§ Order of the Day for the House to be put into Committee read.
§ THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE COLONIES (THE EARL OF PLYMOUTH)
My Lords, I beg to move, That the House do now resolve itself into Committee.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Plymouth.)
§ LORD STRICKLAND had given Notice that, on this Motion, he would move, That the Order referring the Bill to a Committee of the Whole House be discharged, and that the Bill be referred to a Select Committee; and that it be an instruction to the Committee to which the Bill shall be referred, that-they have power to divide the Bill into two Bills, the one Bill dealing with the power to revoke or amend the Malta Constitution Letters Patent, 1921; and the other Bill dealing with the validity of certain Ordinances of the Governor of Malta; and that the Committee have power to report each Bill separately to the House.
§ The noble Lord said: My Lords, in submitting to your Lordships the Motion standing in my name on the Order Paper, that this Bill be referred to a Select Committee with an instruction that it be divided, my first duty is to indicate the reasons by which I trust your Lordships will be quickly and thoroughly convinced that this Bill as drafted deals with two distinct subjects which, in the interests of saving time and of having legislation drafted in accordance with precedent, should be divided. The principal reason is that it deals with the Royal Prerogative. It deals with the Royal Prerogative not by suggestion and innuendo but it deals with the Royal Prerogative ex professo. It is the established law of England that any Bill dealing with the Royal Prerogative should state in the Preamble that it does so and should point out clearly how far it does so.
§ Moreover, this Bill purports not only to add to the Royal Prerogative but also to take away from the Royal Prerogative, and I think I should be in order in asking those representing His Majesty's Government whether it is not in accordance with precedent that a 961 Royal Message should accompany any Bill that deals with the Royal Prerogative. In this case there is no Royal Message before your Lordships' House, and the absence of that Royal Message would be in itself a strong reason for dividing this Bill into two parts. Another reason for dealing with this Bill in two parts before a Select Committee, is that by dividing; the Bill it would not be difficult to obtain so much support and argument in its favour that the great opposition which the Bill has already evoked in the Island of Malta, and will evoke, would be certainly abated, and the responsibility of His Majesty's Government for setting aside precedents and covenants would be greatly abated.
§ Another reason for asking that this Bill be divided is that it has been submitted to your Lordships' House and given a Second Reading on information which was neither complete nor accurate. The noble Earl, Lord Plymouth, informed your Lordships on Second Reading that he had carefully examined all available records and could not find any confirmation of the cardinal fact that solemn covenants and promises had in the name of the King of England been extended to the people of Malt a, promises which are irreconcilable with the contents of this Bill. I beg leave to read to your Lordships' House not merely extracts from speeches of previous Secretaries of State or other noble Lords, but an extract from no less authority than the findings of a Royal Commission of not very remote date, the Report of which was approved by Parliament and by Her Majesty Queen Victoria.
§ The Royal Commissioners were Sir George Ferguson Bowen, formerly Governor of Queensland and Victoria, and Sir George Baden-Powell, a member of the House of Commons and brother of a very famous member of your Lordships' House. The Royal Commission said:
§ " In conclusion, we would submit that an additional argument in favour of our recommendations is that, if approved by Your Majesty, they would tend to reconstitute, so far as is either desirable or practicable at the present day, the most characteristic features of the ancient popular Council (Consiglio Popolare) of the Maltese people. That Council was first established after the expulsion of the Saracens by the Normans in A.D. 1090; it maintained its influence for 962 several centuries and even during a part of the autocratic rule of the Knights of St. John; and it resumed its vitality (of which the Maltese are rightly proud) during that bright epoch of their history, the interregnum between the French invasion in A.D. 1798 and the subsequent spontaneous entry of Malta into the British Empire."
§ May I emphasise the word "spontaneous "? The Royal Commissioners go on:
§ " We are pleased to think that our recommendations are in accordance with the traditions of the people of Malta and of their ancient Constitution; for the annals of these islands show that the Consiglio Popolare contained representatives of the nobles and chief families, and of the clergy; and also deputies elected by the resident inhabitants of the cities, and of the casals, or village communities, arranged in groups.
§ " Malta holds a very important and prominent position among the principal military and naval stations of the British Empire; while its interesting history, and the loyalty of its people to Your Majesty's throne and person, together with their well-known industry and law-abiding character, entitle them to the most favourable consideration on the part of the Imperial Government and Parliament."
§ A quotation of even greater importance is from a speech made by Mr. Joseph Chamberlain, as Secretary of State for the Colonies, in dealing with Malta in another place. My noble friend Viscount FitzAlan put before your Lordships' House, on the Second Reading, his recollection of that speech. As far as his recollection goes—
§ VISCOUNT FITZALAN OF DERWENT
My noble friend will excuse my interrupting him. I never alluded to any; speech whatever of Mr. Chamberlain's; I alluded to what he had said in a conversation at which I was present. If my noble friend would be good enough to look in the OFFICIAL REPORT, he will see what I actually said. I made it quite distinct and quite definite. The quotation I gave from Mr. Joseph Chamberlain was of remarks made in the course of a conversation, on no public occasion whatever.
§ LORD STRICKLAND
The words of that conversation were repeated by Mr. Chamberlain in the House of Commons, and what he meant in that conversation appears from the words of his speech as reported in the OFFICIAL REPORT. Those words clearly point out that Mr. Chamberlain, in emphasising the necessity of dealing with Malta as a fortress, nevertheless admitted that if the Maltese had to be 963 punished by the withdrawal of the Constitution of 1887, that withdrawal was not to extend so far as to take away the representative institutions that had obtained before the time came for a diminution in their liberties. That is the point. Mr. Chamberlain in the House of Commons, whatever he may have said in a private conversation which, in part, is exactly a repetition of what he said in the House of Commons, made it perfectly clear that he had a rod in pickle for the elected members if they continued to refuse supplies, and that would be a diminution of the liberties enjoyed in 1887, but it would not go so far as the withdrawal of representative institutions. It would not go so far, therefore, as the covenants and the treaties made with the Maltese.
This speech was delivered in the House of Commons on January 20, 1901. The right honourable gentleman said:
"It is not to be contemplated that the state of things which we all regret and which exists at the present time should continue. The elected members themselves will be ready to admit that. They cannot expect the Government responsible for this great Imperial fortress to allow this childish game to proceed, and it would be clearly the duty of any Government under these circumstances to preserve the great Imperial interests in their keeping either by going back to the Constitution before 1887 or by such a modification of that Constitution as may be necessary to give the Government a controlling voice in the administration. I make no threat—I have endeavoured to treat the question in a conciliatory way. I hope that no drastic measures may be necessary, and that the elected members and all concerned will meet me in the same spirit in which I have endeavoured to meet them, and that nothing may occur in the future to disturb the good relations which have existed."
I hope that the noble Viscount the Leader of the House, and the noble Earl who is responsible for the Colonial Department, after hearing what Mr. Joseph Chamberlain did say and mean when he spoke in the House of Commons in parallel terms to those of some conversation which rests on memory, will understand that the policy of Mr. Chamberlain is one which they might usefully follow to-day.
I do not hold any office in Malta which entitles me to speak otherwise than in the name of those Anglo-Maltese who have made Malta their home and whose interests are most deeply bound up with the continuance of the connection between 964 Malta and the Empire, not for this generation only but also for subsequent generations, and have been prepared to support that connection at the risk both of life and of resources. The time has come for dealing with this question in the spirit of Mr. Joseph Chamberlain, and that can best be done by dividing the very controversial parts of this Bill from those parts which are not so very controversial. I trust that the noble Earl will not adopt the attitude which was condemned by Lord Glenelg in 1839. Lord Glenelg was not Under-Secretary of State for the Colonies. I have looked up his record in the Library, and I find that under Lord Melbourne's Administration he was Secretary of State for the Colonial Department. Perhaps at one time he was also Secretary of State for War, because those two Departments were bound up together. This is what appears in his speech made on April 30 of the year 1839. The speech was made in response to a speech by Lord Brougham. Lord Glenelg criticises those who in those days argued that the Maltese had no rights, as there were no covenants, and that nothing could be found which justified treating them as a sister nation with those who had acquired Malta from the French or on equal lines with the English.
Lord Glenelg also answers the argument that Malta is a small place with a small population; he gives a conclusive answer and shows that that argument has no weight:
" It had been said, that in this matter the wishes and feelings of the inhabitants and population of Malta ought not to have any weight. But could that argument be really urged with any hope of success? Small, indeed, was the population of Malta, as compared with the other Colonies, but still the Island of Malta had a numerous population—a population which well deserved the attention of the Government. In past times, in the intercourse with Malta, in speeches delivered in Parliament, and in official documents, the Maltese population had been recognised as being entitled to the good offices and attention of the British Government; that title had been recognised, and it was the duty of the Legislature to attend to the interests and aim at the improvement and enlightenment of that portion of the British Colonial possessions. He repeated, that those rights had heretofore been admitted, and upon them he must again insist, because in the disquisitions which had taken place on this subject, it had been of late but too much the fashion to treat with contumely and contempt, the views, the feelings, and the wishes of the Maltese population."
965 I appeal to your Lordships' House on this point to follow the lead of Mr. Joseph Chamberlain and the policy indicated in his speech rather than what we have heard, I think without any necessity—namely, the repeated repudiation of these promises by the Colonial Department.
May I be allowed to proceed with the quotation? It is not much longer:
"Malta was not so treated in former times, nor at the period when this country gained possession of her. Look at the peculiar tenure under which Malta was now held by the British Crown. Malta was not a possession the result of a conquest. Malta, when it belonged to the French, resisted French usurpation, and appealed to this country for aid. Great Britain furnished auxiliaries, and with the Maltese had blockaded Valetta, and to those united forces the French surrendered, and then the Maltese people, by their own act and authority, voluntarily assented to the protection of Great Britain. In that light, the rights and privileges of Malta had ever since been regarded, and it was peculiarly the duty of Great Britain to take care that the principles of British freedom and the full benefits of British legislation should be brought into operation in that, even above all other Dependencies of the British Crown. To this England was bound by her own declarations and promises made at the various periods to which he had already alluded. Therefore it was that he attached great weight to the general application which had been made to the Government on the part of the Maltese population on this subject."
Any departure from that position would be accepted by the people of Malta as an insult so great and so unjustified that the policy would be of definite detriment to the future defence of the Island, and absolutely fatal to the defence of the Island one or two generations hence, because the Anglo-Maltese population, which is thoroughly bound to England with the necessity of having to fight for England, apart from fears and threats would be immediately lowered from the standard of having been born in a country which is a sister nation of the great Commonwealth of the British Empire. They might have to go away from Malta, and when trouble and crisis comes who will En gland have to rely upon?—paid servants, whose sympathies and blood relations may be on the other side.
Is this policy to be adopted by your Lordships' House to-day, in face of the policy which was adopted over a hundred years ago? Those who spoke then were talking with full knowledge of what occurred. They had not just tried to read 966 a few Blue-books and memoranda, and omitted to bring to notice the most important parts thereof. I am above all things impressed with the duty of making the defence of the fortress of Malta imperative above everything, and therefore it is with a heavy heart, and against the work of my life, that I admit that responsible government should be at the discretion of the Governor of Malta, and of the Imperial Parliament, in the same manner that in India the representative institutions that have just been granted by Parliament are now subject to immediate suspension by a Provincial Governor, or by the Governor-General—but only for six months, without the approval of the Imperial Parliament. For three years we have been deprived of any representation in Malta. Let there be in some new instrument the right of the Governor to suspend, but not indefinitely, nor with a declaration that the Maltese have no rights whatsoever or any possibility of claiming redress for grievances in the Parliament where we can speak with the protection of the privilege of Parliament. Mr. Chamberlain, when he had a birch rod in pickle, politely admonished, but said he did not threaten the representatives of Malta; that was with a limit; but the noble Earl in charge of this Bill said he would give us as soon as possible something similar to what obtained in Gibraltar. That is something, but it means a great come-down in the status of Malta, and if Mr. Chamberlain threatened a birch rod we are now being threatened in Malta with whips and scorpions. When is to be this uncertain day? Why do we not divide the Bill and in Select Committee come to a decision as to what provisions can be established? If this Bill is carried out as it stands there will be no Party in Malta to defend anything which the Imperial Government does until there is a change. We can only hope for another day when we can answer those who are at great trouble to manufacture disloyalty in Malta.
This treatment of Malta has been justified in the Second Reading speech by the suggestion that the provisional Government for three years has been approximating perfection, and that those who do not approve of it deserve censure. The provisional Government was based on the boast that they adopted 60 per cent. of the pro-British policy. No doubt they have done that with considerable 967 efficiency, but that is a limited success. What is the reason for the failure? I believe the reason for the failure is that the Maltese Constitution is too complicated. There are five Councils, according to the speech of the noble Earl on the Second Reading. He might have omitted the Senate and the Legislative Assembly, and included another one, the Joint Committee, for the purpose of administration. I agree that you cannot expect a Military Governor to carry out his other duties and have to attend four or five other Councils. It is asking too much of him. He is not selected for it, and he is not paid for it, and if he does not choose to do it, there is nothing to make him do it. To that extent the Constitution is imperfect. In my opinion the fault of this lies with the system under which the Government have to select from half a dozen senior Lieutenant-Generals, not always in the prime of life. In fact, Malta within recent years has been governed by two very famous Generals who have died there after prolonged illness. Malta has been made into a sanatorium—a perquisite in the gift of the Army Council. And then it is said that the fault of the collapse of the Constitution is the draftsmanship of Mr. Amery and the acquiescence of Lord Milner. But the reason I have given is the real one.
Until the Governorship of Malta is open to every member of this House and of the other House of Parliament, the hope of getting anybody to work a Constitution that depends on complicated legislation—which is essential—disappears. The arrangement now is that the War Office nominates the Governor, the Colonial Office have to put up with him, and if any friction occurs the Colonial Office must either say "We will support him, right or wrong," or must do an amount of work which it is not organised to perform. The result is that there is trouble. To put forward a parallel which I think runs on all fours, the Secretary of State for War presides constitutionally over the Army Council, wherefore if it happens that it has to be defended in Parliament he has to support all that is done. That is the constitutional position in Malta. In domestic life it is as if there was a marriage settlement where the mother-in-law had the right to appoint the cook. Such are 968 the conditions in Malta and how can you expect the Constitution to work smoothly?
It is greatly to the credit of Sir Philip Cunliffe-Lister, now Lord Swinton, that he did like Solomon with the baby and offered something to the other side, and those who wish for Anglo-Saxon progress are grateful for the language reforms. They were not wrapped up in sugar, they were wrapped up in pepper and mustard. But they give an opening for solving the Maltese question if there is a going back to the Constitution of 1887, or even of the Constitution before it. I do not know how far back our rulers will go to stop legitimate grievances, but they must go back far enough to put back representative institutions at once. If that is done the only language must be English, because you cannot have a Governor presiding at four or five different Councils at which a language may be spoken which the Governor does not understand. If your Lordships will not refer this Bill to a Select Committee, where these details can be discussed, we shall simply go from one crisis to another, from one complication to another, from one mess to another. It is a simple example of the way in which we have been governed that a Governor was bound to attend—a noble Lord says five, but I say perhaps three or four—Councils where a language might be spoken which a Governor did not understand. The first thing in the Constitution should have been a provision that the official language should be spoken in all these Councils, and none other.
A little practical attention to details would make the Constitution work. That cannot be achieved in Committee of the whole House; it can only be approached if this Bill is divided and dealt with by a Select Committee. And another reason for dividing this Bill is that it is based on technicalities of law which can only be mentioned, but not threshed out in your Lordships' House. We are told by the noble Earl, using the phrase "I am advised "—I am advised—" that the legal position of the Government is quite correct." I put it to your Lordships that whoever says a legal adviser says this or that should be able to name the lawyer. He may be a lawyer interested or not, he may be a Colonial adviser, who is certainly not in every instance a luminary of the Bar. But it is the Law Officers of the Crown 969 to-day who would have to argue before the Privy Council whether the grossest misinterpretation of law has not been made. I think it is not fair to them to suggest that they are bound by somebody else's legal opinion, and I think every member of your Lordships' House who is a member of the Bar has a right to feel unhappy—not to use a stronger word—at the use of this phrase "I am advised "—" I am advised "without saying who advises. But the matter is so simple that before a Select Committee it will be easily understood and appreciated.
As we all know, there are two sets of Letters Patent referred to in this Bill. One set of Letters Patent, which deals with the functions of the Legislature, says what Bills may be passed and what Bills may not be passed. Then there are Supplementary Letters Patent which say what a Governor can do; but in the Principal Letters Patent there is no word whatever saying that the Governor can legislate, and nevertheless they have been construed to say that another legislator can even settle the question of newspaper posters—whether they are so ugly as to be offensive to those two Houses that have the right to legislate. These are the words. The Parliament of Malta is authorised by Letters Patent
"to make laws, to be entitled Acts for the peace, order and good government in Malta, with the following limitations, namely, that the said powers to make laws shall not extend to matters hereinafter referred to as reserved matters, touching the public safety and defence of our Empire and the general interests of our subjects not resident in Malta, or touching the general interests of our subjects resident in Malta and the preservation and continuation of peace, order and good government therein in the event of such interests and such peace, order and good government being endangered or the carrying on of responsible government under these our Letters Patent being prejudiced by reason of any grave emergency which the Secretary of State shall be satisfied has arisen and continues to exist in Malta."
One of the reasons for which I am willing to take all the responsibility of climbing down is that these words say that the emergency must arise in Malta. The emergency that we want to guard against is arising outside Malta, and on account of the bad drafting of these Letters Patent there is no doubt that there must be power to withdraw them. But it is absurd to say that the power which is given to the Secretary of State 970 to declare an emergency goes so far as to forbid the placards of a newspaper that does not praise the Government from appearing. We have here the words that these powers are only to be used in the event of good governmentbeing endangered or the carrying on of responsible government under these our Letters Patent being prejudiced.This Amendment was inserted among the reserved clauses because when it was drafted it referred to a reserved matter—that is, religious toleration. As religious toleration is a reserved matter, it was justifiable to insert this Amendment anywhere in the Letters Patent and not in the clause dealing with religious toleration. It was inserted there to prevent the repetition of "mortal sin" pastorals and the like. It was not put in to say which newspaper placards were to be favoured and which were not.
I am grateful to your Lordships for the opportunity I have had of reading this Amendment in your Lordships' House, because it is impossible for any layman and very difficult for any lawyer to give this declaration of reservation for the preservation of responsible Government a meaning, twisted as it has been. In the Court of Appeal that twisted it, pages and pages of argument asserted that Malta was entitled to representative institutions, and that declaration ended by saying that when the Secretary of State said there was an emergency, the Governor could do everything and anything. Our lives, our liberties, our property, were all at the mercy of whoever had the push and the pull around the Governor. In theory the Governor may do all, but it is impossible for him to do so in practice; the thing is too big. Without representative institutions, without the privilege of speaking in Parliament, we are not only at the mercy of every sort of patronage and wirepulling, but also at the mercy of the Secret Service of Italy. That will continue until there are representative institutions in Malta.
I come to the other reason for which this Bill should be divided. That reason is that this Bill is not an ordinary Bill. It deals with the Prerogative without a Message from the King authorising this House to deal with it. Things may have changed as regards the procedure of ancient days. I regret it. There are 971 features in the ancient procedure that might be remedied and altered, but not as far as this. The most sacred and valuable right and liberty of English and Colonials overseas is to be able to go to the Privy Council to ask for justice when there is the impression that there is local prejudice. That is valuable anywhere, and any precedent that appears to touch it is a direct invasion of the most sacred rights of British subjects overseas. Judges may be perfect, but if any one thinks they are not he has the right to go to the Judicial Committee of the Privy Council. It may be said by the noble Earl that this does not touch any one outside Malta. I ask your Lordships' House to disagree with that entirely, for the reason that precedents of this sort have a very far-reaching aspect.
Where in the history of judicial legislation in the last three generations have we had two cases stopped before any court of law by Executive action? That is a direct defiance of Magna Charta. Before such a ease was brought before the Courts it was most carefully studied so that it might be brought forward with the best legal advice on a concrete instance of personal rights. The noble Earl says that in his opinion there are no personal rights concerned, but he added that if personal rights were concerned the question might entirely change. Who is to decide the applicability of this pledge of the noble Earl? He has given his word that if private rights are concerned his opinion will be different. He has given that pledge in this House. Surely that must be decided by a lawyer and not by the noble Earl himself? You are asked to take jurisdiction away from the Privy Council and bring it to your Lordships' House. If your Lordships' House has to exercise this jurisdiction, let it be exercised by a Select Committee. A Select Committee will be able to spend the necessary time on examining the question without fear of the dinner hour or of others wanting to speak, but these points of law cannot be decided on the dictum of the noble Earl or of a general Committee of your Lordships' House.
But there is worse than this in this Bill. I do not question the right of the Governor to appoint anybody to the Bench, but once a Judge is appointed to the Bench, to shift him—a junior recently appointed—over the heads of others into the Court of Appeal is to repeat in Malta 972 what happened in your Lordships' House when Lord Hewart, the Lord Chief Justice of England, came down to this House and said that unless a certain Bill was altered or withdrawn, which contained a clause affecting the precedence of Lord Justice Slesser, he, the Lord Chief Justice of England, would adjourn his Court and come here and obstruct every line of that Bill until he got satisfaction. And he did get satisfaction. Why should the satisfaction given in that case be denied to two British subjects resident in Malta? We only ask for a decision of the Privy Council as to whether that shifting of the precedence of Judges, with its obvious object of having a particular Judge to try this particular case, put there by the Executive—
§ THE SECRETARY OF STATE FOR AIR (VISCOUNT SWINTON)
I am very sorry to interrupt the noble Lord in his lengthy discourse, but he has said something against which I must immediately protest. If his speech has any meaning at all, it is this, that the late Governor, General Campbell, now dead, deliberately appointed a Judge to the Court of Appeal in order that the Government of Malta might by that appointment get a judgment in its favour. That is a monstrous accusation that ought never to have been made.
§ LORD STRICKLAND
My accusation is just as much entitled to examination as the accusations that are now being considered by a Tribunal of Inquiry in England, but that accusation is not what the noble Viscount, Lord Swinton, has said. I am simply stating the facts. I have made no suggestion as yet beyond the facts. What I do say is that such a step was gravely imprudent on the part of the Administration of Malta, whatever the intention may have been, and the imprudence was emphasised by the fact that pendente lite the salaries of all the Judges were increased. That is not the way for a Governor to exercise his prerogative and command the confidence of the people. I am quite prepared to-stand by what I have said, and by a great deal more, before the Judicial Committee of the Privy Council. That is the tribunal by which I have the right to be criticised. The noble Viscount is quite entitled to criticise me, but I am just as entitled to say that his criticism has no weight either in fact or in law, and 973 if that criticism is to be upheld the only solution is to let this case go before the Privy Council. There is the tribunal where the evidence is on record. There is the tribunal where I was invited by that same tribunal in Malta to produce evidence. I have produced evidence, and they do not face up to that evidence. It is on the record of the Privy Council.
If the attitude of the noble Viscount who has just sat down is the attitude by which justice is to be administered in Malta, and by which the rights of the Maltese are to be judged, I can only say that there is a little too much haste in arriving at conclusions and defending them, right or wrong. I again repeat that these are matters of law to be dealt with not by a general Committee of your Lordships' House but by a judicial tribunal, either by allowing this litigation to go before the Privy Council or by passing special enactments to consider the matter here. I think I have submitted enough reasons in support of my Amendment and the contention that there should be two separate Bills before a Select Committee in order that what pertains to the Royal Prerogative should be done easily and with universal assent, and so that the other matters might be dealt with. There can be no hurry to deal with the other matters. It is quite easy to have agreement as to how long litigation is to last or whether it should be postponed. Let the important part be passed quickly and easily, and let the other part, that deals with a very unhappy record, be postponed. I beg to move the Amendment that stands in my name.
Leave out all words after ("the") and insert ("Order referring the Bill to a Committee of the Whole House be discharged, and that the Bill be referred to a Select Committee; and that it he an instruction to the Committee to which the Bill shall he referred, that they have power to divide the Bill into two Bills, the one Bill dealing with the power to revoke or amend the Malta Constitution Letters Patent, 1921; and the other Bill dealing with the validity of certain Ordinances of the Governor of Malta; and that the Committee have power to report each Bill separately to the House ").—(Lord Strickland.)
My Lords, I rise only to ask whether there is to be any reply from the Government to the weighty speech that we have just heard from the noble Lord. I am perfectly 974 serious, and I do not see why noble Lords on the Liberal Benches should laugh. We have just listened to a weighty speech, and if the noble Lord goes to a Division I shall support him in the Division Lobby. I thought the Government were not going to reply, that they were going to content themselves with what I am bound to say I thought was a rather hasty intervention by the Air Minister.
LORD DARCY (DE KNAYTH)
My Lords, I certainly shall not trespass for very long upon your Lordships' time, but I think it is just as well to realise what are the two propositions that we are now considering. The views of the noble Lord, Lord Strickland, and the views of the noble Earl who moved the Second Reading of this Bill are not really so far apart as one would assume. They deal with the matter from different angles-The noble Earl who moved the Second Reading of this Bill said, to use his own words, thatThey have approached this subject in no narrow or carping spirit. They intend, as I have said, to use the new form of government for the good of the Island on progressive and liberal lines.Knowing the noble Earl, one would assume that that was so. Now the noble Lord, Lord Strickland, on the other hand, is mainly concerned with this, that as situation will be set up in the Island of such a kind that the Government's laudable desire may become wholly impracticable. Your Lordships, however benevolent one is in this matter, must realise that you are looking at the effect on Malta of these proceedings, and that they must be judged through Maltese eyes, and through Maltese eyes primarily, in order to discover what the effect of them will be.
Probably many of your Lordships are acquainted with Malta. You have come across the Maltese. You found that they are a people of an intense political consciousness. They have very quick brains; they are a southern race; they live in a very small island; and you find nearly all of them meeting in the Strada Reale in the course of the evening. Nothing happens in the Island that within twenty-four hours is not known from end to end of the Strada Reale. Under those circumstances, you find a quickening of political consciousness. The Maltese are a people of great tenacity and perseverance. 975 Your Lordships yourselves know that the noble Lord, Lord Strickland, is himself a Maltese, and your Lordships will, I know, acquit him of being in any way lacking in perseverance or tenacity. Your Lordships no doubt also have found that he quite adequately represents Maltese views in your Lordships' House. The Maltese finding their Constitution taken from them, and finding themselves in an angry mood, I am going to ask your Lordships, who find that one Lord Strickland is enough, what is going to be the fate of a Governor who is to be subjected to the concentrated tenacity of 450,000 of them? I know my noble friend Lord Strickland will not think that I say that in any unfriendly spirit. I feel sure that some of your Lordships might even go further and consider that it is a most terrifying formula for a pro-Consul's nightmare. You find that the Government of the Island and the people drift apart in the absence of a situation where there can be criticism under Parliamentary rule. In those circumstances you find that a bitterness grows up, and it is in that very situation you find that the mantle of whoever is desirous of severing the Imperial connection tends to pass from the traitor to the person who is a local patriot. In those circumstances you find also that a situation is set up which is at once expensive, hazardous and wholly unnecessary.
There is one word that I want to say about the question of the Privy Council. I do not wish to detain your Lordships for longer than a very short time with the Privy Council case. I am not seeking to make any allegation at all now, but I do feel that it is very desirable, as the noble and learned Viscount on the Woolsack must I am sure also feel, that in a matter of this kind appearance is very much more important than what actually happens. We do not want to give the impression in Malta that anything has been done to interfere with the due course of justice. I cannot help feeling that the noble Earl, Lord Plymouth, could easily meet this question, because in his remarks, he has told us what really was the reason underlying this clause. At column 782 in the OFFICIAL REPORT he said:'"I have been asked why, if we are satisfied with everything the Government have done, we have not left the position as it is. The point is this, that the position has been questioned. I have explained what kind of situation would arise in the event 976 of an appeal to the Privy Council succeeding on a matter of this kind. I have explained that the position of Malta from the legal point of view would become absolutely chaotic.I am asking the noble Earl whether he could not see his way to help us a little in this way, because it seems to me, though that might be an excellent reason if it really meant making the Island chaotic, it would be easy so to alter this particular clause that instead of preventing any actions being brought it could merely validate the Ordinance in so far as concerns actions which are not already in being. Your Lordships may consider at first sight that it would not make people quite equal before the law because you might say it is giving a special privilege to those who have taken action already. On that I would only quote the well known legal maxim, Vigilantibus, et non dormientibus, jura subveniunt. I think no objection could be taken under those circumstances.
We have heard a great deal for many years past of the pledges made to the Maltese people. In taking away the Constitution now it seems to me that it would be a very great benefit if the noble Earl could see his way to state what in fact are those promises. I think it would reassure the Maltese people and it would certainly help to clear the minds of people over here. If it could be done in the form of a White Paper I think it would be an admirable thing. Another point I would like to make is that knowledge of what this Constitution really is going to be is not before us. I should be very glad indeed if the noble Earl could undertake that it should be put before us in a document which could be laid on the Table or in some form which would give us an opportunity of discussing it. At present the noble Earl is asking for a blank cheque. I feel sure that there is not one of your Lordships who would not be prepared to trust him with a blank cheque, but I think we might ask as a formality to be allowed to see it before it is presented and cashed. I think the real distinction between the noble Lord and the noble Earl is that one is anxious to retain, if possible, an elected element and that the other considers that is undesirable. We should have an opportunity of considering that if we had the Constitution before us. I would venture to suggest that, as the Government is in the position of both 977 legislator and defendant in the case before the Privy Council no harm would be done by allowing that case to proceed. Whether the case is of any value is a different matter arid I shall not go into that. We feel that the noble Earl has dealt with this matter in no carping spirit and if he could meet us in the way I have suggested we should be grateful and would accept it in no carping spirit.
§ THE EARL OF PLYMOUTH
My Lords, I must confess that I have been somewhat bewildered by the variety of arguments which the noble Lord put forward to support his Motion. Many of them, I think, he himself will admit were not very relevant to the Motion we are discussing. I would like to bring the discussion down to simple proportions if I can. To begin with I would like to say that the noble Lord has adopted a procedure in this matter which I think it will be admitted is of a somewhat unusual character in your Lordships' House. Your Lordships passed the Second Reading of the Bill only just over a week ago and it was in the normal course of events committed to a Committee of the Whole House. The noble Lord now asks that that Order should be discharged and that the Bill should be committed to a Select Committee with an instruction that the Bill should be divided into two parts. I think I am right in saying that usually your Lordships would require to be satisfied that something of substance had occurred between the Second Reading and the Committee stage to warrant your Lordships going back upon the decision which you then took. In fact, nothing has happened, as far as I am able to find out, which has altered the situation in any degree whatsoever. That is one reason why I think your Lordships should not accede to this Motion.
But apart from questions of procedure it seems to me that there really is only one point at issue, and that is whether this is an appropriate Bill to send to a Select Committee. I take the view myself that this is a Bill that could be more appropriately dealt with in a Committee of the Whole House. It is quite a short Bill. It is a Bill of three clauses, only two of which are of any real substances, and I hope that your Lordships will agree to deal with the Bill this afternoon. If one of the noble Lord's main objects, as I understand, is to obtain an 978 opportunity of testing the legality of certain Ordinances which have been passed in Malta during the present Administration, it seems to me that the simplest course for him to have adopted would have been to have moved the omission of Clause 2, the relevant clause in this matter. Then, if the noble Lord had succeeded in carrying his Amendment, these matters would go before the Privy Council in the ordinary course, and I think that your Lordships would probably agree that matters of this description of a legal character are better discussed in the Privy Council than in a Select Committee of your Lordships' House.
I must put in one caveat and that is that I hope your Lordships will not assume from my remarks that I should agree to such an Amendment as I have described—namely, the omission of Clause 2. On the contrary, I should oppose it on behalf of the Government. I do not think it is appropriate on a Motion of this kind to discuss the merits of the innumerable questions raised by the noble Lord in his speech. If they are relevant I shall be prepared to deal with them when we reach the proper stage in the Bill, but I do not think your Lordships would wish me to discuss them on the particular Motion that is before us. After what I have said I hope your Lordships will agree to the original Motion.
§ LORD STRICKLAND
I wish to avail myself very briefly of the right of reply. I know of no precedent against the procedure that I have suggested. The new matter that has arisen is that I have been able to produce weighty documents showing what is the value of promises and covenants to the Maltese. To my mind that is quite sufficient to justify my Amendment. I am entitled also, I think, in self-defence and by way of personal explanation, to read the judgment of the Privy Council on the point upon which I have been attacked by the, noble Viscount, Lord Swinton. The judgment read by Lord Blanesburgh was as follows:Their Lordships, while deploring the fact that Mr. Justice Bartolo should have been in any way responsible for the newspaper article in question and regretting that he failed to appreciate the impropriety of a Judge holding any communication with the Press on the subject of a pending cause, do not think that this is a suitable case in which to advise His Majesty that special leave 979 to appeal should be granted. There will be no order as to costs of the Petition.If there is no order as to costs it means that there is a prima facie case on both sides; and from this Judge we are entitled to appeal to the Privy Council, and when we are appealing on the ground of wanting a new trial because of this judgment of the Privy Council, I ask your Lordships to hold me immune from any reproach from the noble Viscount, Lord Swinton, since I have the opinion of the Privy Council, which I think is of more weight than his, as to the justification for my contention.
§ VISCOUNT SWINTON
My Lords, I intervene only to say that I said nothing—and it would have been quite improper for me to say anything—about the Privy Council or anything that transpires in the Law Courts. If the noble Lord reads the OFFICIAL REPORT to-morrow, he will see what he said. He did not say anything about whether the Judge had conducted the case well or badly; what the noble Lord said was that the late Governor, Sir David Campbell, deliberately appointed a Judge to a post in order that he—the Governor—could get a judgment in his favour.
§ VISCOUNT SWINTON
I think that if the noble Lord will read the OFFICIAL REPORT, he will see that he did say that. If I have said anything which he did not say, I will withdraw it at once, but it will be in the recollection of your Lordships, and it was certainly the impression conveyed to all your Lordships, that the noble Lord did say that, which I said was a monstrous libel on the late Governor.
§ LORD STRICKLAND
I did not say that. What I said was a very careful statement of facts. The noble Viscount, Lord Swinton, was in too much of a hurry; he thought that I said more, which I did not.
§ On Question, Amendment negatived and original Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF ONSLOW in the Chair.]
§ Title postponed.980
§ Clause 1:
§ Power to revoke or amend the Malta Constitution Letters Patent, 1921.
§ 1. The Malta Constitution Letters Patent. 1921, shall, notwithstanding any limitation imposed by Section sixty-eight thereof, have effect as if there were thereby reserved to His Majesty full power to revoke or amend by further Letters Patent all or any of the provisions of the Malta Constitution Letters Patent, 1921, as subsequently amended.
THE LORD CHAIRMAN
I beg the noble Lord's pardon, but the Title is postponed in the usual manner. The Amendment called is Clause 1, page 1, line 8.
§ LORD STRICKLAND
May I submit to the Lord Chairman that my point is that, when a Bill deals with the Prerogative, the Title should declare that.
THE LORD CHAIRMAN
The noble Lord will pardon me again: the House has postponed the Title to be considered at the end. The Amendment therefore is in Clause 1, page 1, line 8.
LORD STRICKLAND moved, after
"thereof," to insert:
or by the Common Law of England or by the Royal promises conveyed in the name of the King of England by the Proclamation ' To the Maltese Nation ' of Civil Commissioner Cameron, dated 15th July, 1801.
The noble Lord said: The Bill as drafted asks for authority to re-assert the Royal Prerogative inasmuch as that Prerogative is eliminated by the wording of Section 68 of the Letters Patent of 1921. But there are other reasons much more potent for suggesting that more powers are required. It is not merely a question of setting aside Section 68 of the Constitution and the reservations and diminutions of the Prerogative that are there enacted, but we are also asked to set aside the covenants and treaties which have given to the Maltese their rights as co-conquerors of Malta from the French. I submit that this should not be done by innuendo. If this is to be done, it should be stated plainly. If your Lordships' House is prepared to set aside these covenants and these pacts, it is not right that your Lordships should be asked to set them aside without explicit words.
§ When these covenants and pacts were established the theory which now obtains constitutionally, that treaties are made by the King, was also the practice. Similarly, the setting aside of the King's word in treaties could not operate without the direct assent of the Sovereign. In these days the constitutional practice is that the Ministry for the time being can set aside treaties, and the Royal Prerogative in reference to treaties has now become more a matter of history than of practice. But in this particular case the title of England to Malta depends on treaties and on International Law, which gives certain rights to those who obtain possession of territory by conquest. I therefore think that for this reason this addition should be made to the clause.
Page 1, line 8, after (" thereof ") insert: ("or by the Common Law of England, or by the Royal promises conveyed in the name of the King of England by the Proclamation ' To the Maltese Nation ' of Civil Commissioner Cameron, dated 15th July, 1801.")—(Lord Strickland.)
§ THE EARL OF PLYMOUTH
As I understand it, the theory underlying the first part of the Amendment appears to be that there is something in the Common Law of England which prevents His Majesty from exercising the full power of revoking or amending the present Malta Constitution Letters Patent, and that in order to give him that power it is therefore necessary for legislation to be obtained from Parliament. That is, however, exactly the idea behind the clause as it is at present drafted. Its object is to give His Majesty a power which under the Common Law of England he does not already possess. There seems to me, therefore, as I am advised, no reason for adding the words "by the Common Law of England," which would be merely superfluous. Regarding the second part of the Amendment, I can only say that, so far as the proclamation by Civil Commissioner Cameron, which is referred to in this Amendment, is concerned, this really docs not in any way affect the legal position of the Crown, and in our view it would therefore be entirely out of place to introduce any reference to it in an Act of Parliament. I hope your Lordships will not accept the Amendment.
§ LORD STRICKLAND
I beg leave to differ from the noble Earl who has just sat down. The Common Law of England is not the only bar. The purpose of this Bill is to deal with the Statute law of England, the Malta Constitution Act, 1932. That is the main object of the Bill. But the noble Earl has admitted something else: he has admitted that the Common Law applies. That has not been admitted before this moment, and as that is admitted it ought to be clearly stated. No derogation from the Common Law can operate by innuendo; It must be stated, and not only enacted but also set out in the Preamble. Therefore this is really necessary if the draft is to be on sound lines. But besides the Statute law, besides the Common Law, there are these treaties, and we are asked by this Bill to exempt the present Government of the day and to exempt His Majesty the King, not only from the obligations derived from covenants and pacts, but also from the interpretations that they have carried for 130 years. What is more, we are asked to do so without bringing forward the very concrete and important question of the setting aside of treaties as if they were nothing. We are complaining about that with regard to other nations, and here we are, setting aside the sanctity of treaties by innuendo. I ask your Lordships and legal members of this House to hold the view that when there is abrogation of the Common Law and treaties it ought to be stated and not surmised by inference.
§ On Question, Amendment negatived.
§ LORD STRICKLAND moved, before "Malta Constitution Letters Patent," where those words secondly occur, to insert "Principal" The noble Lord said: The Maltese Constitution Act, in the Schedules, repeatedly uses the words "Principal Letters Patent," when that Act deals with Letters Patent which provide what the Maltese Legislature is to do. That part of the Letters Patent which deals with the functions of the legislature is called the Principal Letters Patent. It is very important that the distinction made in the Act which we are destroying, the Maltese Constitution Act of 1932, should be made in the Bill which we are now considering. I have the Malta Constitution Act of 1932 here. It was carefully drawn up, with proper 983 distinctions and Schedules, whereas the draft of the Bill now before us leaves very much to be desired, and I think it would be improved by the insertion of this word "Principal."
Page 1, line 11, after the word (" the ") insert ("Principal").—(Lord Strickland.)
§ THE EARL OF PLYMOUTH
The proper legal description of the Letters Patent which are in question is "the Malta Constitution Letters Patent." There is therefore no point in introducing the word "principal." The insertion of the qualifying adjective in the formal title is not only unnecessary but would be quite inaccurate as well.
§ LORD STRICKLAND
I can only say that it was done in the Act which we are repealing, and if it were necessary and useful then it is equally necessary and useful to-day.
§ On Question, Amendment negatived.
LORD STRICKLAND moved to insert at the end of the clause:
No enactment in any present or future Letters Patent shall be made to have effect so as to suspend representative institutions in Malta for a longer period than one year, unless a Resolution approving of such suspension shall have been passed by each House of the Parliament of England within six months of such suspension.
§ The noble Lord said: In the Government of India Act the power of the Governor, whether Provincial Governor or Governor-General, to suspend representative institutions is limited. The limitation is to the effect that the sanction of the Imperial Parliament is to be asked when those representative privileges are taken away. I hope your Lordships will agree that there is no reason why the people of Malta should be placed on a different plane from the people of India with regard to the exercise of their rights as to some constitutional privileges. The people of India were given rights recently by your Lordships' House on the main argument that there was some sort of promise in the Preamble to a Bill. It is common knowledge that the Preamble is not part of an enactment. Nevertheless, these promises, or alleged promises, were implemented by the whole Constitution of India. In the case of Malta there is something more than promises. There are covenants, and repeated acknowledgments of covenants and the 984 Report of the Royal Commission. This Amendment would be helpful to the Governor, because I foresee that it may be necessary at any time for the Governor to suspend the Constitution. I think he should have power to suspend it, but not capriciously—not because, for instance, of a particular Prime Minister whom he may be called upon to summon. I think the suspension of the Constitution should be placed in the hands of the Governor, in view of the European situation, but it should be subject to criticism by the Imperial Parliament. That would be a moral restraint of great weight. I think this Amendment should be agreed to so as to show that this Bill has been approached in the spirit of Mr. Joseph Chamberlain's appeal.
Page 1, line 12, at end insert the said words.—(Lord Strickland.)
§ THE EARL OF PLYMOUTH
As the noble Lord has explained, the effect of adopting this Amendment would be that the new interim Constitution which it is intended to give to Malta, as I explained during the course of my speech upon the Second Reading, could not exist for more than one year without reference to Parliament, unless it was framed on the representative model. I need hardly say that the Government cannot possibly accept this Amendment. In my speech on the Second Reading of the Bill I explained, as far as I was in a position to do so, the views of the Government with regard to the future. I explained that the Government were prepared forthwith to associate unofficial opinion in Malta with the government of the Island, and intended to do so in the first place by means of the establishment of an Executive Council with a number of nominated unofficial members upon it. They felt at the same time that we should proceed cautiously in this matter if we were to profit by the experiences of the last few years, but I said quite definitely that in the view of the Government the Maltese people were entitled to look forward in due course to the restoration of representative institutions in the Island. But I do think that it was unreasonable then, and it is unreasonable now, to expect me to give any finality to that period. Quite clearly it is impossible to say how events will develop during the course of the next year or two. I think it would be extremely objectionable 985 for these reasons to try to fetter the Government in this way and to tie them down to any particular date. It would really frustrate one of the main objects of the Bill. I hope that the Committee, with the assurance that I have given once again on this subject, will not pass this Amendment.
§ LORD STRICKLAND
May I ask the noble Earl why it is objectionable to put in this very mild and distant fetter in Malta, when it was not objectionable to put in this fetter in the India Constitution Act? That Act contains two whole chapters setting out how a Provincial Governor or Governor-General may suspend representative institutions. The Malta Constitution Letters Patent of 1932 contain nothing giving the power to the Governor. They contain a clause forbidding the Parliament of Malta to legislate on certain matters, but that did not give the power to the Governor to do all that they and others were forbidden to do. We have had a precedent of a very grave departure from any commonsense meaning of the Malta Constitution Act of 1932, and this is not a fetter of any serious description. It gives confidence to the people of Malta, if they are to have a new Constitution, that the Constitution is seriously meant, and I really fail to see why what is reasonable in the case of the India Constitution should not be safeguarded in that new Constitution—unless, of course, the attitude of the Government is that no Amendment, reasonable or unreasonable, is to be accepted in the case of this Bill. Where is the inducement to noble Lords to come to this House to try, with their experience and their study of the question, to improve the phraseology of the Bill if we are met with the attitude: "It is no use discussing or proposing anything."
§ On Question, Amendment negatived.
§ Clause 1 agreed to.
§ LORD STRICKLAND moved, after Clause 1, to insert the following new clause:
§ . Notwithstanding the date fixed for the coming into force of other provisions of this Act, the provisions in the Supplementary Letters Patent of 14th April, 1921, which reserve to His Majesty power to revoke and amend the same shall stand 986 confirmed by Statute as from the date of the passing of this Act.
§ The noble Lord said: The object of this Amendment is to deal with the question that this Bill is to be passed by a certain date and to come into force on a subsequent date. There will therefore be a period when the Act will be in nubibus. It is really a drafting Amendment for the purpose of getting over that difficulty, but I am sure the noble Earl will object even to this Amendment.
After Clause 1, insert the said new clause.—(Lord Strickland.)
§ THE EARL OF PLYMOUTH
Yes, I do object to this Amendment. So far as I can understand the noble Lord, he is referring, in using the term "Supplementary Letters Patent," to the Letters Patent of April 11, 1921, constituting the office of Governor and Commander-in-Chief of Malta. Under Clause 21 of those Letters Patent full power is reserved to His Majesty to revoke, alter, or amend them. These Letters Patent are made by virtue of the Royal Prerogative, and it is neither necessary nor desirable that they should be confirmed by Act of Parliament. To accept this Amendment would be to imply that there was a doubt regarding the Crown's present power. The Government think it would be very objectionable to do anything of the kind.
§ LORD STRICKLAND
The noble Earl seemed to have failed to catch the point that the supplementary powers to take part in legislation are in no way interfered with. They are not even mentioned by the Malta Constitution Act. They are Letters Patent which can be revoked at the pleasure of His Majesty. They are the Letters Patent that constitute the Executive Council, the Privy Council, and the Joint Committees. They are not touched in any way. What the noble Earl promises us in Malta as a temporary arrangement—that is, merely an Executive Council like that at Gibraltar—can he enacted to-day without any Bill being passed. If he only wants to give us that I do not know why he wants to pass this Bill at all. I said on the Second Reading that this was also a whitewashing Bill, but if it is passed without this Amendment it is nothing but a whitewashing Bill.
§ On Question, Amendment negatived.987
§ Clause 2:
§ Validity of certain Ordinances of Governor of Malta.
§ 2. It is hereby declared that all Ordinances of the Governor of Malta enacted and promulgated during the period between the commencement of the Malta Constitution Act, 1932, and the commencement of this Act were validly enacted and promulgated and were within the powers of the Governor.
§ LORD STRICKLAND moved to leave out "all. ' The noble Lord said: The reason for this Amendment is that it is really a very sweeping request to make to your Lordships' House that everything which has been done is to be whitewashed. When the Act of 1932 was passed some Ordinances were validated, some were not. There were Schedules showing what was to be validated and what was not to be validated. This wholesale and reckless manner of drafting has this effect. Some of the Ordinances passed during the time of the interim Government have already been repealed. Some have been repealed in part, some have been re-enacted. Once an Ordinance was passed in defiance of the Act of 1932 itself. It was passed in defiance of instructions from the Colonial Department. Such is the hurry, such the panic in passing this Bill that there was not even time to find a Colonial Office clerk to prepare a proper Schedule. Everything, according to this clause, is to be put right. Some of the consequences of this draftsmanship are certainly painful to anybody who has been connected with even superficial legal studies. I think it is only common sense that we should expect Schedules to this Act. To approve of everything means that the Maltese people count for nothing and treaties count for nothing.
Page 1, line 13, leave out (" all ").—(Lord Strickland.)
§ THE EARL OF PLYMOUTH
I really do not know what the answer to this is. I cannot see the force of the noble Lord's Amendment, which is connected with the next following Amendment on the Order paper.
THE LORD CHAIRMAN
I think in such a case it is usual to take the discussion of cognate Amendments together.
§ LORD STRICKLAND
May I read the next Amendment? It is to insert the words:in as far as such Ordinances dealt with reserved matters or matters of ' general interest '; but without prejudice to redress in Courts of Law claimed by reason of any Ordinance dealing with municipal interests or with private interests or with personal rights and liberties, or affecting the same.The noble Earl assured your Lordships' House on Second Reading that if he knew the Bill affected personal and private rights he would have a different opinion and a different mentality with reference to it. This Amendment is to safeguard that announcement, that pledge, given by the noble Earl and recorded in the OFFICIAL REPORT of the Second Heading inasmuch as the case now before the Privy Council docs deal with personal rights. We had that assurance from the learned Lord who so informed your Lordships' House on the Second Reading debate, with full knowledge of what he was talking about.
The Parliament of Malta is only precluded from legislation with reference to reserved subjects. There is no attempt in the Letters Patent or in the Constitution to prevent the Parliament of Malta from legislating about municipal matters or personal matters or passing Private Bills. Therefore the validation of Ordinances that have validated Private Bills cannot be supported by any phraseology to be found in the Letters Patent dealing with the creation of the Parliament of Malta. One of the Ordinances to be rendered valid by reason of an emergency and by the use of the word "all" is a Private Bill to enable the Congregation of the Sacred Heart, a nunnery, to have a private cemetery. I ask your Lordships, can that be validated on the plea that it is necessary for the preservation and defence of the Empire? Certainly not. By putting in the word "all," every blunder is to be whitewashed. What is more, the right of appeal to the Privy Council in cases where these blunders have been committed and these misinterpretations and the extensions of authority have been established is going to be taken away. Everything is to be validated, even the Ordinance interfering with private rights. That is why I hope this Amendment will have the support of your Lordships.
LORD DABCY (DE KNAYTH)
I cannot help feeling that this Amendment is one of the greatest importance. I personally made a suggestion to the noble Earl at an earlier date, but he did not refer to it. I am not going to argue this matter at this time of night, but it seems perfectly clear there is something wrong. The noble Lord, Lord Strickland, has just told us that every blunder will be whitewashed. I noticed that the noble Earl said," Why every blunder?" He would have difficulty in specifying any blunder in the nature of an Ordinance that would not be whitewashed. The real mischief is this Privy Council case involving possible interference with personal rights. Is the noble Earl prepared to consider some slight Amendment? I would like to ask the noble Earl whether he would be prepared to discuss something in the nature of allowing the clause to apply as a protection against any actions that were not actually in force by a particular date. I do not ask the noble Earl to reply now, but if he is prepared even to think it over between now and Third Reading, I should certainly be extremely grateful.
§ THE EARL OF PLYMOUTH
Of course, I shall be willing to consider any suggestion made on this particular subject. I really do not follow the argument of the noble Lord, Lord Strickland. He has stated that certain of these Ordinances which were passed during the period of the present Administration should not be validated because they were of a trivial character. He referred to one in particular, to one that authorised the granting of land for a cemetery for a particular convent.
§ LORD STRICKLAND
I referred to an Ordinance which stated there had been a prohibition about, burials based on sanitary reasons and authorising a particular nunnery to have their own private burial ground. I am sure that the noble Viscount, Lord Swinton, when he declared an emergency, had no wish to give any particular privilege to nunneries, but that is what is Being done, and that is being done in the name of an emergency, setting aside the whole of the privileges of the people of Malta.
§ THE EARL OF PLYMOUTH
I think the deduction which the noble Lord has drawn is entirely unjustified. When the 990 Secretary of State declared that an emergency existed in Malta, the Governor took over the whole administration of the Island, and it is quite clear that, in order to carry on his administration, he would have to be allowed to deal with every kind of matter which is of any importance whatever. So far as I can make out, in the case of this cemetery some Ordinance had to be passed. I cannot see how you can maintain that certain portions of legislation can be excluded from the sphere over which the Governor had control as the result of the declaration of the Secretary of State.
There are other matters to which the noble Lord has referred. He referred to a certain statement which I made with regard to the question of personal rights and interests. I want to make this clear, that all legislation, practically, in some degree, affects personal rights and interests. I have no doubt that the noble Lord in raising this matter has in mind the Ordinance which forms the subject of his pending appeal to the Privy Council. This Ordinance has in it nothing which affects any rights or privileges which the noble Lord has as distinct from those of the general public, nor does it in any way affect any question of title to property, for instance. After all, we have constantly passed in this country legislation which, in some degree or another, does affect personal rights and property, and, as a matter of fact, we have on the Statute Book an Act of Parliament of 1925 which deals with a matter very similar to that which is dealt with in the particular Ordinance in question in Malta to which the noble Lord takes objection. I am referring to the Ordinance authorising the Governor to make regulations to control the display of advertisements and hoardings of an unpleasant or ugly character. There is in this country an Act of Parliament of 1925 which gives local authorities very wide powers of interfering where advertisements are exhibited so as injuriously to affect rural scenery and amenities of various kinds; but nobody can claim that an Act of that kind is an interference with personal rights and property in the sense in which we think about them in this connection, and certainly the Ordinance which is in question in Malta is of general application and does not interfere with any rights of the noble Lord 991 in any other way than it affects the rights of other citizens.
§ LORD STRICKLAND
In England Parliament can legislate about everything, but, according to the Constitution of Malta, the Governor could not legislate upon these particular matters. He could only legislate about matters that Parliament was forbidden from legislating upon. The noble Lord says that the Parliament of England can say what colour a man's house has to be painted. Certainly Parliament in England can do that, but the Governor of Malta could not. The noble Earl has not quoted a single word to show that the Governor of Malta can say that I shall have no right to have my case brought before the Privy Council. If the noble Earl would say that he has obtained the opinion of the Law Officers of the Crown, and would give a statement of what was the opinion of the Law Officers of the Crown, then I would be bound to accept that, but he comes here and says: "I am advised." I cannot accept that. It is a matter of covering up the tracks of any blunder that has been committed, and I hope your Lordships will not agree that that is a proper way of dealing with the people of Malta.
§ On Question, Amendment negatived.
§ Clause 2 agreed to.
§ Clause 3:
§ Short title, commencement and repeal.
§ 3.—(1) This Act may be cited as the Malta (letters Patent) Act, 1936, and shall come into operation on the fifteenth day of July, nineteen hundred and thirty-six.
§ LORD STRICKLAND moved, in subsection (1), to substitute "nineteen hundred and thirty-seven" for "nineteen hundred and thirty-six." The noble Lord said: This Amendment meets the offer made to-day by the noble Earl in charge of the Bill that some Amendment should be suggested which would allow pending litigation to continue. Litigation before the Privy Council upon which the parties have already joined issue, and as to which there have been delays in the printing caused by the Solicitor-General, cannot possibly be brought to an issue before July 15 this year. My suggestion is that we should put in July 15 next year. That will not only give time to argue the case but also for their Lord-ships 992 of the Judicial Committee of the Privy Council to formulate their judgment. It will also give time to come to some understanding and discussion as to what is right and wrong, and as to what is absolutely indefensible in connection with this legislation. I submit that this is quite a reasonable Amendment, and that it is a practical way of carrying out the offer made to-day on the floor of the House by the noble Earl. I hope he will accept this Amendment. I beg to move.
Page 2, line 3, leave out ("thirty-six") and insert ("thirty-seven")—(Lord Strickland.)
§ THE EARL OF PLYMOUTH
As the noble Lord has explained, the effect of this Amendment, if it were adopted, would be that the Act would not come into force until July 15, 1937, instead of July 15 this year. Obviously the Government cannot accept this Amendment. The present provisional régime came into force as long ago as the autumn of 1933, and, in the view of His Majesty's Government, it has lasted long enough. Indeed I thought that was the view of the noble Lord himself. I thought the noble Lord had constantly taken the line that the provisional régime ought to be brought to a close, and that some other Constitution should be substituted for the one that at present exists in Malta but which is suspended. I want to explain, as I did on Second Reading, what the position would be if we did not have Clause 2 in this Bill. If we left out Clause 2, and the noble Lord had the decision that went against him in the Courts reversed in the Privy Council, the legal position in Malta would become absolutely chaotic, and we should have no alternative but to introduce legislation at the earliest possible moment to correct the position and validate the Ordinances which had been passed during the present Administration. It seems to me in those circumstances, and in view of the fact that it is our view that actual personal rights or title to property are not affected as a result of this Bill, that it is not only a wise but a reasonable thing to insert a provision guarding against such a possibility in the future, and that would avoid a position which would be extremely unfortunate legally for Malta. At the same time it has a precedent which is very well known to 993 the noble Lord himself—namely, in the Bill of 1932, which contained a provision as the result of which certain Ordinances passed beforehand when the Constitution was suspended were validated. Therefore there is a precedent for action of this kind. I venture to say that in the circumstances we have taken a course which is not only reasonable but wise.
In conclusion I want to say that I fully realise that the noble Lord in bringing his case so far up to the Privy Council may have incurred expenditure of a considerable amount, and I would supplement what I said the other day by saying that if the noble Lord could show that in any material pecuniary manner he had suffered damage by validation of this legislation, His Majesty's Government would be prepared to consider a claim for compensation. We realise perfectly well that he must have been put to certain costs in connection with bringing his action before the Privy Council. Naturally His Majesty's Government have no desire to involve him in any loss of this character, and if in due course he should put forward a claim I can assure him that it will be sympathetically considered.
It is not merely a claim of an individual or of two individuals. Your Lordships will realise that this is a matter concerning all the citizens in Malta. As soon as I heard of it, I came as quickly as I could from Malta, but there is an endless number of other Maltese whose rights are affected. They ought to be given time in which to make up their minds whether they will seek redress or not. The noble Earl says there is a particular Ordinance to which these cases do not really apply. That is his opinion, but I submit that the Privy Council should be allowed an opportunity of giving their opinion. And what of all the other possible litigants who under the Statute of Limitations are entitled to some years before they start their cases? They are all being snuffed out at one fell swoop.
That is one serious objection to this legislation which is by no means met by that sort of reply. Nor is the difficulty met by an offer of costs. Your Lordships know that many public men in this country have brought cases before this House and before other Courts to protect the rights of their fellow citizens. 994 Why should not people in Malta have the privilege of being patriotic and defending the lights of people by coining to the fountainhead of justice, the King in Privy Council? We must all remember the Taff Vale case and many other cases in which patriotic people have gone to litigation and have subscribed to funds for the purpose. Why should we be deprived of that privilege? They did not want pecuniary compensation, and we do not want pecuniary compensation. I had to bring the case of Joseph Orlando Smith before an English Judge to prove that what I said was true and what the noble Earl said was not true. That cost me £800, but I am not asking for compensation. What I wanted was a verdict of an English special jury. Everybody in Malta and all over the Empire has the right now to bring a suit within the Statute of Limitations, but that is going to be taken from the people of Malta by this panic legislation.
§ On Question, Amendment negatived.
LORD STRICKLAND moved to insert at the end of subsection (2):
and all such provisions contained in the said Sections one to four as are in whole or in part embodied and printed in a Schedule containing the Malta Letters Patent as amended and printed by virtue of the Malta Constitution Act, 1932, shall continue to have effect as part of the principal Letters Patent of the Malta Constitution Letters Patent, 1921, as if there had been no revocation thereof expressed or implied.
§ The noble Lord said: This Bill is really the acme of careless drafting. We have a clause repealing four sections of the Malta Constitution Act, 1932. Those four sections were devised to remedy certain grievances which the Royal Commission desired to remedy, including a grievance brought before your Lordships' House by the noble Lord, Lord Darcy (de Knayth) a member of this House learned in the law, who was complimented by the then Lord Chancellor the noble and learned Viscount, Lord Sankey, not only for the ability with which the Amendment was drafted but for the way he argued it. That Amendment was inserted in the Letters Patent. This House passed those four sections to remedy four groups of grievances, and an order was made that the enactment should be printed in a print of legislation that was to be approved by His Majesty's Government. 995 Those grievances were remedied, but the remedy only rests upon a printed clause. This subsection (2) repeals the operative sections in the Act of 1932 which remedied these grievances. If you repeal the remedy of grievances the grievances are re-enacted unless you have a safeguard.
§ I expect the noble Earl has been advised to say that this does not matter at all, but there is a well-known legal maxim Lex posterior deragat priori. If you have a new law that says something positive, that says clauses are repealed, it is no good saying that they are printed somewhere else. I am really helping the noble Earl out of a muddle by moving the Amendment. If the repeal of the sections leaves things as they are, why revoke them? If we are to have panic legislation, hurriedly drafted, rushed through your Lordships' House whether it is right or wrong, and if every Amendment is to be rejected, may I ask what is the good of our coming here? We are told that the reform of the House of Lords is wanted. The first thing we want to feel when we come here is that we are doing something useful. To have everything rejected diminishes the chance of our surviving and doing useful work here.
Page 2, line 5, insert the said words.—(Lord Strickland.)
§ THE EARL OF PLYMOUTH
I am afraid the noble Lord is once again under a misapprehension. The provisions contained in Sections 1 to 4 of the Malta Constitution Act are in virtue of that Act at present embodied in the Malta Constitution Letters Patent. When those sections of the Act are repealed the relevant provisions in the Letters Patent will still have the force of Law.
§ THE EARL OF PLYMOUTH
I am not expressing any intention on the part of the Government to repeal them. I have tried to meet a point put by my noble friend Lord Askwith in the course of the Second Reading debate, when I gave him certain assurances in regard to Judges and magistrates. There is no intention to take any action which might have the effect of derogating from their position, or in any way altering their position as it stands at present, and I hope and believe that I have satisfied the noble Lord.
§ THE EARL OF PLYMOUTH
There is, therefore, no point in inserting the proposed Amendment in the Bill, but there is a very distinct point in revoking these four sections. One of the main points of the proposed Act is to restore to the Crown its full and unrestricted right of legislating by the Prerogative for Malta. That object cannot be achieved unless these particular provisions are repealed. That is the reason why we have taken this action, and it appears to be perfectly reasonable.
§ LORD STRICKLAND
The noble Lord, Lord Askwith, is satisfied as to the intention of the noble Earl, and I am also satisfied as to the intention, which is that when the new Constitution is drafted this muddle will be put right afterwards. I think, however, that your Lordships are entitled to put the muddle right to-day. If this is passed to-day, lex posterior derogat priori, and that printed clause, or whatever it is called, goes. I think that is perfectly plain from the point of view of draftsmanship. There is a recondite meaning in this attempt to repeal those sections in order to have a wider interpretation of what has been done by way of restoring the Prerogative, but that is not the way to do it. That is proved by the fact that the Government only boast of their good intentions; they do not boast of their accuracy. It has also been said that the Law Officers of the Crown have dealt with points of law. In the old days, when Ministers were maintaining that something was legal or illegal, they quoted the Law Officers of the Crown; they did not say,"I am advised," or "Our intentions are good."
§ On Question, Amendment negatived.
§ Clause 3 agreed to.
§ An Act to remove the limitation of His Majesty's power to revoke or amend the Malta Constitution Letters Patent, 1921; to declare the validity of certain Ordinances of the Governor of Malta; and for purposes connected with the matters aforesaid.
LORD STRICKLAND had given Notice of an Amendment to insert in the Title, after "Governor of Malta":
notwithstanding that they are not scheduled to this Bill, and notwithstanding whether or not any of them have been already revoked, and notwithstanding that
they may not have been enacted in accordance with Royal Instructions, and in particular notwithstanding that Ordinance XI of 1934, which, has been repealed and in part re-enacted with modifications; and
to give indemnity against violation of the private property and rights done, or that may have been done, under Ordinance XI of 1934 before it was repealed and modified; and
to provide that an appeal shall become ineffective upon which both sides have entered an appearance before the Judicial Committee of His Majesty's Privy Council inasmuch as it concerns claims under Ordinance XI of 1934; and
to create by Statute an accretion to the Royal Prerogative in regard to Malta which heretofore has been exercised by custom and is vested in His Majesty as the acknowledged successor in and over Malta of the Sovereign Grand Masters of the Order of St. John of Jerusalem by virtue of pacts and covenants and of the will of the people of Malta, and by virtue of the sovereignty exercised by rights of conquest to which the people of Malta and His Majesty the King are equally entitled; and
to fix a day for the commencement of this Act so selected that it will not be possible to ensure before the 15th of July, 1936, a decision on any appeal concerning rights over property in Malta and personal rights that are the subject of suits now pending and brought before the Judicial Committee of the Privy Council by two of His Majesty's subjects against representatives of the Government of Malta; and
to render nugatory a demand for a new trial in the cases on appeal from Malta before the Judicial Committee of His Majesty's Privy Council in reference to a plea asserted on the record as to which particulars are given on such record and in which witnesses are named, alleging that a certain Judge acted under undue influence and continued to sit and vote on the same case in Malta after being censured by the Judicial Committee of His Majesty's Privy Council for his conduct in the hearing of the said case, on appeal in Malta and before sentence was delivered.
THE LORD CHAIRMAN
I have to consult your Lordships on a point of some difficulty, because I do not quite know what your Lordships would wish me to do. The noble Lord, Lord Strickland, has an Amendment in the Title: line 4, at the end, to insert certain words. As your Lordships are aware, it is usual to postpone the Title of a Bill in order that, if there are any Amendments made to the Bill which may necessitate an alteration in the Title, that may be done at the conclusion of the Committee stage. Your Lordships have, however, not seen fit to amend the Bill in any way, and in these circumstances I venture to seek the guidance of your Lordships as to what 998 you would wish done in these circumstances. I do not know whether it has ever happened that a Bill has been amended in the Title which has not been amended in the clauses. I have no recollection of any such course being taken, and from the inquiries I have made in the short time at my disposal at the offices of the House, no record can be found, so that one cannot say whether, in the long history of your Lordships' House, such a circumstance has ever arisen. I have consulted Erskine May on the matter, and he says:In the Lords, the original Title of a bill is amended at any stage at which Amendments are admissible, when alterations in the body of the Bill have rendered any change in the Title necessary.So it looks as if, in the view of the author of this work, which is the standard work on Parliamentary Procedure, the Title of a Bill should only be amended when that is necessary owing to alterations in the clauses. I therefore venture to bring the matter before your Lordships in order that the Committee may have an opportunity of discussing and deciding the course which they wish taken. We have the advantage of the presence of two noble and learned Lords who have occupied the Woolsack and are authorities on procedure, and they will doubtless advise us on what should properly be done.
§ LORD STRICKLAND
Before any question of law is discussed, I hope I may be allowed to state what the point really is. It is quite unprecedented for any Bill to be brought forward to add to or detract, from the Prerogative of the Crown without a clear statement of that intention in the Preamble and an indication of the extent to which that power was to be exercised. That is not merely the dictum of any lawyer; I do not say that I am advised to that extent by any lawyer. It is accepted as the Common Law of England that the Prerogative cannot be added to, or taken away from, without explicit declaration in the Preamble. Erskine May does not say whether a Message from the Crown is necessary to touch the Preamble. But this Bill does affect the Prerogative of the Privy Council; it affects the Prerogative of the Crown to legislate by Ordinance and by Orders in Council. Therefore everything which is done and every intention which is behind this Bill should be declared in 999 the Preamble. You will find precedents. That passage in Erskine May does not apply in any way; that applies to an ordinary Bill, not to a Bill that deals with the Prerogative. If it is so important to avoid dealing with the Preamble, then it is possible to refuse to listen to a single Amendment in any shape or form, and then to quote this passage and prevent discussion of what are the intentions behind the Bill. Not only do I express regret at this new departure from what I have always learnt is the Common Law of England, but there is also the matter of freedom of debate and speech. I think I am entitled to discuss this Preamble and to show your Lordships why this sort of legislation is being pressed in this rapid and panic-stricken manner.
§ THE LORD CHANCELLOR (VISCOUNT HAILSHAM)
The point of principle cannot be affected by the sense of grievance of one side or the other. I also looked at Erskine May, and the view I formed from reading the passage on page 502 to which the Lord Chairman called our attention was that you only amended a Title when you had first amended the Bill, and that it was because you wanted to see whether or not the Bill was altered that you postponed the consideration of the Title. Therefore I should have thought on principle, without having had an opportunity to consult precedents, that Erskine May was accurate and that, where there had been no Amendment of the Bill, there could not very well be an Amendment of the Title of the Bill. But I am not quite sure whether it would not be simpler, since the noble Lord, Lord Strickland, feels that his freedom of speech is being interfered with—I confess I am surprised and rather sorry to hear that he thinks that—to consider whether we might not take what he has just said as being his Motion on the Title and, without creating a precedent and in order to remove any sense of injustice, which none of us would wish any member of this House to feel, to consider whether your Lordships desire to alter the Title having regard to the fact that you have not altered the Bill.
§ On Question, Title agreed to.
§ Bill reported without amendment.