HL Deb 27 June 1932 vol 85 cc196-204

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1 agreed to.

Clause 2:

Provisions as to Judges.

2.—(1) The Judges of the Superior Courts of Malta shall be appointed by the Governor of Malta in the name of and on behalf of His Majesty.

(2) No person shall be qualified to be appointed a Judge of the said Courts unless he is a graduate of the University of Malta nor unless, during a period of not less than twelve years or during periods amounting in the aggregate to not less than twelve years, he has either practised at the Bar or served as a magistrate in Malta, or has partly so practised and partly so served.

LORD DARCY (DE KNAYTH) moved, in subsection (2) to leave out "unless he is a graduate of the University of Malta." The noble Lord said: I hope it will not be regarded as presumption in one who has not yet taken any active part in your Lordships' proceedings to move an Amendment on a matter which has received the consideration not only of a very eminent and painstaking Royal Commission but also of His Majesty's Government. The Amendment I am asking you to accept is a very simple one lying in a very narrow compass. It simply seeks to enable persons to be appointed His Majesty's Judges in Malta who have not been to the University of Malta. I feel sure your Lordships will realise that it is not with any ill-will to the University of Malta that I move this Amendment, but solely out of a sense of justice to the Maltese themselves. In these days it is impossible to ask any body of men to graduate at more than one University, and if that is so the requirement to graduate at the Maltese University is equivalent to excluding Maltese who desire ultimately to proceed to distinctions in the law from ever having access to the great educational institutions of the Empire other than in Malta. What have the Maltese done that they should be thus singled out and what has the legal profession done that it should be deprived of a privilege really enjoyed by every other inhabitant?

I cannot help feeling that it is highly desirable that people in Malta should realise the full meaning of citizenship of this Empire and should be encouraged to come over here, not penalised for doing so. I cannot see why, if a person is to come over here and acquire those qualifications which would enable him to be raised to the Bench in this country or appointed a Judge of the High Court of India or even to preside over your Lord-ships' House, he should be debarred from returning to Malta with a prospect of sitting on the Bench there. That rather goes beyond the scope of this present Amendment because there is in the clause a requirement that service at the Bar or as a magistrate for twelve years should be served in Malta. I was under the impression that the Royal Commission had recommended that that service need not be confined to Malta. I would not endeavour to go a yard further than the recommendation of the Royal Commission and in those circumstances I am keeping to a much narrower scope than I should have done otherwise.

May I ask the noble and learned Viscount in charge of the Bill what is really the reason why it should be necessary to insist upon an educational qualification for those who are desirous of sitting on the Judicial Bench of Malta Which is not required for sitting in the High Court in this country? It is possible to preside over the judicial proceedings of your Lordships' House without a university degree and it has frequently been done with considerable distinction by occupants of the Woolsack who have raised the prestige of this House and enriched its views. But there is one thing which causes me considerable difficulty, and that is why, if a Maltese were to come over here and acquire from the educational point of view all those qualifications that would be necessary to enable him to preside over the Judicial Committee, he should be regarded, if he went back to Malta, as incapable of sitting in the Courts from which appeals to the Judicial Committee would lie, owing to lack of educational qualifications. I find that a trifle obscure, but no doubt the noble and learned Viscount can answer me.

Amendment moved— Page 2, line 21, leave out from ("Courts") to ("unless") in line 22.—(Lord Darcy (de Knayth).)

THE LORD CHANCELLOR (VISCOUNT SANKEY)

I am much obliged to the noble Lord for moving this Amendment. In the course of his remarks he said he was presumptuous in moving the Amendment. All I hope is that he will continue to be presumptuous and take part in our debates. I can assure him that the reasons which he has given are both cogent and conclusive, and, subject to your Lord-ships accepting it, I accept the Amendment on behalf of the Government. The result of accepting the Amendment will be that it will not be necessary for a person to be a graduate of the University of Malta to qualify to be appointed a Judge of the Superior Courts in the Island. The effect of the law as amended will be in practice to confine appointments to Maltese, since the twelve years service at the Bar, or as a magistrate, must be service in Malta. I am much indebted to the noble Lord for bringing forward the Amendment.

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3:

Amendments as to Trade Union Council.

(4) This section shall come into force on such date as His Majesty may appoint by Order in Council, not being earlier than such date as appears to His Majesty in Council to be the date on which the election of the Legislature of Malta held next after the commencement of this Act has been completed.

THE LORD CHANCELLOR moved to leave out subsection (4) and insert: (4) Notwithstanding anything in this section, any person who, immediately before the commencement of this Act, was a special member of the Senate, and had been duly elected such a member by the Trade Union Council as defined by the law then in force in Malta, may retain his seat in the Senate as if this section had not come into operation.

The noble and learned Viscount said: The reason for the omission of subsection (4) is, as I have already foreshadowed in the debate on the Second Reading, that when the Bill was prepared it was anticipated that it would be passed into law as an urgent matter before the holding of the recent Elections in Malta. In that event subsection (4), as it stands in the Bill, would have been required, but the Elections have now been held and it is not necessary to have the subsection in the Bill. Might I take the new subsection at the same moment? The insertion of the new subsection is required for different reasons, and in consequence of certain representations which have been made to us since the Bill was introduced, that the clause might affect the position of persons already elected members of the Senate by the Trade Union Council. When Clause 3 of the Bill does come into operation, it is thought that it might be argued—particularly if subsection (4) as it stands in the Bill is omitted—that the members elected by the former Trade Union Council were no longer representatives of the Trade Union Council as defined for the future, and therefore were not entitled to retain their seats. In order to make it perfectly clear that this is not the effect of the clause, and in order to do justice, it is proposed to insert this new subsection.

Amendment moved— Page 3, line 32, leave out "subsection (4)" and insert the said new subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4:

Amendment as to persons disqualified as voters by reason of sentence for crime.

4. Notwithstanding anything in Section thirty of the principal Letters Patent (which provides that a person shall be disqualified to be registered as a voter on any register of voters, and to vote at any election of members of the Senate or of the Legislative Assembly, if he has been sentenced by any competent court for any crime mentioned in that section), no person shall be so disqualified by reason of any such sentence (whether passed before or after the commencement of this Act) after the expiration thereof.

LORD DARCY (DE KNAYTH) moved to leave out "Notwithstanding anything in" and insert "Paragraph (1) of." The noble Lord said: This is an amendment which deals with the disqualification of persons who have been convicted of crime. The present position in Malta is that where a person is guilty of certain crimes he is disqualified for ever after from exercising the franchise. When Lord Askwith was in Malta it was represented to him by many people that this was a harsh measure and went beyond what public opinion now required. I will read to your Lordships what the views were, as they appear from the report on page 88, of the Royal Commission: Another proposal made was that there should be an alteration in the disqualification of persons entitled to be registered as voters or to vote at any election for members of the Senate or the Legislative Assembly. Under Section 30 of the Constitution disqualification attaches to a voter for life in the case of persons sentenced in the manner mentioned in the section. It was proposed by the Labour Party that the disqualification should last for eight years as a maximum, the actual period of disqualification being left to the discretion of the Court, and that in the case of sentences with hard labour the disqualification should exist for five years, and in cases of simple imprisonment for two years. We agree that the present disqualification is harsh but we think an alteration might easily be suggested by the Legislature of Malta if greater liberty is desired. If, however, an Imperial Act of Parliament is passed, we consider that disqualification should be amended in the manner proposed.

That has not been the attitude taken up by the Government in this Bill. Instead of doing that they proceed to assimilate the law in Malta to the law in this country. I think it is pretty clear from the extract which I have read to your Lordships, and also from other information that I have at hand, that there is no one in Malta who desires complete disqualification. So far as I can see the Labour Party went further than anyone else, and they suggested a sort of tariff, the tariff being, as I understand, the one which I have just read to your Lordships. It may be that in this country we think that at the conclusion of a sentence a person should be free. I know there are countries where, after a person has been convicted of a crime of peculiar atrocity he will be met when he leave the prison gates by a literary galaxy, who will make him attractive offers for a description of his career of crime; but it may be that in a devoutly religious community there are people existing to-day who consider that the community should exercise upon those who have been released from prison some form of disqualification—not necessarily permanent, but lasting after release—as a sign of the displeasure of the community and of disdain for the horrors committed.

Having suggested that this clause should take that form I will read the words of the noble and learned Viscount who introduced this Bill on Second Reading. In column 944 of the OFFICIAL REPORT these words of the noble and learned Viscount will be found: 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 disqualification in these cases altogether after the expiration of the sentence.

The Amendment which I am now asking your Lordships to adopt is a very simple one. Instead of assimilating the law of England and Malta it merely repeals the present provision of the Letters Patent under which this disability is imposed. That means that a person who is convicted of crime will not be under any disability, even while he is in prison. That is, of course, a position that is intolerable, and one that is bound to be amended by the Legislature of Malta. I think I might call your Lordships' attention once more to the words of the Report, in which it was suggested that unless the scheme put forward by the Labour party were to be adopted it should, in fact, be dealt with by the Legislature of Malta. The effect of this Amendment is simply that the Legislature of Malta will have the general law to deal with, will not have to bother about amending the provision of the Letters Patent, because that will have vanished, but will simply have to decide for themselves what disqualification there should be; and that disqualification, as the result of this Amendment, can be decided by a bare majority instead of a majority of two-thirds, which would have been required under the other circumstances. The noble and learned Viscount has assured me that the giving effect to this provision is a matter of small importance, and he also pointed out that the reason why he adopted this form was in order to simplify the Bill as drafted. If my Amendment is accepted it will leave out a considerable number of words and simplify the matter considerably.

Amendment moved— Page 3, line 38, leave out ("Notwithstanding anything in") and insert ("Paragraph (1) of").—(Lord Darcy (de Knayth).)

THE EARL OF IDDESLEIGH

May I express the hope that the Amendment will have the same favourable reception as the Amendment which my noble friend previously moved with such conspicuous ability? The Maltese are a proud and an ancient people, and their traditions are very markedly different from those of these Islands. A provision which may appear, and which may actually be, the very apex of human wisdom in Great Britain, may wear a very different aspect in Malta. The matter is of no Imperial interest, so far as we have yet learned, and I can see no possible objection to leaving the Maltese to settle a matter which concerns themselves alone.

THE LORD CHANCELLOR

I regret that in this case the Government are not able to agree with the noble Lord, and for several reasons. It is perfectly true, as he said, that the law of Malta as it originally stood was very harsh to people who had been convicted, and then later on that harshness was alleviated by the recommendations of the Royal Commission. We are hoping to alleviate it still more. But the real reason why we cannot consent to this Amendment is this. It was found that the translation into legal effect of the recommendation of the Royal Commission in this small instance presented certain very great technical difficulties in the Criminal Law of Malta. We endeavoured to draw a clause to deal with it, and I think it ran into a whole page of an Act of Parliament; and in order to avoid complicating the Bill on this minor issue it was decided to insert a simple provision assimilating the Maltese law to that of this country by removing the diqualification in those cases altogether after the expiration of the sentence. The acceptance of the Amendment would create certain difficulties in the Letters Patent because a whole paragraph of the Constitution would be repealed altogether, and it is obviously most undesirable to allow a Bill like this, especially in the present state of Malta, to become a vehicle for any general amendment of the Constitution, especially in this somewhat difficult technical criminal matter.

I dare say the noble Lord thinks—and I thought too, myself—that if Section 30 of the Constitution were repealed altogether the question of disqualification would be one on which the Maltese Legislature could legislate by a bare majority as distinct from the two-thirds majority which is required for an alteration of the Constitution, and that, therefore, the Legislature would be able to make its own stipulations with regard to the disqualification of voters. We are advised by the Law Officers, however, that this would not be the case, as any such legislation by the local Legislature would constitute a restriction upon the franchise granted by the Letters Patent, and would not therefore prevail against the terms of the Letters Patent themselves. Although I sympathise with the noble Lord in his desire to alleviate the harshness of the law, we are going still further to alleviate it, and the result of his Amendment would be to make very great complications in the Letters Patent. I rather hope that, after this explanation, the noble Lord will not press his Amendment.

LORD DARCY (DE KNAYTH)

After the noble and learned Viscount's careful explanation I beg leave to withdraw the Amendment.

Amendment, by leave, wthdrawn.

Clause 4 agreed to.

CLAUSE 5 [Validity of Letters Patent, Orders in Council, Ordinances and Acts]:

LORD MOUNT TEMPLE

If I interpret subsection (2) correctly, my Amendment to it is only a drafting Amendment—

THE LORD CHANCELLOR

We accept this.

Amendment moved— Page 4, line 22, after ("whatsoever") insert ("commenced").—(Lord Mount Temple.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Provisions as to amending, repealing, and printing of Letters Patent]:

THE LORD CHANCELLOR

The next two Amendments are consequential on my Amendment to Clause 3.

Amendments moved— Page 4, line 36, leave out from the beginning of line to the end of line 38. Page 5, line 4, leave out from ("shall") to ("be") in line 5.—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 6, as amended, agreed to.

Remaining clause agreed to.

First Schedule: