MALTA CONSTITUTION BILL. [H.L.] (Hansard, 16 June 1932)

§ THE LORD CHANCELLOR (VISCOUNT SANKEY)

My Lords, I beg to move that this Bill be now read a second time. The object of the Bill is to put into effect the recommendations of the recent Royal Commission on Malta, and, although it is not a matter that needs very long discussion, there are some points in regard to it into which I must necessarily go somewhat carefully. In 1921 Malta was given a dyarchical Constitution. Responsible government in internal affairs was conferred upon it, but in respect to Imperial matters those were reserved to the Imperial Parliament. From 1921 to 1927 a Party known as the Nationalist Party was in power. But in 1927 the Constitutional Party under Lord Strickland was returned to power. From 1928 onwards there were unfortunate differences between the Strickland Government and the ecclesiastical authorities. I have no desire to go into them, nor is it necessary to express any opinion upon them or upon their merits. But on May 1, 1930, the Maltese Bishops issued a Pastoral containing certain opinions which the reverend Bishops held in regard to the way in which the people should vote in the coming General Election of 1930. In the circumstances His Majesty's Government did not think it advisable that that General Election should be held, and upon June 24, 1930, Mr. MacDonald, who was then the Prime Minister, announced that the Government had decided to suspend the Constitution. On the following day, June 25, 1930, Lord Passfield explained to your Lordships the situation then obtaining, and on the next day, June 26, there was an Order in Council issued under the Letters Patent by which Malta was governed suspending the Constitution.

It is obvious that matters could not remain in that position and, in the spring 937 of the following year, 1931, a Royal Commission was appointed to enquire into the affairs of Malta. If I may be allowed to say so, that Royal Commission was presided over by a member of your Lordships' House with very great skill and patience; I refer to the noble Lord, Lord Askwith; and upon January 29, of this year a Report was issued, and it was a very able Report, in which Lord Askwith and his colleagues, Sir Walter Egerton and Count de Salis, made a number of recommendations. The Government, having considered the Report most carefully, found that it commended itself to them almost in its entirety. Three ways were suggested under which the Report could be put into effect. It was necessary that part of it should be put into effect by Local Ordinance, part by Letters Patent, and part by an Act of the Imperial Parliament. It is a Bill carrying out the last-mentioned part to which I am asking your Lordships to give a Second Reading.

The Secretary of State, upon March 2 last, announced the intention of the Government in these words: The Constitution will be restored to the Island in accordance with the Commission's main recommendation, and steps will be taken to give effect to the various other proposals in the appropriate way by Local Ordinance, by Letters Patent and by a Bill which will be introduced in the Imperial Parliament. The Ordinances and Letters Patent will be issued and will take effect as soon as possible, while the Bill to give effect to those proposals which involve legislation in the Imperial Parliament will be introduced as soon as Parliamentary time permits. Unfortunately after that statement there was a recrudescence of the dispute to which I have already referred, and upon May 20 the Maltese Bishops issued a Pastoral. The Election was then imminent. The Secretary of State made an announcement in regard to that, and upon June 3 the third Pastoral was issued which superseded the Pastoral of May 1, 1930.

Upon June 6 the Secretary of State made the following statement to the House of Commons in reply to a Question: Hon. Members will have seen that on the 3rd June the Archbishop of Malta and the Bishop of Gozo issued a new Pastoral which supersedes the Pastoral of May, 1930. His Majesty's Government have held the same view as their predecessors, that, if the 1930 Pastoral remained in force, it would be impossible for a free Election in 938 Malta to take place. I am glad to say that situation no longer exists and the Governor has been authorised to proceed with the Elections. Polling for the Elections took place on June 11, 12 and 13. I am not able to tell your Lordships what the result of the polling has been, because in Malta they poll by a system of proportional representation and we are not yet sure what the result has been. That, my Lords, is the history which leads up to the introduction of this Bill.

I now invite your Lordships' attention to the clauses of the Bill itself. Its object is to deal with several matters. Its provisions deal with the appointment of Judges, with the police, with the disqualification of persons as voters by reason of a sentence for crime, and with the validity of certain legislation which has been enacted in the past relating to Malta, and there are also provisions as to the amending, repealing and printing of the Malta Letters Patent. I shall at once say to your Lordships that it is important to notice certain points with regard to the Bill. The Bill is to effect amendments to the Letters Patent on which the Malta Constitution is based and the provisions in Clauses 1 to 4 and in Clause 5 (2) are simply intended to make amendments to the Letters Patent. The effect of these provisions will be seen from the Second Schedule to the Bill, which indicates the manner in which the provisions of the Act are to be incorporated in the Letters Patent. When these amendments are effected the provisions of these clauses will be spent and the new provisions which will have been inserted into the Constitution Letters Patent will be, in virtue of the provision contained in Clause 6 (4), subject to amendment in the manner already prescribed in the Letters Patent.

I apologise for talking to your Lordships about technical things, but it is necessary that these matters should be understood in Malta. It is also proposed to insert the new provisions into the Constitution in accordance with the recommendations of the Commission by the method of an Act of Parliament. The reason for that is as follows. His Majesty's Government, on legal advice before them, are not prepared to admit that an Act is legally essential to make these amendments. They are advised that in view of the power to amend the Constitution 939 by prerogative legislation, which is reserved in the Constitution Letters Patent, His Majesty has power to make the amendments by Letters Patent. It is also thought desirable that, in accordance with the Commission's recommendation, the Act should contain a provision declaring that the legislation under which Malta has been recently governed was validly enacted and within the powers of the legislating authorities. In addition, therefore, to the amending provisions the Bill contains, in Clause 5, a provision to effect this validation.

With regard to the particular provisions in the Bill the object of Clause 1 is twofold: first, to add to the reserved matters under the Constitution the appointment (including qualification, remuneration and removal) of Judges of the Superior Courts of the Island; and, secondly, to propose to give power to His Majesty when he thinks fit to add to the reserved matters the subject of the establishment, discipline, control and administration of the police or any portion of that subject. This is done in accordance with the recommendation of the Royal Commission on page 167 of the Report. The reasons for this recommendation are indicated on pages 108 and 109 of the Report. The Commissioners there refer to the continual innuendo that the Judges are appointed to offices from nominees of one political Party and that the whole bench is practically of one political colour and brings political bias into the law. The Commissioners proceed to say: We do not say that this accusation is validly founded, but the accusation exists, and it would be well that, in the interests of the law, on occasion and where it is feasible, some appointment should be made which could not be designated as partial. It was with this reason in mind that the Commissioners recommended that the appointment of the Judges should be made a reserved matter. "Appointment" has been taken by the draftsman of the Bill to include the inter-related subjects of qualification, remuneration and removal.

It is not proposed to treat the subject of the police in the same way as the subject of the Judges, and make it immediately a reserved matter. The Commission in their Report stated that they thought that the treatment of the force had been too frequently influenced by Party considerations. Such a position, 940 they say, quite rightly, impairs efficiency, which everyone agrees is a great evil. What they desired was that the Constitution should be restored with as few amendments as possible. They therefore only recommended that the Governor should carefully watch the working of the present system, and later, if it works unsatisfactorily, make recommendation to the Imperial Government regarding its amendment. It is a logical consequence of the acceptance of this recommendation by His Majesty's Government that they should take power in the Imperial Act to deal with the subject of the police by making it, or any part of it, a reserved matter should circumstances make it desirable to do so.

Clause 2 (1) contains provisions which are consequential upon Clause 1. The subsection provides that the Judges shall be appointed by the Governor in the name and on behalf of His Majesty. Subsection (2) is designed to carry out the recommendation of the Commission that persons appointed to be Judges should have at least twelve years' experience either as counsel or on the magisterial bench. There has been a small departure from the recommendation of the Royal Commission in this respect. The Royal Commission recommended that the appointment should not necessarily be confined to men educated at the University of Malta or to Maltese by birth. In this particular the Government decided to depart from the recommendation of the Commissioners, and in the announcement by the Secretary of State for the Colonies it was stated that as regards the Judges "His Majesty's Government have decided that in all the circumstances this particular proposal should not be adopted."

Clause 2, subsection (3), provides that the remuneration of the Judges shall be determined by the Governer, but that the remuneration shall not be diminished during their tenure of office. It is most important that I should now deal very carefully with subsection (4). It is an alteration which needs careful explanation but when it is explained I am sure it will meet with your Lordships' approval. The subsection provides that the Judges shall hold office during His Majesty's pleasure. Your Lordships will recollect that Malta is a Colony and not a Dominion. Under 941 the existing Constitution Judges in Malta, in pursuance of Section 55 of the Letters Patent, can only be removed by the Governor in Council on "an Address from the Senate and Legislative Assembly in the same Session praying for such removal on the ground of proved misbehaviour or incapacity." That is the same tenure, to a very large extent, as that on which our Judges in England hold office, but the new conditions will assimilate the tenure of Maltese Judges to that of Colonial Judges and put them in the same position as Colonial Judges generally.

It is, however, important to emphasise that this change of tenure implies no departure from the scrupulous observance of the high constitutional principle that the Judiciary is independent of the Executive. Executive instructions have been laid down by the Secretary of State for the Colonies which will substantially secure to the Maltese Judges the independence which they at present enjoy. In case anyone should wish to refer to those instructions I may say that they will be found in the Circular Despatch of July 26, 1929. From that it will be seen that a careful procedure, involving a reference to the Judicial Committee of the Privy Council, has been laid down with a view to securing the position of Colonial Judges. Therefore there need be no anxiety either in your Lordships' House or outside that the constitutional independence of the Judges is in any way infringed.

Clause 3 is one with which we in England are not very familiar. The position in Malta is that the Malta Constitution Letters Patent provide that among the "special members" of the Senate shall be two members representative of, and elected by, the Trade Union Council. The Letters Patent further define the Trade Union Council as a Council recognised by the Governor as representing the trade unions of Malta for the purposes of the Letters Patent. I do not want to say anything that will revive past controversy nor will your Lordships desire me to do so. It is sufficient for me to say that this provision has not worked very satisfactorily—I will say no more than that—and the result has been to throw the constitution of the Trade Union Council into a constant state of flux. The object of the 942 provision in the Bill is to ensure that in future this position shall not arise and that the Council shall be a permanent and stable body. The question how members are to be elected to the Council and by what trade unions is left to be determined by the local Legislature. May I say with regard to this clause—I apologise, but it is necessary to explain it rather carefully—that it will probably be necessary in Committee to ask your Lordships to delete subsection (4)? The reason that subsection was put in was that it was expected that the Bill would be passed before the General Election, That Election, as I told your Lordships, has already taken place and that subsection may have to be deleted.

Clause 4 provides for the amendment of the Constitution on a minor point. It raises no issue of any importance. It should be noted, however, that it constitutes a slight departure from the recommendations of the Royal Commission. Section 30 of the Constitution Letters Patent provides that persons sentenced for certain classes of crime should be disqualified as voters in Parliamentary elections. The Royal Commission recommended on page 167 that this disqualification should be removed, and that persons coming within the provisions of the section should be allowed to vote after a certain period of time. I will not trouble your Lordships with a number of detailed provisions with regard to persons sentenced to simple imprisonment, persons sentenced to hard labour, and so forth. The translation of this recommendation into legal effect presented certain technical difficulties. In order to avoid complicating the Bill on this minor issue it has been decided to insert a simple provision assimilating the Malta law to that of this country by removing the disqualification in these cases altogether after the expiration of the sentence.

Clause 5 declares that certain legislation enacted in the past respecting Malta was validly passed and within the powers of the legislating authority. That legislation is set out in the First Schedule of the Bill. In Committee I must ask your Lordships to make a small Amendment. If your Lordships look at the First Schedule you will see that it is headed: "Letters Patent, Orders in Council, Acts and Ordinances declared to be valid." It sets out three Letters Patent, but quite recently there have been other Letters 943 Patent—No. 2, 1932—and I shall have to ask your Lordships to insert them in the List. The reason for that is that these Letters Patent have been issued since the Bill was drafted. The Government propose to do that in accordance with the recommendation of the Royal Commission, but I have already said that the Government do not admit that any of these laws are invalid.

Subsection (2) of this clause is a curious one and deals with a matter which does not occur in a Parliament like our own. It is to prevent the validity of an Act of the Malta Legislature being questioned in the Courts after the expiration of a year from the date when the Act comes into operation. This provision is inserted in order to carry out a recommendation of the Royal Commission. It is quite a small matter upon which I need not dwell. The subsection provides one exception to the general limitation of time, and that is in a case where the law in question deals with a matter "with respect to which the Legislature of Malta has no power to make laws." The reason for that is as follows. Under the dyarchical Constitution there is bound to be an area of border line matters which it may be argued do not fall clearly within the purview of the local Legislature or of the Imperial legislating authority. We think it is better that this clause should be inserted in order to prevent any confusion on that point in the future. Circumstances might arise in which the local Legislature purported to legislate on matters outside its province.

Clause 6 is mainly formal. It provides in subsection (3) for the preparation of a certified copy of the Malta Constitution Instruments which may be in future cited for all purposes as "the Malta Constitution Letters Patent." Subsection (4) provides that when the amendments authorised by the Act have been embodied in the Constitution they may be subsequently amended in the manner already laid down in the Letters Patent for the amendment of the Constitution. Great care has been given to this Bill by the Law Officers of His Majesty's Government. They are satisfied that these changes will be for the lasting benefit of our fellow subjects in Malta, and we hope and think that in future they will realise what a good and joyful thing it is for brethren to dwell together in unity. I 944 beg to move that this Bill be now read a second time.