HL Deb 30 July 1936 vol 102 cc449-60

LORD STRICKLAND had the following Notice on the Paper:—To ask whether His Majesty's Government will further elucidate the declarations of the Secretary of State for the Colonies—That the new Constitution for Malta will not be so restricted as that of Kenya, and will approximate to that of Ceylon and the Straits Settlements; whether His Majesty's Government will contemplate a round-table conference in London at which each of the three political Parties in Malta will be invited, to exchange views as to the details of the proposed Constitution, and the time when it may be promulgated; whether His Majesty's Government will publish the correspondence following the Malta Royal Commission when it was recommended that English Judges should be appointed in Malta; and whether it was then contemplated that all the Judges, or only the Chief Justice, should be English; and to move for Papers.

The noble Lord said: My Lords, I am happy that it has become my duty to ask leave of your Lordships' House to offer grateful congratulations to His Majesty's Government for the declarations which have been made in another place in the direction of assuring the people of Malta that they are within measurable distance of the re-establishment of representative Government in Malta as contrasted with responsible Government. I feel that every one in this country who holds to the sacredness of promises and pacts will join with me in these congratulations. Until that improvement in the attitude of His Majesty's Government was declared in another place, it was extremely difficult for those whose function and duty in life it is to uphold British prestige in Malta to go on counteracting anti-British propaganda in the Island, inasmuch as the attitude of the predecessors of the present Secretary of State for the Colonies was an attitude of being unable to remember or recognise the existence of any of those pledges and covenants which have been repeatedly acknowledged before your Lordships, not only one hundred years ago by the Secretary of State for the Colonies at that time but in more recent times by Mr. Secretary Chamberlain. That the task of those who uphold the Empire in Malta has been lessened is the principal reason why I beg leave to offer respectful and grateful congratulations to His Majesty's Government.

Nevertheless, what was said was said very guardedly and is perhaps subject to interpretation and elimination. There is anxiety in Malta as to exactly how much was meant by these declarations. The part thereof which is relevant and encouraging is not to be found in the speech by which the Second Reading was proposed in another place, but in a reply made to an interruption. That interruption made reference to Kenya, and was met by the Secretary of State for the Colonies with a contradiction showing he had in his mind an approximation to the form of Constitution obtaining in Ceylon or the Straits Settlement. This is an approximation to the Constitution which, fifty years ago, was known as the De La Warr Constitution. It was brought before your Lordships' House and carried by the work of the then Earl De La Warr, who made it his business in several speeches to argue for equality of opportunity to the Maltese nation among the other nations of the British Commonwealth. He was supported by the then Earl of Derby, the then Earl of Onslow, and other noble Lords.

The point now is that a Bill has been passed which has given power to His Majesty's Government to issue new Letters Patent to deal with the complicated position in Malta. But several days have passed since July 17, when that Act came into operation, and nothing has yet been done. It should be realised that that Act has done very little to get His Majesty's Government, or rather the Colonial Office—I will not say the present Secretary of State, because another Secretary of State was responsible—out of the wood. The present position is worse from a technical point of view. The validation of a few Ordinances validates certain acts of commission, but there is responsibility due in respect of omissions, and that remains just as it was before the Malta (Letters Patent) Bill was passed. In fact the responsibility for omissions has grown very much worse, because the proposal and the carrying of that Act involved the admission in legal circles not to be contradicted that the case was a bad one. There was a more cogent and weighty admission that the case was a bad one inasmuch as on no occasion was a Law Officer of the Crown seen on the Front Benches or on the Woolsack to agree with those unnamed lawyers on whose authority the tentative assertions of belief in a good case were occasionally propounded. In these circumstances the position of those in the Colonial Office responsible for the attitude of the two former Secretaries of State is very much worse.

It now remains to tackle the present position, and that requires the very early issue of Letters Patent, in the first place to give power not to hold the General Election. As the law now stands, the Governor of Malta is bound to issue writs for a General Election without any delay. The Constitution of 1921 has not yet been swept aside, and the Governor is bound inexorably not to allow more than twelve months to pass between the end of one Session of the Parliament of Malta and the beginning of another. No validating of Ordinances obliterates that, because none of the Ordinances has dealt with that matter, and since July 17 to this date that duty has remained unfulfilled. There is no Executive Council. To have an Executive Council is a duty unfulfilled, and the illegality of the position is just as clear as—in fact worse than—it was before the Malta (Letters Patent) Bill became an Act.

In these circumstances it is certainly a matter of great relief to welcome the present Secretary of State for the Colonies who, when Under-Secretary, with his knowledge and ability and determination, did not hesitate to correct blunders of permanent officials oversea. We have had other Secretaries of State, such as Mr. Churchill, who also did not follow the policy of supporting, rightly or wrongly, what was done by representatives of the Colonial Office overseas. It is very encouraging for the progress of the Empire that it is evident that policy has changed, and if that policy has changed in the direction of seeking cooperation with the forces that are working for the maintenance and strengthening of the British Empire, I think it is right to ask His Majesty's Government whether they will approach the question in a practical manner by having a round-table conference to discuss details of the Letters Patent that should be passed at once to put an end to the present illegality. Letters Patent should be drafted to find a future compromise that will work in a more satisfactory manner. I trust your Lordships will share the view that to draft Letters Patent in a hole-and-corner manner is a dangerous expedient when it is a question of those Letters Patent being the substitute for a great and generous grant of full responsible government and an acknowledgment of the full rights of the people of Malta. If there is to be a permanent going back from that situation, it ought to be done in an enlightened and generous manner.

It is clear that the permanent officials, the bureaucracy of Malta, responsible for these blunders will want to cover up their tracks. It is also in accordance with human nature that they will want to be omnipotent and not open to criticism in the future. There is the greatest reluctance, there is horror amongst the bureaucracy that they can be criticised in future by a Representative Assembly under the privilege of Parliament. The draft of past Letters Patent has, time after time, been made illusory and futile by little phrases and words put into the drafts that have defeated the object His Majesty's Government had in view in the direction of uplifting the Maltese nation and extending the influence of British culture in the Island. One sees one wish on the part of the Colonial Office and another wish on the part of Malta. Those who have studied psychology and have the legal knowledge by which they can make Letters Patent futile by a few words here and there, have time after time been successful and victorious. If that sort of result is to be avoided on this occasion, a round-table conference is a solution which I hope will have some sympathetic attention from His Majesty's Government.

The suggestion is that there should be an invitation: "Let those come who wish to come." I feel certain that the Constitutional Party and the Labour Party would respond. It is doubtful whether other groups, such as the group described by the late Governor as the "lip-loyalty brigade" would accept, but they might do so. Certainly those who have been notorious as being more in favour of Italian culture than of British culture would hesitate to come because the present condition of affairs tends to estrange the nation from sympathy with England, and the existence of a definite grievance and the feeling that former compacts and covenants have not been kept are cherished ammunition in the arsenal of the systematic propaganda of those who do not sympathise with England, which it is in the interests of His Majesty's Government to eliminate as soon as possible.

I will, with your Lordships' permission, read a short extract from the Report of the Royal Commission of 1931. It is at page 62 under the heading "Important Points of Constitutional Law" and is as follows: It is quite clear from the authorities that the Courts of Law can impugn the validity of laws which infringe the provisions of the Colonial Laws Validity Act, 1865, the powers of the Imperial Parliament and the Prerogative of the Crown, but we are unaware of any authoritative decision which authorise a Court of Law to go so far as to declare invalid laws passed by a Legislature months and even years after their promulgation, and to have such immense control over the proceedings of a Legislature, especially when, as is the case in Malta, the Legislature has passed an Act (No. XXIV of 1924) conferring on itself, in pursuance of permission expressly granted in Section 89 of the Constitution, all the privileges, immunities, or powers enjoyed by the House of Commons. That is a much stronger expression of opinion than I think can be found anywhere else in the Report of any Royal Commission criticising the action and the judgment of a Court of Law. This Report of the Royal Commission has been unanimously accepted by both Houses of the Imperial Parliament.

This Report also refers in another passage to the fact that the Roman Law is still operative in Malta. That reference adds great weight to this censure on the administration of justice in that particular instance, inasmuch as the Roman Law forbids distinctly the bringing forward of any action a year after the cause of action has eventuated when that action is brought forward in the name of the people to remedy a public grievance. I refer here to Book 47 of the Digest—namely, De Popularibus Actionibus. What is more, the Imperial Parliament, by sanctioning the Malta Constitution Act of 1932, gave legislative sanction to the provision that even the King himself cannot, after a year, disallow an Act of the Maltese Parliament: yet a Court of Law in Malta, notwithstanding the operation of that Imperial Act and notwithstanding that the Common Law of Malta is still the Roman Law, have taken cognizance more than a year after the cause of action had eventuated of an action to set aside the validity of certain laws passed by the Parliament of Malta. The condemnation of that action in this Report shows that it was the principal cause that brought the Constitution of Malta to the regrettable condition into which it drifted and required the intervention of an Act of Parliament.

After the publication of this Report, it was the opinion commonly held and expressed in legal circles in Malta, that it was futile to bring any action before the Maltese Courts that involved political issues, unless it were contemplated to carry it further by an appeal to His Majesty in Council. This Report of the Royal Commission goes so far as to suggest regret that, in the particular instance which it censures, an appeal to the Privy Council was not carried forward. In these circumstances it is not surprising that, although no recommendation is contained in this Report of the Royal Commission, His Majesty's Government inquired as to whether Maltese Ministers were favourable to the appointment of non-Maltese Judges. The reply was in the negative. It is an accepted principle in the Colonial Office that the chief judicial officer in all the Crown Colonies—not those having responsible government—should not belong to the particular Colony in which his functions have to be fulfilled. Under responsible government it is only natural that one Party is in power for a period and then the pendulum swings and another Party is in power for another period. Consequently, as in England, the Bench would be filled by members of the Bar who are either slightly inclined to one view in politics or to another, or who have no inclination to any particular political attitude.

That is one of the advantages of responsible government which becomes impossible under Crown Colony rule, and as we are to have a re-establishment of Crown Colony rule in Malta it is a point which should be elucidated before the Letters Patent are drafted. It is to be hoped that there will be no detriment to or diminution in the personnel of those who at present occupy or aspire to the Bench. If the policy is that of thoroughly reforming the Courts on the lines begun with such advantage by Mr. Secretary Cunliffe-Lister, now Viscount Swinton—to whom so much credit is due—the reform should not stop half way so as to be of less practical use in comparison with what can be achieved if a thorough-going reform is continued. It might have been considered as a temporary expedient, for a limited period, that the old office of President of the Court of Appeal would be re-established, and added to the present personnel in order that English procedure and much needed codification and co-ordination of the present legal position in the Courts of Malta should form a part of, and be facilitated in the drafting of, the new Letters Patent that are now under consideration.

I do not wish at this late hour to proceed further with arguments on this Motion, but before formally proposing it I would beg leave to call attention to a point of order. On a previous occasion when the noble and learned Viscount, Lord Hailsham, occupied the Woolsack and I was with great indulgence allowed to ask a question on private notice, I made some remarks afterwards in a second speech which I certainly should not have done at length for the reason that no notice had been given and there was no Motion asking for Papers. I bow to the ruling enunciated on that occasion by the noble and learned Viscount when on the Woolsack. He said that when a question was on the Order Paper and there was also a Motion for Papers, two speeches were allowed. To-day we have had two very weighty and able speeches from the noble Lord, Lord Lloyd. Those speeches were not brief, but they were clearly confined to points that had been raised in the debate. I feel it a duty to safeguard the right to follow that precedent; and my reference to the point of order previously ruled has been made to protect for all the privileges of this House, and the freedom of speech which your Lordships enjoy here by pointing out that the length of speeches is not the matter at which the line of demarcation has to be drawn between order and want of order, but that a lapse depends on the relevancy of what is said. I beg to move.


My Lords, the noble Lord has asked me four specific Questions and I will endeavour to answer them. I think there must be some misconception about the position. The first part of the noble Lord's Question appears to arise from a complete misinterpretation of some remarks made by the Secretary of State during the Committee stage of the Malta Bill in another place. An Amendment was proposed with the object of excepting Section 2—which deals with the Judges—of the 1932 Act from repeal under Section 3 of the new Act. In resisting this Amendment the Secretary of State argued that it was objectionable as the whole object of the new Act was to enable the Crown to resume its full prerogative right to legislate for Malta. If Section 2 were not repealed with the other sections this object would not be achieved: and the provisions of the section would remain hanging, so to speak, in the air. The Secretary of State went on to indicate that the removal of Section 2 from the Statute Book would not derogate from the position of the Judiciary, and that when the Act was passed the Judges would be—and now I am quoting— in the same position as the Judiciary of the Straits Settlements, Nigeria, Kenya and any other British Colony. Later in the debate some confusion arose as this reference was misconstrued as meaning that the new Constitution as a whole was to be on the lines of those, in these Colonies. But the Secretary of State's intention was to refer simply to the position of the Judges in the above respect only. He was not attempting in any way to suggest that the new Constitution in Malta should be modelled on the lines of that already existing in any particular Colony. That deals with the first part of the noble Lord's Question.

With regard to the second part of the Question, in which the noble Lord asks whether His Majesty's Government will contemplate a round-table conference in London to exchange views, I think that here again there is some slight misconception. The position is that it was contemplated that there should be more than one step in the process which will follow the passage of the Bill which has just become law. I have explained, as the Secretary of State has explained in another place, that the first step would be to introduce a Constitution of an interim character. That would precede and be followed in due course, but at a time which was net specified, by a more advanced form of Constitution. The position which we have reached now is that we are just about to introduce the first Interim Constitution. Therefore, clearly, the time is not yet ripe, in the view of His Majesty's Government, to consider the possibility of instituting a round-table conference, as is suggested by the noble Lord. I am afraid that on that point I am unable to say anything more definite.

Then he goes on and asks whether His Majesty's Government will publish the correspondence following the Malta Royal Commission, when it was recommended that English Judges should be appointed in Malta. This correspondence only formed a very small part of the great mass of correspondence which very-naturally followed the Report of the Royal Commission. I am unable to find any apparent reason why this particular portion of the correspondence should be singled out for publication. In addition to that, the correspondence was of a secret character, and I think your Lordships will agree that, before correspondence of that kind is published, strong reasons of State have to be established. In those circumstances I am afraid that the Secretary of State is not prepared to agree to the noble Lord's suggestion that this correspondence should be published.

I now come to the last part of the noble Lord's statement, in which he asked whether it was contemplated—I imagine, he means by the Royal Commission—that all the Judges or only the Chief Justice should be English. The recommendation of the Royal Commission on this point was as follows—I am now quoting from the Report of the Commission: The provision of the Letters Patent of 1921 that the Judges are to be appointed by the Governor in Council should be amended, so that the appointment of Judges may be made a reserved matter and taken out of the province of the Maltese Ministry. The persons appointed to be Judges should have had at least twelve years experience either as Counsel or on the magisterial bench. These appointments should not necessarily be confined to men educated at the University of Malta or to Maltese by birth. Although a wider field of selection might not be drawn upon, it may be desirable that it should exist, in case it should become necessary to strengthen the prestige and efficiency of the law in Malta. This recommendation, in so far as it related to widening the field of selection, was not accepted by His Majesty's Government at the time. As your Lordships will see, it related to Judges generally and not to the Chief Justice only.


My Lords, it is my duty to assist your Lordships' House in clearing up what is suggested to be a misunderstanding. I will therefore read briefly the passage referred to by the noble Earl who has just sat down, from column 814 of the Commons OFFICIAL REPORT of July 13. Mr. Morgan Jones was speaking; he was not then talking about the Judges but referring generally to the Constitution as a whole.


My Lords, I think I can shorten this discussion, if the noble Lord will allow me.


I should like to read the text first and then sit down. Mr. Morgan Jones said: The Maltese people can show that while they possessed the powers of self-government they were able to register a substantial advance in social legislation. Therefore, it seems to me unjust to withdraw so completely all the powers which they possessed in 1921. To-night we have been told by the right honourable gentleman in the most specific and emphatic terms the nature of the government which is to be offered to these people. He spoke of having the power to go back to a government comparable to what is possessed in Kenya, Nigeria and other places. Mr. Ormsby-Gore, the Colonial Secretary interrupted. He said: I mentioned neither Kenya nor Nigeria. The two I mentioned were Straits Settlements and Ceylon. Then Mr. Jones continued: We will not quarrel about that, but I could have sworn I heard the right honourable gentleman mention Kenya. Any way, they are going back, not to the government they possessed in 1921, but to something comparable to Crown Colony government. My Lords, I am not about to argue whether one interpretation or the other should be put to your Lordships; I will restrict myself to proving that what I put on the Notice Paper of your Lordships' House for discussion to-day was justified by the words actually used.


My Lords, may I be allowed to explain that I never suggested that the noble Lord was not justified in putting down this Question on the Order Paper? I was merely trying to explain that there was some misunderstanding about this, and I have had the authority of the Secretary of State to make the statement that I have made to-day. What he meant to refer to was the position of the Judiciary, and not the whole Constitution. I was merely trying to explain to your Lordships that there has obviously been a misunderstanding with regard to the matter, and I am glad to have had an opportunity of clearing it up.


Does the noble Lord withdraw his Motion?


Yes, I beg leave to withdraw.

Motion for Papers, by leave, withdrawn.