§ 12.20 a.m.
§ Brought from the Commons.
§ LORD SHEPHERD
My Lords, before moving the First Reading of this Bill, may I say that a number of questions have been asked in the course of the evening as to what is the intention of the Government in regard to this Bill. One has tried to take the sense of the House, and it seems to me that it is unanimous that we should proceed with this Bill through all its stages. I beg to move that this Bill be now read a first time.
§ Moved, That the Bill be now read 1a.—(Lord Shepherd.)
§ On Question, Bill read 1a.
§ THE LORD CHANCELLOR
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Southern Rhodesia Bill, has consented to place her Prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Then, Standing Order No. 41 having been dispensed with (pursuant to Resolution):
§ THE LORD CHANCELLOR
My Lords, I beg leave to move that this Bill be now read a second time. It may be helpful to the House if I begin by endeavouring to place the Bill in the context of the present legal situation in Rhodesia. I need not remind the House that the purported declaration of independence on Thursday last by the then Government of Rhodesia, and the subsequent handing down of the new Constitution by Mr. Smith and his associates, were illegal, ineffective and in all respects invalid. The House will also bear in mind that Mr. Smith and the rest of the former Ministers have been dismissed from office. The present position is therefore as follows.
The Government of Rhodesia is Her Majesty, acting through the Governor, who is appointed by Her Majesty. This is the broad position, and it corresponds to that which obtains in all British Colonies, of which Rhodesia is one. But the powers of the Governor of Rhodesia 415 are, of course, much circumscribed by the Constitution under which he acts. In the first place, he has not himself legislative power: the power to enact laws rests with the Legislative Assembly. But, of course, the Governor must assent to any Bill before it can take effect as law.
The executive power in Southern Rhodesia is vested in Her Majesty, and I quote from the relevant section, Section 42, which has already been referred to:The executive power in Southern Rhodesia is vested in Her Majesty, may be exercised on Her Majesty's behalf by the Governor, or such other persons as may be authorised in that behalf by the Governor, or by any law of the Legislature".The Governor's executive powers derive from the Constitution. For example, he appoints the Ministers and the judges; he summons, prorogues or dissolves the Legislative Assembly; he exercises the prerogative of mercy, and so on. Secondly, he exercises the executive power under a number of Southern Rhodesian laws. But the Constitution requires the Governor, broadly speaking, to exercise his powers in accordance with the advice of his Ministers. However, as I have said, there are no Ministers in Rhodesia now.
I would add a word about the third function of Government, the judicial function. The Constitution of Rhodesia gives the judges security of tenure; they cannot be removed from office except for inability to discharge their functions, or for misbehaviour. The House will, I think, have read with pleasure the statement reported in the Press and made by the judges, that the judges of the High Court will continue to perform their duties in accordance with the law. There can be no doubt what the law means in this context. It means the law of Rhodesia as established by and under the Constitution of 1961, or of course any Act of this Parliament.
The noble Lord, Lord Alport, hoped that Her Majesty's Government would make it clear on what terms the rebellion might be ended; and there seems in some quarters to a misapprehension that, if and when the rebellion comes to an end, there will be a vacuum because there will be no Constitution. This of course is not so, because the 1961 Constitution is fully operative as the Constitution of Southern Rhodesia; and, except 416 to the extent that it may be amended by legislation or under an enabling Act, it will continue as the Constitution, and the only lawful Constitution, of Southern Rhodesia.
I now turn to the Bill. Its first purpose is expressed in Clause 1, and is purely declaratory. This clause declares that Southern Rhodesia remains a part of Her Majesty's Dominions, and that the Government and Parliament of the United Kingdom have responsibility and jurisdiction hitherto existing in respect of it. I will say another word later in explanation of the expression "Government of the United Kingdom" contained in this clause. The second purpose of the Bill is to give the Government power to make any Orders in Council which may appear to be necessary or expedient as a result of the situation with which we are faced. The Orders in Council we have in mind, besides one relating to the Constitution, will deal with a number of other matters to which I will refer in a moment.
I will deal now with what we have in mind in regard to the Constitution. First, the Governor has no legislative powers. Therefore, we propose to fill this gap by conferring legislative powers to be exercised by Order in Council. At the same time we propose to render any action by the Legislative Assembly of Rhodesia since November 11 invalid. In regard to executive power, we propose to do two things. First, we propose to provide that the executive authority in Southern Rhodesia may be exercised in Her Majesty's behalf by the Secretary of State. Circumstances might arise in which powers could not be exercised by the Governor. Secondly, we propose to free the Governor from the limitation imposed on him by the Constitution to which I have already referred—namely, that he is bound in general to act in accordance with the advice of his Ministers. This may not be strictly necessary as at present there are no Ministers, but it seems wise to make the position clear.
Turning now to an examination of the Bill in greater detail, I have already explained the purpose of Clause 1, and I merely wish to say a word about the phrase "Government of the United Kingdom". We have deliberately chosen this expression for a number of reasons. The House may have in mind that this 417 is the phrase customarily used by Parliament when it passes an Act to give independence to a colony. The recent Malta Independence Act, for example, provides that Her Majesty's Government in the United Kingdom shall have no responsibility for the Government of Malta. On this occasion we are asserting exactly the contrary of that. We therefore say that the Government of the United Kingdom maintains responsibility and jurisdiction in respect of Rhodesia.
Secondly, the phrase "Government of the United Kingdom" in the case of Rhodesia has important implications. The first is that British Ministers advise the Queen on a number of constitutional matters relating to Rhodesia, in particular the appointment of a Governor and amendment of the Constitution under her reserve powers. The second is that the Government of the United Kingdom are responsible for Rhodesia's external affairs. It is for those reasons that the phrase Government of the United Kingdom" has been used. Clause 1 therefore changes nothing; it is purely declaratory.
Clause 2 is the main clause of the Bill. It concerns powers to make the Orders in Council which have become necessary as a result of the illegal declaration. Under subsection (I) such Orders in Council may make such provision in relation to Southern Rhodesia as appears to Her Majesty to be necessary or expedient. The particular purposes for which the general powers conferred by subsection (1) are to be used are set out in subsection (2). First, the Bill gives power to make Orders in Council for suspending, amending, revoking or adding to any of the provisions of the 1961 Constitution. As a result of the illegal declaration, although the constitutional status of Rhodesia remains as it was before, it has become necessary for Her Majesty's Government to take power to operate some of the constitutional functions and to ensure that measures which the illegal régime may purport to effect under the Constitution have no validity. Given the situation with which the Bill deals, powers of this sort are clearly necessary, but it is impossible to see the precise use which may have to be made of them.
It will, for example, be necessary to provide that no laws may be made by the legislature of Southern Rhodesia, and 418 no business may be transacted by its Legislative Assembly. Provision will be made for the Secretary of State by order in writing under his hand at any time to prorogue the Legislative Assembly. In addition, it is proposed to confer upon the Secretary of State the power to exercise or to control the exercise of such of the executive functions of the Government of Southern Rhodesia as he may consider expedient. Your Lordships will know that, as my right honourable friend the Prime Minister said in another place in the debate on Friday, it is not the intention of Her Majesty's Government to suspend the Constitution at this stage. This is the point to which the noble Lord, Lord Carrington, referred. Indeed, the Bill does not give the requisite power to do so.
Clause 2(2)(a) refers toany of the provisions of the Constitution".It does not permit the total revocation of the Constitution or the making of a new Constitution. The House will also note that Clause 3(3) states in terms, thatThe expiration of section 2 of this Act shall not affect…(b) the Constitution of Southern Rhodesia 1961 as in force immediately before the expiration of that section.This implies that the Constitution will remain in force, albeit in a modified form. The same argument applies to revoking any of the provisions of the Constitution. Clause 2(2)(b) provides powers for modifying, suspending or extending the operation of existing United Kingdom legislation in relation to Southern Rhodesia, or persons or things belonging to or connected therewith.
The position arising from the illegal Declaration has made it necessary, first, to remove Southern Rhodesia from the position of privilege which it enjoyed as a loyal Colony; and, secondly, to make special provision for the protection of loyal Rhodesian citizens. The powers in this subsection will enable Her Majesty to remove Rhodesia from the Commonwealth Preference area by an amendment of the Import Duties Act 1958, and to confer on loyal Rhodesians additional rights to obtain citizenship by an amendment of the British Nationality Act 1948. It is also proposed to restrict the return of alleged fugitive offenders to Rhodesia by amending the Fugitive Offenders Act 419 1881, so as to enjoy the discretion of the Secretary of State.
Orders in Council under Clause 2(2)(c) may also impose restrictions on transactions relating to Southern Rhodesia. Under this power it will, for example, be possible to make the requisite orders relieving the Minister of Agriculture from his obligations under the Commonwealth Sugar Agreement to take an annual quota of sugar from Southern Rhodesia. Such an order will also cancel the current contract under which the Sugar Board has agreed to buy sugar in pursuance of the Agreement. No other orders in pursuance of this power are at present contemplated, but, of course, as the House will understand, it may be necessary to impose further prohibitions or restrictions at a later stage. In the presence of rebellion we can never be certain as to what will happen next.
The Orders in Council which may be made under this clause may apply extra-territorially, in the sense that they may regulate or prohibit actions in foreign countries or on the high seas by persons who are amenable to our laws. This means that if, for instance, a United Kingdom citizen sought to evade the provisions of this clause by entering into the transaction in question with the illegal Government in a foreign country, he would still be caught by the provisions of the clause.
Subsection (3) authorises Orders in Council under Clause 2 to include necessary consequential provisions, and provides that such Orders may be made to take effect from November 11, 1965—that is, the date on which the illegal declaration was made. The House will of course observe that this permits a certain measure of retrospection. This is necessary to enable us to establish beyond doubt the invalidity of certain actions taken in Southern Rhodesia since the declaration of independence. An example is the new Constitution which the Smith régime has pretended to give to the Southern Rhodesian people.
Then, my Lords, subsection (4) permits subsequent revocation or variation of Orders in Council. Subsection (5) requires that Orders in Council under Clause 3 should be laid before Parliament after being made; and unless during the 28 420 days following the making of an Order it is approved by Resolution of each House of Parliament, the Order will expire. Your Lordships have already been told by the noble Lord, Lord Carrington, that the Government's original intention had been to provide for a Negative Resolution, but that an Affirmative Resolution in this form was considered proper because it will come into force at once; while, on the other hand, the rights of your Lordships' House and of another place are safeguarded by the provision that it will expire unless approved within the 28 days.
In answer to another question raised by the noble Lord, Lord Carrington, and also by the noble Marquess, Lord Salisbury, I can tell your Lordships that it is the intention of the Government to provide early opportunity for consideration by the House of all Orders which are made under this clause; and, as far as this House is concerned, an approach through the usual channels will meet with a ready response. I understand it is the view in all parts of the House that, whatever may he the group of Orders at any particular time, they should be taken together so that there should not be six or seven different debates but, as far as possible, one debate on a number of Orders.
Clause 3 provides that the Bill shall be of temporary duration. Clause 2 (which, as I have explained, is the operative part of the Bill) will expire at the end of one year after the passing of the Bill unless it is continued in force by an Order in Council, which must be laid in draft before Parliament and approved by Resolution of each House before it can become effective. Orders in Council under Clause 2 will lapse when that clause itself expires, and laws which have been modified by Orders in Council—such as the Fugitive Offenders Act and the British Nationality Act—will then revert to their previous form; but the Constitution of Southern Rhodesia will retain the form which it has immediately before the clause expires; that is to say, it will remain as modified by any Order in Council made under Clause 2.
As to Clause 4, the House will observe that although the Bill gives power to extend Orders in Council to dependent territories as well as the British Islands, this is for the purpose only of effecting an 421 Act of the United Kingdom Parliament extending to those territories, or for making provision relating to British ships and aircraft.
My Lords, I hope that I have set out sufficiently the reasons for moving the Bill, and that I have explained its various provisions. I have sought to show, and hope the House will accept, that the Bill is necessary. I am aware that some questions of a legal character raised by the noble and learned Viscount, Lord Dilhorne, in the course of the preceding debate have not been answered. But if I may, if it is not inconvenient to the House, I will deal with them now.
§ VISCOUNT DILHORNE
My Lords, I should be content if the noble and learned Lord the Lord Chancellor would like to take the right of replying to them on another occasion. I think it would be asking a lot of the noble and learned Lord to detain the House by dealing in detail with the points, which I consider important, at this stage when considering the Second Reading of this Bill. I think that if the noble and learned Lord could say that in the course of the next few days those matters would be dealt with, and dealt with publicly so that the matter could be put beyond doubt, that would suffice.
§ THE LORD CHANCELLOR
My Lords, I think it would be in accordance with the wishes of the House, and in view of the lateness of the hour, that I should accept the offer which the noble and learned Viscount has made to me. I move accordingly that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 12.42 a.m.
§ VISCOUNT DILHORNE
My Lords, I am sure that the House is grateful to the noble and learned Lord the Lord Chancellor for the clear and detailed exposition of this Bill that he has given, even at this late hour. I also feel (I do not know if I am right) that the House does not want, after the long debate today, to take up time on debating the Second Reading of this measure. We have already had intimation of Amendments that are about to be moved, and I am sure that your Lordships wish to get on with those.
There are, however, just two points that I want to raise, quite shortly; and 422 I referred to this possibility during my earlier speech. The powers taken in Clause 2 of the Bill are extremely wide and indefinite—though I make no complaint of that. They can vary in character from constitutional provisions to economic provisions, and provisions affecting transport and every kind of thing. So far as the constitutional provisions are concerned, I take it from what the noble and learned Lord the Lord Chancellor said that what is envisaged is the making of such alterations to the 1961 Constitution as are rendered necessary by the present position and because of the illegal régime and of its acts. I would certainly support any changes which are made with a view to preventing the illegal régime cloaking itself and its actions with any appearance of legality. That, I take it, is the object, and the primary object, of those constitutional powers. But the wording is very wide. I was glad to hear that there will be no question of suspending the Constitution without the matter first being considered by Parliament. I was under the impression—it may be wrong—that power to revoke any of the provisions would include the power to revoke all of them. But if that ever arose, that no doubt would be considered by Parliament first.
When one comes to consider Clause 2(5) there is a point there with which I hope the noble and learned Lord can deal, and which has not so far been dealt with. I welcome his statement, his assurance—I do not think it was in quite as positive terms as in another place—that if an Order regarded as of great importance is proposed by the Government, Parliament will have a very early opportunity of giving consideration to it. But when one looks at the last four lines of Clause 2(5) one sees that a period during which both Houses are adjourned for more than four days is not to be counted towards the 28 days. That might mean that at the end of, say, July, if the Government, because of the necessities of the situation, thought it right to bring in a major proposal, or a proposal for a particular sanction, Parliament might not in those circumstances have an opportunity of considering that proposal until, possibly, October or November. I should like the assurance of the Lord Chancellor that, should that sort of situation arise, there would he immediate consultation with the other 423 Parties, with a view to ensuring that Parliament would have an early opportunity of considering the proposal and would not have to wait until Parliament met again, perhaps after a somewhat lengthy Recess. If the noble and learned Lord could deal with that point, I think it would possibly help.
§ THE LORD CHANCELLOR
My Lords, if it is convenient that I should deal with that at once, I can certainly say that in the event to which the noble Viscount referred, there would be immediate consultation between the Parties for the purpose which he has indicated.
§ LORD CLITHEROE
My Lords, could the noble and learned Lord answer one further question? Could an order be made under this Bill, if it becomes an Act, which would authorise the Bank of England to withhold the balances of any of its customers?
§ THE LORD CHANCELLOR
My Lords, the powers are very wide, and that may be so. I should prefer to have an opportunity to consider that point, because these financial matters are so complicated.
§ On Question, Bill read 2a.
§ THE LORD CHANCELLOR
My Lords, I beg to move that this House do now resolve itself into a Committee on the Bill.
§ Moved, That this House do resolve itself into a Committee on the Bill.—(The Lord Chancellor.)
§ On Question, Motion agreed to; House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Powers with respect to Southern Rhodesia]:
Before I call the first Amendment, may I inform the Committee, in order to make it clear, that we are dealing with a second edition of this Amendment, which is typed on foolscap paper and not on quarto-sized paper. The only difference, I understand, is that after the word "accordingly" there is a proviso.
LORD COLERAINE moved, after subsection (2), to insert as a new subsection:
( ) Any power to make Orders in Council, rules, regulations or orders, or the like, conferred upon Her Majesty or Her Government in the United Kingdom by any Act passed before the commencement of this Act shall, as respects any exercise of that power which occurred—
Provided that notwithstanding the provisions of subsection (5) of this section any exercise of such a power which imposes a charge on the people or on public funds, or which varies the amount or incidence of or otherwise alters any such charge in any manner or which affects the assessment, levying administration or application of any money raised by such charge shall be subject only to the approval of the Commons House of Parliament.
§ The noble Lord said: I beg to move the Amendment in my name. I must first apologise to your Lordships for having to move a long Amendment without having it circulated in the normal way, but of course it was impossible to adopt the normal procedure, because this House had no cognisance of this Bill until an hour or so ago. Although the Amendment which I have just read is a long one, I do not think it is in any way complicated. I will try to explain, quite briefly, just what it is intended to do.
§ Perhaps I can do that best by referring to some comments that were made by my noble friend the Leader of the Opposition in his speech a short time ago. My noble friend said that this Bill gave the Government extremely wide powers, almost infinitely wide powers. I think he said that when he first saw the Bill he was a little alarmed by this, but that his alarm was allayed by Clause 2 (5), which ensured strict Parliamentary control over the operation of the Bill. In particular, he was mollified (if that is the right word) by the fact that the Government themselves had volunteered to change the Negative Resolution procedure to procedure by an Affirmative Resolution.
§ If what my noble friend says is right, that this Bill gives the Government such wide powers that it is right that there should be these safeguards, that it is right that there should be this direct Parliamentary control by both Houses of Parliament, then surely it is right that 425 some very important matters affecting Rhodesia which are outside the ambit of this Bill should equally come under Parliamentary control. The fact is that two of the most important sanctions which the Government have already imposed on Southern Rhodesia do not come within the ambit of the Bill, and there is nothing, as I understand it, that Parliament can do about them. They are laid on the Table, I think, but we cannot debate them, and certainly we cannot vote on them.
§ We have heard a lot in the debate this afternoon about tobacco, and I think I am not exaggerating if I say that I feel that on this side of the Committee, at any rate, there is great uneasiness about how that particular sanction is going to operate. I think, again, it was my noble friend Lord Carrington who said that sanctions must hurt. We all admit that. But the question is: whom are they going to hurt? I think we are all agreed that, so far as the tobacco sanction is concerned, the people it is going to hurt are the Africans. It is not going to hurt the white Rhodesians. The same thing applies to the sugar sanction. Both these sanctions are imposed, not by the Bill which we are discussing now, but curiously enough, by the Import, Export and Customs Powers (Defence) Act 1939. In other words, these sanctions are being imposed against Rhodesia under a Bill which passed through Parliament, not to deal with Rhodesia, but to deal with Hitler. I cannot help feeling that that is not a very satisfactory position.
§ But, apart from that, I would suggest that it is desirable that both these sanctions should be debated by Parliament and should be subject to the same procedure as any sanction would be if it happened to come under the Bill which we are discussing now. I think we are agreed that we cannot condone this act of rebellion. None of us welcomed it; all of us hoped that it would not take place, and we all of us condemned it. By giving this Bill a Second Reading, as we have done, unanimously, all three Parties agreeing, we show that we do not condone the rebellion. It can be argued—and I think some noble Lords feel this—that if we press this Amendment, if we have a vote on it, whichever way the vote goes, that would amount to condoning the rebellion. I 426 do not believe that is so, because we have already given our opinion on that on Second Reading. But I think it would ensure strict Parliamentary control over these weapons which it may be necessary to use, but which are going to have a devastating effect on the Rhodesian people as a whole, and particularly a devastating effect on the African people.
§ I hope, therefore, that the Government may be moved to accept this Amendment. It is not a wrecking Amendment in any form, as I am sure the noble and learned Lord the Lord Chancellor will admit. It is intended simply to ensure that, where far-reaching economic measures are taken outside the scope of this Bill by Orders made under Acts of Parliament, in many cases passed during the last war, they should be brought into line with the same procedure as the Bill's and brought under the same Parliamentary control as is provided in the Bill. I beg to move.
Page 1, line 31, at end insert the said subsection.—(Lord Coleraine.)
§ THE MARQUESS OF SALISBURY
I rise to support my noble friend Lord Coleraine. He has explained his Amendment so fully and so clearly that there is very little that I can add to it. I agree with him, and hope that the Committee will agree, that there is no question of this Amendment softening the attitude of this House or of the Government towards the Rhodesian Government. It is really a matter of Parliamentary control which might apply in any circumstances. There are already far-reaching measures taken under this procedure over which Parliament has no control at all, and that would, I feel, in any case be wrong. Such experience as I have of your Lordships' House leads me to suppose that Parliament ought always to keep control wherever it can. Of course, Parliament can do what it likes if this Amendment is passed. They can look at these measures which are taken under these regulations; they can approve them, reject them, or they can do anything they like. They ought to be allowed to look at them and discuss them. I submit that it is, as it were, a question of the proper conduct of this House and Parliament in general, and it is for that reason that I support the Amendment.
§ THE LORD CHANCELLOR
I am afraid that the Government are unable to accept this Amendment. I appreciate that the object of the Amendment is to submit to Government review the instruments which were made by the Board of Trade on November 11, revoking individual licences to export arms, and so on, to Southern Rhodesia, and modifying the current open general import licence so as to ban the import of tobacco and sugar from Southern Rhodesia. The Board of Trade are empowered by the 1939 Act, to which the noble Lord, Lord Coleraine, has referred, to regulate the export of goods from and the import of goods into the United Kingdom. The export of goods from the United Kingdom is controlled by the Export of Goods (Control) Order, which prohibits, except under the authority of a licence of the Board of Trade, the export from the United Kingdom of, inter alia, the goods mentioned in Group 1 of Schedule I of the Order; that is to say, arms and military stores and appliances.
An instrument made by the Board of Trade on November 11 revoked all existing licences for the export of these goods. The Import of Goods (Control) Order prohibited the import into the United Kingdom of virtually all goods except under the authority of a licence of the Board of Trade. An open general import licence dated December 14, 1964, had the effect of authorising, inter alia, the import of tobacco and sugar and related products originating in, or consigned from, Southern Rhodesia. The amendment to the open general licence made on November 11 excluded those goods from the benefit of the open general licence. In other words, tobacco, sugar and related products originating in or consigned from Southern Rhodesia cannot be imported into the United Kingdom except upon new licences.
Orders which are made under Section 1 of the 1939 Act are not subject to Parliamentary control and never have been subject to Parliamentary control, nor are licences made under those Orders, nor instruments revoking or modifying any such licences. This is very old legislation—good Conservative legislation. It has never been suggested before that those Orders ought to be submitted to Parliamentary control.
428 The new provision suggested is extremely wide in its terminology. If the Amendment were passed it would bring within its net a large number of instruments for which the degree of control contemplated in subsection (5) of the clause as proposed to be amended would appear to be unnecessary. It is difficult, however, going through the Statute Book, to estimate how many instruments would require the affirmation of both Houses of Parliament if this Amendment were carried, but if I may take two examples from the powers of the Board of Trade alone, to show how very sweeping it is, the revocation of a single individual licence to export arms to Southern Rhodesia would require Affirmative Resolutions of both Houses; or to take another example, to deal with an Order in Council declaring Southern Rhodesia to be a Convention country for the purposes of the Patents Act, thereby conferring certain privileges on her, would also require an Affirmative Resolution of both Houses. In fact, of course, in many of the cases the object of the Amendment in its present form would not be achieved, because, as I understand it, it relates only to rules, regulations and orders, and in most of these cases it is a mere revocation of a licence. So that the terminology of the Amendment would not in fact, if accepted, achieve the purposes for which it is designed.
§ LORD COLERAINE
Would the noble and learned Lord allow me to intervene? The Amendment refers to "rules, regulations or orders", and the Lord Chancellor says that would not in fact cover what I am trying to do; but it also includes the expression "or the like". Would that not in fact cover the point?
§ THE LORD CHANCELLOR
I should not, with respect, have thought so, when what the Board of Trade has in fact done is merely to revoke part of the licence; I should not have thought the words of the Amendment were really apt to fit what the Board of Trade has in fact done. But the real point is that the Government took action on these matters immediately in order that the world might know the gravity with which it regarded that which the then Rhodesian Government had done; and they are not prepared, and it is not, it is submitted, 429 reasonable at this stage, to ask the Government to consider forgoing the powers which they already have. This does not apply to any other Order under similar legislation. After all, Parliament is never without powers to express dissent, if it desires to do so, from any action which a Government has taken. For the reasons which I have ventured to give the House, I am afraid I am unable to accept this Amendment.
§ THE EARL OF SWINTON
I think the Committee is in rather a dilemma here. The noble and learned Lord the Lord Chancellor opened our long debate today with one of the most reasonable and constructive speeches I have heard in this House, if I may say so, and it showed a great understanding of the Rhodesian position. Anyone who heard the debate which took place here must have been struck by the consensus of opinion that we condemned unilateral action but at the same time we were extremely anxious to watch over sanctions to see how they impinged, to what extent they were really necessary and whom they would hurt. We readily accepted such sanctions as on the export of arms; everybody agrees that that should be stopped at once. But the matter which caused most anxiety in all the speeches, including that of my noble friend Lord Hastings and others, was this question of sugar. The Government readily conceded that this clause dealing with sanctions under the Bill gives us the Affirmative Resolution procedure, and, as I understand it, on the undertakings given by the Government during the debate here, and still more in another place, the debate on an Affirmative Resolution should take place as rapidly as possible.
I think there is unanimous desire in the House that the sanction on sugar should come up before the House and that it should go through a procedure which at any rate is equivalent to the Affirmative Resolution procedure. With great respect to the Lord Chancellor, what he has said is really not relevant to the unique situation with which we are here dealing. It is not the least like dealing with a Power with whom we are at war. God forbid we should ever be at war with Rhodesia! We are dealing with an absolutely unique situation here. In this case surely there should be a provision.
I appreciate that my noble friend's Amendment may not be very happily con 430 ceived; it would extend to cover a great mass of things which no one wants to bring forward or have debated. But surely the Government can meet us in discussing tobacco and possibly also sugar, and surely that could be met by the Government's undertaking at a very early date to put down a Resolution, just as the Lord Chancellor moved his Motion to-day to take note of the situation in Rhodesia. Let the Lord Chancellor or the Leader of the House put down a Motion at the earliest possible date to say that this House approves the action of the Government in relation to sugar in regard to Rhodesia. If the Lord Chancellor would do that, I believe that he would carry the whole House with him and we could all accept it.
§ LORD CARRINGTON
I would support what the noble Earl has said. I think there is great force in what my noble friend Lord Coleraine has said in moving his Amendment. When we pass this Bill we shall give the Government very wide powers, and during the course of the debate the Government have assured us that when using these powers they will act under the Affirmative Resolution procedure, that we shall get time for debates, and they have gone a long way to meet us.
However, it so happens that these two particular issues which worry my noble friend, sugar and tobacco, are outside the scope of this Bill and have been already made the subject of Orders under a totally different Act. In my view, it is rather a pity that that has happened. Of course I absolutely understand why any Government would do it. If the legislative power is there and available, it would be perhaps asking too much of any Government not to use it. Nevertheless, I think that there is a distinction between the powers which are available under this Bill and the powers which have been used under existing legislation.
I greatly hope that the noble and learned Lord the Lord Chancellor will be able to accept the position which my noble friend has raised. If we want to discuss these matters, then surely we can put down a Resolution and the noble and learned Lord, I hope, would afford time to debate it. But if my noble friend is not satisfied with the situation in which the Government afford time to 431 discuss an issue of this kind, then I think I must revert to what I said earlier. In normal circumstances I should find no difficulty at all in supporting my noble friend on this Amendment—I think probably he is right; but I do not think that the circumstances to-day are normal.
I ventured to suggest earlier on that unity in the House and unity in the country was important. I do not suppose a Division makes all that much differance, though I think it would be much better if we did not have one. But I am quite certain that if we had a Division in this House and the Government were beaten, and the Bill went back to the Commons and there was an issue of dispute between the two Houses, there would be an impression, whether mistaken or not, that all of us were not behind the Government in their attitude towards U.D.I.
It is generally supposed, and it has been said in the newspapers and in broadcasting, that this Bill is likely to receive its Royal Assent early this morning. I believe that if at this stage we passed an Amendment in which the Government were defeated, and the Bill went back to the Commons, the situation would he greatly misunderstood, both in the country and throughout the Commonwealth and the rest of the world; and so, if my noble friend insists upon pressing this Amendment, I must say that the advice I would give to those behind me is not to support him.
§ 1.13 a.m.
§ THE LORD CHANCELLOR
In law, of course, we are the only people who are responsible, and we cannot get out of being responsible, for all the people of Rhodesia. But it is idle to pretend at this date that what has happened is not of real concern to most of the countries of the world which will be seeing what is being done in England to-day. Of course the Government took the steps at the time, nearly a week ago, which they thought right. They are not prepared now to say to the world, "We are now inviting Parliament to reconsider everything which we have done from a week ago." But Parliament is not without remedy, and I would certainly accede to the suggestion made by the noble Lord, Lord Carrington, and if the Opposition 432 would like to put down a Motion deprecating what the Government have done, I will undertake that every facility will be given to see that it is heard at an early date.
§ THE MARQUESS OF SALISBURY
I wish, even now, that the Government could find a way of meeting us on this difficult point. I realise the difficulty of the point, and I realise the strength of the point made by the noble Lord, Lord Carrington, about the importance of our not showing any division in this House on this issue. But what my noble friend Lord Swinton has done is to provide the Government with a way out of the difficulty. They can do this without in any way impairing the unity of the House. Even if they cannot say anything definite tonight, I would ask whether they would consider the possibility of a Resolution being put down—not themselves putting down a Resolution, but allowing a Resolution to be put down.
§ VISCOUNT DILHORNE
I think the noble Marquess is under a misapprehension. As I understood the noble and learned Lord the Lord Chancellor, he was accepting the proposal put forward by my noble friend Lord Swinton and was saying that, if a Resolution were put down, time would be found for discussing it.
§ THE EARL OF SWINTON
What I proposed was that the Government themselves should put down the Resolution. That seemed to me to be a reasonable thing.
§ THE EARL OF SWINTON
The Lord Chancellor said they were not prepared, in the eyes of the world, to go back on all they had done and ask Parliament to reconsider. But we are not asking Parliament to reconsider. Parliament has never had the opportunity of considering this sugar sanction. I have an absolutely open mind on this matter; I want to hear the arguments. I should have thought it was more in the interests of the Government and of unity that the Government should put down a Motion asking the House to approve what they have done. But if the Lord Chancellor will not do that, then it is, of course, open to my noble friend Lord Coleraine to put down a Resolution to say that the House does 433 not approve of the action. As I understand it, if my noble friend Lord Coleraine does that, the Government will provide the earliest possible facilities for a debate. That is right, is it not?
§ THE EARL OF SWINTON
Then I understand that correctly. As the suggestion came from me, I would respectfully suggest to my noble friend that he should accept that, although, frankly, I would infinitely prefer the matter to be dealt with by a Government Motion. However, if it has to be done by way of a Motion put down by my noble friend Lord Coleraine, that meets the substance of my proposal.
§ LORD MOLSON
Would it not be more satisfactory from the Government's own point of view that they should put down a Motion that this House approves of what the Government have done, rather than that it should take the form of being put down by an independent Member in the form that this House approves?
§ LORD SHEPHERD
I think it would be very strange if the Government were asked to put down a Motion to approve an action which they have taken quite lawfully under existing legislation. I should have thought it was a very dangerous precedent for the Government to be called on to do it. I have had conversations with a number of noble Lords on this matter, because they have been most concerned. As Chief Whip, I would repeat that we are very willing to provide time for the convenience of noble Lords who are interested, so that the matter may be adequately debated. If noble Lords are anxious they can consult this side through the usual channels, and I am quite sure that we shall be able to meet them and to satisfy them in discussions on the matter.
§ LORD COLERAINE
The difficulty about this—and it is a genuine difficulty—is that what I wanted to ensure through my Amendment was that there should be a Parliamentary discussion and a Parliamentary decision upon this matter. I did not want to prejudge that discussion or that decision by putting down a critical Motion, but, as I understand the position, there will be no discussion on this matter unless some noble 434 Lord puts down a Motion critical of what the Government have already done.
§ THE EARL OF LONGFORD
I think there is a slight misapprehension here. There is no need for the Motion to be critical. It can be a Motion just calling attention to what the Government have done.
§ LORD COLERAINE
I should like to get this clear. If a noble Lord put down a Motion on the lines of the Motion of the noble and learned Lord the Lord Chancellor this afternoon, asking the House to take note of the Order of so-and-so made under the Act of so-and-so, then that could be debated and the Government would not willingly obstruct such a debate?
§ THE EARL OF LONGFORD
No. I think the only reservation which one would have to put in there is that one cannot give a blank cheque, so to speak, to endless discussion on all the Orders. But in the case of sugar and tobacco we should certainly feel it our duty to provide time.
§ LORD COLERAINE
On that assurance, I would ask your Lordships' permission to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 1.22 a.m.
THE MARQUESS OF SALISBURY moved, in subsection (5), to leave out all words after "section shall" and to insert:
not come into force unless a draft of the Order has been laid before Parliament and approved by Resolution of each House of Parliament.
§ The noble Marquess said: I rise to move the Amendment standing in my name. This Amendment is quite short and simple and of a much more limited scope than that which we have just been discussing, and its purpose is, I think, wholly respectable. It seeks merely to ensure that any measures to be taken by the Government under the enabling Act shall, before they come into force, receive the prior approval of both Houses of Parliament. It may be said that it should not be necessary to move any Amendment to achieve this and that in a Parliamentary democracy such as ours every action 435 of the Executive should need the prior approval of Parliament. But that, in fact, as we all know, is not always the case.
§ It has become a practice under our Constitution, a practice which seems, I think, steadily to grow under every Government, for Governments to introduce something in the nature of blanket Bills of the widest character, giving them powers to take action under Orders in Council to be submitted to Parliament under the Negative or, as in this case, Affirmative Resolution procedure, and then, without more ado, to take whatever action they think proper and come to Parliament later to get Parliamentary approval. We all know that that is very frequently done, and I should have thought it was generally agreed that it was never in itself desirable, for it weakens the position of Parliament in relation to the Executive. In Bills dealing with comparatively minor matters it does not perhaps very greatly matter, and the practice may have been regarded as merely, if I may say so, oiling the machinery of administration. In cases like the present, however, where great issues are at stake, I should have thought that Parliament should surely give prior approval before far-reaching action was taken.
§ This Bill, as the noble and learned Lord the Lord Chancellor himself has said, is very widely drawn indeed, and unless Parliament retains a firm control over what is done under it Parliament will, in effect, be giving the Executive a blank cheque, and a blank cheque for a very large amount. Action of a most far-reaching character might be taken without any prior approval by Parliament, and even if at a later date Parliament rejected an Order in Council, which of course it could do, it might be impossible to reverse the engine and the harm would already have been done.
§ I would emphasise that there is nothing sinister about this Amendment. It is not, as I saw suggested in one newspaper, obstructive in character. I do not mean it in that way. It is merely to retain proper Parliamentary control over action taken under this most important Bill. I hope, in view of this explanation, that it will be acceptable both to the Government and to the House, or that in any case the Government will be able to give such assurances that the purposes of the 436 Amendment will have been achieved. The Lord Chancellor, in his speech moving the Second Reading, spoke sympathetically of the Government's intentions, and if I could be assured that the delay would really be very short indeed, I should be prepared to withdraw the Amendment—but I do want that assurance.
Page 2, line 9, leave out from ("shall") to end of line 13 and insert the said new words.—(The Marquess of Salisbury.)
§ LORD COLYTON
I should like to support my noble friend in the Amendment which he has just moved. The procedure which he is advocating in his Amendment is, of course, far more normal than that which is laid down at present in subsection (5). This, I am advised, is normally required only for Orders to be passed in the Recess, and it seems to me that the Government must show very strong reasons why this very exceptional procedure should be required in this case, when it is most essential that Parliamentary approval should be given beforehand to these Orders.
There is a further aspect of this matter which I should like to raise in connection with Clause 2, subsection (5). The second paragraph states:The expiration of an Order in pursuance of this subsection shall not affect the operation of the Order as respects things previously done or omitted to be done or the power to make a new Order;…This, of course, is common form, and has been used countless times in Acts authorising subordinate legislation since the passing of the Statutory Instruments Act 1946, which, by Section 5, subsection (1), expressly allows this. The question I should like to ask the noble and learned Lord the Lord Chancellor is: has this provision ever been used in relation to subordinate legislation of this particular kind; that is to say, Orders which are in force from the time at which they are made?
The power which the Government are taking in fact means that they can make a new effective Order at once, even though the original Order has been defeated in Parliament. Thus, a defeat in Parliament would not necessarily defeat the powers taken by the Government, or prevent their continued use by virtue of a new Order. It seems to me that 437 this is one more reason for supporting my noble friend's Amendment, which would get rid of this difficulty.
§ THE LORD CHANCELLOR
I am happy to give the undertaking for which the noble Marquess has asked. I am afraid that I cannot answer offhand the question put by the noble Lord, Lord Colyton. The real point here, of course, is that we are dealing with very serious things. We do not very often have a rebellion and it is not possible to foresee what the extremists in the rebellious régime may do. The powers are wide—as, under an Enabling Bill they must be—precisely because one cannot foresee what may happen. Under the sweeping emergency powers which they have assumed for themselves, men's liberties and even their lives may be at stake. It is a case in which a man's life—possibly the safety of the Governor—might depend on an Order made. In the Government's view, the suggestion that we should sit about for a fortnight is one which is quite impossible in the circumstances of the case. It was for that reason that the Government had thought that a Negative Resolution would have been appropriate but it was after discussion with the Opposition that this reasonable compromise of this form of Affirmative Resolution, as I understand it, was agreed upon and the Government accepted it so long as the actual Order comes into force at once. As I understand it, these Orders would in this House have to go to the Special Orders Committee, and that would probably take a week in itself. I think the noble Marquess is a little doubtful about this and his experience is much greater than mine; but I was advised that the Special Orders Committee might take about a week to get the Order through this House.
It is for those reasons that I should be unable to accept any Amendment which had the effect that the Order did 438 not come into force at all until it had been approved by both Houses of Parliament. But I appreciate the noble Marquess's concern that an Order should be brought before the House at an early date and, as I said in moving the Second Reading, I should be glad to give that assurance; and if an approach is made through the usual channels there will be no difficulty in coming to agreement.
§ THE MARQUESS OF SALISBURY
I am grateful to the noble and learned Lord for his assurance, and in view of what he has said I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Remaining Clauses agreed to.
§ House resumed: Bill reported without amendment; Report received.
§ Bill read 3a, and passed.
§ 1.34 a.m.
§ THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION)
My Lords, I beg to move that the House be now adjourned during pleasure for the purpose of a Royal Commission.
§ Moved accordingly and, on Question, Motion agreed to.
§ House adjourned during pleasure. House resumed.