SOUTHERN RHODESIA CONSTITUTION ORDER 1965

HL Deb 25 November 1965 vol 270 cc1056-97

4.12 p.m.

Debate resumed.

VISCOUNT DILHORNE

My Lords, perhaps we can now return to the debate on this important Order. I am sure that we are all grateful that this statement should have been made by the Lord Chancellor. This is the first Order to come before Parliament since the passing last week of the Southern Rhodesia Act, and I think it is the most important of the Orders that we shall be considering this afternoon. I am sure the House will agree to the suggestion of the noble and learned Lord as to the way in which we should handle our debates on these various Orders.

I have a number of questions that I wish to put on this Order, and a number of comments, some of them critical, which I want to make with regard to it and to the possible exercise of the power it gives. But I do not want to be misunderstood, and therefore I wish to preface my observations by saying that we recognise that a Constitution Order is necessary. We shall not, therefore, oppose the passage of this Order; but if it be shown that there is substance in our criticisms, I hope that the Government will give serious consideration to tabling an amending Order in Council.

I think it is important to make clear that this so-called new Constitution of Southern Rhodesia—imposed, as the noble and learned Lord the Lord Chancellor has said, on the people of that territory by a dozen or so men who were formerly Her Majesty's Ministers, without reference to the people of Rhodesia, and, so far as I am aware, without the approval of the legislative assembly—is void and of no legal effect. It matters not to what extent this so-called Constitution differs from or resembles the lawful 1961 Constitution: it is a nullity. And while the approval of the Legislative Assembly to this so-called new Constitution could not give it validity, it is not, I think, without some significance that these men who have by their own acts usurped power, did not even trouble to seek the approval of the Legislative Assembly. So I support and have no criticism to make of Section 2 of this Order.

But, my Lords, when we turn to Section 3 we see that it is very far reaching, and it certainly deserves, in my opinion, very careful consideration; for it seeks to deprive the legislature of Southern Rhodesia of all power to make laws and transfers to Her Majesty in Council full power to do so. Now, under the 1961 Constitution, Section 29, no Bill passed by the Legislative Assembly can become law without the Governor's assent. I recognise that, in the light of what has happened, the Governor's powers under the Constitution to refuse his consent to a Bill might require to be enlarged. But power is given by the Constitution itself to amend Section 29. That can be done by the Privy Council, under the 1961 Constitution. So, for the purpose of preventing laws from being made by the Legislative Assembly, it would not, I think, be necessary to do more than to amend Section 29 by exercising the power given by Article 111 of the Constitution.

I do not myself quarrel with the proposition that it should not, now and for the time being, be possible for the Legislature of Southern Rhodesia to make laws. But the result of what the Govern- ment have done by transferring the legislative and, indeed, the executive power to the Secretary of State and to themselves is, I think, serious, and must be recognised as such. First of all, for the first time for over forty years the United Kingdom is taking power to exercise direct rule over the people of Rhodesia; so it cannot be denied, I think, that we are increasing our responsibilities for that territory and, at the same time, it would seem, accepting responsibilities which we have not in fact the power to discharge.

Secondly, my Lords, this complete abrogation of the powers of the Southern Rhodesia Legislature may appear to lend some support to the view that in reality the 1961 Constitution has gone, at least for the time being. The noble and learned Lord the Lord Chancellor drew attention to the words at the beginning of Section 3 of this Order, "So long as this section is in operation." I think it is very important to stress that this abrogation is intended to be only of temporary duration, and also that as soon as it is possible to secure a return to constitutional Government the 1961 Constitution (which the noble and learned Lord has just said, and rightly said, is still the legal and only valid Constitution) will again come into operation.

I hope that this fact will be stressed; for there may be people—and I hope their numbers are increasing, and will increase—who want to return to lawful constitutional Government under the 1961 Constitution. But if the choice is simply between rule by the illegal régime and direct rule from Whitehall, it is perhaps possible that they might prefer the former. That is why I stress both the desirability of making it clear beyond doubt that this abrogation is temporary and the need to say what the Constitution will be immediately constitutional Government can return to Rhodesia. It does not, of course, mean that there will not, in time to come, be amendments, we hope agreed amendments, to that Constitution.

My Lords, Section 3(1) not only deprives the Legislature of Southern Rhodesia of the ability to make laws: it goes on to say …no business may be transacted by the Legislative Assembly…. Then Section 3(1)(b) gives the Secretary of State power to prorogue the Legislative Assembly. The noble and learned Lord the Lord Chancellor characterised that Assembly as now a rebel Assembly. The members of it were, of course, duly elected under the Constitution, and there are precedents of some antiquity for preventing a Legislative Assembly from deliberating. Speaking personally, I must confess that I feel some doubts about the wisdom of saying that "no business may be transacted by the Legislative Assembly". It is, surely, one thing to make sure that no laws can be passed by the Assembly at the present time (and that, as I have said, could be done without this Order), but quite another to silence that Assembly entirely.

I know—and the noble and learned Lord the Lord Chancellor has reminded us—that the Assembly is composed almost entirely of those who are at present supporters of the Rhodesian Front. But surely we want an Opposition to this illegal régime to emerge. May it not be the case that some of those members of the Assembly who supported U.D.I. are already regretting it? I wonder whether, by stifling the Assembly as is now proposed, we may not be stifling the growth of opposition to the present régime. I should like to hear the noble and learned Lord the Lord Chancellor, on this point. If he thinks that there is force in the observation that the Assembly might be allowed to function, not in its law-making capacity but for the purpose of discussing the state of affairs in Southern Rhodesia, and as a sounding board for the people of Rhodesia, then it might be necessary, and indeed desirable, to make some modification of this Order. Speaking personally, I feel considerable doubt as to the wisdom of that particular step.

I wish to ask your Lordships (it is rather technical but I do not think it unimportant) to consider this Order in the light of the terms of the Southern Rhodesia Act which we passed last week. Section 3(1)(c) of this Order in Council says: Her Majesty in Council may make laws for the peace, order and good government of Southern Rhodesia, including laws having extraterritorial operation. As I read it, Her Majesty in Council has already been given powers to do all that by Section 2(1) of the Southern Rhodesia Act, which was passed last week. That section reads: Her Majesty may by Order in Council make such provision in relation to Southern Rhodesia, or persons or things in any way belonging to or connected with Southern Rhodesia, as appears to Her to be necessary or expedient in consequence of any unconstitutional action taken therein. Those are the very widest powers. And here in this first Order made in the exercise of those powers, we find a power taken, not to make subordinate instruments—orders, rules, regulations—but a power taken to make Orders in Council.

I cannot remember any Order in Council which in itself gave a power to make an Order in Council, and the effect of this, in my submission, is extremely significant. An Order in Council made under the Act is subject to Affirmative Resolution; it has to be approved by Parliament within 28 days. This House will recollect the importance that was attached to that particular provision. I believe that originally it was contemplated that there should be only the Negative Resolution procedure, with power to pray against the Order, and that it was as a result of a suggestion made by my right honourable friend Mr. Heath that the Government acceded, quite rightly, to this Affirmative Resolution procedure whereby some Parliamentary control can still be retained.

So, my Lords, if a law was made by Her Majesty in Council under that legislation as it stood, that Order would have to be approved by the Resolution of each House. But what has happened here is this. An Order has been made giving Her Majesty power by Order in Council to make laws for the peace, order and good government of Southern Rhodesia. Those Orders will not come before this House for Affirmative Resolution; they have merely to be laid before Parliament. And my noble friend Lord Coleraine drew attention to the fact that laying them before Parliament does not mean that they are subject to the Negative or the Affirmative Resolution procedure.

I think it very wrong that power should be taken in this way to avoid consideration by Parliament of laws which will apply to the whole of the population of Rhodesia. I hope that the Government will think again about this point. It is no answer for the Lord Chancellor to say that this Parliament has never considered or taken into account, or had any part in passing, laws applicable within Southern Rhodesia. That is no answer when we are taking over, by this Order, the function of legislating and the function of governing for Southern Rhodesia (when I say "we", I mean the Executive); and if the Executive take over that responsibility, I suggest that we ought—it is the duty of Parliament—to see that it is properly exercised.

When one goes on to read this Order in Council that we are asked to approve one sees that Section 3(2) says: Orders in Council made under subsection (1)(c) of this section may confer powers (including the power to make laws) and impose ditties upon persons and authorities as well outside as within Southern Rhodesia. That is a very wide power of delegating law-making powers. There is no limit to it at all, and if that delegation is made, as this Order in Council would permit, the person to whom the power of legislating is delegated can cover (I do not say that this is intended, but it is so worded) the whole field which could be covered by an Order in Council. If he does so, there is no requirement whatsoever for any such law made by such a person to whom authority is delegated to be laid before Parliament. I confess that I feel very dubious about the vires of that particular provision, and indeed some doubt about the vires of Section 3(1)(c), because under Section 2(2) of the Act of 1965, there is power for an Order in Council to provide only for the making of such incidental, supplemental and consequential provisions as appear to Her Majesty to be expedient for the purposes of the Order.

This complete power of delegation may be intended to be only for incidental, supplemental and consequential provisions, but it is not so expressed in this Order; nor is there anything that I can find in the Act of 1965 which suggests for one moment that under the Act it is possible by an Order in Council to give power to make another Order in Council to deal with matters which the First Order in Council would have dealt with, and by making another Order in Council to avoid the operation of Section 3(2) of the Act which lays down the Affirmative Resolution procedure. I do not suppose for one moment that these defects—and I think that they are serious defects—were deliberately intended. But I must say that I think that the Order is defective in these respects.

I should like the noble and learned Lord the Lord Chancellor to deal with these points and, if he cannot answer them to-day, at least to say that he will bring in an amending Order at the earliest possible opportunity to put this matter right. I do not think that there is anything else in Section 3 to which I need draw attention. Section 4 deals with the complete transfer of all executive powers. So the position is that the United Kingdom will take not only full legislative powers but also full executive powers. I hope that I have made my points clear.

To sum up, my Lords, I feel grave doubts about the desirability of not leaving the Legislative Assembly as a forum for debate; about the vires of Section 3(1)(c) and Section 3(2); about the power by Order in Council to make Orders in Council, and about the very wide power of delegating powers, including the power to make law. We shall not oppose the passage of this Order, for in my view it is right that the illegal régime should be deprived of any appearance of legality, and that it should be made as clear as possible that it has no legal powers. But I would ask the noble and learned Lord the Lord Chancellor to give serious consideration to points of criticism of this Order that I have raised, points which I think are of some considerable constitutional importance.

4.33 p.m.

LORD COLERAINE

My Lords, when I was a boy, I was taught to believe that we in this country had some kind of special political aptitude, some kind of sixth sense, which was denied to other people, which allowed us to get to the core of a problem and which allowed us to get behind legal formalities and come to the reality. Not for us the logic of written Constitutions. For us, rather, that deeper logic, the understanding of the human heart and of human motives. All that has gone to-day.

If your Lordships will allow me to say so, the noble and learned Lord the Lord Chancellor—and I should like to thank him for his courtesy when I interrupted his speech—in something he said this afternoon, seemed to underline and emphasise what I am trying to say to your Lordships now. He drew attention to the Constitution Act which has been passed by the Legislature in Rhodesia. He took it to be a confession of guilt on the part of the de facto Government of Southern Rhodesia. I must say that the reflections which passed through my mind were very different. It seemed to me that what Mr. Smith was doing with that Act in the Legislature in Salisbury is precisely what we in the British Parliament have been doing with the Act which we passed last week, the Orders under which we are discussing to-day.

We are tied up in a mass of constitutional propriety. That is not the real question that is facing us now. It is a question of men and women, of their loyalties, of what they believe, of what they stand for and of what they will fight for. Certainly, we have lost that old aptitude. For years one Government after another in this country have striven in vain to shake a handful of our fellow countrymen in Southern Rhodesia from their belief—let us call it, if you like, a contemptible belief—that they know more about Rhodesia than we do.

We have responsibility to the African majority in Rhodesia. Of course, we have. I know of no one who would deny it. But what I ask myself, and what I would ask noble Lords to ask themeselves, is: do we really discharge that responsibility when we have given the African the vote? It would seem to me to be as reasonable for a parent to imagine that he had discharged his responsibility to his fifteen-year-old son, when he had given him a driving licence and an Aston Martin and let him loose on the M.1. For my own part, I sometimes wish we had never gone into Africa at all. I wish, sometimes, that we had left them to themselves in the life they knew—cruel, disease-ridden, slave-ridden, but, at any rate, the life that they understood. What are we doing to them now? We have raised them from that life and now we are dropping them like a pebble into a slavery worse than anything they have ever known, because it is a slavery enhanced by all the apparatus of a mechanical civilisation.

THE EARL OF LONGFORD

My Lords, may I interrupt the noble Lord? He is always the soul of courtesy. But I am afraid that I must put this to him. Does he feel that what he is saying now is strictly relevant to the Order? I think it is generally agreed that this should not be an occasion for a general debate on Rhodesia.

LORD COLERAINE

My Lords, the noble Earl has asked me with perfect courtesy a perfectly courteous question and I hope I may give him a perfectly courteous reply. I do feel that everything I am saying is directed towards the Order, and I hope that, when I have concluded by argument, he will agree with me.

I was asking: what have we dropped them into now? I was talking last week to a friend of mine, who had recently come back from a prolonged visit to Nigeria. That, as I think your Lordships would agree, is one of the newly independent territories and it is at least trying. This witness I believe to be credible; I believe him to be reliable; and I have no doubt—though I have not asked him—that if the noble Earl wished, he would testify to the noble Earl as he has to me. This witness told me that he visited the slave market in Lagos. He told me that he followed in the trail of a slave caravan for some hundreds of miles across Africa. He did not catch up with it, but he knew he was on the right track, because every so many miles he found the bodies of the elderly and of children lying there. I think we might well, all of us, ask ourselves just how we are discharging our obligation to the African by giving him the vote. I feel that we have lost the sixth sense about which I was speaking.

What are we to make of this piece of paper, this Order, that we are discussing now? What do your Lordships suppose the world makes of it, with its paper teeth and paper claws? I have no doubt whatever that it is seen as a paper tiger, perhaps as a British lion reborn in papier-mâché. I was astonished, if he will allow me to say so, by something that my noble friend Lord Dilhorne said in the interesting speech he has just made to your Lordships. He said, "Would it not be better to allow the Legislature in Salisbury"—

VISCOUNT DILHORNE

No. With respect, I did not say "the Legislature"; I said "the Legislative Assembly", which is a different thing.

LORD COLERAINE

He said, "Would it not be better to allow the Legislative Assembly in Salisbury to discuss, at any rate, general principles, even if we forbade them to pass legislation?". Can my noble friend really believe that this piece of paper, this Order, is effectively going to forbid anyone from doing anything, or is going to permit anyone to do anything? I have one main criticism to make of this Order, and it is that it does not really exist—it is nothing. If I had any influence with your Lordships, I might have thought of dividing the House on this Order. But I will not do so, because I do not think you can vote either for or against nothing: it still remains nothing at the end of the day.

There is a new theory being put about regarding all this, and it is that those of us who believe that it is right for the people of this country, and for this Parliament, to try to understand both sides of the case are appeasing. I do not think that that is where the charge of appeasement can lie. What is the main argument in favour of the Government's policy, but that at all costs we must appease world opinion? What is world opinion? Let us not confuse it with world conscience. And who but ourselves pays any attention to world opinion? Does Russia? Does the United States, except when world opinion supports American policy? Is the United States paying much attention to world opinion in South Vietnam? Does France consult world opinion? Does India consult world opinion on Goa or on Kashmir? We are the only ones who pay any attention to world opinion.

Is it not time that we began to have an opinion of our own? And would we not perhaps do rather better for ourselves, for the white Rhodesian and for the African Rhodesian, if we did? I remember a long time ago—a long time in my life, but not so long in the eyes of history—sitting in another place and hearing somebody say: …if the British Empire and its Commonwealth last for a thousand years, men will still say: 'This was their finest hour'. The British Empire and its Commonwealth has not endured for a thousand years; it has not endured for twenty- five. And here we are. My Lords, what are we? This once great country is no more than a nervous reflex transmitting to others external impulses which we receive. Can we not ask ourselves this question: Is history just something to be endured; or is history something that is made and influenced by men, and sometimes even by Englishmen?

4.48 p.m.

LORD HASTINGS

My Lords, I rise to make a few comments in support of my noble and learned friend Lord Dilhorne. I should like, first of all, to refer to a remark of the noble and learned Lord the Lord Chancellor when he was talking of the new so-called Constitution, and also to something that my noble friend said when he referred to this new so-called Constitution—the Smith Constitution, as we know it. He said that it did not really matter very much to what extent the Constitution differed from the 1961 Constitution, because it was, in any case, illegal. That is perfectly true: it is illegal. But I feel that when we are discussing this matter of Constitution we should really know what we are talking about. The Prime Minister, in his Statement on Tuesday last, said: In so far as Mr. Smith and his colleagues purport to be a Government, they have replaced it by an entirely new so-called Constitution."—[OFFICIAL REPORT, Vol. 270 (No. 8), col. 804; 23/11/65.] But, when pressed upon this point, the noble Earl the Leader of the House, in reply to the noble Marquess, Lord Salisbury, said that he, the noble Earl, was given to understand that the changes were very slight.

I know that that document is to be found in the Library of your Lordships' House now. I have looked at it, but of course, it is a very bulky document, as indeed is the original 1961 Constitution. I would ask the noble and learned Lord whether it would not be possible for your Lordships to be given the information in what respects precisely the Smith Constitution does differ. If it is very slight, I think it has some bearing on matters when we speak of this de facto, illegal Government in Rhodesia, because it gives one some idea as to the line of thought of the people of the so-called Government out there. I feel it is too much to ask anybody to wade through two very long Constitutions in order to find out what are the very small differences. It would be a great help if some précis or note could be made available to your Lordships so that we should know just what those differences are.

My noble and learned friend Lord Dilhorne pointed out that we are debating an Order in Council made under an enabling Act which we passed last week, which said that we should be able to discuss any Orders in Council the Government wished to bring before Parliament, subject to Affirmative Resolution. But as my noble friend pointed out, this particular Order in Council in theory will give carte blanche to the Secretary of State to govern Rhodesia; and that refers not only to the Legislative Assembly dealt with in Section 3 of this Order in Council, but also to the executive powers dealt with under Section 4. The Secretary of State will not have to consult any other person or authority before making an order, and he may make an order in writing under his hand. Apparently he may do these things without any reference to Parliament at all. I hope the noble and learned Lord will consider most carefully what my noble friend has said in this respect, because it seems to me that it is an extraordinary thing for the Secretary of State, representing the Cabinet and the Government here, to attempt to govern Rhodesia without reference to Parliament in this country.

There is another thing which worries me very much, and that is again a matter to which my noble and learned friend Lord Dilhorne referred. That is the wisdom of doing what the Government wish to do to-day. It seems that it is much more likely to strengthen the hand of the Smith Government than to weaken it. After all, as the noble Lord, Lord Coleraine, has pointed out, this is a piece of paper. The noble and learned Lord the Lord Chancellor and, in a Question earlier this afternoon, the noble Lord, Lord Beswick, referred to the impracticability of doing many of these things in connection with the funds of the Reserve Bank of Rhodesia, in connection with this Order itself. There is very little that is practicable that we can do under this Order in Council. If that be so, then the de facto Government of Rhodesia are bound to feel reinforced. I think the Government are making it very much more difficult for themselves to carry out what is said to be their policy. Here again I would quote from the Prime Minister's Statement yesterday: When the Governor is able to report that the people of Rhodesia are willing and able to work on constitutional paths we are prepared to work together with their leaders to make a new start." [col. 806.] That seems to be leaving the initiative entirely to the Governor and people of Rhodesia. I am sure this matter will arise again when we discuss the question of sanctions, which will come up under the Commonwealth Sugar Agreement and which is in everybody's mind all the time.

It seems to me most important that the Government themselves should take the initiative and, following upon the admirable suggestion of the noble Lord, Lord Caccia, when we debated this subject last week, and that of my noble friend Lord Alport, I beseech the Government to take the initiative, and to put forward their own proposals; because if they do not, I am quite sure we shall never get any proposals from the other side. I feel sure that this Order in Council will strengthen the feeling of the de facto Government in Rhodesia that it can carry on just as it pleases, because it knows, in point of fact, that nothing that is put into this Order in Council can be carried out effectively. Therefore I hope that the noble and learned Lord will consider these matters in that light and give us all the feeling that the Government of this country are going to do something rather more creative than they appear to be doing at the moment.

4.58 p.m.

LORD McNAIR

My Lords, I shall be very brief. I wish to assure the noble and learned Lord the Lord Chancellor that noble Lords who sit on these Benches are entirely of the view that it is necessary to equip the Government with the powers referred to in this Order. Put very shortly, it is an Order designed to enable Her Majesty's Government to fill the legal vacuum which has been created by Mr. Smith and his colleagues. This Order confers upon Her Majesty's Government full legislative and executive powers but, of course, it does not follow that they will exercise all the powers given to them by this Order.

As an illustration of what is happening in this legal vacuum, and of the need of arming the Government with the powers which, perhaps not to-day, but sooner or later, they will be able to exercise, I wish to refer to a statement which appears in The Times and other newspapers this morning regarding the action taken against a certain Mr. Leo Baron, an attorney practising in Bulawayo, who has been in practice for fourteen years. I have no means of verifying this statement, and I have no reason for throwing any doubt upon it. Her Majesty's Government will be able, I hope, to verify it.

Let me continue. This attorney, nine minutes after Mr. Smith began his unilateral declaration of independence broadcast, was arrested, and since then has been held in solitary confinement without trial. If that is true, it is a very grave matter—not only a grave personal matter affecting Mr. Leon Baron, but a grave threat to the administration of justice in Southern Rhodesia—because if solicitors and other legal representatives are liable to be arrested in this fashion and detained, how can we expect any proper administration of the law?

Therefore I venture to beg the noble and learned Lord the Lord Chancellor to institute inquiries to the best of the Government's ability in order to ascertain whether this statement is correct, and, if so, to use the Government's utmost powers of persuasion and otherwise to put an end to Mr. Baron's imprisonment.

5.1 p.m.

LORD BROCKWAY

My Lords, on this occasion I propose to speak very briefly and to direct most of my remarks to the scope of the discussion which I believe has been agreed upon between the two Houses. I want to make only a brief reference to what the noble Lord, Lord Coleraine, has said. Again I want to repeat what I have said before, that I appreciate the depth of feeling and the depth of sincerity of those who take his point of view. I want to say at once that I believe that human beings, their feelings and their loyalties, are more important than the legalistic issues which we are discussing. I recognise that those of whom he is thinking have these deep emotions to which he has referred. I want to put to him points of view on two matters which he has mentioned, in which I think he is out of tune with human developments at this time.

The first is his suggestion that the future of the African peoples in that Continent is really in the hands of the European minority and is an overall responsibility upon ourselves. I am not happy about what has happened in certain independent African States and I have used my friendship with the African leaders to influence them to courses which are more consistent with liberty and with democracy. But I would say to the noble Lord that he is completely out of touch with what is inevitable to-day in the climate of the world, if he thinks that the advance of the African peoples to their self-determination and independence can be blocked and that that can contribute to the future of the Continent of Africa. When all Africa right down to the border of Southern Rhodesia, when two-thirds of its people, has now gained its right to political and racial equality and to independence, to believe that that can be stopped at the frontier of Southern Rhodesia, where there is a minority of 220,000 Europeans among 4 million Africans, seems to me to be a complete misreading of the whole tendency of our century.

The second comment which I venture to make is on the noble Lord's remarks about the absence of recognition of international authority at this time. America, India, Russia, France, take little notice of United Nations' decisions. I would just say to him that, surely, if we are thinking of the contribution which Britain is to make for the future, we must seek a Government which understands the decreasing world in which we are living, which understands that unless we are loyal to international authority and the decisions of the United Nations this world will just go forward to conflict, disaster and, with nuclear weapons, to annihilation. Surely the aim of each one of us who wants to seek a world of peace and a world of freedom must be to contribute everything that he possibly can to the authority of the United Nations and to the international community.

I want particularly to address myself to the Deputy Leader of the Opposition (although I am sorry he is not here at the moment) on the constitutional point he raised about the Legislative Assembly in Southern Rhodesia. The noble and learned Viscount argued that, although the Government of Southern Rhodesia has been guilty of rebellion, and although our Government is correct in regarding it as illegal and in seeking to replace it, nevertheless that should not extend to the Legislative Assembly. I would say that in putting forward that argument he is emphasising what is coldly legalistic rather than representing the facts.

The Legislative Assembly of Southern Rhodesia is composed of 65 members. Of those 65 members, 50 are European. The Africans have the possibility of electing only 15 among the 65, and all the remaining 50 members have declared their support of the illegal Government which Mr. Smith has established in Southern Rhodesia. That small African minority—a population of 4 million Africans has 15 members, and 220,000 Europeans have 50 members—has declared its non-recognition of that Government. But in actual fact to-day the Legislative Assembly in Rhodesia, by its majority declaration that it accepts the illegal independence which Mr. Smith has declared, is just as much outside the scope of any Constitution which we can accept as is the Government itself; and I would strongly urge upon the Deputy Leader of the Opposition that when he is putting that point he is on very weak ground, even constitutionally.

I welcome very much indeed the speech which came from the Liberal Party. Under this Order Her Majesty's Government would have the right to declare that the legislation, not only that passed since the Southern Rhodesian Government became independent but, by Order of Council, even that passed before, and, as the Secretary of State for Commonwealth Relations has said, all the Regulations which have established the full Police State in Southern Rhodesia, shall have no authority and that those who are engaged in imposing the kind of oppression to which the noble and learned Lord, Lord McNair, referred are acting outside the law.

Mr. Ben Whitaker, who has gone to Southern Rhodesia and who has reported this case, is a friend of mine. He is a reliable person, a representative of Amnesty, himself an able lawyer, about whose words one has no doubt of the truth. He has reported the case of one European. There are thousands of Africans for whom this Parliament and this Government have great responsibility, and I support this section because it will enable us to say that the vicious Police State which is now being imposed upon the people of Southern Rhodesia by the Smith Administration has no authority and that those who commit these acts of aggression are committing acts which are against loyalty not only to our Government but to the Crown.

The third point I want to make is this. We are speaking here about the changes of the 1961 Constitution in the Smith Constitution. I do not believe that the maintenance of the 1961 Constitution will be any solution of this problem. Both the spokesmen for the Opposition and the spokesman for the Government have said that the solution must be a Constitution which is acceptable to the people of Rhodesia as a whole. Does anyone believe that even the 1961 Constitution will be acceptable to the people as a whole? It may be necessary as a starting point, but I hope that our Government will go forward to the solution advocated by the Commonwealth Prime Ministers' Conference, and by the United Nations, that finally the peoples of Rhodesia, European and African, shall be allowed in a representative constitutional conference to decide the kind of future which they desire for their country.

5.13 p.m.

LORD OAKSHOTT

My Lords, I promise not to keep your Lordships more than a very few minutes. Before I come to the two short points I want to make, may I say this? My noble and learned friend Lord Dilhorne dealt at some length with the making of further Orders under Section 3 of this Order, and reflected upon the fact that when these Orders are made they will not be subject to either the Affirmative Resolution or the Negative Resolution procedure in Parliament. I do not want to go into detail on this matter. All I should like to do, and all I can do, is to register a protest at this. As one who spent quite a lot of time in the other place, I was brought up with a healthy dislike of uncontrolled delegated legislation. I found it repugnant, and I think most people with a real regard for our Parliament and our Parliamentary institutions would find it repugnant, that Orders may be made over which we have no control at all, except, as the noble and learned Lord on the Woolsack said during his speech, that somebody may put down a Motion about them, and that is all.

By its very nature this Order is obviously largely negative in character. There must be an Order like this, I fully accept; I follow my noble and learned friend. We must declare null and void the illegal acts of a body of people like that. But all I would say, if I may, is that I most earnestly hope that the effect of this Order will not be to bang any doors. For surely it must be the hope of everyone, I should have thought, in your Lordships' House, to see a settlement which is both just and brought about as quickly as may be.

Under Section 3(1)(a) of this Order, which has been mentioned several times in this debate, the Legislative Assembly in Salisbury may no longer act with authority or transact any business, and so to some extent an element of direct responsibility lies fairly and squarely on this Government and this Parliament. And the question to which I can find no answer myself at the moment is, how are we to exert that authority? I confess to a feeling of unreality in a situation like this. Therefore, as part of what may flow from this Order—that obviously is certainly not the end of the story—we must, I think, look to future moves; and I would ask Her Majesty's Government to pay particular attention to two points. These are the only two things I want to say to-day, and they both, I think, flow from this Order.

First of all, on the question of communications, I would appeal to the Government, by every means that they can, to keep the lines to Salisbury open. Sooner or later, we know, situations like this have to come to discussion at the table. Sooner or later, we know, we have got to talk to someone. I have no idea who that someone will be, but all our past experience shows that this is what happens. We should remember perhaps that the Irish, too, were once called rebels; it is a long time since anyone has described them as that. India, Cyprus, Kenya—in every case we have had to come finally to talk to somebody. Therefore, it seems to me vitally important that we should keep some channel open, for if, through lack of a channel, lack of someone to whom we can talk, we were to lose an opportunity of reconciliation, it would be a tragedy indeed and something for which I think we should find it difficult to forgive ourselves.

My second point, which really flows from that, and it was one mentioned by my noble friend Lord Hastings a few minutes ago, is what is to follow. It seems to me it will be either very difficult or impossible to go back to the status quo of the 1961 Constitution. But we cannot leave it there, and we cannot, I think, just wait for some unspecified person or group of people in Rhodesia to approach us. I do not think that will do. We must ourselves make known, at least in outline, what we should regard as an acceptable alternative. This was said in the debate last week, in far more telling terms than I could hope to use, by the noble Lord, Lord Caccia. He was speaking from the depth of his great experience in diplomacy and negotiation.

I beg Her Majesty's Government to take heed of that very good advice and declare themselves quickly, for only they, with their knowledge of the facts, can determine what the right moment is. I beg them to declare themselves as soon as they can, for there are in Rhodesia men of good will, men of good judgment, who could exercise great influence if only they knew what the mind of Her Majesty's Government was. If they are to use their influence, then they must know this soon. I respectfully suggest to your Lordships that those two positive courses—channels of communication on the one side, and the early clarifying of our position at this end on the other—are of prime importance if we are to see a settlement of this very dark and unhappy affair.

5.20 p.m.

LORD COLYTON

My Lords, I must first of all apologise to the noble and learned Lord on the Woolsack for my inability to be here during his speech. I did, however, have the benefit of listening to the Attorney General yesterday in another place. I should like to say briefly to your Lordships why I find it impossible to support this Order. First of all it is because it is futile; and, secondly, because in certain parts it is, in my opinion, dangerous. The Order is futile because, whatever action may be taken under it, whether by the Privy Council, by the Secretary of State, or by the Governor, it simply cannot be enforced; and any order or law which has that effect can lead only to Parliament, and, more particularly, Her Majesty's Government, looking foolish.

I also dislike this Order because, in my view, it is dangerous, for many reasons, some of which were most eloquently given by my noble and learned friend Lord Dilhorne speaking from the Opposition Front Bench. Incidentally, I should like to remind him of the fact that, when he said that for the first time for 40 years there was a question of direct rule over Rhodesia, that is not the case, because Rhodesia has never been ruled from Whitehall at all in the whole 75 years of its history. I think it dangerous because it seems to me that this Order goes back on undertakings given by the Prime Minister and the Commonwealth Secretary in another place on a number of occasions, that they did not intend to suspend the 1961 Constitution. It is true that this Order does not suspend that Constitution, and that that would require separate legislation; but it seems to me to take so much out of that Constitution that it has the same effect.

I was glad to learn that something which I had at first feared when reading this Order, is not to take place. Yesterday, the Attorney General said that the entrenched clauses and the Declaration of Rights are not being suspended. That seems to me to be most important. Here, I should like to say how much I deprecate the flinging about of the word "traitor" and that sort of thing, as was done again by the Attorney General yesterday in another place. It seems to me that you cannot call anybody a traitor, unless he has been tried for and convicted of treason. So far as I know, that has not yet occurred.

I have here a copy of the illegal 1965 Constitution, and I should like to draw your Lordships' attention to the fact that in this document you will find the Declaration of Rights in almost, so far as I can make out, identical terms with what existed in the 1961 Constitution. You have protection of right to life, protection of right to personal liberty, protection from slavery and forced labour. You have protection from inhuman treatment. You have protection from deprivation of property. You have protection of privacy of the home and other property. There are provisions to ensure the protection of law. There is provision for the protection of freedom of conscience and of assembly and association. All those things are contained in this so-called illegal Constitution, and they are enforceable by appeal to the Appellate Division of the Rhodesian High Court.

I must be absolutely frank and point out that again, as in the previous Constitution, there is, in Section 78, the condition that in periods of public emergency certain sections of this Declaration are suspended. But there again—and I think this should be known in relation to the remarks which were made by the noble Lord speaking from the Liberal Benches—there is a right of appeal to a tribunal which must include among its members at least one person who holds, or has held, high judicial office in Rhodesia or elsewhere, or who is an advocate or attorney of the High Court of not less than seven years' standing. So to talk about a Police State really does not make sense.

LORD ARCHIBALD

My Lords, may I ask the noble Lord whether when he was running through the section he mentioned—perhaps I failed to hear it—freedom of the Press?

LORD COLYTON

My Lords, it is a long section and I cannot find it. But I feel sure that it is there, as it was in the old Constitution.

LORD ARCHIBALD

The noble Lord only feels sure that it is there; but he cannot refer to it.

LORD COLYTON

My Lords, I cannot find it at this moment, but I will hand the document to another noble Lord who is to speak.

The other point I want to make briefly to your Lordships is simply this—and it has already been made, far better than I could ever do it, by my noble friend Lord Dilhorne. It seems to me that it is quite wrong by this Order to suspend the Legislative Assembly which, so far as I know, has not done anything treasonable. It has not even voted or spoken on this issue at all. It appears to me that it is quite wrong to put this provision into an Order at this stage. I should have thought it would have been far better, as my noble friend said, to let the Members of the Assembly, including their fifteen African Members, have the opportunity of debating and stating their views in public, and taking any repressive action of this kind only should the Legislative Assembly for some reason itself misbehave. It seems to me that we are foolish in taking this action which suspends the Legislative Assembly, when its own illegal Constitution allows it to sit, and, as I think my noble friend pointed out, all the Members of that Legislative Assembly have been perfectly legally elected.

I share the views of my noble friends Lord Hastings and Lord Dilhorne about the danger of giving these wide powers by Order in Council which cannot be discussed or debated, or at any rate approved or disapproved, at all by this House or another place. I think it is a most dangerous precedent. It is dangerous only because it is a precedent; for, as I said at the beginning of my remarks, the whole of this Order is futile because it cannot be enforced at all. I conclude by endorsing everything that my noble friend Lord Oakshott has said about trying to keep open the channels of communication. I am sure that we have to do that. Indeed, I think it is the most important thing for the Government to pay attention to at this stage.

5.28 p.m.

LORD SALTER

My Lords, when I came to this House this afternoon I sincerely hoped that I should not feel it to be my duty to ask to be allowed to trespass for some time on your Lordships' discussion. I continued to cherish that hope until I heard the moving speech of my noble friend Lord Coleraine, who gave us a wide perspective, a depth, a background to this particular question that we are discussing to-day. I then felt irresistibly that it was time for other people who, like myself, have no special knowledge and no special authority on the subject, to begin to express without further delay something of what I know many to be feeling, and what I believe many more will in the near future be feeling, and feeling deeply.

Let me, to start with, say that like probably everyone in this House, I deeply regret the illegallity and the unwisdom of the Unilateral Declaration of Independence. I do not propose now to do what I might on another occasion do—namely, say something about what I think were among the causes which partly explain, and to some extent even mitigate, the unwisdom of that action. But I entirely agree with those who emphasise the fact that it was both illegal and unwise. Let me also say that I recognise that among the white settlers in Southern Rhodesia are a number whose attitude towards the other citizens of that country has long been indefensible and whose attitude is continued in what, I am sure, is the fantastic illusion that that attitude and the monopoly of power on which it is based can be indefinitely continued. Those things are generally and universially recognised.

However, I think that all who are concerned with responsible action should have in the back of their minds some other considerations, too. The United States think that they have had a difficult problem in handling their bi-racial problem, but those who have the greater part—though not so great a proportion as in the case of Rhodesia—of the experience and skill both in government and in the direction of economy are there ten to one. Here in this case, we have the skill and experience, both in government and in the direction of an economy in which all citizens of that country black or white share, in a monopoly not of a ten-to-one majority but of a one-to-sixteen minority. It is an extraordinarily difficult problem, perhaps an insoluble one, for those who have created and maintained a measure of good government and a measure of prosperity in that country over these years.

We ought also to bear in mind as a background to our thinking certain other considerations. We can and should learn from experience of what has happened in what were quite recently Belgian colonies and British colonies in Africa—I do not say in regard to every one of them but some of them—as to how possible it is that there should be a very rapid transition from colonialism, to chaos, to tyranny, a tyranny which has no element of real democracy and no security for freedom. That has happened frequently; it may well happen again.

In these circumstances, I suggest that it should have been the preoccupation of all concerned responsibly with this problem to try to secure such time for transfer or sharing of responsibility as would enable the proper preparations to be made in the minds and training and experience of those who would be taking a greater share of power. In the second place, it should have been their preoccupation to see that, during the interval so obtained, everything possible should be done in order to minimise the danger of the seizure of dominant political power by those who have no adequate experience or the knowledge required for the maintenance of what Southern Rhodesia has achieved to the advantage of all its citizens.

I do not wish to go further than this, except to say that there is one further reason I have for addressing your Lordships on this matter. I have been impressed in the discussions in this House and in another place and outside this House, and outside the country, by what seemed to me to be a wrong proportion between the different considerations which must be kept in mind. Of course, an important legal question is involved. Of course, it is true that the recent Government is no longer the legal Government. That is one factor. But legalities are not so much the dominant and exclusive factor in the whole of this problem as most of the discussions which have hitherto taken place would suggest. I suggest that it is a part of our Constitution and of our historical tradition that the rôle of law is to set the terms and limits and conditions within which when a much later political problem arises the statesmen of the time should direct and mould their own task of solving the essential political problem. It is not that the law itself should dictate directly what that solution should be.

I suggest that in this very elaborate discussion of the legal aspects of this problem there has been some tendency to overlook, or to put in inadequate perspective, the enormously difficult and important political problems which are essentially those of a statesman and not of a lawyer, to maintain something of the civilisation which, however imperfect, is much better than anything that country had ever known and much better than it may very well be in the very near future. I suggest that it is unwise to defer longer anything which will encourage a wider expression to be given by those who have such sentiments in their minds as my noble friend and I myself have. I think that it is dangerous for the discussion inside and outside Parliament to go on in the perspective which has governed most of what has been debated during these last few weeks.

5.38 p.m.

THE MARQUESS OF SALISBURY

My Lords, in following the deeply impressive speech of Lord Salter to which we have just listened—a speech which I thought was made the more impressive by the noble Lord's very long experience of international affairs—I do not intend to go into the details of the Order, any more than he did. Indeed, I think there would be no point in doing so; for, as we all know, Orders in Council cannot be amended. They can only be withdrawn in the light of criticism and reintroduced, and I gather that the Government would not be prepared to do that. But I should like, on this first and widest Order we are now discussing, to make a few remarks with regard to the general policy of sanctions which these Orders in Council are designed to support.

As your Lordships know, last week in this House we discussed and passed an enabling Bill to give the Government far-reaching powers to deal with the crisis in Rhodesia. On that occasion even those of us who were most unhappy as to the trend of Government policy towards that country decided not to divide against the Bill—not because we approved of all the measures which the Government had contemplated, but because we recognised that, in the situation which had arisen, there were probably some steps which simply had to be taken, and because we knew, too, that we should have a further opportunity to examine these individual measures when the Orders in Council came before the House. Now, to-day, the first batch is actually before us. That puts us all, I feel, in a position when we must take a further look not only at the measures themselves with which the Orders deal, but at the whole policy regarding Rhodesia as it has developed as a result of the Rhodesian Government's unilateral declaration of independence, and of our own country's position in relation to that.

Like, I suppose, other noble Lords, I have tried very hard to do this, and if I trouble the House for a moment with the result of my cogitations it is not because I consider these in themselves of any importance at all, but because I believe that they represent, broadly speaking, the views, not perhaps held so strongly in Parliament, but certainly held very strongly by hundreds of thousands, and possibly millions, of people in this country. I think I can most clearly describe the conclusions to which I have come by reference to a very simple analogy, which I hope will not be regarded as too far-fetched or, indeed, too frivolous.

When, a very long time ago now, I was in charge at one moment of the Colonial Office and at another moment of the Commonwealth Relations Office, it always seemed to me that the constitutional advance of the British dependencies could fairly be compared with the advance of a child from infancy to the full maturity of manhood. Infancy—what might be called the nursery period—was represented by full Crown Colony government, when they had no share at all in the management of their affairs. Then, gradually, during what I think might be called the school period, they acquired a larger and larger measure of internal self-government, until eventually they grew up to full maturity with absolute control over their own affairs, both internal and external; in fact, as full members of the Commonwealth.

If I may pursue that analogy just a little further, I would say this. The main anxiety of some of us during recent years has been whether we in this country were, perhaps, tending to regard an increasing number of our family of nations as adult, when in fact they were still what might be called teen-age—and some of them early teen-age. But in this present case I believe that the country has erred, unusually, in exactly the opposite direction; that it has made the mistake so common as we know in many parents, of regarding its offspring as still children when they are, in fact, already quite grown up. Indeed, Rhodesia has been grown up, to my knowledge, for quite a long time. It was already practically so when I first had to do with that country over twenty years past. As far back as that, it was entirely responsible for its internal affairs, and though there was at that time one provision in the Constitution allowing an appeal to the Home Government over legislation that appeared to differentiate between the European and the African, that provision, so far as I know, was never used at any time; and under the 1961 Constitution, I think I am right in saying, it disappeared altogether.

Rhodesia, in fact, in all but name, had attained its majority, and these recent attempts to reassert United Kingdom control are, I believe, as a result, wholly retrograde, and are resented by the whole white population; not merely by the supporters of Mr. Smith, but even by his most convinced political opponents. It is no good saying to Rhodesia that she has got to do what her parents tell her, or she will be put back in the schoolroom, or even back in the nursery, which is, I think, the effect that the Government are trying to produce. Rhodesia will reply "We are now adult; we are now grown up, and we shall run our own life our own way." In that sense, of course, she may be described as rebel, in the same way as many young people who reach their maturity tend to rebel against undue parental control. But the Rhodesians are not rebels in any other way but that. If we recognised their maturity they would again be, as they still are, the most loyal subjects of Her Majesty the Queen. But if we continue and intensify this policy of sanctions, of which this Order is only one example; if we try, as it were, to put them back under the tutelage of children, we shall fail. We shall fail, and, what is more, we shall only rally to the present Rhodesian Government's side those other elements who on many points—perhaps on most points—may not at present agree with them but who, on this one issue, this one dominant issue of Rhodesia's maturity, are completely at one with them. The policy of sanctions, in my view, therefore, is both unrealistic and reactionary, and if we do succeed by our efforts in ruining the country—black and white alike—Rhodesia will not, I am sure, even then surrender but will go down proudly with her head held high; and it is we who will have to eat the bitter bread of humiliation.

My Lords, in such circumstances, ought those—if there are any in this House—who share my view to vote against these Orders? I have pondered this question very much, but I have decided against, for myself at any rate, for this very simple reason: that were we to succeed, the country would be without any policy at all; it would be left with merely a vacuum. And even a policy that fails, as I believe that this must, might be less disastrous than no policy.

But I believe (and this is the last thing I want to say) that in the long run there is only one policy that can really succeed; and that is to recognise Rhodesia's maturity, to give her her independence, and then sit down with her—not necessarily with Mr. Smith and his present Government, but with a more widely based Administration—and discuss with her, as two adults, on a basis of equality, the problem of bringing forward the African section of population, not necessarily, as the Prime Minister himself said, to-day or to-morrow, but as soon as is reasonably possible, into a truly multiracial partnership. That, I am sure, is what the great majority of people in this country of ours, in their wisdom, would like; and I believe it is that for which we must work in the years that lie ahead.

Therefore, for the reasons which I have explained, I would not suggest our voting against these Orders. If the Government are determined on them we cannot stop them going through, deplorable and, indeed, disastrous though I am afraid the policy may be. We can only protest against a policy which I believe to be so ill-judged and likely, I am afraid, to be so unhappy, even disastrous, in its results to Rhodesia and maybe to our own country as well.

LORD GIFFORD

My Lords, if I may take up the noble Marquess on his analogy of parent and child, may I ask him whether he would not agree that it is the white Rhodesian population who stand in loco parentis in this matter? It is they who have completely failed in their parental duty, and it is therefore right for the British Government, whom one might call the grandparents, to resume parental care.

THE MARQUESS OF SALISBURY

No, my Lords. I would not agree at all. I think there has been a steady advance, which can be seen in the greater prosperity of the country, in which the Africans share, during the period the white Rhodesians have been there.

5.48 p.m.

LORD MOLSON

My Lords, I am sure that many of your Lordships were deeply impressed by the remarkable speech made by my noble friend Lord Salter. That speech, resulting from his long administrative experience, had all the indications of coming from one who has given long thought to political theory and to history. I, for one, have no doubt that the best hopes for the future are in the emergence of a Party and some kind of Government in Southern Rhodesia with which it will be possible for this country to open negotiations and to resume friendship. But I cannot see anything inconsistent in that and the acceptance of the Order before the House at the present time. Indeed, on the contrary, I believe that it is only by adopting the kind of attitude expressed by this Order, and by taking the powers that are provided for in it, that it will be possible for this country to maintain its responsibility for Rhodesia with a view to ultimately establishing in Rhodesia the kind of bi-racial Constitution which I think my noble friend has in mind.

My Lords, consider the position as it is at the present time. We have to bear in mind the legal position. We must have the right kind of legal framework, the right kind of legal machinery, in order to arrive at that very settlement which my noble friend has in mind and has advocated. What is the position at the present time? There is no legal Government in power in Rhodesia now, and it seems to me to be essential that this country and this Legislature should take power, as is done under Section 3 of this Order, to pass and make legal such laws, rules and regulations as may prove to be necessary as events in Rhodesia gradually develop. When we have an illegal Government, one that has been dismissed, and when we have, in Rhodesia, a Legislature the overwhelming majority of which is in support of that illegal Government, then surely it is necessary that the Secretary of State and the Governor should have the legal powers to deal with the situation as it arises.

Now some noble Lords took exception to Section 4 of this Order on the ground that it gave to the Government unrestricted powers of administration: that there is no Parliamentary control over it. My Lords, it has always been a feature of our Constitution that the Government govern. It is not the concern of either House of Parliament to exercise direct control over executive action. That is the very thing which has brought the Government of France into such difficulty: where an emotional Legislature has sought to interfere with the exercise of executive authority by the Government. We in this country have managed always to maintain a strong Executive. The powers of this House and of another place are to call the Executive before them and to criticise, if they wish to do so, the exercise of that authority. There is all the difference in the world between interfering with the exercise of that authority and holding the Government responsible for errors that are made.

So it seems to me that this Order is, from the legal point, essential for dealing with the present situation. First, with a Government which is in open revolt, it is right and necessary to make it absolutely plain to everybody that nothing that they do has any legal validity. Secondly, it seems essential also that, when there is no legal Government in Rhodesia, the Secretary of State and the Governor should be given all the powers that are necessary to legislate in a legal manner. Thirdly, it may well prove to be necessary for this country again to exercise direct control over that territory.

LORD COLYTON

It never has.

LORD MOLSON

It never has since 1923.

THE MARQUESS OF SALISBURY

Never.

LORD COLYTON

My Lords, I am grateful to my noble friend Lord Molson for giving way. This country has never exercised any control whatever in Rhodesia. From 1890 to 1923 Rhodesia was administered by the British South Africa Company.

LORD MOLSON

My noble friend is right about that, but there has not been the slightest difficulty about asserting the kind of authority over Southern Rhodesia that was exercised over, for example, Northern Rhodesia or Nyasaland before the Federation. One thing seems to me to be certain: that if this country does not restore its own authority over Rhodesia others will intervene from outside in order to make certain that this rebellion is not successful. My Lords, I can think of nothing more disastrous to everybody, and certainly to the peace of the African continent, than that the Afro-Asian group, supported by Communist Powers, should intervene and exercise authority in Rhodesia. I believe that through this Order it will be possible for this country, if not to re-assert then to assert for the first time its direct authority; and when that has been done I am confident that any Government in this country will desire to give to Southern Rhodesia the kind of liberal Constitution which was under discussion in all these negotiations.

The present Prime Minister has made it quite plain that there is no intention at the present time to introduce "One man, one vote" to-morrow. With that assurance from the Prime Minister, there is ample scope and opportunity for negotiation, reasoning and conciliation between the different races in Southern Rhodesia; and that can be done only under the aegis of the British Government.

5.53 p.m.

LORD GRIMSTON OF WESTBURY

My Lords, I did not mean to speak in this debate, but I felt I really had to rise and say a few words following the speech which has just been made by my noble friend Lord Molson, because it seemed to me that, in the last part of his speech, what he was asking for was for this country to use force—for there is no other way in which our writ can he exercised in Rhodesia today than by the use of force; and that is one of the reasons why I find this debate to-day rather humiliating. I so agree with what my noble friend Lord Coleraine said in his impressive speech, and with the noble Lord, Lord Salter. It seems to me most humiliating that, when we are discussing this particuar Order, these powers, we have a situation in which Rhodesia has revolted, largely through our own fault in this country, and we are now talking about taking powers to quell that revolt by these Orders, when we have not the power to do so. I can scarcely think of anything more humiliating for this country.

In support of what I said about a lot of this being our own fault, I want to refer to what the Prime Minister said the other day in reply to a supplementary question, and I venture to quote it to your Lordships. He said—and these are his words: What is important to say here… is that there are too many people still in Rhodesia who think that the only alternative to this illegal action and all the economic consequences that will follow from it would be majority rule to-morrow or the day after. Repeatedly we have all said, on both sides, that this is not a runner at all, and that Rhodesia is not ready for immediate majority rule."—[OFFICIAL REPORT, Commons, Vol. 721 (No. 11), col. 259; 23/11/65.] I wish that had been said even months ago, because we perhaps would not have seen this situation. My noble friend Lord Hastings referred to this in his (if I may say so) very able speech during our previous debate: that if what had been said at the last moment by the Prime Minister in these negotiations had been made clear two years ago, we would never be in this situation. The feelings in Rhodesia which have brought the Government to power would never have existed; and we here are to blame. And here we are, with the blame on our shoulders, humiliating ourselves by taking powers that we know we cannot enforce. We are not going to vote against this. As my noble friend said, it is nothing, whether you vote for it or not. I hope the day will come when we can recover from this humiliation; but it will come only if we keep the lines open and the communications going with our people in Rhodesia.

6.1 p.m.

LORD WELLS-PESTELL

My Lords, it is with some diffidence that I rise to participate in this debate, but I do so because of what the noble Marquess, Lord Salisbury, said during the time he was speaking. I am well aware that your Lordships do not want a re-hearing of the debate that we had on the Second Reading of the enabling Bill, but I feel quite certain that you would concede the right of a Member of this House to say what he feels he is obliged to say.

It seemed to me, listening to what has been said in this House this afternoon that there is a considerable cooling-off on the part of some noble Lords opposite in the matter of dealing effectively with Rhodesia; and this seems to me to be a most regrettable matter. It is generally accepted that the Smith régime has acted illegally, although I suppose there are some noble Lords opposite who would be quite willing to condone its acts. If the Smith Government acted illegally and unconstitutionally—and there is no doubt that it did—then the situation must be dealt with, in my view, with resolution and in the most effective way. There cannot be any half-hearted measures to deal with it. We must either accept what has happened and get out of Rhodesia, or establish our legal and constitutional rights and be prepared to be tough, as tough as the situation demands.

History has demonstrated that half-hearted sanctions have failed in the past to deter the aggressor, and they have certainly never succeeded in bringing the rebel to heel. Sanctions must be applied, I feel, with all possible severity; and it is nonsense to say that they must not be punitive. The whole point of sanctions surely is to punish. I am quite unashamed when I say that I think sanctions in this instance must be not only punitive but catastrophic; they have got to hurt. The Government—and I feel this strongly—must face this fact and be prepared to go to all necessary lengths. Our aim in Rhodesia must be not only to put an end to the rebels but to establish majority rule at all costs. This may well mean going to all necessary lengths and I hope that the Government will not hesitate to do so.

It is all very well for the noble Lord, Lord Colyton, to say that Rhodesia is not a Police State. It is all very well for the noble Lord to quote the Rhodesians' Declaration of Rights. I think Hitler claimed to have a Declaration of Rights. And if the noble Lord were to read the reports and statements made by the three British policemen who succeeded in escaping from Rhodesia, he would not say that it is not a Police State. Majority rule is not acceptable to the Smith group: to them it is minority government for all time—in other words, the subjection of 4 million Africans, with no hope of self-government.

LORD SOMERS

Nonsense!

LORD WELLS-PESTELL

My Lords, of course it is nonsense to those noble Lords who want to see minority government. This is the real moral principle behind this regrettable affair. This, I feel, is where our duty lies. Before this unfortunate business is over it may well be that armed intervention may be necessary, if peace is to be maintained in Africa—if our systems of sanctions are not effective.

Some of your Lordships may be familiar with a new publication which came out only a month or two ago. It is called The New Christian and it is representative of all religious denominations. It is an informed fortnightly publication, and I should like to quote from it. It says: The position in Rhodesia to-day is analogous to that of a seriously-ill patient whose life depends on an immediate operation rather than on long-term medication.

LORD SOMERS

My Lords, I feel that I cannot let the noble Lord sit down without saying a word or two about what he has said. He has, first of all, advocated the pushing of punitive sanctions to their utmost, and he says, very bravely, that we have to be tough about it. But I wonder whether the question has ever occurred to the noble Lord: Who is going to be hit hardest by that toughness? Economic sanctions are going to mean poverty, leading to unemployment and hunger, for the people of Rhodesia; but, chiefly, of course, it will be the African population who will suffer. Yet the noble Lord says that they are the ones he wants to protect.

As for majority rule, that, to my mind, is just a political catchword. It does not mean very much; it does not mean very much even in our own highly-civilised country, because the majority really know very little about what goes on in Parliament. It is always the minority of those who are politically educated who govern the country. In a country such as Rhodesia, where the great mass of the population are scarcely civilised, it means still less.

But if the noble Lord thinks that I am against the gradual education of Africans, and the gradual inclusion of African participation in government, he is entirely mistaken. I am absolutely in favour of it. In fact, it is taking place at the present time. There are Africans sitting on the Legislative Council this very day. And he has only to consult any of those who know Rhodesia to know that the African attitude towards the whites is that they are very willing to follow their leadership and are not anxious to take over until they feel able to do so.

6.9 p.m.

THE LORD CHANCELLOR

My Lords, I hope you will forgive me if I lower the temperature by returning to the subject-matter before the House, which is whether the first out of eight Orders should be approved. May I say, in further answer to the noble Lord, Lord Coleraine, who asked me a question about Section 3(4) that the reference in that subsection to the Statutory Instruments Act 1946 is a reference to Section 4 and not to Section 5. Section 4, of course, is the general section which provides for the laying of Orders before Parliament but contains no provision for a Parliamentary review, whereas Section 5 begins: Where by this Act or any Act passed after the commencement of this Act, it is provided that any statutory instrument shall be subject to annulment… and so on. Then it provides for a Parliamentary review. As those words do not apply to these Orders in Council it is Section 4 which is applicable, and not Section 5.

LORD COLERAINE

So there is no Parliamentary review.

THE LORD CHANCELLOR

That is right. Then, the noble and learned Viscount, Lord Dilhorne, and also the noble Lord, Lord Hastings, raised a number of points on the Order. The noble and learned Viscount first referred to Section 2 and said he was glad of the declaration of invalidity of the so-called new Constitution, but as to subsection (1) he thought it might lend colour to the view that the 1961 Constitution had in some way gone. I venture to think that is not so, but of course I fully support what he said when he said it was necessary to stress that it was only temporary. It is because of that that it is prefaced by the words "so long as the section is in operation", so it would be very simple to return to where we were once there is a constitutional Government.

As to Section 3(1)(a) and (b), he was doubtful about the power to prorogue the Legislative Assembly and thought that it might have been better to let them make their laws and then rely on the Governor's powers which could be amended under the existing Constitution. In the first place, this Order is an enabling Order: it merely enables the Government to do various things. There is nothing in the Order which could in fact stop any members of the Legislative Assembly from meeting and doing what they like. But it is worthy of comment that, if we had in fact allowed the Legislative Assembly to continue, and had they made other arrangements for the position of the Governor, under the Section of the Constitution which enables us to make an Order in Council to that effect that Order in Council would not have been subject to any form of Parliamentary review.

My Lords, the only real argument, I think, has turned on Section 3(1)(c), on the ground that this ought to have been, but is not, and Orders made thereunder ought to have been but are not, subject to an Affirmative Resolution. The brief answer, I think, is that the Order itself has been made because it is necessary or expedient in consequence of the illegal Declaration of Independence. It is suggested that these Orders should be subject to Affirmative Resolution. It should be borne in mind that the Orders made under Section 3(1)(c) are what have been called "grandchildren". That is to say, we have the Act which is the parent; we have the Orders in Council made under the Act, which are the "children", and the Orders in Council which are made under an Order are the "grandchildren". Then there are the executive Acts, which may be called the "great-grandchildren". They are subject to Parliamentary scrutiny in the sense that they have to be laid before Parliament, but they do not require any Resolution because really the "grandchildren" are the equivalent of laws made by the Southern Rhodesian Legislature for the peace, order and good government of that country, and the latter are, of course, in no way subject to scrutiny of any sort by the United Kingdom Parliament.

VISCOUNT DILHORNE

My Lords, does not the noble and learned Lord the Lord Chancellor appreciate, if I understand him correctly, that under Section 3(1)(c) the Privy Council are now taking over the full legislative functions of the Legislature of Southern Rhodesia to make all kinds of laws for the peace, order and good government of Southern Rhodesia? If that be so, and the Assembly is not operating, I ask the noble and learned Lord the Lord Chancellor to appreciate that the point we are putting is that, if there is to be that exercise of legislative authority by the Privy Council, it should be subject to review by this Parliament under an Affirmative proposal.

THE LORD CHANCELLOR

My Lords, I do not doubt at all that these things are matters of opinion. I was only pointing out that they take the place of laws which would previously have been made by the Southern Rhodesian Legislature, which laws would not have been put before Parliament at all; whereas under the Order as made, the Orders in Council will in fact be statutory instruments which will be laid before Parliament. In point of fact, the laws which are likely to be made under Section 3(1)(c) will, after all, be of one of two characters. They will either be expressly aimed at combating the illegal Declaration of Independence, or they will be laws which are necessary to fill a gap caused by the illegal Declaration of Independence and which cannot be left unfilled.

Then, the noble Lord, Lord Hastings, referred to the illegal Constitution and appeared to think it was rather useless to take steps to declare it illegal—it did not really do anything. He asked for enlightenment whether it was right to say that this made substantial changes or whether, as my noble friend the Lord Privy Seal indicated, the changes are rather slight. If one looks at it textually, the changes are slight. That is to say, the number of sections altered is relatively small. As one noble Lord has pointed out, the whole section dealing with what has been called the Bill of Rights has been left, as indeed has the whole of that chapter. But the minor changes made include the elimination of the Governor. It starts: The Constitution of Southern Rhodesia 1961, granted to Rhodesia on 6th December, 1961, under the Southern Rhodesian Constitution Order in Council 1961, and the provisions of the said Order, are hereby declared to be of no force or effect in Rhodesia immediately before the appointed day and shall at such time be repealed and revoked by this Constitution and no longer operative in or for Rhodesia. Then it brings into force this Constitution and replaces the Governor by the man who was going to be, or at one time was said to be, a Regent; but apparently they have given that up and now call him the Officer administering the Government.

The Officer administering the Government appears to be able to do almost anything, because by Section 140 of this document Notwithstanding anything to the contrary contained in this Constitution, the Officer administering the Government may by Order published in the Gazette within six months from the appointed day modify or adapt any provision of this Constitution to such extent as may appear to him necessary or expedient"— so he is a complete dictator— for the avoidance of doubt"— I do not think that matters. Then, As from the appointed day, any reference in any law enforced in Rhodesia to the Governor shall be read and construed as a reference to the Officer administering the Government. The validity of this Constitution, except as provided therein, and anything done there-under shall not be inquired into in any court. Under the provisions of this Constitution, anything so done shall for all purposes be regarded as valid. Although the changes are not very numerous textually, if the document had any validity at all they would in fact be rather important.

I am sure that your Lordships will not mind if at this hour I do not discuss the very difficult political problem of Rhodesia. We all know the depth of conviction and sincerity of the noble Lord, Lord Coleraine, in the views which he has expressed. He sparked off my noble friend Lord Brockway, of whom much the same may be said, and other noble Lords then took part. But we are really here to discuss, if I may remind your Lordships, whether or not this particular Order ought to be approved, and I do not think that your Lordships would thank me if at this hour of the evening, as we have seven more Orders to be considered, I started a general review of the problem of Rhodesia.

I would say in passing, if I may, in answer to the noble Lord, Lord Colyton, because this relates to the Order we are now discussing, that I cannot agree that an Order of this kind is futile and dangerous simply because it cannot be enforced, as he said. I do not believe that this is true. Take, for example, the censorship regulations—or rather the de-censorship regulations—made under this Order. If proceedings are taken against a newspaper for exercising its right of free speech in defiance of the censorship regulations passed by the illegal Government, they will presumably be charged and brought before a court. It will be the duty of that court to apply the law. The law—subject, of course, to the view of that court, because it is not for me to prejudge it—will be the law provided in the regulations which we have made. Therefore it is of great importance what the law is, if we are to assume—as I certainly do assume—that the judges of Rhodesia will loyally enforce the true law.

As to the Bill of Rights contained in the illegal Constitution, I am sure the noble Lord will bear in mind that there is in force a Declaration of Emergency under the Emergency Powers Act. There is now a Police State. Anybody can be arrested and detained in prison—it is not just a question of restriction. Nobody is allowed to publish the names of those arrested; they have no right of applying to a court, no right to be charged with an offence and no right of appeal or of application to any court, because when the terms of the Emergency Act are enforced the human rights of the old Constitution have been overridden. The only other point which I think I ought to mention is that I cannot accept the suggestion that this is our fault because we ought to have made plain months ago that we were not suggesting African majority rule to-day.

LORD GRIMSTON OF WESTBURY

My Lords, perhaps the noble and learned Lord will allow me to say that when I said "our" fault, I was not meaning his Government. I meant Britain.

THE LORD CHANCELLOR

My Lords, what I cannot, with great respect, pass without some degree of remonstrance is the suggestion that if only we had made plain months ago that we were not suggesting African majority rule to-day or to-morrow, this would not have happened. Months ago, when my noble friend the Colonial Secretary and I went to Rhodesia, we said to Mr. Smith, to his Cabinet, to the Opposition in Parliament, to the African Nationalists and to everybody whom we saw, that there was no question of African majority rule to-day or to-morrow. We said that there was no need for this atmosphere of crisis. We had not come to interfere in any way. So long as they acted constitutionally, we should act constitutionally. They might pass a law like the Law and Order Maintenance Act, with which we might disagree, but under the Constitutional Convention, so long as they acted constitutionally, we would act constitutionally too, as we always had.

All reasonable opinion—the European Opposition in Parliament, the universities and churches—agreed that, that being our position, there was no need for this emotional atmosphere of crisis, worked up by the Rhodesian Front for Party reasons, and that nobody was threatening them with anything. We made it perfectly plain that no one was going to stop them from going on under the 1961 Constitution, under which all the powers were in their hands. Therefore I cannot accept the proposition that this would have been stopped, if only we had made plain that we were not trying to procure African majority rule to-morrow.

The real difference is—while I accept a great deal of what the noble Marquess, Lord Salisbury, says—that this particular lot of Europeans, the Rhodesian Front, do not believe in African majority rule ever, and have no intention at all that it shall ever happen. They have said very plainly that if, at any time in the future, there was any real prospect of the Africans getting a majority in Parliament, they would alter the Constitution backwards in order to stop them, because theirs was the power and they have every intention of keeping it. But to those reasonable Europeans who believe that in the process of time Rhodesia ought to become a multiracial country and that this will lead, when they are fit for it, to African majority rule, there can be no excuse for this illegal seizure of power, which is the more tragic as it was so unnecessary, because they had all the power in their hands. Nobody was threatening them with anything and there was nothing to stop them from going on with the 1961 Constitution.

THE MARQUESS OF SALISBURY

My Lords, the Government have never yet said what they do mean. They have said "Not to-day or to-morrow", but they have not said what the period is. The noble and learned Lord has said that the Rhodesian Front on their side have put no period and do not ever mean to have majority rule. I am not concerned with defending the Rhodesian Front, but I do not think that the Government have even given the time limit they have in mind.

THE LORD CHANCELLOR

My Lords, this is essentially a question for discussion, not only with all political parties but also with all sections, of whatever colour, in Rhodesia itself. Without such consultations we are not really in a position to say that it will be x years and could not be y or z years.

LORD GRIMSTON OF WESTBURY

My Lords, I am obliged to the noble and learned Lord for being good enough to reply to what I have said. May I say that I have an answer to much that he says, but it is far too long to deploy it now. Perhaps there will be another occasion.

THE LORD CHANCELLOR

Perhaps on another occasion, when we have not so many Orders.

LORD COLERAINE

My Lords, the noble and learned Lord says that it would have to be a question of consultation, but would he not agree that it would have to be more than that? It would have to be a matter of experience, of seeing how things go over possibly quite a long period of years.

THE LORD CHANCELLOR

My Lords, I think perhaps I ought not to embark on the ultimate solution of this difficult problem at this hour of evening. I will now put the question, that the Order be approved.

LORD CLITHEROE

My Lords, am I right in thinking—and I have listened to the whole debate—that by this Order Her Majesty's Government are taking complete dictatorial powers to govern Southern Rhodesia, if they are able to do so, which admittedly seems unlikely—just as dictatorial as any of the powers to which the noble and learned Lord referred in his speech?

THE LORD CHANCELLOR

My Lords, "completely dictatorial powers" is not quite accurate, because, of course, the Governor retains his powers. But, subject to that, unless and until there is a lawful Government in Rhodesia, somebody must fill the gap; and this is a country for which we are responsible.

LORD CLITHEROE

But we in this House are to have no say in controlling these Orders.

THE LORD CHANCELLOR

My Lords, your Lordships will have a say. These Orders in Council, made under the Act, while coming into force at once, will have to be approved by both Houses within 28 days.

LORD COLYTON

My Lords, may I draw the attention of the noble and learned Lord the Lord Chancellor to the fact that Section 78 of the new so-called illegal Constitution specifically lays down that, during periods of public emergency, if a person detained …so requests at any time during the period of that detention not earlier than 12 months after he last made such a request during that period, his case shall be submitted to a tribunal for their recommendations concerning the necessity or expediency of continuing his detention but, unless it is otherwise provided by law, the authority by whom the detention was ordered shall not be obliged to act in accordance with any such recommendations. Would the noble and learned Lord look into that and find out, in whatever way he can, whether that is not in fact in force in Rhodesia to-day?

THE LORD CHANCELLOR

My Lords, I will certainly look into that, because I shall have to have regard to the terms of the Emergency Act itself. I can certainly say that it is not carried out in Rhodesia to-day. In relation to the case referred to by the noble and learned Lord, Lord McNair, I myself saw Mr. Whitaker yesterday, who saw Mr. Baron only a few days ago, and I have every reason to think that the facts are exactly as the noble Lord said.

On Question, Motion agreed to.

LORD SHEPHERD

My Lords, it may he for the convenience of the House, in view of the rather late Sitting, if I inform your Lordships that arrangements have been made for light refreshments to be available in the Guest Room.