SOUTHERN RHODESIA CONSTITUTION ORDER 1965 (Hansard, 25 November 1965)

§ THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I beg to move that the Southern Rhodesia Constitution Order 1965 be approved. Before outlining the case for the Special Order standing in my name on the Order Paper, perhaps it would be for the convenience of the House if I were to outline the way in which we propose to ask the House to consider the eight Special Orders concerning Southern Rhodesia which are due for consideration this afternoon. As it would clearly make for a rather ragged debate if each Order were to be debated separately, I hope that the House will agree to the following arrangement.

I will move the first Order, and this will be fully debated. Thereafter, my noble friend Lord Champion will speak to the three Orders which stand in his name on the Order Paper, and they will be fully debated together. Finally, my noble friend Lord Stonham will move the four Orders which stand in his name on the Order Paper and they will be fully debated together. It would, I apprehend, be necessary for the House to have the Question put to the House on each Order separately, but the net effect of this arrangement would be to reduce the debate on these eight Orders to a total of three. I hope that the House will consider that this is a convenient way to proceed this afternoon.

The first Order, the Southern Rhodesia Constitution Order 1965, is brought 1037 before the House for approval as required by Section 2(5) of the Southern Rhodesia Act, 1965, passed last week. Its primary purpose is to make certain amendments in the provisions of the Southern Rhodesia Constitution, 1961, which, I need hardly remind the House, is still the legally and only valid Constitution for Rhodesia, notwithstanding the illegal declaration of independence and the purported grant by the illegal régime of a new Constitution.

As the House knows, there has been a demand from some quarters that, in view of the illegal declaration of independence, the 1961 Constitution should be wholly suspended. It seemed to us that this was not the correct course to take and, as the House will remember, we did not ask for powers to do this. There are certain important parts of the 1961 Constitution which must be left as they are. There are, for example, the provisions relating to the powers and the authority of the Governor. There is Chapter 5, which deals with the courts and the Judiciary; there is the all-important Declaration of Rights, or Bill of Rights, in Chapter 6; and there are also Chapter 7, establishing the Constitutional Council and prescribing its functions for the purpose of enforcing the Bill of Rights, and Chapter 8, protecting the tribal trust lands. All of these parts of the Constitution are left unamended by this Order, save in so far as they are necessarily affected by particular provisions to which I will come.

On the other hand, there are parts of the 1961 Constitution which we thought it most desirable to amend, or rather suspend—indeed, I would emphasise the word "suspend", because in fact, as the House will notice, the three sections of the Order, Sections 3, 4 and 5, which affect the 1961 Constitution, are prefaced by the phrase So long as this section is in operation", to bring out the point that we are not attempting to abrogate any part of the 1961 Constitution. But there are certain matters that we could not leave alone. For example, the Legislative Assembly is composed, in the vast majority, of members of the Rhodesian Front, Mr. Smith's Party, the Party that has lead Rhodesia into this state of rebellion and attempted overthrow of the authority of the United Kingdom. We have there- 1038 fore invalidated in advance any laws which that Assembly may attempt to pass, and any other business which it may transact. We have filled in the gap by enabling Her Majesty to legislate for Rhodesia by Order in Council.

Further, we have in the executive field made such provision as seemed proper to enable loyal authorities to continue to function. We have freed the Governor from his constitutional obligation to act in accordance with the advice of Rhodesian Ministers. We have also empowered the United Kingdom Government to exercise, or control the exercise of, various functions of officers and authorities of the Government of Rhodesia; but the Order does not impose any duty on the United Kingdom Government to exercise any particular functions in any particular case. The question whether and how we should act is left to be decided by considerations of what is practicable, and what is right and helpful, in the circumstances of each particular case.

I should also mention now, as another object of the Order, the declaration which it contains as to the invalidity of the new Constitution which Mr. Smith and his collegues purported to grant to Southern Rhodesia on November 11. This, the House will remember, was done simply in the name of Mr. Smith and his colleagues in the Ministry before that Ministry was dismissed. It was, of course, done without any shred of legal authority and was wholly invalid. Indeed, it may be doubted whether in the whole history of Constitutions given, at any rate in recent times, there is any precedent for this somewhat bizarre action, whereby a group of a dozen men, without even pretending to act with the authority or approval of the people of the country, purported to grant a whole new Constitution to their country. However that may be, we thought it right expressly to declare the action void.

While I am on the point of alternative invalid Governments, it may be right that I should draw the attention of the House to an Act of the Southern Rhodesia Legislature of which your Lordships may not he aware. I refer to an Act called "The Preservation of Constitutional Government Act" which was passed by Mr. Smith's Government in 1963 Questions have been raised as to whether certain acts, either here or in Southern Rhodesia, might or might not constitute treason. But this 1039 Act which was passed by themselves appears, your Lordships may think, to fit like a glove precisely what Mr. Smith and his colleagues have done.

It provides that Any person who is a resident of Southern Rhodesia and who, either within or outside Southern Rhodesia, organises or sets up, or helps to organise or set up, or advocates, urges or suggests the organisation or setting up, of any group or body with a view to that group or body

(i) overthrowing, or attempting to overthrow, the Government by unconstitutional means, or
(ii) taking over, or attempting to take over, the Government of Southern Rhodesia by unconstitutional means, or usurping the functions of government in Southern Rhodesia or supports or assists any such group or body in doing or attempting to do any of the things described above, or in any manner seeks to enlist the aid of any person, group or body, whether such person, group or body is within or outside Southern Rhodesia, in doing or attempting to do any of the things described in the preceding sub-paragraphs"

shall be guilty of an offence, and liable to imprisonment for a period not exceeding twenty years.

"Unconstitutional" is defined in the Act in this way: 'unconstitutional' means any process which is not a process provided for in the Constitution and which is contrary to any law". The Act then provides that anyone doing any of those things that I have read out shall be guilty of an offence and liable to imprisonment for a period not exceeding twenty years. It may be a matter for comment that these gentlemen should themselves have promulgated an Act which seems so closely to fit precisely what they have done.

My Lords, I hope that I have made clear to the House the main purpose in making this Constitutional Order in Council, which may be summarised as to make the minimum temporary amendments required by the actions of the illegal régime and to give us the powers we may require to exercise as a result. But I should also tell the House of a further purpose which we had in mind in making this Order. It is to enable the British Government to keep under their own hand the necessary constitutional powers in Rhodesia and thus enable us to resist any attempt to set up any alternative illegal Government. We have 1040 made it clear in the Security Council and elsewhere that we consider the Rhodesian problem to be our responsibility and we want to keep control of events. If some group were to try to set up an alternative Government, either inside or outside Rhodesia, such action, however well-intentioned, would be bound, in our opinion, to lead to uncertainty, confusion and dissipation of effort, and thus militate against the achievement of what it can be assumed would be the common objective—namely, the displacement of the present illegal régime. Accordingly, this Order in Council, which confers powers to make laws of Rhodesia by further Order in Council, and confers executive powers on the Secretary of State, provides the means of making it clear that the responsibility and the powers, as and when they may be effectively exercised, are ours.

I now turn to a scrutiny of the detailed provisions of the Order. Section 1 deals with purely technical matters of citation and rules of interpretation and commencement. Section 2 is declaratory. This declares, for the avoidance of doubt, the invalidity of the purported new Constitution and of any other so-called Constitution which the illegal régime may attempt to establish. This section came into operation as soon as the Order was made, and by virtue of the authority conferred by Section 2(3) of the Southern Rhodesia Act, 1965, was given retrospective effect from November 11. This was necessary to establish, beyond doubt and at the earliest possible moment, that the purported new Constitution was, and always had been, invalid.

Section 3 deals with the Legislature and with the legislative powers. Subsection (1)(a) is relevant because, first, Section 6 of the Constitution establishes a Legislature consisting of Her Majesty, usually represented by the Governor, and a Legislative Assembly. Chapter II of the Constitution deals with the composition, powers and procedure of the Legislature and the summoning, prorogation and dissolution of the Legislative Assembly. Chapter III deals with the delimitation of constituencies and electoral districts. Section 3(1)(a) of the Order prohibits the making of laws by the Legislature—this may have been an excess of caution as the Governor would not co-operate with the Legislative Assembly for this purpose—and the 1041 transaction of any other business by the Legislative Assembly. It thus prevents what must be regarded as a rebel-dominated body from purporting to act in support of the illegal régime. Subsection (1)(a) also prohibits the holding of elections for the Legislative Assembly and any steps in connection with such elections, for example the delimitation of constituencies. Chapters II and III of the Constitution are required to take effect accordingly.

Regarding Section 3(1)(b), the power to prorogue the Legislative Assembly is, by Section 34 of the Constitution, vested in the Governor, Section 3(1)(b) of the Order expressly vests the power in the Secretary of State. This was considered necessary in case prorogation became desirable and the Governor was prevented from proroguing the Legislative Assembly himself. Section 3(1)(c) confers on Her Majesty in Council complete legislative powers for Southern Rhodesia. This power is exactly equivalent to, and is intended to be in substitution for, the power vested in the Legislature under the Constitution. The provision is necessary because there is no prospect of the Legislature's being able to make laws so long as the rebellion lasts, and we cannot leave Southern Rhodesia without some legitimate legislative body. Subsection (2) of Section 3 may be unnecessary because it may be covered by Section 3(1)(c), but it was thought desirable to put beyond doubt that Orders in Council under Section 3(1)(c) can authorise subordinate legislation, for example, Governor's regulations. Subsection (3) is purely interpretative, designed to cover such provisions, for example, as Sections 42 and 55 of the Constitution. On Section 3(4), laws of Southern Rhodesia's Legislature are not, of course, subject in ordinary circumstances to scrutiny by the United Kingdom Parliament. It was nevertheless recognised that it was desirable that laws made by Her Majesty in Council in substitution for the Southern Rhodesian Legislature should be subject to such scrutiny. The Act does not expressly require this, but advantage has been taken of the power conferred by Section 2(3) to require all such laws to be laid before Parliament.

§ THE LORD CHANCELLOR

Only by putting down a Motion or a Motion of Censure in the ordinary way. These are really the equivalent of Statutory Orders which might be made in Rhodesia and would not, of course, in the ordinary way be subject to the survey of this Parliament at all. Perhaps I might deal with that point a little later.

As to Section 3(5), this brought Section 3 into operation as soon as the Order was made and, again by virtue of the authority conferred by Section 2(3) of the Act, gave it retrospective effect from November 11, 1965. This was necessary in order to establish at the earliest possible moment that things done by the Legislative Assembly in furtherance of the illegal Declaration of Independence were, and always had been, wholly invalid.

Section 4 deals with executive powers. Section 4(2) of the Constitution vests the executive authority of Southern Rhodesia in Her Majesty and permits it to 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. This means that, in so far as there are things to be done in the executive field by the Government of Southern Rhodesia—entering into contracts, giving orders to officers, and so forth—and where the relevant powers are not expressly vested by some provision of law in a particular officer or authority, they may be done on Her Majesty's behalf by the Governor or his delegate. It was considered that it might be convenient for the Secretary of State to have this power 1043 concurrently with the Governor, and this paragraph so provides.

Section 4(1)(b) suspends the ministerial system. The sections of the Constitution which are referred to in Section 4(1)(b)—namely, 43, 44, 45 and 46—in substance cover the ministerial system. This suspends the ministerial system and thus relieves the Governor of the obligation to try to find somebody to form a new Ministry commanding the support of a majority in the Legislative Assembly. Section 4(1)(c), dealing with the dismissal of Ministers coupled with the suspension of the ministerial system, probably relieves the Governor of his obligation to seek an Act in accordance with the advice of Ministers in the exercise of his various functions, because if there are no Ministers it may be said that he obviously cannot and therefore need not. But it was considered desirable to kill any doubt on the point.

As regards Section 4(1)(d) many, perhaps most, of the executive functions of the Government of Southern Rhodesia are now vested by the particular laws that create them in the Minister. The dismissal of Ministers and the suspension of the ministerial system would mean that there was nobody capable of exercising such functions. To enable this gap to be filled—for example, where the Minister's consent is needed for some transaction or where property under control is legally disposable of only by the Minister—this paragraph permits a Secretary of State to exercise the Minister's functions. That property might be, in fact, under our control.

Section 4(1)(e) enables a Secretary of State to take over and exercise, or to prohibit or restrict the exercise of, the functions vested by the Constitution or some other law in an officer or authority of the Government of Southern Rhodesia, including the Governor himself. This will enable a Secretary of State not merely to ensure the discharge of functions where the relevant office is vacant and cannot lawfully be filled, but also to act instead of an officer or authority who is likely to exercise the function concerned in a manner favourable to the rebellion. There is no obligation to exercise a power where it is not likely to be effective or useful. This paragraph also provides authority for the 1044 dissolution of the Legislative Assembly if we chose to use it.

Subsection (2) exempts a Secretary of State, in exercising the powers of a Minister or other officer or authority of the Government of Southern Rhodesia, from having to undertake the same process of consultation as would be binding on that Minister. This is necessary in case a Secretary of State cannot communicate with the person concerned, or in case that person is himself actively participating in the rebellion. Subsection (3), I think, speaks for itself. As regards subsection (4), the reference to "an officer of the Government of Southern Rhodesia" occurs in Sections 4(1)(e) and 4(2).

Turning to Section 5, I would point out that Section 113(3) of the Constitution, as recently amended by Section 15 of the Constitution Amendment Act, 1965, regulates the manner in which monies may be withdrawn from the Consolidated Revenue Fund of Southern Rhodesia. The effect is that no monies may he so withdrawn except to meet expenditure which has been charged on the Fund by the Constitution or by some law of the Legislature, or where those monies have been voted by the Legislature. Section 5 of the Order permits monies to be issued on the authority of a warrant issued by a Secretary of State or by the Governor, in pursuance of instructions from Her Majesty through a Secretary of State. It is unlikely that this power can be effectively used, unless and until the officers of the Treasury of the Government of Southern Rhodesia choose to defy the illegal régime. The time may come when it would be a useful power to have. Section 6 is purely declaratory. It is designed to scotch any argument that prohibitions and restrictions imposed by, or under, Sections 3(1)(a) or 4(1)(e) are merely directory, and that things done in neglect or defiance of them are nevertheless validly done.

When your Lordships discuss the Order, if any questions are raised as to the construction of the Order, I shall be happy at the end to do my best to deal with them. On those grounds I commend the Order to your Lordships' House and beg to move accordingly.