HL Deb 29 January 1930 vol 76 cc349-64

THE EARL OF MIDLETON rose to ask whether it is the intention of His Majesty's Government to introduce a Motion in this House respecting Article 36 of the Statute of the Permanent Court of International Justice in the same terms as that submitted to the House of Commons. The noble Earl said: My Lords, I should like to say two or three words, not on the subject matter but on the point of the Question which I have ventured to put to the Government. At present the situation appears to some of us to be profoundly unsatisfactory. His Majesty's Government pledged themselves to secure ratification by Parliament of certain questions, such as the Soviet Agreement, but their interpretation of "Parliament" is, I venture to say, a novel one and one which certainly requires explanation in this House.

The question of the so-called Optional Clause which is now before us is specially dealt with in the Memorandum which was circulated on the signature by His Majesty's Government of the Optional Clause, presented to Parliament by command of His Majesty. That Memorandum contains on page 4, paragraph 8, the declaration of the Government, which begins:— On behalf of His Majesty's Government in the United Kingdom and subject to ratification.… that is, ratification by Parliament. On page 6 it is stated— The signature is also subject to ratification. This will enable the question to be raised in Parliament, if so desired… On page 7 it is stated:— With the objects which have led His Majesty's Government to sign the Optional Clause, and to ask Parliament to approve their action in doing so, there is, it is believed, general sympathy throughout the country. I am not, of course, a constitutional lawyer, but it is not necessary, I believe, in all cases that His Majesty should submit Treaties to Parliament. Treaties which do not involve cession of territory or a special charge on the people of this country may be ratified by His Majesty without being subject in any way to Parliament. More and more in recent years the practice has been to submit Treaties to Parliament for ratification and, under correction, I think that a very good case in point was the Declaration of London which in 1911 was brought before Parliament in the Naval Prize Bill and was actually rejected by this House.

What I want to ask the Government is whether they laid down the axiom, when they pledged themselves and signed on behalf of His Majesty a Treaty with a foreign power subject to ratification, that ratification involved the House of Commons alone and not this House. We had a most extraordinary explanation by the Attorney-General on this subject in another place so recently as December 18 last. The Attorney-General seems to have had misgivings as to his action, because in his opinion he stated:— It may be that to use the word 'Parliament' in the Russian protocol was a slip in form… But he goes on to say that the Opposition are quite wrong if they think that in fact or in practice it was in any way erroneous. He goes on to make this strange statement:— But what is meant by 'Parliament' when it is said that His Majesty's Government is responsible to Parliament for its whole executive action? Not what is meant by 'Parliament' when we are speaking of legislation. In other words "Parliament," in the view of the Attorney-General, applies in Treaties only to an Assembly which, as he states, may turn out the Government; but it does not apply to an Assembly which is equally a House of Parliament, with every constitutional right except that of review of finance, as the Government may ignore a vote of that Assembly, and may not have its existence terminated by that vote. Therefore, they are absolved from submitting to it any Treaty when they have pledged themselves to that Treaty subject to ratification by Parliament.

Of course, we know that the Attorney-General's opinions are subject to change. There has been a good deal of experience of that in the last few months and I must ask His Majesty's Government whether that opinion is one on which they take their stand, and, if so, seeing that the ipse dixit of one lawyer, however eminent, cannot possibly govern a practice from which, so far as I know, there has been no departure in the whole history of the two Houses of Parliament, whether they propose to take any steps to elucidate what is the proper course, and whether, especially in regard to the Optional Clause, they propose to submit the question for debate in this House.


My Lords, before my noble friend replies I would ask to be allowed to make one or two observations. I had no idea when I saw this Question on the Paper that it raised this very important constitutional issue as to whether this House is part of Parliament, as we have always understood it to be up to the present time; and I must say, had I known it was to be raised, I should have come here fortified with a good deal of information that I looked up when I read the astonishing opinion of the Attorney-General with reference to the Protocol entered into with reference to Egypt. I do not think that any serious lawyer having any responsibility would agree with the Attorney-General in the view he took upon that occasion. I may be wrong in that, but I have looked into a good deal of the law upon the subject, which I would be prepared to state at any time in this House. I do not consider that there is the slightest foundation for the opinion expressed by the Attorney-General; at least, I could find none.

In all these documents, unless the context shows otherwise, "Parliament" means the two Houses of Parliament, equally the one and equally the other. There is no power in one that there is not in the other. It is such a very important constitutional matter that when this has been for the first time challenged, we should meet it straight away and emphatically. We know, of course, that statutory changes made under the Parliament Act prevent this House interfering with finance. But that was done by Act of Parliament, and you may say by Act of Parliament that this House is no longer in any wise to be included when Parliament is mentioned either in Treaties, in orders or in various matters which arise. But as I understood and recollect the opinion of the Attorney-General, he based it upon this. He said that the submission to the House of Commons was the submission of an executive act and because it was an executive act it was the House of Commons that could alone control the Executive. That goes to the very basis and root of our Constitution, because I can certainly find no authority for saying that the Executive are not controlled as well by this House as by the House of Commons.

One of the reasons given, if I remember aright, was that which has been mentioned by my noble friend—that the Government would have a right to ignore a vote of this House, as they very often do, but that they could not ignore a vote of the House of Commons. Where does he get that from? They have ignored votes of the House of Commons over and over again. I remember a Division during the long struggle on the Home Rule Bill in which there was a vote against the Government on a very important matter, and it was absolutely ignored. There is nothing to prevent them ignoring it any day. The only reason why they do not ignore it oftener is that if it was in respect to a very important matter they probably could not get on with their business. In exactly the same way here, the Prime Minister might be in this House, and all the Ministers might be in this House according to the Constitution. Do you mean to say that this House would have no control whatsoever in debate or discussion over a particular act because it was an executive act? And when it is said that this House has no power of controlling, it has every power of con- trolling. Of course it is a very extreme case to put and I only put it to show how very glibly opinions can be given, but if in your Lordships' House tomorrow as each Bill came up a Motion was made: "That this Bill be postponed until we are consulted upon the question of the Egyptian Treaty" and it was carried, what could the Government do? What could they do if your Lordships postponed anything because of any executive act of the Government?

I do not like to use strong language in regard to a gentleman for whom I have so much respect as I have for Sir William Jowitt. So far as I am concerned, I am very glad that the Labour Government have the advantage of his legal learning, which is great. But I cannot but think that the opinion he gave upon that occasion was a most ill-considered and most unfortunate opinion as going to the very root of the procedure between these two Houses in relation to the action of the Executive. I saw a letter from a former Lord Chancellor, the noble Earl, Lord Birkenhead, in which I think he described the opinion as nonsense. At all events, he said that the Attorney-General would not get any other lawyers to agree with him. I have not consulted any lawyers about it, but I have had leisure enough to look into some books upon the subject and from beginning to end I can find no trace of a reason for the allegation upon which that opinion is founded, that it is only the House of Commons which has any power of control over the Executive. I do not believe that to be the law. I think that the matter ought to be settled one way or the other. If it is going to be laid down now that the House of Lords has no longer control in relation either to Treaties or other matters which require the sanction of Parliament, I believe a revolution as far-reaching as anything that has been done in relation to the interests of the two Houses, will have been quietly effected.


My Lords, you will perhaps prefer the unbiased interpretation of "Parliament" given by Anson to the biased interpretation given by the Attorney-General. What Anson says is this:— The sovereignity of Parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parlia- ment consists of the King, the House of Lords, and the House of Commons acting together.


My Lords, perhaps the noble Viscount who spoke last and the noble and learned Lord who spoke before him and raised a very interesting question regarding the use of the word "Parliament," will permit me, in the first place at any rate, to deal with the far narrower question which is involved in this case—namely, the constitutional principle involved either as regards a Treaty or the ratification of a Convention signed at Geneva. I think the constitutional principle—and I will ask the noble and learned Lord to consider this—is plain. In this country the right of making a Treaty is part of the Royal Prerogative, to be entered into, no doubt, under the advice of the Ministers for the time being. I think there can be no doubt about that; nor, I think, would anyone question it for a moment. Quite apart from how the word "Parliament" may be used, a Treaty is just as binding on the honour of this country, is just as binding as a national obligation which should not be treated as a scrap of paper, whether it has the assent of the Crown, His Majesty under His Prerogative, or whether it has been or has not been in addition submitted to Parliament.

That word I want to use in a neutral sense at the present moment. But a constitutional custom and tradition have grown up that before the Royal Assent is given by ratification, the House of Commons is consulted. It is consulted in order that its approval or disapproval may be obtained. The House of Commons, of course, is in a special position for two reasons, and what I am saying is in no way a derogation of the position of this House. In the first place, it is the representative Assembly and, as a representative Assembly, it represents in a special way the nation at large. It has been thought, I think for nearly one hundred years now and thought quite rightly, that it is wise and proper, therefore, to consult the representative body before very far-reaching obligations are undertaken by any particular Government. Speaking for myself, I think that is a constitutional practice of great value, and I hope it will never be departed from.

One other point I should like to raise before coming to the definition of the word "Parliament." This question is not new in relation to this House. At the time of the Treaty of Locarno, when the Party opposite were in power and were represented in debate by the noble Earl, Lord Balfour, and their present Leader, the noble Marquess, Lord Salisbury, the question was raised here whether the approval which had been obtained in the other House ought also to be obtained here, either on constitutional principle or on some grounds which the noble and learned Lord has suggested. That was negatived. I have a note here of what the noble Earl, Lord Balfour, said, and also of what the noble Marquess, Lord Salisbury, said on that occasion. In saying that it was not the constitutional practice to have the matter approved in this House, Lord Balfour said:— There was a very full debate in another place, and a speech from the Minister of Foreign Affairs. I think in this case there has been a very full debate in another place, and a speech from the Minister for Foreign Affairs, Mr. Henderson. I would also quote what the noble Marquess, Lord Salisbury, said, because it is not only good sense, if I may say so, but it states the constitutional principle. He said:— My noble friend beside me"— that was Lord Balfour— did not propose to weary your Lordships by repeating what had been said by Mr. Austen Chamberlain in another place.… We are practical men.— What we always do is to approach the subject not merely by repeating what has gone before"— the whole matter having been explained in the other House— but in order to add something fresh and useful. I think those words were admirable. If in debates in this House you are only to have what is fresh and useful, I commend the noble Marquess opposite in the highest possible terms. I think there is no doubt about the constitutional principle. Some question has been raised in regard to the use of the term "Parliament."


In order to make the distinction clear, if there is one—as I think there is—has not the noble and learned Lord been dealing with cases where the matter can be carried out by the King as King, and are they not entirely different from cases where Governments eider into matters subject to the ratification of Parliament? Of course what the King has done requires no ratification by Parliament.


I do not think the noble and learned Lord is right, if I understand him. Ratification is in all cases for the King, of course under the advice of his constitutional advisers. There is no doubt tbout that. Whether a particular Treaty or matter of this kind has been submitted to Parliament or not in that respect makes no difference. It is the Prerogative of the King and not the approval of Parliament which binds the nation. The approval of Parliament may have been sought in some cases—I do not know—but not in a case of this kind, and what has been done constitutionally for some centuries—I think since Lord Castlereagh's time or at any rate for a century or more—has been to submit the matter for approval or disapproval, as the case may be, to the House of Commons in order that the country and the people at large should have full knowledge of what has been done, and that their representatives should have the power of saying "Yea" or "Nay" to the attitude to be adopted by the Government before the King gives his assent, after which of course the Treaty of ratification would he finally completed and finally binding. I will deal in a moment with the use of the word "Parliament." I am quite sure I can say this, that undoubtedly that is now, and has been for a long series of years, the constitutional practice, and the notion that either House really is the authority in Treaty making is a mistake. The only Treaty-making power, I think the noble and learned Lord will agree, is that which exists in the Prerogative of the Sovereign himself, and these are steps which the Government desire to take in order that full publicity may be given in the representative House before asking for His Majesty's ratification. That really answers the question which the noble Earl has put to me.

A matter was raised by the noble and learned Lord opposite, Lord Carson, upon which I would like to say a word. I have read the opinion of the Attorney-General. I have it before me, but I do not think it is necessary to read it again. I can find nothing in that opinion which purports in any way to cast any slight upon your Lordships' House. In the particular instance we are now discussing the noble Earl will know that the word "Parliament" was not used. He will not find it in the sense in which it was used in the Russian case, and there the question which I think was raised—and very properly raised—was whether, when he used the word "Parliament," the Foreign Secretary intended your Lordships' House as well as the House of Commons, or the House of Commons alone. It was on that point that the Attorney-General's opinion was given. May I say why I agree with him? The word "Parliament" is not a word of art, if I may say so. No doubt, in the case of an Act of Parliament—in the case quoted by the noble Viscount, Lord Bertie—it means the common action of the King, the Lords spiritual and temporal, and the members of the House of Commons. It is constantly used in that sense. Every time we use the words "Act of Parliament" we so use it.

Take another case. When we use it in the sense of speaking of a member of Parliament it does not bring to my mind the spiritual right reverend members of this House, nor am I aware that any member of your Lordships' House is familiarly spoken of as a member of Parliament. The explanation as it comes to my mind is very clear. The Foreign Secretary, practically having taken the advice of the Attorney-General, made the explanation. It is quite correct that he used the word "Parliament," but he only meant the House of Commons. I do not think myself that is a matter to be laughed at.


No, indeed it is not.


Perhaps the noble Lord is right, but what is meant is another matter. It is meant to make clear what it was intended the word "Parliament" should mean in the context in which it was used. I think that at the time it was perfectly clear. But there it is. We really are not dealing with that at the present moment. I am not here to defend the Attorney-General or to attack him. I can only say that I entirely agree with what he said, but perhaps, as the noble Lord would say, that would not be much consolation to the Attorney-General. However there it is. There may be a difference of opinion, and that is my own opinion.

As regards the constitutional point it really is extremely important. It would be impracticable, with the House of Lords as at present constituted, for a Government such as the Labour Government to submit to this House the question of the approval or disapproval of a particular Treaty before it was presented to the King for ratification. It would obviously be impossible; nor has it ever been done. I have looked thoroughly into all the precedents I can, and I cannot find any precedent for it. What I think the noble and learned Lord has in his mind is this, and it is quite true: if the particular Treaty you are dealing with cannot be carried into immediate execution without Parliamentary powers, then you find the Treaty is generally put into a Bill, in Parliamentary form, which gives the necessary powers in order to make the terms of the Treaty effective in the sense of the immediate obligation being undertaken. I am not quite sure, but I think your Lordships will find that that was the case, for instance, in the Treaty of Versailles, and in the Treaties at the close of the Great War. That is not because there was any lack of force or authority in the King's power, the Royal Prerogative, but because incidental to those Treaties certain matters had to be done, and done immediately, which required statutory power in this country or in the other country as the case might be.

That is a different matter. It has always been an acknowledged exception, that if you do want some measure of statutory power you must have it at the time the Treaty is made, and it is usual—certainly it is done in that case—to introduce the Treaty in the form of a Parliamentary Act. That is another matter altogether. In such a case things axe to be done outside the ordinary Treaty-making power which require the assent and authority of Parliament. There is no such thing as that in the present case. That is not suggested. There is nothing in the ratification of our signature of the Optional Clause which necessitates any statutory power affecting the rights of the Government in this country. That is quite clear. No one would say that for one moment. Therefore, although I appreciate the interest- ing debate which the noble Earl has raised, the answer must be in the negative if we are to follow ordinary constitutional practice, and I do not think I can carry my answer any further. I hope I have dealt fairly with the arguments addressed to me. There is no intention on the part of the Government—it was not done in the Locarno case—to bring forward as a preliminary to ratification their signature to the Optional Clause for the approval or disapproval of this House.


My Lords, the noble and learned Lord has not at undue length but at considerable length, tried to explain away the opinion of the Attorney-General and with that object he has quoted some precedent from what happened in Parliament after the signature of the Treaty of Locarno. I listened with becoming apprehension to the quotation which he foreshadowed from some remarks of mine, but apparently that was confined to an assurance to your Lordships that the then Government would not be guilty of vain repetition, of going over again, merely for the sake of a statement, what had been already adequately stated in another place. I did not gather from what the noble and learned Lord quoted that the question of the responsibility of this House and its equality with the House of Commons from a constitutional point of view was called in question for a moment.


The question raised there was just the same as is raised here. It was raised by my noble friend Lord Arnold at that time and I read what was the answer.


I gathered that it was a question of a statement, not of asking the approval of the two Houses of Parliament.


I think it went beyond that.


I will certainly familiarise myself with the point, but that was what I gathered from what the noble and learned Lord said. But let us look for a moment at the present case. There is no question that the Government assented at Geneva to this Clause subject to ratification. When they came to describe the effect of the reservations they said this The signature is also subject to ratification. This will enable the question to be raised in Parliament.… so that in the declaration at Geneva Parliament was brought into direct juxtaposition with ratification. Then, in the White Paper—not, I admit, in the declaration at Geneva, but in the White Paper which contained the defence of the Government for their action on the Optional Clause—the Government say:— With the objects which have led His Majesty's Government to sign the Optional Clause, and to ask Parliament to approve their action in doing so.… Those words come two pages further on in the White Paper. There is direct continuity. Ratification which is to govern it, ratification which is to give opportunity to Parliament to discuss, and then the assertion of the Government themselves to your Lordships and of the right hon. gentleman in another place that it would not be ratified without the assent of Parliament. The whole thing seems to read together and one would have assumed but for the remarkable opinion of the Attorney-General that Parliament meant both Houses of Parliament.

The noble and learned Lord referred just now rather gingerly I thought to the opinion of the Attorney-General. I have in my hand the opinion which the Attorney-General as the senior Law Officer of the Crown gave to the Government in the Russian case. He said:— …there is a good case, from the constitutional point of view, for holding that the word 'Parliament' was the right word to use in an agreement with a foreign Power in which the purpose was to make plain to that foreign Power that a certain executive action could only be taken if the approval of the relevant Parliamentary authority had been obtained. So upon his responsibility as a Law Officer of the Crown he gave the opinion that in an agreement with a foreign Power it was right to use the word "Parliament" when you only meant the House of Commons. That was the opinion of the Law Officer of the Crown on his responsibility as a Law Officer of His Majesty's Government. I should have nothing to say, of course, if the Attorney-General were merely speaking in debate. Many gentlemen, noble Lords even may I say, and right hon. gentlemen make rather rash statements in speaking in debate. After all, they are speaking as advocates. They are trying to maintain a particular point of view and they undoubtedly state in strong and perhaps over-emphatic language sometimes the case for their own side. Even they may go a little beyond the point to which a rigid attention to sound opinion would have led them. But this is an opinion of a Law Officer of the Crown.

What are the conditions under which the Law Officers advise the Crown, advise Ministers, as to what is the law? Is it to be merely the attitude of an advocate or is it to be a quasi-judicial decision as to what upon their responsibility and with their knowledge of the law a thing really means? Of course the noble and learned Lord must defend his colleagues. I have nothing to say about that. He is very loyal to his colleagues. But what I want to know is how we are to determine the attitude of a Law Officer who says upon his responsibility as a Law Officer that in an agreement with a foreign Power it is right to use the word "Parliament" when you only mean the House of Commons? That is what we want to know, and I should be rather glad now if the noble and learned Lord would rise in his place and say he thinks that is so.


I think the Attorney-General was quite right in the opinion that he expressed. I said so before. You have to consider how the word "Parliament" is used in the context. I think it is quite clear that the House of Commons was intended on that occasion.


I forget whether the noble and learned Lord has been a Law Officer of the Crown.




Then perhaps he is not so complete an authority as he otherwise might be, but he has been and is a Judge of the highest Court of the Realm, and I confess that I should be very much surprised if, speaking as a Judge here, he used the kind of language to which we have just listened. So far as we are concerned, I think we may leave it there. We place it upon record that in our judgment, when the Government of the day use the word "Parliament," they mean the whole of Parliament—that is to say, both Houses of Parliament—and they are not entitled—this is, I am certain, the opinion of all noble Lords sitting on this side of the House and, I believe, of all noble and learned Lords, in whatever part of the House they sit, if they utter their candid opinion—they are not entitled to use the word "Parliament" in an official agreement with a foreign Power, or even in reference to a protocol or clause agreed to with a foreign Power, and to mean only the House of Commons. This use is inaccurate and ought never to be repeated.


My Lords, I think we are in a little danger of mixing up two different questions. The first is that of the constitutional necessity of submitting Treaties to your Lordships' House. I think it is perfectly clear that the right of making Treaties is a Royal Prerogative and that there is no reason why they should be submitted either to this House or to another place. Of course, as the noble and learned Lord opposite has said, it is often necessary that they should be cast into the form of Acts of Parliament, and then they naturally come before your Lordships' House. Otherwise, however, it does not become necessary.

The other point that has been discussed this afternoon is how far the use of the word "Parliament," when only the House of Commons is meant, is justified. I think it is perfectly obvious that, to say the very least, it is liable to lead to very grave misunderstanding. When we think of the usual use of the word "Parliament," the Parliament Act dealt with your Lordships' House quite as much as it dealt with the House of Commons. I venture to say that in general parlance the word "Parliament" does include your Lordships' House as well as the House of Commons. For my own part, I regret that this matter was not discussed in your Lordships' House, especially because we have in this House so many men of international authority in foreign affairs whose opinion, I think, would have helped to form the public mind in this matter. I regret that it was not thought necessary to have a discussion in your Lordships' House, whether that discussion had any legal justification or not. I hope that I may add my voice to what has been said already and ask of His Majesty's Government that, if in future in an official document they mean the House of Commons, they will say the House of Commons. If they mean Parliament, your Lordships' House should be consulted. I do not think it is possible that the occasion should pass entirely with- out comment. I think it is necessary that it should be placed on record that the use of the word "Parliament" should include your Lordships' House as well as the House of Commons.

House adjourned at five minutes past five o'clock.