HL Deb 13 July 1936 vol 101 cc730-8

LORD STRICKLAND had the following Notice on the Paper:—To ask His Majesty's Government whether they are aware—

  1. (1) That the validity of eight enactments of a former Government of Canada have been submitted to the Supreme Court of Canada;
  2. (2) That the Court ruled that some were valid and some were invalid;
  3. (3) That the present Prime Minister of Canada has announced the intention to appeal to the Judicial Committee of His Majesty's Privy Council against the judgment recently delivered by the Supreme Court of Canada in reference to the above.
  4. (4) Whether His Majesty's Government have considered the prejudice to such an appeal from Canada, by the impediments to a similar appeal from Malta should the Malta (Letters Patent) Bill be passed without amendment in another place.
  5. (5) Whether His Majesty's Government will reconsider the consequences throughout the Empire of interference with the Judiciary by the Executive or Legislature of one part of the Empire when an appearance has been entered by both parties in an appeal to His Majesty in Council on the validity of a law that affects either public or private rights.
  6. (6) Whether His Majesty's Government will consider the advisability of making provision in this House or in another place to avoid any appearance of discrimination between one part of the Empire and another, and to safeguard against personal hardship in any litigation before the Privy Council, and to avoid precedents that involve a weakening of the confidence heretofore entertained throughout the Empire as to redress, being obtainable when it is alleged that political or other bias had influenced a decision overseas.
And to move for Papers.

The noble Lord said: My Lords, a Press telegram has conveyed the announcement from Canada that the Prime Minister of that great Dominion has decided to appeal to His Majesty in Council with reference to the finding of the Supreme Court of Canada on the validity or otherwise of a number of Bills some of which are of a public character. That the Prime Minister of Canada should appeal to His Majesty in Council and bring before the Judicial Committee the question of the validity of certain Bills should be a matter for great congratulation on the part of all those who have been watching with grave anxiety the gradual dissolution and abstraction of Imperial authority not only from the Parliament at Westminster but also from the Crown. Since the Statute of Westminster has unhappily been passed, appeals to the Judicial Committee of His Majesty's Privy Council have become the most important link in the Empire that is left. It is the only administrative power recognised throughout this vast Empire, and anything that tends to diminish its importance is a matter not for the Colonial Office alone but also for the Dominions Office, for those Law Officers who are responsible for the administration of justice and, above all, for the noble and learned Viscount, Lord Hailsham, who adorns the Woolsack as the greatest legal authority of this generation. He is the keeper of the King's conscience.

Appeal to the Privy Council within the solemn exercise of the Prerogative of the Crown is the foundation of justice. Would any Minister of the Crown be a party to any legislation or any gesture tending to say to anybody in Canada that appeal to the Privy Council is to be curtailed directly or indirectly, be it on a matter of public interest or of private interest? There is no one in your Lordships' House who believes that any Government would dare, in any way, to run the risk, already very great, that Canada would cease to bring appeals forward to the Privy Council. Nobody would dare to interfere with that sacred right in the case of Canada. But because Malta is small interference with that same right is made light of on information which is not correct. It has been unfortunately conveyed to your Lordships' House that the validity of law has been challenged in Malta otherwise than where private interests were concerned, and interests not covered by reserved matters. No one has challenged any action of the Crown within the ambit of the reserved matter; the Malta Constitution Act of 1932 only validated certain laws that dealt with reserved matters.

The spirit in the Empire with regard to the preservation of this right to appeal to the King in Council is very strong. It has been a matter of discussion in legal circles in Canada, Australia, India and elsewhere. It is regarded in the spirit in which St. Paul said: "I am a Roman citizen, I appeal to Caesar." He was unfortunate, for instead of getting justice he lost his case. He was wrecked in Malta on the way. It is that right of appeal to the King which very largely holds the Empire together. Respect for the Crown and for what remains of the Prerogative of the Crown is a sacred thing that ought not to be dealt with in a different way in this Dependency or that, on information which is incorrect and which is put forward simply to save the face of officials who ought to be the subject of inquiry rather than of protection. The basic reason for the passing of the Act of Parliament constituting the Judicial Committee of the Privy Council was the incapacity of any Colonial Department to ravise cases and complaints when there was good reason to allege bias or partiality. The feeling throughout the Empire that when there is bias appeal can be made to the King in Council is one of the links of Empire which is too sacred to be lightly treated. If you treat it lightly in the case of Malta, and dare not do so in the case of Canada, what becomes of the spirit of Empire among those who love and cherish it throughout the world and who have devoted their life to its preservation and augmentation?

There are two appeals from the small Island of Malta—one concerning private rights and the other concerning public rights, as in the case of the appeals coming from Canada—but this matter must be dealt with entirely apart from the question whether public or private rights are involved. The grounds for alleging that there should be a new trial are fully set out, not merely on the allegation of one of the parties but on the order of the Chief Justice. But here in your Lordships' House what is on the record was described as "monstrous." Since then the whole of the legal profession and ex-members of the Parliament of Malta have met to consider the speeches and the interruptions, and everything else that passed on that occasion. Report of the meeting of lawyers has been sent to His Majesty's Government, and I am therefore entitled to refer to it. I will do so by saying that the interruption which I had to submit to in this House for which there was no justification in the OFFICIAL REPORT next morning, found no echo of support in the Press of Malta except in one paper. In these circumstances I trust that His Majesty's Government will see that this is not the time to push on further legislation which indirectly deals with the whole of the prestige of appeals to His Majesty in Council.

It is quite unnecessary to deal with the real object of this Bill, if that is the same as the avowed object, by this method. We are close to the Recess. If this particular case cannot be heard before the Recess, there is plenty of time before a decision can be arrived at to prevent this blow to the prestige of His Majesty in Council, and to preserve the spirit of the declaration Civis Romanus sum—I am a British subject, I go to the King. Let this Bill die with the adjournment of Parliament, and let the relevant points be dealt with otherwise than by infringement of this most sacred of our rights. That is the appeal which I make to His Majesty's Government, not only with regard to a small Island but as one who has spent the whole of his life dealing with these questions of Imperial unity. I know what the feeling is on this question of Privy Council appeals. I know how it has been touch and go whether they should be entirely abandoned in Australia, and in Canada the ambit of their operations has been tremendously restricted. A very little shake in the system will bring it down. I appeal to His Majesty's Government to consider the want of wisdom in cracking a nut with a sledge-hammer, or even with a steam hammer, which is what this Bill is doing, with no benefit to the Empire except the whitewashing of gross blunders which everybody admits have been made. The persons who are responsible for making them should be called upon to answer before a Royal Commission or otherwise for their action, sooner than that the Government should take this tremendous risk of interference with the King's Prerogative to whitewash these blunders. That is the problem His Majesty's Government have to face, and I hope they will face it courageously and Imperially. I beg to move.


My Lords, the noble Lord has asked me a series of Questions which are down upon the Paper, and I intend in my reply to answer those Questions. There are six of them altogether. So far as the first three are concerned, I should like to say that the facts are as the noble Lord has stated them, and there is nothing for me to answer in the first three of the six Questions. With regard to the fourth I should like to say that the Government are advised that the action proposed in the Malta Bill, to which the noble Lord has referred, has no relevancy at all to the appeals from Canada to the Judicial Committee of the Privy Council, or, indeed, to any such appeal from any Dominion or Colony. I may say that, having gone into the question myself, I cannot see that there is anything comparable between the cases to which the noble Lord has referred—namely, the cases of appeal from Canada and from Malta.

So far as the Malta case is concerned, I explained the Government attitude at some length in the course of the Second Reading debate on the Malta Bill in your Lordships' House, and I feel certain that the House will not desire me to go into the whole question at length once again on this occasion. Obviously, in view of the history of the matter and in view of the fact that the Bill passed through your Lordships' House and is now under discussion in another place, it is not possible for me to do anything but to repeat what I said on that occasion. I think, however, that in courtesy to the noble Lord I should like to say that the attitude of the Government to this question is briefly this. While they fully recognise the general proposition that overriding legislation by Parliament while a case is before the Courts may obviously be open to objection, they hold that these objections do not obtain in this particular case, and that even if they did obtain there are strong reasons of general public interest which outweigh them. We agree, too, that if a litigant has a case before the Courts involving some question of personal liberty or title to property, then it would be clearly objectionable for Parliament, unless there were some overriding reason of State, to legislate during the course of the case so as to deprive that litigant of benefits which he might have expected to derive from the judgment of the Court.

But in the case at present pending before the Privy Council no such questions are in our view involved. As I said, I do not want to go into the whole question at length, particularly as the noble Lord has himself refrained from doing so, but he has, of course, raised the much wider question generally of the validity of the legislation which was passed in Malta during the régime of the provisional Government. As I pointed out, though the Government do not admit for a single moment that a serious case can be put forward against the validity of the laws that were then passed, at the same time the attitude they adopted was that, as legislation had to be brought forward before the Imperial Parliament in any case in order to pave the way for a new Constitution in Malta, it was obviously wise to take that opportunity in order to clear away any doubts that there might be on this point. As I pointed out during the Second Heading, it is perfectly obvious that even if the noble Lord had ultimately won his case, the Government would have had to bring forward legislation straight away in order to validate the measures which would thereby have been invalidated, because otherwise there would have been complete legal chaos in Malta. Therefore, as I said, in these particular and exceptional circumstances the Government took this opportunity of dealing with that subject as well as dealing with the general question of the constitutional position in Malta.

I want to repeat what I said on that occasion. If the noble Lord—and I do not believe this is a matter which is really of primary importance to him; in fact I know it is not—could show that he had suffered damage in any material or pecuniary manner by the validation of this legislation, His Majesty's Government would be prepared to consider sympathetically a claim for compensation. We realise perfectly well that he must have been put to considerable expense as a result of bringing this case to the Privy Council, and I wish to assure him that we have no desire to involve him in any loss of that character. In view of what I have said in reply to these Questions, it is, I think, quite obvious that, in so far as the latter three are concerned, we take the view that our action in this matter with regard to the appeal from Malta is being taken in entirely exceptional circumstances. The Government feel that it gives no ground for opening up the large questions of policy referred to in numbers 5 and 6 of the Questions on the Order Paper, and they therefore do not propose to consider them. Consequently the answer to these two parts of the Question is in the negative, and, my Lords, as this matter is at present being discussed in another place, I do not think the noble Lord could have expected me to give him an answer other than the one which I gave him when this matter was discussed previously in your Lordships' House.


My Lords, I cordially thank the noble Earl who has just sat down for the abundant detail and the great courtesy with which he has endeavoured to reply to these Questions. May I at the same time point out that when Courts of Law have declined in first instance and on appeal to adjudge costs to either side that amounts to a finding that the case was not unfounded and is one that deserves to be argued? The noble Earl on behalf of the Government is offering the costs for the third time. No member of this House who is a member of the legal profession can fail to realise that when costs are not adjudged it is a declaration that the case is not one of unwarranted litigation. The noble Earl suggested that these two appeals from Malta are not of sufficient importance to be a matter for appeal to His Majesty in Council, but there can be no better contradiction of this than a three-fold offer in the name of the Government in this House of the costs. It is a confession that responsible Law Officers know there is an indefensible case. Nobody offers costs unless he knows he is in the wrong, and no one certainly offers them three times if there is justice on his side.

The noble Earl says nevertheless that he is convinced that the Government are right I do not think it would be discourteous to retort that as a member of the English Bar who has practised and has had considerable experience of the Privy Council, I beg to differ. And may I add that it is of no authority to say "I am advised" or that some counsel has so advised the Colonial Department. Any client who knows where to look for it can get any advice he may desire on anything. This does not apply only to the law—if you want to drink port when you suffer from gout you can go to Harley Street and get a doctor to advise you to drink port. And so it may be with special pleaders who practice the law. But when a responsible Minister on behalf of the Government makes an assertion on a question at law of this importance, the Law Officer of the Crown should be quoted, and I am convinced that there is not a Law Officer who would not sooner resign his office than plead that there should be no appeal in a case where a new trial is asked because in the Court below one of the Judges has been censured, and censured on a special appeal to the Judicial Committee of the Privy Council on the same proceedings.

I thank the noble Earl for his courteous speech, but his answer is really not an answer. He says that there is no infringement by the attitude of the Government of the sacred right of appeal to His Majesty in Council. Is the noble Earl entitled to be the judge of that, or is it for His Majesty in Council to decide. This is a right which is enjoyed by every British subject, be he right or wrong, in asking leave to appeal to the Judicial Committee of the Privy Council. It is a right which binds the British throughout the Empire to the King, it helps to keep the Empire together, and it is not for the noble Earl to decide whether Maltese officials have advised rightly or wrongly, but for the Law Officers of the Crown.

As to my having brought this Question before the House when discussion is pending thereon in another place, I have felt entitled to do so because of the advent of new facts of such weight that I am quite certain if His Majesty's Government will only take time to confer with the Law Officers and the Keeper of the King's Conscience, as they can easily do, they will not go on with the rushing of this legislation. The noble Earl spoke of the repayment of the costs of litigation. That is not the question. If it were a case of an unprotected lady journalist from Canada appealing to protect a business which she is working nobly to make a financial success thereof, would she be so treated I There is a lady in Malta running the English and the vernacular newspapers with the greatest circulation. Those newspapers have done much to make Malta loyal and pro-British. Those newspapers belong to persons who have a right to protect their trading rights. The Government passed an Ordinance as for a reserved matter to forbid what is allowed in England and is usual with newspaper advertisement posters; and I ask what right has any Governor to say whether posters are so ugly as to be offensive to the local population, and whether they must be taken down in the interest of the defence of the Empire?


It is done here.


It is not when municipalities act beyond their powers. The powers given the Governor by the Constitution are limited to dealing with reserved matters, and do not go so far as to entitle him to stop posters on private property. That is a matter for the Parliament of Malta alone to deal with; that is the authority which deals with domestic affairs. That is a fundamental part of the Constitution. The statement made by the Secretary of State (Mr. Ormsby-Gore) in another place is correct; the one made here is not correct. Mr. Ormsby-Gore said on the Second Beading in another place that local matters under the diarchical Constitution were the business of the Parliament of Malta. All these reasons given by the noble Earl are not the real reasons for which this Bill is being pressed. There are other reasons, and those other reasons can be dealt with in a much more statesmanlike manner after further consideration than by saying that laws have been validly passed when they have not been validly passed. I again appeal to the Government, and to the noble Earl, to agree that nothing should be done that in any way affects the sacred right of every subject of the King to appeal to His Majesty in Council from overseas, and that this right should not be in any way challenged. I beg to withdraw my Motion.

Motion for Papers, by leave, withdrawn.

House adjourned at twelve minutes before seven o'clock.