HL Deb 05 March 1936 vol 99 cc925-40

LORD RANKEILLOUR rose to ask His Majesty's Government under what powers and by what procedure is it proposed to establish a new Constitution for Palestine; and in what form will the proposals be laid before each House of Parliament. The noble Lord said: My Lords, in asking the Question that stands in my name I should like to say that I do not propose to go into the merits of the proposed new Constitution for Palestine. Indeed, it would be somewhat difficult to do so because up to now there has been no White Paper or other document circulated to inform your Lordships and the public of the details of the Constitution, or any official statement why it has been put forward. I therefore wish to confine myself only to asking that this Constitution shall not take effect without full Parliamentary discussion and approval.

It has, I think, been the policy of successive Governments, in establishing or changing Constitutions within the Empire, to proceed slowly and after the fullest inquiry. I have looked up roughly what has happened in the case of a number of Constitutions or constitutional questions of recent years. I need hardly refer to the enormous labours which some of your Lordships as well as members of another place took before the Government of India Act was passed, and the same thing, though not on the same scale, took place on the former Government of India Act of 1919. Whatever demerits the India Act has—and some of your Lordships think they are great—they are not owing to any haste with which it was passed or to any want of consideration. Then I find that before a, Constitution was set up for Ceylon a, Royal Commission under the noble Earl, Lord Donoughmore, was sent to inquire fully into the matter. Again, when a new Constitution, in the year 1919, was set up for Malta there was, of course, already an Assembly in Malta, and there was the fullest and longest communication with that. Assembly, although, as a matter of fact, I do not think the Malta case can be very wisely used in argument on either side of the present controversy because that Constitution has never worked well and has been suspended. Still my only point for the moment is that a great deal of care and trouble was taken before anything was done, and I may add that in the case of Malta I do not think there was any serious opposition from the Island itself.

Again, a Joint Select Committee of both Houses was set up to deal with the East African question in the year 1931, under the Chairmanship of the present Chairman of Committees, and that matter was gone into with the result that no scheme was framed. The Committee came in that case to a negative result. Then, even in the small case of British Guiana in 1927, not a Royal Commission but a Departmental Commission was set up which contained the present Leader of the Opposition as one of its members. That case was gone into with the greatest care. I have not been able to find out what happened in the ease of the Cyprus Constitution of 4882, but, whatever may have happened then, it certainly had no very happy result because that Constitution, as is well known, proved completely impracticable and has now ceased to exist. With regard to Palestine, there was a Commission some years ago, but it did not include in its reference anything with regard to a Constitution. It was a matter of development, immigration, and so on. Here again the Leader of the Opposition took a very active part in the matter. So in all these cases there was a great deal of preliminary inquiry by one means or another before any final decision was taken and before a new Constitution came into play, but on the present occasion nothing of the kind appears so far to be contemplated.

At this point I should like to say a word or two on the legal aspect of this matter. I do so with all diffidence, because I assume that a great Department of State would not take action without being fully certain of the legal position. All the same I think there is a doubt in this case. I have been shown an answer by the Colonial Secretary in another place which was not apparently in any of your Lordships' minds during our last discussion, and that was that it is intended to proceed under the Foreign Jurisdiction Act of 1890. I have looked at that Act and it certainly does not appear on the face of it to contemplate any such departure as is now proposed. The first two sections are a general statement of Her Majesty's jurisdiction. It says in Section 1: It is and shall be lawful for Her Majesty the Queen to hold, exercise, and enjoy any jurisdiction which Her Majesty now has or may at any time hereafter have within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory. Then it goes on to say in Section 3 that Her Majesty's subjects in the country in question shall be subject to the jurisdiction of Her Majesty in the ordinary Courts and that everything done in the foreign country shall be as valid as if it had been done according to the local law then in force in that country. Then, curiously enough, it goes on to say that Orders in Council may be made by Her Majesty with regard to that country in relation to certain particular matters. They deal mostly with the criminal law or with the maritime law, but there is no mention so far as I can see of any words that would cover a Constitution. Where it is said that an Order in Council may be made dealing with certain things, I think that at any rate it might be argued in law, on the maxim inclusio unius est exclusio alterius, that there was a presumption that Orders in Council could be made only on those points. Therefore I presume the Government must rely upon the general words at the beginning, but they certainly are, to say the least of it, not explicit. A further point arises. This Act speaks about "cession or conquest of territory." Would those words cover a country over which a Mandate has been given by the League of Nations? This surely is a new point. It may have been considered and there may be a perfect answer, but prima facie I should have thought that there would be material for a very pretty argument before the Judicial Committee of the Privy Council.

I turn from that to the present problem. If care and inquiry were necessary in some of these other cases, I submit that they are especially necessary in this case. The difficulties are extremely acute. Some of them were mentioned the other day. Undertakings have been given which it is difficult to reconcile. In the full sense in which extreme partisans have interpreted these undertakings, I should say they are impossible to reconcile, but at the best they are difficult to reconcile, and reactions are bound to take place throughout the world or, at any rate, throughout that part of the world where the two great communities who are the protagonists in the difficulty are to be found. That is a matter on which I do not wish to dilate at present, but undoubtedly you cannot say that this is a Palestinian question and nothing else. Again, the geographical position and the strategical position of the country make it a matter of great importance that there should be good internal government. That strategical importance has been markedly emphasised during the last few months. Lastly, the opposition to this Order comes from a great variety of persons. On the last occasion objection came from the noble Lord the leader of the Opposition, who spoke from his own knowledge of the country; from the noble Marquess, Lord Lothian, who I think entertained objections from the purely constitutional side; from the noble Viscount, Lord Cecil, who had another point of view, and from the noble Lord the Leader of the Opposition, cents one of the great communities whose interests are at stake, and who made a speech of great power and intense earnestness. There was a convergence of opposition from different points of view. I say that this very fact, if nothing else, should make the Government slow to act.

Let me give an example which may perhaps emphasise this point. Under the Government of India Act a great many things have been laid down to be settled by Orders in Council, but there was incorporated in that Act a provision that these Orders in Council must come before both Houses of Parliament, be considered by them and approved by them before they took effect. No doubt this procedure is tedious to the India Office and no doubt it is tedious to the noble Marquess, Lord Zetland, but hitherto he has conducted business under these Orders with the utmost courtesy and equanimity. If these Orders are necessary and right in dealing with the question of the Excluded Areas, of the boundaries of Provinces, of details of franchise and other matters, surely the same procedure can hardly be inapplicable to a country of the importance of Palestine where, although the area may be infinitely smaller, the problems are not less acute.

I want to say that I intend no attempt at censure on the High Commissioner. From all I have heard he is a most admirable administrator and I have not heard a word of criticism in that respect. But, however great his merit as an administrator may be, here is a question which your Lordships may well think should not be left to him but should be thoroughly considered and decided by Parliament. I am not asking the Government to adopt any special procedure. I am not asking them to commit themselves to anything to-day. I quite appreciate the difficult position of the noble Earl, Lord Plymouth, who is not himself the responsible Minister. All I ask is that the Government shall not give an absolutely negative answer, that they shall not say they are going to proceed under this particular Act, and that they shall not so arrange matters that the new Constitution may come into effect, say, early next August and be an accomplished fact, months before Parliament can do anything. I ask that at any rate they will leave the matter open and will not make more difficult a question which is burning enough and which, if not wisely handled, may have reactions far beyond the boundaries of Palestine.


My Lords, I can assure the noble Lord that I am just as anxious as he is not to say anything which will make the position more difficult than it is already. I think I made that quite plain in the words I spoke in the course of the last debate. The noble Lord has dealt with some very complicated legal points and I fear I am not fully qualified to deal with them in detail. I am, however, advised that what I am going to describe is the correct course to adopt in this particular case. Provision for the, establishment of a Legislative Council in Palestine will be made by an Order of the King in Council under the Foreign Jurisdiction Act, 1890. I ought to point out that the original Order in Council of 1922, which set up the Government of Palestine, was also made under that Act. I might further explain that the Foreign Jurisdiction Act consolidates the Acts relating to the exercise of His Majesty's jurisdiction out of his Dominions, and such jurisdiction is exercised by Orders in Council under the Act. Section 11 of the Act provides that every Order in Council made in pursuance of the Act shall be laid before both Houses of Parliament after it is made, and I am advised that it would be contrary to established practice to lay such an Order in draft form.

It will be recollected that in the recent debate on this subject reference was made to Orders in Council made under the Government of India Act, 1935. I should like to explain that the position in regard to Orders made under the Government of India Act is quite different from that of Orders made under the Foreign Jurisdiction Act, as it is specifically provided in Section 309 of the Government of India Act that the Secretary of State shall lay before Parliament the draft of any Order which it is proposed to recommend His Majesty to make in Council under any provision of the Act. I fully realise the force of the noble Lord's arguments and the difficulty in which he considers that Parliament has been placed. I want to do everything in my power to make the position as easy as possible, and I would explain that there is a summary, in convenient form, of the main provisions of the proposed Order in Council for establishing a Legislative Council in Palestine. This summary sets out the composition of the Council, its powers and duties, and the powers and duties of the High Commissioner, under the proposed new Constitution. It was issued as a communiqué by the High Commissioner for Palestine towards the end of December last. My right honourable friend the Secretary of State for the Colonies has recently placed a copy of this communiqué in the Library of the House of Commons. I have made inquiries and I understand that it would not be in accordance with the practice of your Lordships' House for me to make copies of the communiqué available in quite that way; but I shall be happy to send a copy to the noble Lord who has asked this Question, and I shall be very glad to let any other member of your Lordships' House have a copy as well.

The noble Lord has rather indicated that this matter of the establishment of the Legislative Council has been hurried. I assure you, my Lords, that there has been no hurry whatsoever. The matter has been examined from every possible point of view, and I think it must have been perfectly plain to everybody who has studied this subject that for some time past it has been made quite clear that the Government intended to implement their repeated pledges to establish a representative Legislative Council in Palestine. I am advised, as I say, that the method of procedure which I have described is the correct one to adopt in this particular case. I should have hoped that the availability of the document to which I have referred would have given the necessary information to those interested in the matter, on which they could, if they liked, raise the whole subject in debate. I am afraid that I am not in a position to say anything more at the present moment, but I can assure your Lordships that I have done the best I can in the circumstances.


My Lords, speaking only for myself, I am grateful to the noble Earl for his reply, and for the clearness with which he has stated the position. I should like to ask him whether he does not think that in this case it would be possible not merely to issue copies, as it were, privately, of this document, which of course I have not seen, so I do not know how far it would meet the case. If it really does state in fair detail what is proposed, why should it not be circulated as a Parliamentary Paper and printed in the ordinary way? The expense would be very trifling, because, as I understand, it is a short document. It would surely be more satisfactory than if only selected members of your Lordships' House were able to obtain the information, that it should be given to all members of your Lordships' House, since this is quite evidently, as I think my noble friend will agree, a matter which has caused a considerable amount of interest in the House. I venture to suggest that this would be a step forward in the right direction. We could then ask for some definite Motion to be made by the Government to approve of some action of that kind; or the matter could be raised in some other way.


Arising out of that question, before the noble Earl replies: could that document possibly be circulated in the OFFICIAL REPORT in the ordinary way? The ordinary, normal way in the other House is to say that the reply is a long one and will be circulated in the OFFICIAL REPORT.


I will certainly make inquiries on both of those suggestions that have been made, and if there is no constitutional objection to that course, I should be perfectly willing to agree to its being followed.


My Lords, might I ask the noble Earl one question? He said, in his remarks, that this document would convey all the necessary information and that noble Lords in this House could raise the whole question in debate. Am I to understand that, in the event of this Paper being distributed, the Government will give facilities to enable the whole question of the Order, its terms and the rules made under it, to be discussed in debate in this House?


My Lords, I should imagine so. I want to make myself perfectly clear. I remember that when I spoke in the debate last week and referred to the suggestion made by my noble friend Lord Lytton, I said that I thought this suggestion came too late, in that the principle of the establishment of a Legislative Council in Palestine had been definitely accepted and that any indication on the part of the High Commissioner that there was going to be delay, as a result of a Royal Commission or any other cause, would undoubtedly have laid the Government open to a charge of breach of faith, in view of the sequence of events that have taken place. But—I am expressing my own views only—I think it would be undoubtedly open to your Lordships' House to discuss the details of the proposals made, which are contained in this document to which I have referred. Of course, it is perfectly open to your Lordships to discuss anything.


My Lords, my noble friend probably forgot to answer the question which the noble Viscount on the Cross Benches put to him: would he be prepared to circulate this document? I think it really must be circulated. May I point out to the noble Earl that, as he said, this document is to be available in the Library of the House of Commons, for every member of the House of Commons? Surely he will not suggest that we should be worse treated than another place? Therefore it seems to follow as a matter of course that some method should be adopted by which all members of this House could have access to the document, and I am quite sure that the noble Viscount the Leader of the House will think so too.


My Lords, of course I fully understand the noble Marquess's point, and I entirely agree with him. I do not think it is right that members of your Lordships' House should be in a worse position than members of another place. I hoped that it might be possible to place a copy in the Library, as was done there, but I understand that there is no precedent for that. I will, however, certainly inquire into what might be the best means of making this Paper available to all of your Lordships.


My Lords, before this matter passes away, I think the House ought to be clear in its mind what is before it. It seems that this document cannot be circulated in draft, but that there may possibly be means of circulating it at some later time. But in any case it appears that Parliament is to have no control over this issue, and that a purely Departmental decision is to be carried through against all the weight of argument which has been used against it, and against the will of this House, which, had it been tested on that occasion, would have registered a decision against the proposal. I do not know what Parliament is for if it is to be the creature of a Departmental decision. It seems to me to be almost useless for this issue to be brought before us so that we may discuss finicking details of it without having any power to resist the general proposal. I think your Lordships ought to be clear about what you are giving your assent to.


My Lords, I do not think, in fairness to the position of His Majesty's Government or in fairness to the position taken up on their behalf by my noble friend, that it would be right to allow what has just been said by the noble Lord who leads the Opposition to pass without a word of reply. He has laid great stress upon the fact that, as he conceives it, this matter is regarded by His Majesty's Government, and is treated by them in this House, and I presume elsewhere, as what he is pleased to call a purely Departmental matter. I am sure that he will on reflection be prepared to admit that, however much he may disagree with the technical consequences of the procedure under which apparently these matters fall to be discussed, which was explained by my noble friend, so derogatory an epithet, if I may say so, regarding a great piece of policy which has for months engaged the fullest consideration of the whole of His Majesty's Government, is not a description that either the policy merits or that he is entitled to give to it. I can assure him that my noble friend spoke no more than the truth when he said that this matter, long discussed and debated in Palestine, with long examination by the High Commissioner, has, after all these processes have been gone through, received the fullest examination and consideration by the Government as a whole in this country.

The noble Lord, from the technical procedure which is involved, goes on to ask the further question: Of what use then is Parliament, and what action can Parliament take? He must be perfectly well aware that in a great many fields of government, as I conceive it, the executive responsibility, for one reason or another, must rest upon His Majesty's Government, but Parliament has always the opportunity in this House—in form the same as that in another House, although the consequences may be less serious to the Government—of recording its view and of leaving to the Government the responsibility of saying whether they do or do not accept the judgment of Parliament so recorded. I do not rise to embark upon a constitutional discussion, but I feel it my duty to enter a very strong protest on behalf of His Majesty's Government against the unwilling misrepresentation into which the noble Lord opposite had unwittingly fallen.


My Lords, I think your Lordships will readily agree that the Government have given the greatest consideration to this matter, but it seems to me that what we have to complain of, if we complain at all, is that the procedure under which the matter is being dealt with is an antiquated one. The Act to which the noble Lord referred is dated 1890, forty-six years ago. Since that date we have adopted a procedure for the better control of Parliament over Orders of this kind. A custom has grown up that Orders of this kind should be dealt with by Resolution. An example of that is to be found in the clauses of the Government of India Act providing that measures on which Orders are promulgated under that Act shall be dealt with by special procedure, which gives Parliament careful control over them. In the present case I do not see that any other course could be followed by the Government under the existing law. I would like to point out, however, that I think the existing law is antiquated, and that if opportunities should occur for amending it in the future, it would be more in consonance with modern ideas.


My Lords, I do not wish to raise at all questions of the consequences upon the Government, but merely to deal with the principle of the constitutional method of handling the matter. As I see it, the proposal of the Government is to make some sort of Parliament for Palestine, a subject that arouses a great deal of controversy. The method of handling the matter is such that the British Parliament is not to have, officially, anything to say upon the way in which that Parliament is to be constituted. That is, as I see it, what it probably amounts to. It may be quite right under the Act of 1890, which was passed long before Mandates were ever thought of; but how will it be explained to the people who will have to accept this proposal and work it that the British Parliament, in whose authority they believe, has had no say with regard to it? Anybody who was going to get a Parliament under the authority of the British Crown would naturally like to know that that Parliament had been thoroughly discussed and debated and reviewed by both Houses of the British Parliament, and it seems to me that it will be a little hard to explain to other people, who will riot be able to follow all this complicated procedure, why it is that the British Parliament did not get that opportunity of examination and revision.


My Lords, may I press the matter at this stage a little further? Do I understand that the view of the Government is that it is constitutionally impossible for them to lay a draft of this importance before Parliament, before it is finally enacted? What I think a great many people in this House feel, apart from the merits or demerits, is that it is not right for the Executive Government to say that they are bound to commit themselves to every detail of a most far-reaching constitutional proposal, without allowing the great experience provided in this House and in another place to play upon those proposals at all, before they finally commit themselves to so far-reaching a document. I should have thought that the Government might have believed that this House and another place might have made some suggestions which they would like to take into consideration before finally committing themselves.

After all, this procedure of laying Orders upon the Table in this House has been adopted as one of the basic principles in the Government of India Act, and is now a common feature of those rather arbitrary proceedings to which we have become accustomed in regard to economic matters. In all these cases Orders in Council are laid upon the Table of the House for discussion before coming into operation. It seems to me quite inconceivable that there can be no way in which His Majesty's Government can make available to themselves the suggestions and criticisms of this House and of another place, before finally committing themselves to such a very far-reaching constitutional proposal, having regard to its effects not only in Palestine but throughout the Empire and the world—effects to which the noble Lord who asked the Question made reference.


My Lords, I heard with very great pleasure the speech of the Lord Chairman, because I think it is obvious, as he very rightly pointed out, that the procedure under this old Act is no longer up to date. Very rightly he has asked the Government to consider whether some means should be taken to amend the procedure. Although I was very pleased with what he said, I was rather disappointed in one way with his speech, because I thought that he of all people would have been able to explain to us what is the reason why a document can be laid in the Library of the House of Commons and we here are not allowed to see it. Nobody has yet explained what is the reason. Why is it? If the Lord Chairman does not know, who does know? I should like to know why it is that the Colonial Secretary can put up a notice in the House of Commons with regard to a very important document, and we here are not allowed to see it. The noble Earl did say that he was prepared to send it privately to the noble Lord who asked the Question—


And to any other noble Lord.


But we have yet to receive an explanation of my point. I hope that before this debate finishes someone will explain what is the occult reason for this mysterious procedure.


My Lords, I can only speak again by leave of your Lordships, but I think the noble Lord is under a misapprehension as to the document that has been put in the Library in another place.


I thought it was the whole thing.


No, it is not the draft Order in Council, it is the document of which I am speaking, which I suggested I might make available by sending it to any of your Lordships who wished to see it. But in view of what has been said, I will most certainly inquire as to the best method of making it available to the House generally. In answer to the noble Marquess, I thought I had made myself plain on the subject. I am advised that the correct method by which this Order in Council should be made is under the Foreign Jurisdiction Act, 1890, and that it is contrary to established practice to lay such an Order in draft in either House of Parliament, but I had hoped that I had gone some way to meeting the obvious objections that your Lordships had raised to this procedure by offering to make this document, which is a very complete summary of the proposals which will be contained in the Order in Council, available to your Lordships, and thus make it possible for your Lordships to raise a debate on the matters contained therein at any time that your Lordships might wish.


MY Lords, my noble friend Lord Jessel asked me a question as to why it should be impossible to lay this document in the Library of your Lordships' House, as has been done in the House of Commons. I have not the faintest notion why it should be. I have not seen the document, and I do not know what it is, and I do not think anybody does except noble Lords on the Front Bench; but if we were to make this precedent—which I do not think would be constitutionally disastrous—perhaps then we should know more about it, and perhaps the next time we came to discuss the question we should be in a better position to do so. As a matter of fact a report of evidence may be found in the Library of your Lordships' House. After the War, for economy, a Committee made its shorthand notes available in the Library, so that this means of making information available is not actually new.


My Lords, perhaps I might put one point to my noble friend. I do not quite understand. It is apparently unconstitutional to give any information to this House of the draft Order, but it is quite constitutional and proper to give information to this House of everything that the draft Order in Council is ultimately to contain. That seems to me a very strange condition of our Constitution. I suggest that a new departure might be made—if the noble Earl does not think it will cause a revolution—by which the actual draft Order should be circulated to the House and we should really know what is going to be proposed, not merely a hint of what is proposed, which I understand is what has been laid on the Table in another place.


My Lords, as I have not put down a Motion I do not know whether, strictly speaking, I have a right of reply. But perhaps I might be allowed to say something, as noble Lords have spoken in some cases three times. I should like to ask what is the objection to circulating this document or the draft Order as an ordinary White Paper. Is it a secret document?


No, it has been published.


Then why is not it published here? If it has been published in Palestine I suppose any noble Lords who take the trouble and like to go to the expense can circulate it freely throughout the Empire without any fear of criminal proceedings. Then why should we not go to the insignificant expense of circulating it as a White Paper?


I said I would make inquiries as to the best way of making it available to all your Lordships.


But why not to the public at large? I really cannot see why they should not have the benefit of it. The noble Earl said it was contrary to constitutional practice to submit this Order in draft. It may be contrary to practice under the Act of 1890, but surely there are other ways of doing things. For instance, there was the Irish Treaty. The Irish Treaty was brought before Parliament with a short covering Bill and the House assented to it. That is another way of doing it. If that were done, then Parliament would have full jurisdiction over it. I think the noble Earl said that to take something out from this proposal would be a breach of faith, but surely it might be changed. No doubt there is an undertaking by various Governments that some form of representative Assembly shall be set up in Palestine, but it does not at all follow that it must be exactly that form of government which is apparently contemplated. However, I will not pursue the matter any further. I understand that the noble Earl, with whose position I entirely sympathise, will consider the best way of putting Parliament—and I hope those outside Parliament who take an interest in the matter—in possession of the facts and the proposals, and, that being so, I thank the noble Earl for what he has said.