstacle.

The last quotation with which I will trouble your Lordships is one from Sir Michael Hicks-Beach, now Lord St. Aldwyn. Writing to Sir George Bowen in 1877 the noble Viscount said— Your duty is to act on advice if satisfied that it is lawful. If not so satisfied, take your stand on the law.

and later on in the same Despatch, he said— It became then your duty to satisfy yourself that the action which your Ministers proposed that you should take was justified.

I may venture to remind your Lordships that Sir Charles Darling was actually recalled and that Sir George Bowen was censured for failure to comply with the spirit of the instructions I have quoted. In that case it seems to me that Sir Charles Darling and Sir George Bowen if alive now might have felt themselves rather aggrieved, for what they carried out is, on the face of it, the present policy of His Majesty's Ministers.

I do not desire, in putting this Question, to suggest in any sort or kind of way that the position or the authority of a Governor should be amplified or extended. I do not think it would be fair to expect that of either His Majesty's present advisers or of any future advisers His Majesty may possess, because I am well aware that any such proposal would meet with the strongest opposition in the self-governing Dominions themselves. But I am equally anxious that such authority as Governors possess shall not be diminished; and, above all, that it shall be clearly and strictly defined. I have no desire to make this a Party question. The extracts which I have read to your Lordships are two of them from the Despatches of Liberal Colonial Secretaries and two from Conservative; and as the best evidence that I could give of my desire to keep these matters apart from Party questions, I felt it my duty, and a matter of courtesy, to furnish the noble Earl the Leader of the House with the material of the remarks which I have just ventured to make. I hold that alike in foreign, in Indian, and in Colonial matters, continuity of policy so far as possible is eminently desirable; but I do think that the recent action of the Transvaal Assembly presents a dangerous precedent, and one which certainly does call for a clearly-defined and well thought-out course of instructions to be laid down for His Majesty's representatives. It is in the hope that I may be fortunate enough to secure from His Majesty's Government a promise that they will take this matter into full and serious consideration and come to a determined deliberation upon it within a reasonable period of time that I now venture formally to ask the noble Earl the Question I have put on the Paper.


My Lords, the noble Lord opposite has in his Question raised a subject of deep interest, and he has done so in a tone of moderation and responsibility which one would have expected, not only from his personal character, but also from, one who has filled the high offices abroad which he has occupied with so much distinction. I am grateful to him also for having, as he told the House, supplied me with the materials of what he was about to say. I heartily agree with him that this is not a matter in any sense of a Party character, and fortunately it cannot be regarded as a Party matter either in this country or in South Africa owing to the actual circumstances in which the events occurred to which the noble Lord has alluded.

The noble Lord has correctly and clearly described what took place with regard to this question of payment of Members in the extraordinary session which was held in the Transvaal in April last. As he told us, there was a fixed scale of£300 a year, less£2 a day for non-attendance, in an ordinary session, whereas in an extraordinary session payment was only£10 for the session, plus£2 a day for attendance, working out, as the noble Lord said, in this instance to£42 in the case of the Assembly. On April 28 last the Assembly met in session and decided that it was proper, for reasons which seemed good to them, to treat that particular session as though it were an ordinary session for the purposes of this payment. The question, as I have said, was not a Party one, because I think I am right in saying that the proposal was made by a Minister and was seconded by one of the leaders of the Opposition. The proposal was not submitted to the Legislative Council, and on the same day Parliament was prorogued. Then the application of which the noble Lord has spoken was made to the Supreme Court, and was refused on May 10 on the grounds which he has told the House. It is quite clear that the mere resolution of the Assembly carried with it no power to make this payment. Therefore the point that was brought before the Supreme Court was a simple one in itself, and although the case was dismissed because those who brought it forward were held to have no locus standi, yet it was quite clear that on the facts as they were at that time—on May 10—no warrant existed for the payment being made.

Then the Transvaal Government decided to proceed in a different manner, and they applied themselves to Section 20 of the Audit and Exchequer Act, 1907, to which the noble Lord has alluded. Section 20 of that Act runs as follows— If at any time when Parliament is not in session it should appear to the Governor to be necessary that is to say, the Governor in Council— in the public interest that an issue of public moneys should be made for any purpose not authorised by law, he may by special warrant under his hand authorise such issues as may be required from time to time for such purposes"; and the Governor in Council was asked under that section to authorise the payment, Parliament not being at that time in session. In the course of the ease the Chief Justice indicated, as the noble Lord, I think, has stated, that he did not consider that particular course to be a. proper one. But, on the other hand, it has to be remembered that the point was not before him. It was an obiter dictum of the Judge, and although, of course, it was entitled to every weight and consideration, yet it was not a decision in the case, because the point had never been raised. Therefore I think it is reasonable to state, whatever may be thought of the circumstances in which the payment was made by warrant of the Governor, that it was not an illegal payment. It fulfilled the conditions of the Act of Parliament, and consequently I do not see how anybody can hold that the payment was in itself an illegal one. That was the view which the officer at that time administering the government at the Transvaal took after having applied to me for my opinion, and I, of course, obtained the best advice I could, and I take full responsibility for the decision that the payment in those circumstances came within the four corners of the Act of Parliament, and was, therefore, not illegal. In that respect, therefore, this case appears to me to differ in toto from those Australian cases to which the noble Lord alluded—all cases which I entirely agree are well worth closely looking into. They are cases of great interest from many points of view, but in every one of those cases the payments which the Governor was invited to authorise were not payments authorised by law. He was asked to go outside Parliamentary powers and to make the payment by executive action. In this ease the condition is precisely opposite. Whatever the view may be as to the wisdom of the particular transaction, with which, I think, we here are not concerned, I repeat that it cannot be maintained, in my opinion, that the payment was in itself an illegal one.

The noble Lord opposite quoted a sentence, or rather a very short interjection in another place by my right hon. friend the Under-Secretary in my Department. I have the Hansard report in my hand. Mr. Balfour said— Do I understand the right hon. gentleman to lay down the proposition that within a few days of the highest Court in the land saying that a course is illegal that course is to be taken by the Governor if his Ministers think it right for him to do so? and Colonel Seely is reported as having replied "Yes." What I am given to understand Colonel Seely really said was— Yes, in this particular case"; meaning, thereby, not that the course was illegal, because the Solicitor-General had just before stated in the debate that the course was not illegal, but that in this particular case the Governor was justified in taking the course he did.

To come to the wider question, I think the. House will see that if the Governor in Council in a case of this kind is to exercise the sort of discretion which the noble Lord desires hint to be able to exercise, you may be getting on to somewhat dan gerous ground. The Act says that it is necessary in the public interest that an issue of public money should be made by the Governor with the advice of his Ministers. Is the noble Lord prepared to lay down as a general proposition that in a case where the Governor in Council is asked to arrive at an opinion of that kind he should be the sole judge of what is or is riot the public interest? Because if you lay down any proposition of that kind you will find that ultimately you will he transferring the final decision in all these cases from the Governor in Council to the Governor in person. I quite admit that there may be cases in which the Governor in Council would be right to put the strongest pressure on his Ministers not to proceed with a. particular point. I also admit that it is quite arguable that this particular discretion ought to be in the hands of the Governor and not in the hands of the Governor in Council, and it is open to any noble Lord to say that the Act of 1907 should have been passed in that form; but since it is not so, and if the terms are so general as they are in this Section 20, I confess that, once the Governor is satisfied that the act is not illegal, as he and those who advised hint were in this case, if the matter is pressed by the Ministers the Governor acting as Governor in Council has no choice but to comply. For that reason I find it very difficult, although 1 am willing, of course, at the noble Lord's invitation to take the whole matter into consideration, to lay down any general proposition which can be put in the form of instructions to Governors and Governors-General on matters of this kind.

As the noble Lord has said, where the Governor acts alone the position is comparatively simple. There he has practically a complete discretion, subject, of course, to his relations with the Department at home. I think I am right in saying—the noble Earl, Lord Selborne, will correct me if I am wrong—that so far as South Africa is concerned the only two subjects on which a Governor has absolute discretion are those with regard to the prerogative of mercy and the reservation of Bills. On those his discretion is absolute. Then you come to a class of questions where admittedly illegal action is proposed. I think we should all be prepared to say, and we should found our opinion on the instructions to Governors, that it can only be in cases of most supreme public necessity that the Governor, acting in concert with his Ministers, could approve of illegal action. But those cases are, of necessity, exceedingly rare, and for this reason. The action would not, I should think, in nineteen cases out of twenty be pronounced illegal until after it had been taken—that is to say, the matter would have to come at a later stage before a Court of law before the action in itself could be pronounced illegal; and it must be remembered, as the noble Lord very truly pointed out, that the Governor has his Attorney-General and his legal advisers, and he presumably, not as a. rule being a legal expert himself, is bound to take the view of the state of the law from them. That being so, I do not think it is reasonable or necessary to lay down instructions for a Governor as to what he is to do if action is proposed to him which he considers illegal.

But, my Lords, when you come to say what a Governor is to do when he is asked to take action which may be described as unconstitutional, you get into a far more difficult order of ideas. The word unconstitutional is sometimes very vaguely used. It was used, I think, both of the action of His Majesty's Government and of the Opposition during the last year with great freedom on many platforms. But, speaking generally, one has to remember this. The Governor has, of course, in theory vast power. He can practically, by his instructions, refuse to agree to anything that his Ministers propose; but, on the other hand, he has to act with Ministers, and if not with those Ministers he must find some other Ministers with whom he can act; and I am sure the noble Lord will agree with me that if it came to be the practice that Governors or Governors-General got into the habit of raising objections to particular propositions because they considered them unconstitutional or undesirable in a public sense—if they got into the habit of regularly and publicly objecting, we should get into a state of friction with the self-governing Dominions which the noble Lord would be, I am sure, the last man to desire. The fact is, my Lords, that the working of responsible government, and, indeed, the working of all Parliamentary government, depends upon a series of understandings which it is hardly possible to reduce to the form of black and white. For that reason I confess I should find it very difficult to attempt to frame any fresh set of instructions to Governors-General or to Governors in the manner which the noble Lord seems to desire, though, as I have said, in consideration of the arguments he has used and of his experience I will give the fullest consideration to the Question he has asked me.

I repeat that in this particular Transvaal case I do not consider that we are called upon to express any opinion whatever on the policy which was adopted in that final sitting of the Legislative Assembly, all the more because, though I am in as good a position to know as most people, I am not aware what the precise reasons were which actuated both parties in the Legislative Assembly to make this particular proposition. Of course, the money to be found was South African money, and the public opinion which matters in a case of this kind is South African public opinion and not public opinion here; and therefore, so far as that side of the matter is concerned, I am disposed to leave it there. I hope I have dealt with the various points raised by the noble Lord, and I can assure him once more that I will give the fullest consideration to his suggestion, though not with much hope of being able to arrive at anything like detailed instructions to Governors-General and Governors, because it appears to me that each case as it arises is almost certain to differ from any previous case, and can, therefore, only be dealt with on its merits.


My Lords, I cannot help thinking that the noble Earl has slightly mistaken the object of my noble friend behind me. I do not think he endeavoured to raise any question of the propriety or impropriety of the Assembly voting themselves£300 a year


I did not think the noble Lord did in any way.


I also mean to leave tat matter entirely untouched. The point that is of importance is the construction to be given to the words that a Governor is to act on the advice of his Council. If the construction which appears to be given by the noble Earl is to be the construction in South Africa, it must be the construction in England. The words are the same. In a great many instances His Majesty has to act upon the advice of his Council, but it certainly would be a novel proposition to suggest that he is to be a mere puppet and is to do exactly what his Ministers advise. I agree with the noble Earl that where the question concerned is one of policy or of what it is expedient for the Colony to do, that is the sort of thing that must necessarily be left to those who are the advisers of the Governor for the time being; but the point here is whether the Governor is bound to do that which he knows to be illegal, and therein I am surprised to hear the noble Earl say that the Solicitor-General, Sir Rufus Isaacs, ever suggested that he was so bound. I have here the report of what he said, and certainly his words do not bear this out; and knowing what an excellent lawyer Sir Rufus Isaacs is, I should be surprised indeed to hear that he ever committed himself to any such opinion.


I will Quote the words of Sir Rufus Isaacs [18 H.C. Deb. 5 s., p. 1006]. He said— It is aid that the Governor was asked to ratify an illegal Act. Therein, again, lurks a fallacy. It is not an illegal Act. The Governor was not asked to ratify the resolution; he was asked to issue a special warrant upon the advice of the Ministers when the Douse was not in session. That, of course, is the whole case on which we acted.


That is, I will not say an evasion because that might be considered offensive and I do not mean it in that sense, but it evades the point, and it might be understood to mean that Sir Rufus Isaacs committed himself to the proposition that the thing which was done by the Assembly was not illegal.


Oh no, far from it.


Then we are agreed. The full Court agreed that it was absolutely illegal. I am not quite certain that I understand what the noble Earl means by obiter dictum. It was part of the decision of the Court that it was illegal, but for a reason entirely beside such a question they were unable to interfere, because there was no locus standi in the persons complaining.


May I explain? The payments were actually issued under the Resolution of the Legislative Assembly. That was declared in the course of the ease to be illegal. It had only passed one House, whereas the payment could only be properly made if the Bill bad passed both Houses. Those payments were, no doubt, improperly made. But that has no reference to the payments which were made afterwards under the warrant.


I think the noble Earl must enlarge his phrase to illegal payments. He has agreed that they were illegal.


At that time they were, but not on May 18.


For the Governor in these circumstances to be asked to give his warrant in respect of payments which had been held by three Judges to be illegal scents to me a most extraordinary thing. It was spending money without Parliamentary authority in the sense that both Houses had agreed to it, and against the authority of the law. To render it legal by the warrant of a Governor who is only authorised to do this in a case of great emergency is, I venture to submit, absolutely unprecedented.