HL Deb 03 November 1938 vol 110 cc1677-84

LORD STRICKLAND had the following Notice on the Paper: To call attention to the Common Law as related to the British Guiana Act, 1928, and to Possessions overseas and to present a Bill amending that Act. The noble Lord said: My Lords, in rising to bring forward this subject I am encouraged by the spadework done as a member of a

who lost their lives, many women and children killed, it may be, in their beds or in the pursuit of their peaceful avocations. Anyone who has any responsibility must feel that a step that can be taken by the Government which tends to prevent that event—namely, a great war occurring between major Powers in Europe—must be taken if he wants to be faithful to the duty placed upon him. It is because the step that was taken in Munich by the Prime Minister leads necessarily to a continuing step in favour of peace, and consequently an acceptance of the present Agreement, that it is presented to your Lordships for your approval.

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided:—Contents, 55; Not-Contents, 6.

Maugham, L. (L. Chancellor.) Halifax, V. Hirst, L.
Hampden, V. Holden, L.
Northumberland, D. Stonehaven, V. Iliffe, L.
Trenchard, V. Jessel, L.
Aberdeen and Temair, M. Lawrence, L.
Dufferin and Ava, M. Aberdare, L. Luke, L.
Zetland, M. Amulree, L. Marchwood, L.
Bingley, L. Ormathwaite, L.
Airlie, E. Charnwood, L. Phillimore, L.
Baldwin of Bewdley, E. Chesham, L. Polwarth, L.
Birkenhead, E. Clanwilliam, L. (E. Clanwilliam.) Portsea, L.
Bradford, E. Rankeillour, L.
Cavan, E. Craigmyle, L. Rennell, L.
Fortescue, E. Dickinson, L. Rockley, L.
Lucan, E. [Teller.] Doverdale, L. Rushcliffe, L.
Munster, E. Elgin, L. (E. Elgin and Kincardine.) Shute, L. (V. Barrington.)
Plymouth, E. Strathcona and Mount Royal, L.
Stanhope, E. Fairfax of Cameron, L.
Fairlie, L. (E. Glasgow.) Templemore, L. [Teller.]
FitzAlan of Derwent, V. Gorell, L. Wolverton, L.
Greenwood, V. Hindlip, L. Wyfold, L.
Lytton, E. Hare, L. (E. Listowel.) [Teller.] Snell, L.
Strabolgi, L. [Teller.]
Cecil of Chelwood, V. Marley, L.

Committee by the Leader in your Lordships' House on the other side, Lord Snell, and by the noble Viscount, Lord Halifax, who was at one time Under-Secretary of State for the Colonies. In your Lordships' House on March 21, 1928, on the Motion that the British Guiana Bill be read a second time, Lord Haldane, a former Lord Chancellor, spoke as follows on the main point which it was desired to emphasize. He said: I do not rise to offer any opinion on the substance of the changes that are made by this Bill, but there is a question which I want to put to the noble Lord. The new Constitution which is to be set up by Order in Council is a Constitution which super- sedes an older Constitution, also I presume set up by Order in Council at the beginning of the nineteenth century, and the assumption on which the Colonial Office appear to have proceeded is that it is possible, and the law permits, a change of this kind, superseding an existing Constitution granted by the Crown, to be made by an Order in Council without an Act of the Legislature. It is possible that the Constitution of British Guiana, as it stands now, is of such a subordinate kind that it may be legitimate to proceed in this way, and I do not doubt that the attention of the Colonial Office in some shape or form must have been called to this question, that if there is a substantial Constitution, which has been granted by the Crown, once it is granted then, according to the law of this country, you cannot supersede it without a Statute. That was laid down 150 years ago by Lord Mansfield in Campbell versus Hall, and I am afraid that the Colonial Office have taken rather an easy view of that decision. What I want to know from the noble Lord is whether the Colonial Office have considered this question—whether this Constitution comes within the principle laid down in Campbell versus Hall, and whether it is competent to proceed as this Bill proposes, by Order in Council. That is all I am anxious about at present. I wish to be assured that this question has been sufficiently considered—and it has not always been sufficiently considered by the Colonial Office in its legislation—for if it should turn out that there has been a mistake, then everything which is done now will be void and of no effect in law.

It is not to be doubted that Lord Haldane was well aware that whatever might be done by an Act of Parliament was in every case valid and in no case void, except perhaps under one consideration—namely, that at the date when Lord Haldane spoke there could be no change in the Common Law by Act of Parliament unless in that Act of Parliament it was made clear, in the Preamble or otherwise, that it was the intention of Parliament to alter the Common Law. Lord Haldane could not question the efficiency of the British Guiana Act as far as it gives legal effect to any provision therein which is enacted in express terms. It is axiomatic that an Act of Parliament can do anything except make a man into a woman. That is the way in which the textbooks express the potency of Parliament. At the same time it is established that an Act of Parliament cannot alter the Common Law by interpretation or by innuendo, and that to alter the Common Law by Act of Parliament the intention to do so must be declared therein, and must be clearly expressed. The intention to alter the Common Law is not declared in the Preamble (or otherwise) in the British Guiana Act, 18 George V, chapter 5, dated March 28, 1928, and, for that reason alone, there appears to be sufficient ground to remove doubts by legislation.

When the British Settlements Act, 1887, was discussed at Westminster, a vigorous protest was made by Sir George Campbell against what he described as "spread-eagle tendencies of annexation" over territory, such as New Guinea, which might be exercised under that Act of 1887. The reply of the then Secretary of State was a reference to an unpublished opinion of the Law Officers of the Crown as to appeals from New Guinea to a Supreme Court in Australia, and was juridically inconclusive as a reply to the question thus raised against the Government in the debate. Moreover, the definitions in the British Settlements Act of 1887 were criticised as confused, and some of the provisions thereof, such as Section 6, cannot easily be reconciled with the Preamble. Opinion as to how territory may be acquired has been considerably modified since 1887, and the Bill now submitted would be of obvious value in adjusting some of the objections of Lord Haldane to the attitude of the Colonial Department in reference to Letters Patent issued without full regard as to the Common Law in the case of British Guiana, if extended and made applicable to other Possessions. The upholding of the Common Law in the speech of Lord Haldane is also the attitude of the judgment of the Court of Appeal of Malta in the second ultra vires case, which came on appeal before the Privy Council in Sammut versus Strickland, when a different view was adopted.

What was declared to be the Common Law by Lord Haldane and previously by several Law Officers of the Crown from time to time during more than a century, and what has been repeatedly held heretofore to be the Common Law as set out and established in the case of the Bishop of Natal, should not be set aside by one judgment holding another view unless the new attitude is sanctioned by an Act of Parliament. Nor can any advice given by the Lords of the Privy Council to the Crown alter the Common Law irrevocably, unless generally confirmed by Act of Parliament. In fact, the judgment in the case of the Bishop of Natal gave to the Common Law the same aspect as is upheld in the speech of Lord Haldane which followed the accepted textbook of his period. What was contended to be the Common Law in accordance with Lord Haldane's exposition thereof made it illogical to expect, before the Malta Letters Patent Act, 1936, was proposed (to stop the litigation), that the Government could have succeeded in the appeal Strickland versus Galea. In fact the Common Law of England on the subject did not heretofore depend for its origin merely on Lord Mansfield's declaration of the Common Law in Campbell versus Hall, but also on the previous declarations thereof in the opinion of certain Lords of the Privy Council; who, together with other judges, recorded opinions parallel to the decision in the case of the "Post Nati," on "Calvin's Case" and on jurisprudence arising therefrom. Under present conditions there are unconquered Possessions or Colonies, such as Barbados, the Bahamas and British Honduras, which are not Dominions, where no right to legislate by Order in Council is claimed or exercised, as it has been in the case of Malta. A third ultra vires case is now before the Court of Appeal in Malta.

The passing of the Bill which I beg leave to present would stop controversy on widely questionable points of law, and forestall repercussions elsewhere. It would meet the reproach of "spread-eagle annexation" raised in the House of Commons in 1887, when the British Settlements Act of 1887 was hurried through, and it would meet any challenge to the constitutional liberties enjoyed in Southern Rhodesia as deriving from Sammut verves Strickland. The judgment in Sammut versus Strickland placed Malta, a Colony not conquered from the French by the British alone, but by the British and the Maltese as co-belligerents and allies, in an inferior status face to face with British Guiana, a conquered Colony. It is not a logical conclusion. Malta has been treated with much less respect than a conquered Colony in the British Guiana Act of 1928. The British Guiana Act, 1928, upholds the principle that a Constitution once given is to be protected by Parliament from illegal destruction or suspension by the embodiment in Letters Patent of views held, rightly or wrongly, by Chiefs of the Colonial Department, unless the same are sanctioned by Parliament.

The Bill now proposed aims at mitigating an irritating differentiation now having a wide application—namely, the fact that His Majesty's subjects overseas enjoy in groups a difference of status, and do not all enjoy the same status as is claimed by His Majesty's subjects in Great Britain and the Channel Islands, and in Possessions covered by the Statute of Westminster, 1931. This Bill also removes the anomaly that under the British Settlements Act of 1887 any hand of merchant adventurers, being subjects of the King (who might be British subjects in a Colony or of Southern Ireland or of a Possession such as Malta), carry with them a statutory right of British subjects equal to that which belongs to those domiciled in the British Isles. All carry with them "the Common Law of England" as subsisting in England at the date when such subjects of the King take possession of uninhabited land, or, for example, of some unappropriated or uninhabited Pacific Island, or territory with uncivilized inhabitants. To give an example: If British subjects from Malta occupied such a Pacific Island they would enjoy a status which has been denied to the Maltese of Malta in Sammut versus Strickland notwithstanding that both groups are British subjects. Maltese in the land of their birth, and one which their ancestors conquered from the French, and placed under the English Crown, with the reservations set out in the Declaration of Rights recorded by the Elected Deputies of the Maltese nation when the Treaty of Amiens was set aside, would be inferior to Maltese hauling up the Union Jack in the Antarctic. The independence of Malta was, and remained, guaranteed by the King of England by a promise in the Treaty of Amiens.

The Declaration of Rights of the Deputies of the people of Malta contained the expression of allegiance that gives Malta to England, and constitutes a record to which we must trace Melitensium Amor, set out in the inscription over the Main Guard at Valetta, which inscription has been accepted as evidence of a "gentleman's agreement" by the judgment of the Court of Appeal of Malta in Strickland versus Galea. The historical view held in that judgment is the one which is accepted categorically in the judgment of the judicial Committee in Sammut versus Strickland, rightly or otherwise. The reason which justified distinction between the position of British Guiana as a conquered Colony, in contrast with Malta as a Possession which was not conquered from the Maltese, is the fact that, in the Capitulations on the surrender to England of British Guiana the maintenance of representative institutions was stipulated in express terms still on record, whereas in the case of Malta the maintenance of representative institutions has to be supported partly by inference, and partly by the Declaration of Rights, and is established as a consequence of the position under the Law of Nations of the Maltese, as co-conquerors from the French. Verbal agreements may be proved by the accompanying circumstances and facts. The Declaration of Rights has value after the guarantee of independence in the Treaty of Amiens, as made before the alleged cession in 1812 when Malta was a Protectorate.

It can be held that the declaration of Parliament to the effect that "no man can act as a judge where he has an interest" does not apply to any "Keeper of the King's Conscience"; nevertheless, it is in the interest of the Empire not merely that justice is administered, but also that those upon whom it is administered are able to understand that it is just juridically, and is unimpeachable. The Bill now proposed is drafted to eliminate these causes of doubt and feeling, and to co-ordinate interpretations of the Common Law under the principle that "Parliament can do everything" and "The King can do no wrong." The Common Law of England has to be traced to the feudal position of William of Normandy, who as Conqueror of England had the vita et necis potestas over all his subjects. This power was curtailed from time to time—for example, by Magna Charta, by the confirmation of the Charters, the statutory legislation following the Cromwellian enactments (such as the abolition of military tenures). The Common Law was altered by the Bill of Rights, and by the Act of the Settlement of the Protestant Succession.

Lawyers overseas can hardly be expected to agree that the Common Law of England can be transferred and equally imposed upon conquered and unconquered Possessions, otherwise than to the extent that the Common Law was accepted in England at the time of such transfer thereof into a Possession overseas, on which reliance is placed. Lawyers overseas cannot be expected to understand the view that juridically in 1800, when Cameron was Civil Commissioner, or in 1812, when General Sir Thomas Maitland was Governor, a Common Law could be legitimately transferred and imposed on the Maltese in a shape in which the Common Law existed in England in the days of the Norman Kings, and before the Cromwellian Revolution, or before the replacement, by the Act of Settlement, of the Divine Right of Kings by a Prerogative said to include power to extend Orders in Council beyond possibilities in England, and in fact without any limit, and by inference. When transferred overseas the application of the Common Law up to date has to have support either in the express words of a Statute, or in the fact that there has been a conquest by the sword—that is, compulsion based on force. The proposed Bill is calculated to heal many difficulties, and to pave the way for a fresh start with any new Constitution overseas, by providing a clear and practical exposition of the juridical position. The Bill is inspired by a desire to co-ordinate equality of opportunity.

I am afraid I have detained your Lordships at a late hour, but the subject is important, as it has been represented in the Press that the constitutional position of several British Possessions is conflicting and very difficult to be understood, and that no attempt is likely to be made to clarify it. The research represented by this Bill embodies a long, studied review, which may ultimately be useful to the Government notwithstanding the impossibility of adoption this Session. I beg leave to introduce this Bill and to move that it be read a first time.

Moved, That the Bill be now read 1a.—(Lord Strickland.)

On Question, Bill read Iaand to be printed.