Lords Sitting of 26 October 1944

Preamble
The House met at two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers.

  BUSINESS OF THE HOUSE.
  EARL FORTESCUE: My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in his name.
  Moved, That in the event of a Message being received from the Commons that they have passed the Consolidated Fund (Appropriation) (No. 2) Bill, Standing Order No. XXXIX be considered in order to its being dispensed with for the purpose of passing the Bill through all its stages.—(Earl Fortescue.)
  On Question, Motion agreed to, and ordered accordingly.

CONSOLIDATED FUND (APPROPRIATION) (No. 2) BILL.
Brought from the Commons, endorsed with the Certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act, 1911; and read 1a.
Then, Standing Order No. XXXIX having been suspended, Bill read 2ª: Committee negatived: Bill read 3a, and passed.
House adjourned during pleasure.
House resumed.

ROYAL COMMISSION.
The following Bills received the Royal Assent:

Appropriation (No. 2),

India (Miscellaneous Provisions),

Housing (Scotland),

Liabilities (War-time Adjustment),

House of Commons (Redistribution of Seats),

Unemployment Insurance (Increase of Benefit).

House adjourned during pleasure.
House resumed.

COLONIAL CONSTITUTIONS.
2.22 p.m.
VISCOUNT ELIBANK VISCOUNT ELIBANK had the following Notice on the Paper: To call attention to the announcement by the Secretary of State for the Colonies on 5th October of the terms of a new Constitution to be granted to the Gold Coast Colony, and to the announcement on 18th October of a similar character regarding Northern Rhodesia; and to ask His Majesty's Government whether they propose to consult Parliament regarding any changes before they are made and whether they will ensure that in the future no change in the Constitution of any of our Colonies or Protectorates shall be promised or made without full consultation with Parliament.
The noble Viscount said: My Lords, I ought to preface the few remarks I have to make by saying it was only two days ago that I arranged for this question, which was originally down in the form of a starred question, to be put down in this form. I did that because one noble Lord came to me and said he was anxious to make certain observations with regard to the issues raised in my question, and that it would be more convenient to do so if the question were not starred. I myself felt that I should do more justice to the matter by making a few observations on it, and therefore I arranged that the form of the question should be changed. At the same time I indicated to my noble friend the Duke of Devonshire, who will reply for the Government, that I had no intention of raising any wide issue. In other words, I did not propose to discuss the merits or demerits of the constitutional changes which were being made in the Colonies, but only to raise the principle of whether these changes have been made in breach of Parliamentary privilege, and to ask the Government to consider whether in future they will take steps to avoid that particular situation.
What actually happened? About ten days or a fortnight ago, through question and answer in the House of Commons, we learnt that certain changes were being made in the Constitution of the Gold Coast Colony. A few days later, also in another place—because the same statement was not made here—we learnt that a constitutional change of a similar nature was being made in Northern Rhodesia, a Protectorate of the Crown. In the first instance, in the course of his statement in another place,

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the Secretary of State for the Colonies said that this constitutional change as far as the Gold Coast Colony was concerned had been agreed by him in principle. So far as Northern Rhodesia is concerned, he stated that after discussion with the Governor—a discussion, presumably, between him and the Governor—His Majesty's Government had agreed to certain changes being made in the Constitution, which he outlined. Only yesterday—this is not dealt with in my Motion—there was laid before your Lordships' House an Order in Council in connexion with the Colony of Aden where, in a similar fashion, Parliament has been informed that certain changes are going to take place.
These three cases raise a very serious issue. I suggest that once the Secretary of State has agreed to a change in a Constitution in principle, and once His Majesty's Government have approved of certain alterations in the Constitution of a Colony, the people of that Colony or Protectorate look upon that as an undertaking, a promise. When ultimately, as no doubt we shall be told to-day, these Constitutions are laid before your Lordships' House and another place in the form of Orders in Council for discussion by Parliament, Parliament is confronted with something which is practically a fait accompli. When either House does discuss the matter, we shall do it with our hands tied. The dice have been loaded against us, and the whole discussion merely becomes of academic interest so far as Parliament is concerned. I can conceive that very few members, whatever their feelings may be about the Constitution which has been granted or promised in principle before it comes before Parliament, will think it worth while to get up and say what they think about it. They may dislike it, but what is the good of saying anything then? It may do more harm than good to say anything, because it has already been given and you cannot take it back. That is why I have raised this matter to-day and the issues connected with it.
In the past when there were so many Little Englanders in this country they paid not much attention to the Colonies, but now every one has concern for the welfare and well-being of the Colonies. Not only so, but every one wishes to follow and understand what is done and desires
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to be sure that what is done is done rightly. That can only be assured, I suggest, through the representatives of the people in Parliament having a say in these matters. Therefore I beg the Government to take note of this question and, if possible, to give us an undertaking to-day that they will not in future lay ready-made Constitutions or changes in Constitutions before us, with no hope of our being able to change anything that has been done.
Why not approach the question, as has been done twice in the case of Ceylon, through a Royal Commission? A Royal Commission was sent out there and as a result certain recommendations were put forward. Those recommendations came before both Houses of Parliament and, so far as I remember, there was nothing binding in connexion with that Constitution or any of its terms. It was discussed and voted upon when the time was ripe. No doubt the same thing will happen in regard to the Commission that is going out to Ceylon at the present time. I do not suggest that in the case of all our Colonies or Protectorates, when a question arises about alterations in their Constitutions, it is necessary to send out Royal Commissions in order to consider and make recommendations with regard to the proposals. Obviously in the case of the smaller Colonies these matters can take the form of consultations between the Governor and the Secretary of State for the Colonies. At the same time I do urge that whatever is done should not be so tied up that Parliament has no opportunity for reconsideration. I beg to move.
THE LORD CHANCELLOR (VISCOUNT SIMON): I think the noble Viscount is mistaken. There is no Motion on the Paper. He is asking a question which no doubt will be answered.
VISCOUNT ELIBANK: I beg to ask my question.
2.33 P.m.
LORD RENNELL: My Lords, the issue raised by the noble Viscount is obviously of considerable importance. He spoke of the case of small Colonies. The two Colonies in question are two of the largest and most important in Africa. In the case of the Gold Coast (without going into the merits or demerits of the Constitution) we seem to have been committed to a line of policy which cannot properly be undone, and it has left the impression in many quarters that it has

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been done in this particular way in order to avail discussion. But I am sure that is not true. At the same time, when a decision has been reached which represents a certain constitutional progress, one would like to know if it is not considered desirable by the Government that some publicity should be given to it.
We have been frequently accused of being slow in allowing our Colonies and the institutions in the Colonies to develop on more liberal lines, and here is a case where a Constitution is apparently being developed along those lines but the announcement has been made in such a form that practically no one is aware of what has happened, or of the reasons for or the desirability of it. I submit, if it can be done in this case, in the more liberal direction, it can equally be done in another Colony in the opposite direction, and much of the progress that has been in tide in certain cases can be undone by the same procedure. I would like to know whether it is now to be considered a recognized procedure that all constitutional changes in the government of Colonies, whatever their size, are to be the product of the same arbitrary decisions of the Government, announced after the decisions have been taken and without any warning that such decisions are likely to be taken. That is, I think, the principle of some importance which is being raised by the noble Viscount, Lord Elibank.
2.35 p.m.
VISCOUNT BENNETT: My Lords, I submit with deference, having had some little experience with respect to matters of this kind, that the noble Viscount who asks the question and the noble Lord who has just spoken have overlooked the fundamental principle that governs the administration of the Crown properties. The position shortly put is that all properties acquired by the British Empire by discovery, or by cession or otherwise, vest in the Crown and are Crown properties. That imposes upon the Crown the responsibility for their government and various forms and methods are used dependent upon the attitude of mind of the King's advisers, the Government of the day. For instance, New Zealand's original Constitution was set out in Letters Patent and subsequently there was additional legislation. Generally speaking, most Constitutions so-called—they are Constitutions in one sense; they
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are administrative acts in another—are granted by Letters Patent. That is the Sovereign's method of administering the Crown properties for which he is responsible through his constitutional advisers, and his constitutional advisers must assume the responsibility for what they have done. If their act does not meet with the approval of the House of Commons then the Government are defeated—in other words, it is an administrative act on the part of the Government and those who are advising the Sovereign as to what should be done in a Colony or not done as the case may be.
This is not new. It is the oldest form. It goes back to the eighteen-fifties and to my knowledge it has been the universal practice with respect to the government of Crown properties. After all, Crown Colonies and Colonies generally are Crown properties administered as such by the Sovereign through his Government which is responsible to the House of Commons. In the case of the Dominions, in the first instance they had Letters Patent and later their Constitutions were made by the people themselves. It is a very odd thing but I have often wondered that so few people realize that the Constitution of Canada was made by the people of Canada, the Constitution of South Africa was made by the South Africans, the Constitution of Australia was made by the Australians (and it required a very great deal of discussion before that Constitution was finally put in the shape in which it now is). If my memory serves me—I had not intended to speak on this matter and therefore have not prepared myself—that Constitution of Australia as prepared by the Australians is attached as an appendix to the Statute that was passed by this Parliament. I am not quite certain but I think that is so.
All that this Parliament does is to give validity and legality to the Constitutions which the peoples of Canada, Australia, and South Africa agreed upon. Parliament enacts them as Statutes of this Kingdom because this is the Mother of Parliaments and this Parliament still has jurisdiction over every part of the King's Crown properties or dominions. If they become Dominions he can now only exercise that power and this Parliament can only do so at the request of and with the consent of the Dominions themselves. But the

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Statute of Westminster distinctly recognizes the authority and power of this Parliament to legislate for every part of the King's dominions, wherever they may be and whatever may be their status. It imposes conditions, however, because this Parliament renounced all authority and power to deal with the Dominions except on their request and with their consent. This Parliament in enacting legislation for constitutional changes has only done so with respect generally to those communities that have become Dominions and have their elected representatives and responsible Governments. As a matter of fact, responsible Government in the Maritime Provinces of Canada came into being through instructions given to the Governor who went there with the King's Commission, and in every one of the Dominions a Commission is issued, under the name of the Sovereign, directed to the person named, and that person exercises authority in accordance with instructions that accompany the Commission. Those instructions are instructions that are approved of by the Prime Minister of the Dominion for the time being.
In the case of the Crown Colonies the Governor is representative of the Sovereign. As such he is in constant communication with the people of the community he governs and he makes representations to the Government here as to the changes that should be made administratively. Sometimes they are called constitutional changes though, as a matter of fact, they are changes which the Sovereign decrees in accordance with the advice given by his responsible advisers, the Government of the day. The Secretary of State for the Colonies being in constant communication with the Governor as the representative of the Sovereign in the Crown Colony, and the Governor constantly making recommendations, gradually the power of the people of the community is extended until ultimately they elect their own representatives and Government. These advisers of the Government are selected not because of their importance in the community, as was done in the first instance when the Governor had an Executive Council, but rather because they command the support of the majority of the members of the Legislature. That comes about purely in accordance with the instructions given by
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the Government here to the representative of the King in the Colony who is also the representative of the Government of this country.
That is one side of it. This House does not make the constitutional changes and neither does Parliament make them. They are administrative acts done by the Executive. But if this House, or rather if the House of Commons is dissatisfied with what they have done administratively, then they are turned out of office and that is an end of it. A vote of censure is passed and some of your Lordships will recall that there were very acute debates in the days of Mr. Gladstone in connexion with the Government of South Africa in the time of a very distinguished Proconsul there, Sir Bartle Frere, because of certain difficulties which arose in relation to the government. But Letters Patent are the method by which the Sovereign expresses his will with respect to administration of the communities entrusted to his care, and he does it, of course, only on the advice of his Government which assumes responsibility for the Letters Patent and for everything done administratively in connexion with the Government of a Crown Colony or Crown property of any kind.
That is the reason why I cannot agree with the noble Viscount in assuming that anything has been done that is depriving this House, or the House of Commons, of any authority or jurisdiction in the matter, because if government is to be carried on at all the Executive Government must carry on government through administrative acts and one of the administrative acts is what has been called the Constitution. In fact it is the conferring of certain powers and authority upon the people of the community in question. The programme always has been to lead the people to the point where they will be entirely self-governed. Between the time when Government is set up and self-government has been firmly established, there must be many administrative acts, representing the gradual increase of power which is conferred upon the representatives of the people in the communities governed by Letters Patent or by some other means. Sometimes an Ordinance is passed by the Legislature under the authority conferred by the Prerogative of the Sovereign, the object being to see that the Colony is properly governed. The Government of

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the day does these administrative acts and governs accordingly, and I hope will long continue to do so, for any other method would result in complete destruction of government. A Government must act when Parliament is not in Session, and when it has become clear that administrative changes should be made they are made, not to meet the wishes of this Government but because this Government is endeavouring to meet the wishes of the community governed as expressed through the Governor for the time being as representative not only of the Sovereign but of the Home Government here.
VISCOUNT ELIBANK: The noble Viscount says administrative changes, but we are talking about constitutional changes.
VISCOUNT BENNETT: But constitutional change is administrative change. That is the point. A change of a so-called Constitution is merely the conferring of additional powers as an administrative act upon the people governed by the executive act of the Government of this country; that is, by the Sovereign on the advice of the Government. Calling it a constitutional agreement does not change the essential fact that it is no more than conferring powers of self-government on the community. The Government of this country desires to meet the wishes of the people governed which are expressed through the Governor who is not only the representative of the Sovereign but of the Government of the day. If Parliament is dissatisfied by the method by which government is carried on in these communities, it expresses its objection by a vote of censure against the Government. That means, of course, the fall of the Administration. It is purely an administrative act, although you may call it a constitutional agreement, because it is nothing more than a widening of the powers conferred on the people of the community.
2.48 p.m.
THE PARLIAMENTARY UNDERSECREFARY OF STATE FOR THE COLONIES (THE DUKE OF DEVONSHIRE): My Lords, I trust that neither your Lordships nor the noble Viscount who has just spoken will think me guilty of impertinence if, as Under-Secretary, I offer very respectful congratulations to the ex-
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Prime Minister of a great Dominion on a most admirably clear exposition of a very complicated and difficult legal point. I am very much indebted to the noble Viscount because I have been unable in the time available to get up the complicated and very important legal questions raised in the question put on the Paper by the noble Viscount, Lord Elibank. I am indebted to him for consenting to defer the question, which was originally put down for the day before yesterday. I had to leave London the day before yesterday to attend a degree ceremony at the University of Leeds, and it was only in the middle of that ceremony yesterday afternoon that I received word that the noble Viscount had removed the star prefixed to his question and that it was therefore open to debate in the House. Clearly the answer to an unstarred question takes a somewhat different form from that given to a starred question. I would remind the noble Viscount that he has asked a question and not moved a Motion.
VISCOUNT ELIBANK: I have asked a question, yes.
THE DUKE OF DEVONSHIRE: I should have liked more time. In my absence the Secretary of State did ask the noble Viscount, having regard to the very important legal constitutional questions involved, whether he could deter his question. That he was unable to do.
VISCOUNT ELIBANK: My Lords, may I be allowed to add to what the noble Duke has just said? I put down my question for October 31, and then, at his request, I put it off, and asked him if he would agree upon November I as a suitable date. He said that November I was equally inconvenient to him, and it was only then that I put my question back, in order to meet the noble Duke's convenience, to Thursday. I have had a very difficult task in getting this question on the Paper at all.
THE DUKE OF DEVONSHIRE: I should be very reluctant to argue about questions of times and dates with the noble Viscount. I repeat that it was only in the middle of yesterday afternoon that I got word that this was an unstarred question. As I only got back to London after midnight, my time to prepare as full an answer as the question deserves has been very limited, and I apologize to the

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noble Lord and to your Lordships' House if my reply is not as full as the very important question which is raised certainly deserves.
VISCOUNT ELIBANK: I accept that entirely.
THE DUKE OF DEVONSHIRE: My right honourable friend the Secretary of State fully realizes the great importance of giving Parliament complete information at the earliest possible moment of any major or important changes proposed to be made in the Constitution of any Colony, and of affording full opportunities for consultation with and consideration by Parliament of such matters. Indeed, my right honourable friend is the very last person in the world to desire to stifle any discussion by Parliament of matters of this kind. But I am sure that the noble Lord and your Lordships all will agree that he must be responsible for the formation of policy. That is part of his executive functions. As the noble Viscount who spoke last pointed out, the function of government must go on whether Parliament is sitting or not, and the formation of policy must be the duty of my right honourable friend, in consultation, of course, with the Cabinet. As I have said, that is part of his executive functions, but it has been his practice, and that of his predecessors, to make a very full statement of policy in each case, and there must, of necessity, be a very considerable lapse of time between the publication of any new policy and its implementation.
For example, in the case of Jamaica, a Paper, Command Paper, No. 6427, was presented to Parliament in 1943, and in that Paper the Secretary of State's proposals for the revision of the Constitution of the island were outlined. The instru-
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ments in respect of Jamaica have yet to be made. Again, the proposals for the alteration in the Constitution of the Gold Coast, which were announced in the House of Commons on October 5, and those for Northern Rhodesia, which were announced on October 18, also need time for implementation. The lapse of time between the announcement of the policy and its implementation affords opportunities for members of either House to take whatever action they think right before changes of this character are actually effected. In your Lordships' House, at least, those opportunities do seem to be ample. Any noble Lord can put down a Motion on the Paper calling for a reply. But if the opportunities available in either House are not regarded as ample enough, or as providing sufficient opportunity for members of either House to express their views, my right honourable friend has authorized me to say that he is ready to look into the matter.
While, therefore, my right honourable friend, in present circumstances—and may I say that as I did not propose this afternoon to go into all the constitutional details involved, I am, therefore, the more indebted to the noble Viscount who has just sat down?—cannot agree to give the definite undertaking required by the noble Viscount who asked the question, for there are very considerable difficulties both of a constitutional and practical nature, I am in a position to repeat that it is the desire of my right honourable friend that Parliament should have ample and adequate opportunities for discussion of constitutional changes, and that he is investigating the possibility of widening the opportunities should it be established that there is really a case for the widening.
House adjourned at five minutes before three o'clock.