§ Order for Second Reading read.
The SECRETARY of STATE for DOMINION AFFAIRS (Mr. J. H. Thomas)
I beg to move, "That the Bill be now read a Second time."
The Bill which I present to the House to-day is, in one sense, the most important and far-reaching that has been presented to this House for several generations. It marks the end of a long road which had its beginning when Parliamentary institutions were first established in the oversea Dominions of the Crown three centuries ago. It represents the culmination of a process of constitutional development which began long before the War, but the pace of which has been greatly quickened since the War. It is especially fitting that this Bill should be introduced under the auspices of a Government in which all parties are represented, seeing that it represents, in terms of law, the principle of equality of status between this country and the Dominions, a principle to which the leaders of each of the parties in the State have pledged themselves at successive Imperial Conferences. As early as 1921, at the first Imperial Conference held after the War, the right hon. Gentleman the Member for Carnarvon Boroughs (Mr. Lloyd George), in his opening speech, said:They (the Dominions) have achieved full national status. They now stand beside the United Kingdom as equal partners in the dignities and the responsibilities of the British Commonwealth.This status was, equally recognised by the present Lord President of the Council in his opening statements at the Imperial Conferences of 1923 and 1926 and by the present Prime Minister in 1930. The principle thus outlined received formal expression in the now historical definition agreed to at the Imperial Conference of 1926, describing the position and mutual relations of the group of self-governing communities composed of Great Britain and the Dominions. It said:They are autonomous communities within the British Empire equal in status, in no way subordinate one to another in any aspect of their domestic and external affairs, 1174 though united by a common allegiance to the Crown and freely associated as Members of the British Commonwealth of nations.It would be interesting, if there were time, to trace how the path of constitutional development in the British Dominions oversea has followed that in -this island realm of ours, the home of Parliamentary Government. Here, it has taken centuries to establish the supremacy of Parliament freely elected by the people and subject to no limitation of its powers, and the system of Cabinet Government, that is to say government by Ministers responsible to Parliament for the advice tendered to the Crown in all that concerns the country's affairs. In the countries oversea the process of constitutional development has been more rapid, but it has travelled the same road. British character, the desire to manage our own affairs in our own way, does not differ with the sky above us and the soil we tread. Love of liberty for ourselves and others is born in us and has been carried by our kith and kin across the seas. Never let us forget that important trait in British character.
The Dominions having once started on the road there could be no halting place short of entire and complete autonomy. One of the great milestones on that road was Lord Durham's famous report in which he enunciated the principles of responsible government. Lord Durham, as I have no need to remind the House, was sent to Canada nearly 100 years ago to report on the best means of solving the constitutional deadlock between the Governor and his Ministers which had occurred there. In submitting his proposals for remedying the situation, Lord Durham used the following words:It needs no change in the principles of government, no invention of a new constitutional theory, to supply the remedy which would, in my opinion, completely remove the existing political disorders. It needs but to follow out consistently the principles of the British Constitution and introduce into the government of these great Colonies those wise provisions, by which alone the working of the representative system can in any country be rendered harmonious and efficient.… The Crown must … submit to the necessary consequences of representative institutions: and if it has to carry on the government in unison with a representative body, it must consent to carry it on by means of those in Whom that representative body has confidence.1175 This great and far-reaching change, the introduction of responsible government, led, in due time, to the establishment of the Dominion of Canada, and the principle of responsible government as applied to Canada has, with the progress of years, gradually been extended and adapted to the needs of other Dominions oversea. Let me pause for a moment to deal, by way of historical analysis, with the suggestion which I have sometimes heard advanced, and indeed is being advanced to-day, that recent constitutional developments, and the present Bill in particular, are the prelude to the break-up of the British Empire. Sir John Macdonald, one of the fathers of Canadian Federation, in a speech made in Canada in 1865, on the introduction of the scheme for Federation, said:One argument, but not a strong one, has been used against the Federation, that it is an advance towards complete independence. Some are apprehensive that the very fact of our forming this Union will hasten the time when we shall be severed from the Mother Country. I have no apprehension of that kind. I believe it will have the contrary effect.I need not remind the House how amply this prophecy has been fulfilled, and I say confidently that I believe the views expressed in Sir John Macdonald's now historic speech have as strong an application to-day in regard to the present Bill. It is true that the original idea of responsible Government involved separation between matters of local concern, which were to be entirely within the responsibility of the local Government, and matters of Imperial concern, which were to be reserved to the Government of the United Kingdom; but subsequent history has shown the progressive disappearance of all these limitations on the oversea Governments which were then thought essential.
It is unnecessary to consider in detail the stages by which what I may call the reservation of Imperial matters has gradually been removed, but perhaps it might be said that the principal mark of a very interesting history has been the development of the Imperial Conference system, which, while affording more adequate means for consultation and cooperation, has led to the substitution of such consultation and co-operation between partners in a group for the older 1176 idea of centralised control by one of the partners. The pace of progress too was enhanced by the effects of the war and by the impetus which it gave to the development of the spirit of nationhood. When one thinks of the response which the Dominions freely made to the call in 1914, and how more than a million men in the Dominions took a hand in the defence of the Empire, I am sure that no Member of this House will doubt their right to their place among the nations of the world.
The final summing-up of this trend of development was the work of the Imperial Conference of 1926. The result of the discussions at that Conference was the report of the Inter-Imperial Relations Committee, which will always be associated, and proudly associated, with the name of the late Lord Balfour, and the famous definition of the position and mutual relations of the group of self-governing communities composed of Great Britain and the Dominions, which I have already quoted. Even at the time, however, it was felt that this definition required a setting in order to bring out its full implications and meaning. The House will allow me to quote a sentence or two from the now famous passage—.— as I understand almost entirely the work of Lord Balfour's own hand—in which was described the spirit underlying this definition. He said:The British Empire is not founded upon negations. It depends essentially, if not formally, on positive ideals. Free institutions are its life-blood. Free co-operation is its instrument. Peace, security, and progress are among its objects.The report of Lord Balfour's Committee went on to show that there still remained, both in practice and in law, certain forms and machinery forming part of the old system of centralised control which had now become obsolete. There were two methods by which Ministers in this country were enabled to exercise control over Dominion legislation, a control which is, indeed, still used in practice in regard to Colonial legislation. There was what was called the method of disallowance. Ministers here could advise the King to disallow an Act; that is to say, after the Act had been passed by the Legislature and assented to by the King's representative oversea, it could be nullified by an Order from this country.
There was also the method of reservation. It was possible, by Statute or by 1177 special or general instructions given to the King's representative, to reserve a Bill, that is, to direct him not to assent to a Bill which had been passed by the local Legislature. A Bill so reserved did not come into operation until the King's assent had been given to it on the advice of his Ministers here. Again, there is a general provision embodied in what is called the Colonial Laws Validity Act of 1865, the effect of which is that the Dominion law, if repugnant to a provision of a United Kingdom Act extending to the Dominion, is void to the extent to which it is repugnant; in other words, there is an overriding power in Acts of the United Kingdom.
Lastly, there is what is called a limitation, the extent of which is doubtful, on the power of Dominion Parliaments to give extra-territorial effect to their legislation. To quote an instance given recently in the Parliament of the Commonwealth of Australia, it is doubtful whether an Australian court would have power to punish a person found in Australia for having entered into a conspiracy outside Australia to commit an offence against Australian law, even if that offence was to forge Australian bank notes. The absurdity of that will, I am sure, appeal to the House. This is still the position in law, whatever may be the position in practice, and it is the need for dealing with such legal anomalies that has given rise to this present Bill.
The legal problems involved in the consideration of these matters proved too intricate to be dealt with in the time at the disposal of the 1926 Conference. It was only able to indicate the lines on which further investigation of these matters should be made and to leave it to another body to complete the work of investigation. This was the origin of the special Conference of 1929, known as the Conference on the Operation of Dominion Legislation, the report of which was approved and adopted by the Imperial Conference of 1930.
I will not detain the House by giving more than a brief summary of its recommendations, which were designed both to carry into full effect the root principle of equality of status and to indicate methods for maintaining and strengthening the practical system of 1178 free co-operation. So far as disallowance is concerned, the power was recognised by the 1929 Conference as obsolete and capable of abolition if so desired by the appropriate constitutional procedure, subject to one exception. That exception is that certain Dominion stocks have been admitted as trustee securities in the United Kingdom under a condition which has required the recognition by the Government concerned of the continued existence of the power of disallowance. That is not interfered with in the Bill. As long as this position obtains as regards the securities of any Dominion, it was recognised that the right of disallowance must, as a matter of contract, remain in relation to that Dominion.
On the question of reservation again, in principle it was recognised as obsolete, though the machinery needed to secure its removal may not in all cases be the same, or indeed require to be put into effect immediately. The Colonial Laws Validity Act was, it was recommended, to be repealed in relation to the Dominions, and the constitutional convention, which has existed for a good many years, by which the United Kingdom Parliament does not pass laws affecting the Dominions without their consent, was to be given statutory force, with the effect of a rule of interpretation. Moreover, the powers of Dominion Parliaments to give extra-territorial effect to their legislation were to be made clear by declaratory enactment.
Lastly, the 1929 Conference made recommendations designed to remove the existing limitations on the right of the Dominions to legislate about merchant shipping. At the same time, it sketched out a complete scheme designed to secure, by voluntary agreement, concerted action between the United Kingdom and the Dominions on all essential matters connected with merchant shipping where uniformity was thought desirable. I may add that arrangements are now being made for an agreement on this basis, drawn up and approved by the Imperial Conference of 1930, to be completed and signed so as to take effect concurrently with the passing of this Bill. The importance of that to the whole of our merchant shipping will be appreciated by the House.
1179 11.30 a.m.
The Imperial Conference of 1930 substantially adopted all the recommendations of the 1929 Conference, and set out in its Report the Clauses which would be required in a United Kingdom Statute to give effect to them. Further, it settled the next step in procedure, by which the Dominion Parliaments were to be asked to approve and request the passage of legislation by the United Kingdom Parliament, and the latter was to be asked to give that legislation the force of law by 1st December, 1931. The proposals have been laid before the several Dominion Parliaments which by means of Resolutions have expressed their approval and their wish that the required legislation should be passed. In other words, this Bill is being introduced, not only in accordance with the promise at the various Imperial Conferences I have mentioned, but also, as I have said, by the Resolutions passed by the various Dominions without a solitary exception. Therefore, it comes forward not only as a result of this agreement, but with the express approval of all the Parliaments —Canada, the Commonwealth of Australia, New Zealand, the Union of South Africa, the Irish Free State and Newfoundland.
§ Sir WILLIAM DAVISON
Was not an Amendment made to the Statute in the Commonwealth Parliament of Australia on the Motion of the Opposition and carried by the whole House—an Amendment to the Statute which does not appear in it?
I will, at a later stage, give the House the details of all the Motions and Resolutions passed, but the Imperial Conference decision was that this Bill should not be introduced until Resolutions were passed in each of the Dominions requesting it to be done. That condition has been complied with. It is only fair, however, to say that certain States in Australia, I will not say took exception, but have expressed some doubts. But, as far as the Imperial Conference is concerned, its decision was that Resolutions were necessary by all the Dominion Parliaments, and that has been complied with.
I would appeal to my hon. Friend to allow me to continue. I am sure the House will appreciate that the Statute, as well as the draft in connection with it, is not only important to this House but to the whole of the Dominions, and if there are questions to be answered they can be answered either to-day or on Tuesday. There is no need, therefore, at this stage to enter into a detailed discussion of all the various Clauses of the Bill, but it may be as well to set out briefly some of the main points which it is the object of the Bill to achieve. In the first place, I would call special attention to the recital in the Preamble which contains the expression of a constitutional convention relating to the Succession to the Throne in the following terms:inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it, would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.I would just say this about the Constitutional Convention expressed in the above words. The personal devotion to the King and the Monarchy of His Majesty's subjects is one of the most striking features of the world to-day. It seems to me of special significance and importance that the place of the Crown as the abiding link between the members of the British Commonwealth should be emphasised in the very forefront of this Bill. Incidentally, as we all know, nowhere is the feeling towards the King and the Royal Family warmer or more devoted than in His Majesty's self-governing Dominions beyond the sea.
Clause 2 of the Bill provides for the repeal in relation to the Dominions of the Colonial Laws Validity Act. It is unnecessary to set out at length the history of this Act, which, in its origin, was designed to free rather than to fetter the legal powers of the Dominions; but there is one point to which it seems worth while to call special attention. In 1900, at the time of the establishment of the Commonwealth of Australia, some doubts were 1181 raised as to the appropriateness, in relation to the status of the new Dominion then being created, of the restrictive character of the repugnancy provisions of that Act. The matter was dealt with by the then Secretary of State for the Colonies, Mr. Joseph Chamberlain, and in moving from this place the Second Reading of the Commonwealth of Australia Constitution Bill, he said:I do not object on behalf of Her Majesty's Government that the matter is not worthy of consideration. All I say is we have to deal with a provisional period. We cannot delay the passing of the Federation Act in order to discuss this matter. We must have a proper understanding before any change is made; but it will be open to the Federation of Australia and the Dominion of Canada, if they see fit to raise the matter at a subsequent period, and no doubt, in that case, any views they may express will receive the most careful consideration by Her Majesty's Government.If that be the attitude adopted towards the suggestion 30 years ago, it cannot be said that the repeal of the Colonial Laws Validity Act in relation to the Dominions can now properly be regarded as a startlingly new or revolutionary idea.
Clause 3 of the Bill deals with the question of the power of a Dominion parliament to give extra-territorial operation to its legislation. This is a subject which has afforded an ample field for controversy among lawyers, and it is taking place to-day. The need for some such power in order to enable proper effect to be given by Dominion parliaments to legislation for their domestic purposes has long been recognised, and has indeed been declared judicially to exist in certain special cases; but there is still a doubt as to the precise scope and extent of the power which it is the object of this Clause to remove.
Clause 4 sets out in statutory form for convenience in drafting and for other purposes the existing constitutional practice which was declared by the Imperial Conference of 1926 as follows:The constitutional practice is that legislation by the Parliament at Westminster applying to a Dominion would only be passed with the consent of the Dominion concerned.This only recorded a practice long recognised; it would be necessary to go back many years to find an occasion on which legislation by Parliament here had been applied to the Dominions without their 1182 prior consent and absolute approval. So much for a brief description of the more important Clauses of the Bill.
To return to more general considerations, the Statute has been criticised both here and overseas as being formal and negative, and as a piece of legal machinery which will have no practical effect in altering the relations between this country and the overseas Dominions. It is perfectly true—and I am glad to notice that the point has already been made by many of those who have spoken in Dominion parliaments on the subject—that the principle laid down in this Bill as a matter of law has been for many years observed as a matter of practice. At the present stage of inter-Imperial relations this Parliament would not think of legislating for the self-governing Dominions except by their request and with their consent; and there are many both in this House and the country and in the Dominions who, preferring an old coat to a new, would have been content to allow the present practice to remain as a convention rather than to crystallise it by law.
I respect that feeling, but when once we were asked by the Dominions to give legal form to the principle of equality of status which the Conference of 1926 had formally enshrined in their Report, what possible alternative was there for wise statesmanship but freely and ungrudgingly to accede to their request? TO have done anything else was to run counter to the whole course of our policy in relation to Imperial development, a policy which believes liberty to be the only true keynote of that development. I would go further. I am hopeful that the passage of this Bill by removing possible grounds for controversy in the political field will be the prelude to increased co-operation in the economic field between the several parts of the British Empire.
I submit that it is a happy chance of history—indeed, I like to think that it is something more than coincidence—that this Bill should come before the House as one of the first important Measures which the present Parliament is invited to pass, for this Parliament has surely an unequalled opportunity to do its part in building up in relation to the British Commonwealth a firm structure of mutual economic help. I would urge 1183 that we should look on this Bill, not as something formal and lifeless, but rather as the cutting away of dead wood which will render possible new growth. It is not intended to destroy the principle of uniformity where uniformity is desirable, but rather to give new life to that principle by setting free the quickening influence of liberty, by making all Members of the Commonwealth responsible for the common law of the Commonwealth in future, and giving them a living interest in the making of that law.
The Statute of Westminster is to be regarded not as an end in itself but rather as the beginning of a new system, where all members of the Commonwealth will have equal freedom and equal responsibility in building up the new structure which I hope to see rising on the basis of a group of free peoples united under one Crown and working together for their common good and for the peace, security and well being of the whole world. It is in that spirit that I commend the Bill to you. Liberty and responsibility are the foundations of our Constitution, and I am persuaded that they are the only secure foundations for the British Commonwealth if it is to prosper and endure. In the words of Burke:We view the establishment of the English colonies on principles of liberty, as that which is to render this kingdom venerable to future ages. In comparison of this we regard all the victories and the conquests of our warlike ancestors, or of our own times, as barbarous, vulgar distinctions, in which many nations whom we look upon with little respect of value, have equalled if not far exceeded us. This is the peculiar and appropriated glory of England.To-day, in relation to the Dominions, we are carrying the principles of liberty to their logical culmination. Posterity must judge us. Posterity will, I am confident, acclaim that we were right.
§ Sir STAFFORD CRIPPS
I rise to support the Second Reading of this Bill, and to demonstrate, as the right hon. Gentleman has said, that all parties in this country concur in this Measure. The right hon. Gentleman has given a historical account of Imperial development, and perhaps the most important factor in that account is the manner in which all parties have shared in the responsibility 1184 for this development. In our view, a peculiarly valuable element of our imperial policy has been the manner in which it has brought together the political parties in this country in a common effort to work out our future destiny. We hope that that method of dealing with Imperial matters, whether generally or in particular instances such as the instance of India, will continue to be a feature of the political life of this country. This Bill is, in our view, a very large step forward in the evolution of the British Commonwealth of Nations. The Conferences of 1926, 1929 and 1930 were confronted with a most difficult and complex task. They were confronted with the duty of taking the next step in a constitutional development which was without precedent in the history of the world. In 1926 the Conference committed the Empire to a somewhat vague and general principle of evolution in words which the right hon. Gentleman has already cited from the historic declaration that was then made. That declaration was intended to express, as far as one could in a short formula, the position at which the Imperial Constitution had actually arrived as a matter of fact.
It still remains to make the legal position harmonise with the facts. It was that duty which the Conference of 1929 and the Conference of 1930, under the guidance of the late Labour Government, undertook, to work out in practical detail the effect of the general principle which had been laid down in 1926. That, again, was a matter which taxed the ingenuity of lawyers. Self-government in the various Dominions had developed under widely differing conditions. The degree of independence varied in different parts of the Empire, and the views of the Dominion Governments as to the method of carrying into practice the general principle of 1926 naturally were not all the same.
In spite of these difficulties the present Bill represents the unanimous decision of this country and of all the Dominions, and it is a matter of congratulation to every one concerned in the Imperial Conference of 1930 that the present step forward is being made possible. There is no party in this country that is not anxious for the most friendly and intimate relationships between the Dominions and ourselves, and we believe 1185 that the great strength of the British Empire lies in the readiness of this country to recognise the justness of the claim of the Dominions to complete freedom of self-expression within the British Commonwealth of Nations. Nothing is more fatal to good feeling and mutual respect than the continued chafing of bonds which at one time were justified but which are now no longer necessary. It is the removal of these bonds that is the chief feature of the present Bill, and we believe that by their removal the more intangible magnetism of common loyalty and common inheritance will acquire fresh strength. May I cite a passage from the speech made by the Attorney-General of Australia when introducing the Resolutions into the Australian Parliament? He said:To some minds it may appear as a weakening of what are commonly called the Imperial bonds, but most thoughtful men will see in the Statute of Westminster the apotheosis of colonising genius, and the expression of that complete mutual trust and goodwill which, more than anything else, go to make the foundation and fibre of the British commonwealth of nations.We believe that that sentence expresses truly and fully the real position of the peoples not only of this country but of the Dominions as well. No doubt everybody will not be agreed upon all the provisions of the Statute. Divergent views have been expressed in the Dominion legislatures, and will no doubt be expressed in this House, especially, perhaps, with regard to the position of the Irish Free State. But it is impossible in these matters to expect unanimity. Genuine fears and genuine doubts will be and have been expressed.
It has been doubted, as the right hon. Gentleman has already said, whether it is not better to leave things as they are, to allow the common sense of the British people to permit that flexibility which has characterised our Imperial relationships in the past to continue to guide our policy in the future. This state of affairs would not, in our opinion, be satisfactory. Bonds such as the Colonial Laws Validity Act still exist not only in theory but in practice. Even in quite recent times Dominion legislation has been held to be ultra vires because of this statute, and the continued existence of what is out-of-date legislation is always a danger in any country, and more particularly in 1186 Imperial matters. We believe it is far wiser to face the facts, and make the legislative provisions fit in with those facts, than to leave the law in a state which does not accord with either the desires of the people of the Empire or the stage of evolution which the Empire has reached. Universal agreement can never be reached on a matter of this complication, but for this Statute the agreement of the majority of the peoples of all the Dominions has been obtained, and we are glad to voice the agreement of those whom we represent with that majority view.
We shall welcome the time when a greater and greater degree of self-government and self-determination can be given to the remaining parts of the Empire, and to India in particular, so that this country may have a just pride in having propagated throughout the world those ideas and principles of democratic government which it has itself developed for its own internal governance, a system which has been the admiration of the world, and the development of which we should welcome in our sister nations within the Empire. That very independence which we, as a people, have so persistently claimed we now formally give to our Dominions.
But side by side with this advance along the constitutional path, this freeing of the legislative bonds, we believe that every effort should be made to encourage good feeling and good fellowship between this country and the Dominions by a recognition of their common interests and their common obligations. The very novelty of the constitutional development of the British Commonwealth of Nations is bound to bring in its train difficulties and disputes between the various component nations, and it is essential, in our view, that some machinery should be set up which will deal effectively and fairly with these disputes. The British Commonwealth of Nations should become a great example to the world of the ease with which international difficulties and disputes should be settled. Within the Empire we have a microcosm of the whole world, and the successful development of a great unit of freely associated nations, including, at no very distant date, we hope, Asiatic, as well as European, peoples and this should go far to demonstrate the possibility of international 1187 agreement and co-ordination for a peaceful and prosperous development of world affairs, a development essential to the future of civilisation.
It is imperative that, as soon as this Bill becomes law, there should be some agreed and accepted tribunal that can solve the problems that are certain to arise as to the exact ambit of the powers of the many independent legislative bodies that will exist within the British Commonwealth. Unless such a body is in existence we shall run a serious risk of ill-feeling developing over our differences. I know that such a tribunal has been foreshadowed in paragraph 125 of the report of the 1930 Imperial Conference, but I would urge the Government to see that its constitution, whether by appointing panels of persons fit to serve, or by setting up a permanent tribunal and its jurisdiction, is defined at the earliest moment, so that it may be ready to deal with any constitutional difficulty the moment it arises and in order that there may be no delay while it is being constituted, a delay which might be a very adverse element in achieving a friendly settlement.
In view of the fact that the right hon. Gentleman the Secretary for the Dominions is about to embark upon an extended tour of the Dominions immediately after this Bill is passed, I might perhaps be permitted to impress upon him one or two matters with regard to Imperial relations which we regard as of particular importance. Having succeeded by this Bill in removing the legal bonds which might have been a potential source of friction in our relationship with the Dominions, we should now do our utmost to encourage the development of bonds of another sort based upon our common interest, by such efforts as those which are being made by the Empire Marketing Board at the present time, which depend upon good will and not upon any bargain or bond. We believe such efforts will be of the greatest value in developing our inter-Imperial interests. We believe that the Government might greatly increase the volume of inter-Imperial trade, and good feeling between all parts of the Empire, by developing that side of its attack upon the problem.
There are two important matters which should be carefully considered. One is 1188 the question of the bulk exchange of goods which has been tried in other parts of the world, and which might succeed in the case of this country. The other question is that of inter-Imperial salesmanship through Government organisation. Those matters still remain to be tackled, and they are matters which, if we had reached that state of Socialism which we believe to be necessary for the recovery of the country, might easily be undertaken. That is the existing state of affairs, and we believe that the right hon. Gentleman has agreed to try to develop our prosperity along those lines.
This new era in our Imperial relations has come largely through our realisation that in the difficult days of the war the Dominions reached the full stature of manhood, and stood by us as free and independent brothers, and no longer as children under our direction and command. To-day we are facing another great crisis, and without any compulsion or bargain we hope and believe that the freely associated members of the British Commonwealth of Nations will stand by one another, and give to one another that help and assistance which may be so vital a factor in the future prosperity of them all.
§ Mr. CHURCHILL
The Secretary of State for Dominion affairs and his late colleague in the Socialist Administration have laid before us the case for this Bill in very learned and worthy addresses. They no doubt concocted the Measure together when they were members of the same Administration, and it is a happy conjunction of events that they should be able to present it this morning in unison, simultaneously and concurrently, from both Front Benches. I hope the House, with its usual courtesy to minorities, will be willing to tolerate an expression of opinion from a. Conservative quarter, not indeed of opposition, but rather of caution and restraint. I hope the House will also endorse the assertion of one or two fixed, unyielding points. It is high time that we had some fixed unyielding points in our political philosophy. For a good many years we have proceeded complacently upon an ebbing tide and few there are who have not yielded to the easy going sentiment and lassitude of the age. Now we are called upon to express all the general conclusions of the Imperial Conference, and all the good-natured emotion which sustains them, in 1189 the hard language of statute law which has resulted in the introduction of this Bill.
The Secretary of State for Dominion Affairs congratulated himself upon this Measure, but I cannot congratulate His Majesty's Government on this occasion. They have constituted themselves the heirs, they are the representatives, of the most splendid expression of the love and loyalty of the British people for their country and for the cohesion of the Empire of which our records bear witness. They possess a greater majority than dreamland ever portrayed. This majority has been largely produced by the votes and by the heart-felt patriotism of many millions of very poor people. It is, I think, bad luck—I say it sincerely, because it is a coincidence—it is bad luck that the very first and almost the sole Measure of the Gracious Speech should happen to be the Bill which we are asked to read a Second time to-day. When all the generous sentiments in which all parties have bathed themselves during recent years have to be reduced to the language of Acts of Parliament, the result is not only pedantic, it is painful, and, to some at any rate, it will almost be repellent. Anyone who likes to read the Clauses of the Bill will understand quite well the aspect that I am expressing.
I wish to divide my examination of this Measure this morning into three parts—its effect upon the Empire, its effect upon Ireland, and its potential effect upon India. Like everybody else in the late Conservative Administration, I was involved in and am responsible for the Imperial Conference declarations of 1926. In all our self-governing Dominions there have been for many years two parties on Imperial questions. One party has set the Imperial connection at its highest; the other has set it at the minimum; and these two parties have disputed against each other in Canada, in Australia, in New Zealand and in South Africa. The declarations of 1926 have removed this issue altogether from the arena of Dominion politics. We accepted in this Motherland the view of those who wish to state the Imperial obligation and Imperial ties at their minimum; we abandoned the whole apparatus of sovereignty and constitutional law to which our ancestors, and even the later Victorians, had attached the greatest importance. Remembering 1190 that, and remembering the atmosphere of those days, not long gone, and the spirit of those days, I cannot think that we were wrong, and I do not think that we are wrong now. I feel that we are bound, where the great self-governing Dominions of the Crown are concerned, boldly to grasp the larger hope, and to believe, in spite of anything that may be written in Acts of Parliament, that all will come right, nay, all will go better and better between Great Britain and her offspring.
I had, however, misgivings at the time, in 1926. I had misgivings that we were needlessly obliterating old, famous landmarks and signposts, which, although archaic, have a historic importance and value. I remember that that great statesman, the late Lord Balfour, with whom I talked this matter over very often, answered me, and to some extent re-assured me, by saying, "I do not believe in wooden guns." I thought that a very pregnant remark. He saw no advantage in preserving an assertion of rights and powers on which, in practice, we should not find it possible effectively to base ourselves. I still repose faith in the calm, lambent wisdom of that great man in his later years.
It follows from this acceptance, as I am bound to accept responsibility, among others, for the conclusions of 1926, that I am bound also to face the ordeal of seeing them embodied, with all the awkwardness of the process, in practical legislation. The legislation, however—and this is a question which the House is free to revolve—the legislation to fulfil the purpose may be well-conceived or it may be ill-conceived. It may easily give an untoward bias in interpretation upon many points, and that is certainly a matter which we must examine. I could, indeed, wish that it were possible to remit this Measure to a Joint Committee of both Houses of Parliament, where all the unequalled legal authority and constitutional knowledge of the House of Lords could contribute its constructive touch to the shaping of this most important and memorable Statute.
The Attorney-General is not with us. He, I understand, presided over a committee of lawyers who actually drafted this Bill. The Attorney-General at that time, when he was drafting the Bill, was in the full flush of his ardent enthusiasm 1191 at having newly embraced the Socialist ideal. He had cast aside his Liberalism and had seen the light, and he was, perhaps, hardly in a normal condition. It may well be that, if the Attorney-General, now that he has leisure and now that he is in a different political environment and atmosphere, might easily, in reviewing his work of last year, be more fortunate in the phraseology and terms in which he expressed the purposes to which we were committed by the Conference of 1926. But, when all is said and done, I should not be prepared myself, nor would, I dare say, a good many of my friends who take an interest in these matters, to vote against the principle of this Measure in its Second Reading stage. I see that some of my hon. Friends have on the Paper a proposal to move the rejection of the Bill. I hope that they will not carry that through to its extreme conclusion, because I think it would only create a false issue in the minds of the public. If large numbers of our fellow-subjects in the Dominions like to think, and like to see it in print, that the bonds of Empire rest only upon tradition, good will and good sense, it is not our policy—except as I shall hereafter mention—it is not our policy or our interest to gainsay them.
But there I think we must call a halt. At this point we enter the region of special obligations. These special obligations, entered into between the Mother-country and the various Dominions, have been strongly affirmed by all the great self-governing Dominions of the Crown, and we see the results of their inclinations and wishes on the text of this Statute. We see them in Clauses 7 and 8. Canada, for instance, stipulates that nothing in this Act shall be deemed to apply to the repeal, amendment, or alteration of the various British North America Acts from 1867 to 1930. The Commonwealth of Australia and the Dominion of New Zealand stipulate that nothing in the Act shall be deemed to alter their constitutions under the Imperial Acts which have called them into being. They assert the inviolability, so far as they are concerned, of the Imperial Statutes upon which their houses are founded. It has not been left for us to make these claims. It is the Dominions who have made them for themselves.
1192 But in the case of the Irish Free State there is also a special obligation which does not find its reservation within the corners of this Statute. It is a special obligation to which, I think, we are bound to pay the greatest attention. I mean, of course, the Irish Treaty of 1922, or the Articles of Agreement as it is sometimes called. I am well acquainted with this. Curiously enough, it has been my duty not only to have charge in this House of the Transvaal Constitution Act of 1906, which was the parent and forerunner of the Act of Union of South Africa of 1909, but also I was the Minister in charge of the Irish Free State. Constitution Act of 1922, and it is of that Act in its relation to this Treaty that I wish particularly to speak.
I regard the Irish Treaty, in spite of all its terrible surroundings, as a great pact and symbol of peace between the British and Irish peoples after 700 years of reciprocal maltreatment and misunderstanding. I am one of the surviving signatories of that Treaty. I remember vividly the circumstances in which it was made. Both sides were strained to their utmost limits. Every one of us British delegates realised the measureless danger to an Imperial power of surrender to the kind of violence to which we had been subjected. The Irishmen whom we faced knew that they took their lives in their hands for their part, and nearly all of them have given their lives for the fulfilment of the Treaty obligations. I do not wish to labour details, but the names of Arthur Griffiths, Michael Collins, and, though he was not a signatory of the Agreement, Kevin O'Higgins ought not to fade from our memories, because they gave their lives for the maintenance of the instrument called the Irish Treaty or the Articles of Agreement. They had pledged their faith to Englishmen whom they met for the first time, with whom they had previously warred, but of whose fidelity they were now assured, and they marched in that faith steadfastly on their path to the end which was not delayed.
I cannot believe that such an instrument thus defended should be lightly set aside or that we should create a situation in which it should be lightly set aside. I know that we are told it will make no difference, that if it was the will of the people of Southern Ireland to 1193 repudiate their Treaty obligations, what we write in this Statute or leave unwritten would make no difference. I do not agree. The Irish Treaty constitutes the title deeds of the new Irish Free State. We never considered hypothetical contingencies, or what sanctions might be invoked in particular cases of repudiation of solemn treaties and agreements. But, if the Irish Treaty were illegally or violently repudiated, the Irish Free State would have lost its title deeds. That certainly would happen. In the common law of Europe, in the jurisprudence of the world, the Irish Free State would have lost its foundations. It would have become a mere inexpressible anomaly. That would be a great disaster to them and a great weakening of their position in the whole world which they have so carefully endeavoured to defend and build up. Therefore, it is the interest of Nationalist Ireland, and of Sinn Fein Ireland, no less than of this House, to preserve the sanctity of that memorable Treaty between these two proud parent races from whose loins so much of the British Empire has sprung.
I am advised on high technical authority that this Bill confers upon the Irish Free State full legal power to abolish the Irish Treaty at any time when the Irish Legislature may think fit. Doubtless we shall hear the opinion of my right hon. and learned Friend who is the surviving Law Officer of the Crown upon this question, and well I know the force and power of the legal arguments which the Law Officers, with their great erudition and commanding professional skill, are always able to assemble in support of Government policy. I cannot pit my own knowledge as a layman against such authority, but I am advised by extremely high and weighty legal luminaries that the effect of this Bill passing in its present form would be to make it perfectly legal and perfectly simple for the Imperial Act which embodied the Articles of Agreement to be repealed by the Irish Free State. The Irish Treaty rests on and is embodied in the Irish Free State Constitution Act, 1922. Clause 2 of the Statute of Westminster which the Dominion Secretary has already read, reads in terms which no one can have the slightest doubt about. No one can 1194 say it is obscure or cryptic. It is the plainest Act of Parliament that I have ever read.No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule, or regulation insofar as the same is part of the law of the Dominion.What can be plainer than that It would be open under this Bill to the Dail at any time to repudiate legally—that is the point—with the full sanction of law and Parliamentary procedure, every provision of the Articles of Agreement. They could repeal the Irish Free State Constitution Act in every respect. It would be absurd to argue that, when they had repealed the Irish Free State Constitution Act, an Imperial Act, they would be inhibited from further action by the fact that they themselves passed through the Dail their own replica of the Imperial Act. If the parent Act were destroyed, everything else would perish with it, and at this point we must look at the Irish Free State Constitution Act and its Schedules in which the Articles of Agreement are embodied. Anyone who likes to read the Articles of Agreement will see how very important are some of their provisions.
§ Mr. CHURCHILL
May I not choose which Article I shall read? It would be open to the Dail if they were so minded—and there is no reason why we should not find them so minded in the future—to repudiate the Oath of Allegiance which is embodied in Article 4 and which is the great guarantee while it stands against a great many unfortunate departures. They could certainly abolish and decide for themselves this question, which, I admit, is a delicate one, of the right of appeal to the Privy Council. It is a matter upon which both sides should be consulted, but, once the Statute of Westminster is passed in its present form, it would be open to them, without even consultation, to settle that disputed issue in their own way and on their own terms.
§ Mr. CHURCHILL
That is the whole point. We are entitled to adhere to and to press peacefully and patiently our view of those things. By this Bill in its present form we shall have placed it out of our power to continue to hold our view of the case, because we shall have provided an absolutely legal method by which the matter can be settled in an adverse sense to that which we hold. They could repudiate the right of the Imperial Government to utilise, for instance, the harbour facilities at Berehaven and Queenstown which are contained in those Acts and other Articles of Agreement. They could repudiate the right of facilities for aviation and oil fuel storage to which great importance was attached by the country at the time this Treaty was negotiated. They could repudiate the limitation upon the size of the Army of the Irish Free State, which is now restricted to the same proportion of the Irish population as the military establishments in the United Kingdom bear to the population of the United Kingdom—a very fair and reasonable proposition, and one which still bears the test of time. I do not say that they would do so, but they would have a perfect right to do so once they had repealed the application to the Dominions of the Irish Free State (Agreement) Act of 1922. There are other various provisions with which I will not trouble the House.
We are asked by the Dominions Secretary to look at the Preamble to this Act. Some language is used in the Preamble about the Crown which, I am assured, does less than justice to the ancient constitutional doctrines which exist, but the proposal that secession from the Commonwealth of Nations should require to be, or that the questions affecting the Crown should require to be, dealt with by all the parties to the British Commonwealth of Nations, is, of course, very valuable, but it is perfectly worthless in its present form. It has absolutely no validity at all as a Preamble. The Preamble is nothing. It has no legal force. Judges, I am told, do not read the Preamble. They look at the Clauses. There is no meaning attach- 1196 ing to it at all. But we had a Preamble to the Parliament Act:Whereas it IS expedient without delay to set up a new and reformed Second Chamber.12.30 p.m.
Twenty years have passed. What is the use of the preamble being there. It may well be, therefore, that in the long run, perhaps in this Parliament, we may read again that Preamble. It will at any rate show that there is no legal force in the Preamble. There are other various provisions with which I will not trouble the House, but in essence under this Act, if it is passed in its present form, the whole structure of the Irish Treaty can be de stroyed, not by illegal repudiation, but by the mere passing of a law through the Irish Free State Parliament, which this Bill declares they have plenary powers to pass if they think fit. I think that that is a very wrong thing and one to which we ought not to lend ourselves, especially at the outset of a new, and what we may all hope may be, a famous Parliament.
Great anxiety has been caused in Northern Ireland by the position which will be created when this Bill is passed and needless anxiety, because, if we mean the same thing, there is no difficulty in giving effect to the purposes of the House. Moreover, the remedy is so obvious and so simple that I am most hopeful that His Majesty's Government, with all their power, will be willing to adopt it. An Amendment will be moved in the Committee stage by my right hon. Friend the Member for Burton (Colonel Gretton) which will seek to introduce into Clause 7 after the words:Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930.the words which are incorporated in the text of the Bill—the words:or to the Irish Free State Constitution Act, 1922.I trust that His Majesty's Government will accept the Amendment in the sense that it is moved, and I hope that the Solicitor-General will be able to tell us straight away that they will do so. I must point out how strictly the Amendment conforms to the spirit and the principle of the Irish Free State Constitution Act and the Articles of Agreement. 1197 Section 2 of the Irish Free State Constitution Act says, and I ask the House to notice these words:Subject to the provisions hereinafter set out the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage, governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State.Subject to the provisions set out, the relationship shall be that of the Dominion of Canada, and here in Clause 7 of the Statute of Westminster Bill, my right hon. Friend will in due course propose to safeguard the special obligations entered into between Great Britain and the Irish Free State in the same Clause and immediately after the provisions which by the wish of the Dominion of Canada safeguard the British North America Acts from 1867 to 1930. You could not have a closer concordance either with the Irish Treaty or with the constitutional arrangements which Canada desires. His Majesty's Government are now at the beginning of what we all hope will be a prosperous and even a glorious tenure of power. They will do well not to set aside lightly the representations which are made to them in all good faith and in all good will by many who sit in their support upon these benches.
There is no violent hurry about this matter. The Government have introduced the Bill and in that way they have kept their pledge, but Parliament is in control, and no-one can limit in any way the power of Parliament to deal with this Bill. As has been pointed out, some of the Dominions themselves have amended it. In other cases they have passed Resolutions. We, for the first time as a Parliament, have to go through the process of examining and studying carefully all the concrete and definite proposals in the form of the Statute, and certainly we should not be hurried. I hope and trust that it is not intended to bring this Debate to a premature conclusion this afternoon.
I have only one more topic to deal with. This Bill does not, of course, deal with India, but it naturally, and I think inevitably, must govern our thoughts in relation to the Indian situation which 1198 may some day arise. For the first time, we see set out in cold legal language what Dominion status means. Let anyone who reads these Clauses contemplate the frightful disaster which would be brought upon India if the full Dominion status as set out here became the law governing India. For India we have inalienable responsibilities and adequate and necessary powers to maintain them. We are going to have a debate in a few days on India; therefore I will not dwell upon that topic, but when we have before us the actual legal provisions of Dominion status, is there anyone who does not see the fatly and the wrong of the declarations which excited the hopes of the Indian political classes that, after a brief period of transition, full Dominion status would be conferred upon the Indian central Legislature. The gravamen of the charge which I bring against those who have made improvident declarations upon these matters is shown by the presentation of this Bill to-day.
The declarations in favour of Dominion status which were made a year or two ago took no account of the fundamental change between the time of the Montagu reforms and the Irwin declarations in the meaning of Dominion status. The term is the same; it is printed in the same letters; it is pronounced with the same accents, but it means, after this Statute has been passed and after the declarations of the 1926 Conference, something fundamentally different from what it was in the days of the Government of India Act, 1919. No-one can doubt that Dominion status as defined in this Bill would be incompatible with the slightest semblance of Imperial authority over the races, the peoples and the States of the vast sub-continent of India.
Could we ever see more clearly than we do in this debate the valuelessness of paper safeguards? It would be even an argument of the Government: "It does not matter what you do or you do not do; the safeguards are valueless." I do not think that we should throw away any safeguards which are necessary or proper. The valuelessness of paper safeguards is one of the painful conclusions driven in upon all our minds. In the fullness of time and in the nick of time a Parliament has arrived which is capable of calling a halt in these matters. It is a Parliament which is bound by the 1199 obligations of the past. It is a Parliament which is willing to face realities both in Ireland and in India. It is a Parliament resolute to preserve the lawful, practical essentials of Imperial structure, and I trust that His Majesty's Government will prove themselves, at the beginning of their work and of their career, in sympathy and in harmony with the wishes and feelings of this Parliament.
§ Mr. AMERY
We have just listened to one of the most powerful and most impressive speeches which has been delivered in this House for a long time, and yet it was a speech which I feel was based upon a conception of the British Empire utterly different from that which I hold. I do not believe that this Empire can be held on the foundations of old legislative supremacy, but only on the foundations of free co-operation. It is on that basis that for 90 years past the Empire has been held together and built up. It is 90 years since Lord Durham, in that famous report of his, ventured to suggest that you could give responsibility to British subjects not living in these islands, and that the greater the responsibility you gave and the nearer the equality to this country, the closer would lie their attachment to us and the greater the unity of the Empire. Those proposals when they were brought before this House were met with speeches as powerful and as logically unanswerable as the speech which we have just heard; speeches pointing out that if you gave up direct control all was gone and nothing was left. For 90 years the growth of the principle of confidence and of equality has steadily coincided with a growing sense of unity in the British Empire. The first step was when this House, in spite of the warnings that were uttered, accepted Lord Durham's proposals. The next step was when we assented to Federations which did in fact transform the Colonies into nations.
In these ever increasing measures of freedom, it was not only Dominion statesmen but British statesmen who dwelt on the Dominions as nations, and upon their equality with us. So far from the struggle being simply between those who put the Imperial connection highest and those who put it at its lowest, it has 1200 been precisely those who put the Imperial connection at its highest and thought most of the Imperial connection—men like the late Mr. Joseph Chamberlain, the late Lord Balfour, the late Sir John Macdonald in Canada and Alfred Deakin in Australia—who laid the greatest stress on equality and on the importance in practice and in law of getting rid of the remains of the old system of direct control and direct veto. The principle of equality was inevitably and enormously strengthened by the Great War. In that War, not as a result of any Bill passed in this Parliament, although we had the legal right to pass one, but because of their freedom, they came forward from the first day of the War. Canada and Australia each of them alone lost more men on the battlefield than the United States with over 100,000,000 people.
§ Mr. AMERY
I will deal with the subject of Ireland in a moment or two; at the moment I am talking on the general principle embodied in the Statute. After the War increased recognition of equality was bound to come. We freely and voluntarily invited the Dominions to become equal members of the League of Nations and to take the same position as ourselves in the matter of Treaties. Nobody has ever doubted, for many years past, that in all essentials the British Commonwealth does consist of a number of nations on an equality; not a mere equality of separateness but equality in co-operation and in responsibility. The Dominions have grown not towards the status of ordinary nations but towards the status of Imperial nations. The underlying question in this matter of equality is do we say that we alone in this country, in this Parliament alone, are to be entrusted with the exercise of powers and with a sense of responsibility towards this Commonwealth of Nations or should we not rather assume that every one of the great Dominions, while free to legislate and act as we are, but also inspired by a sense of common union, will take care that their legislation does not prejudice the union as a whole? On that basis alone union and co-operation will exist.
§ Mr. CHURCHILL
I should like to make it clear that my right hon. Friend 1201 in the statement he is now making is not replying to any case that I have made. I agree with every word he has said.
§ Mr. AMERY
I am not dealing entirely with the observations of the right hon. Member for Epping (Mr. Churchill)—I shall venture to traverse some of them shortly—I am stating a somewhat different point of view to that which he has taken. In this country we cherish all old survivals in the matter of form. Many of our forms represent an earlier monarchical Government which has long since passed away, but we love these old forms, and they do no harm. I myself should wish to preserve these forms in the Empire however inconsistent they may be actually with the principle of equality. The fact, however, is that some of the Dominions include people of other races besides our own, a somewhat differently minded people, who cannot grasp the idea that you may have the legal forms of domination consistent with the practice of complete equality. After the War when they met other nations at Geneva, and when Dominion statesmen were dealing with the national aspirations of their own people at home, they found these old forms a real source of embarrassment in their desire for equality and co-operation. They said that if their status in the Empire remained in any shape subordinate then they were not for the unity of the Empire, but once they were able to say, as they were after 1926, that there was complete equality I know, from my own experience, what a difference it made to the outlook of many men in some of the Dominions, particularly to South Africans who had been fighting against the Empire but who were prepared to take their place in the Empire.
It is also true that certain of these survivals of legal authority were actually inconvenient in point of fact. There was the Privy Council decision, I know nothing about its merits, but it was discovered that a 20 year old Statute of the Dominion of Canada was ultra vires. It seems to me that in these matters there is a case for giving the Dominions free self control, and, in those circumstances where unity of action is desirable, that unity can be obtained by agreement on common measures, as I believe has already been attained on such a vital matter as the Merchant Shipping Act. It was from that point of view that we 1202 came to the decision in 1926, and there was no difference among any of us, or in the Dominions, as to the principles which should govern Imperial unity. In fact, most of those principles have been in force for a generation past. There is nothing in this Statute of Westminster which is so revolutionary. A great part of it is only giving legal sanction to what has been the practice for a generation or more, and what no one would have dreamt of traversing at any time during the last 20 or 30 years. I know the view is held that we have broken the bonds which hold the Empire together. I do not believe that any bond, which had the slightest effect in holding the Empire together, was abandoned in 1926. On the other hand, I believe that many misunderstandings which stood in the way of Imperial unity were cleared up, and a failure to carry out the wishes of the Conference of 1926, of the legal conference of 1929, and of the Imperial Conference of 1930, as embodied in this Statute, would indeed be a serious embarrassment to those who wish to stand for Imperial unity. I do not believe that this Bill in any material point affects the general unity of the Empire. There is nothing in it which prevents our building up that unity and co-operation in trade and in defence, in foreign policy and in research, drawing ourselves together step by step and substituting for the husks of a legal and formal unity the living substance of an Empire which works and lives and thinks together.
May I come to the actual terms of this Bill. The most important changes are those which affect extra-territorial legislation, and as far as I can understand these legal points there is nothing of any great consequence to the unity of the Empire involved. This has grown up out of the past. While we can legislate against crime, whether a criminal action may be committed outside the three-mile limit or not, the scope of the original Constitution of the Dominions has confined the power of their legislation narrowly to the three-mile limit. I see no reason why Canada or any other Dominion should not pass legislation affecting her ships on the high seas or to deal with people who may forge banknotes in Australia which should affect the unity of the Empire.
Far more important, of course, is the issue of the Colonial Laws Validity 1203 Act. The Act of 1865 was not an Act to enforce uniformity by this House upon Dominion legislation. It was an Act for relieving the Dominions of all restraint with regard to their legislation, except in certain points, to remove the last element of control, except in the case of certain Acts passed before the Act of 1866 was passed, and certain subsequent Acts more particularly merchant shipping. Here again the main and fundamental issue is this. Is the Empire going to be kept working together by the legal control of one Parliament among Parliaments otherwise supposed to be equal? Is it our assumption that this Parliament alone has the knowledge, virtue and wisdom to be able to control the others, and to keep them in unity, or are we to trust to the Imperial sense of a number of free Parliaments, each seeing that its legislation does not conflict with such unity as may be essential in Imperial affairs?
What is reserved, what remains I Significant among the things that remain is the fact that the Dominions have agreed to the continuance of the latent power of this Parliament to legislate for any Dominion at the request and with the consent of that Dominion. That is no innovation. No one has dreamed for 50 years past of legislating here for any Dominion except with its consent and at its request. The interesting thing is not that that power has in any sense been limited, but that it has been maintained, and that it might some day prove a very useful factor in some Imperial emergency. The other point kept is at the desire, within the Dominions, where you have a constitution based upon an internal pact in a Dominion, that that pact should not be at the mercy of the Dominion Government alone, but that the Provincial or State Governments should have their position respected.
That brings me to the position, in some senses parallel, as my right hon. Friend suggested, in some respects very different, of the Irish Free State. This is not a question of maintaining the relative balance in an internal federal constitution of the United Kingdom. It is the question of an agreement between two partner Dominions. What is the basis of that agreement? It was an agreement made in 1921, solemnly signed and rati- 1204 fied by both parties and binding on both parties equally, after it bad been signed and agreed to by the Parliaments concerned, whether it was embodied in Statute law or not, and remaining binding on both and enforceable by either, and, I think, acquiring comparatively little additional strength by the fact that, in accordance with the habit that has grown up in the establishment of Dominion constitutions, we subsequently gave to it statutory form.
I do not profess to know what the legal position is. I do not know how far, for instance, the Constituent Act of the Irish Free State Parliament would in that Parliament make it imposible and illegal to introduce measures inconsistent with the Treaty. I do not profess to know or to prejudge the question, as apparently my right hon. Friend did, that in law at any rate, if they have the will, this Treaty, the Constitution of the Irish Free State, could be changed by themselves. That is not the essential. The thing that is going to bind the Irish Free State, if it is to be bound, is the original Treaty of Agreement in the minds of men who mean to keep it, and in the minds of men who have been working with us and are realising the advantages of the Imperial connection, and may realise it a great deal more when those advantages are translated into economic fact.
My right hon. Friend quoted the precedent of the Transvaal. It is quite true that he was connected both with the Transvaal and with the Irish Free State constitutions. While he was speaking I could not help remembering what happened at the outbreak of the great War. There were those in South Africa who were prepared to seize the opportunity to rise in rebellion and to declare a republic. Some of them did rise. They were defeated mainly by the influence of one great man, Louis Botha. What Louis Botha said was not: "This is an illegal Act, unconstitutional; this is not within the clauses either of the Transvaal constitution of 1907 or the South Africa Act, 1910." He said:at the Vereeniging Treaty, I made terms with the British Government. They kept their faith with me, and I shall keep my faith with them.On that main basis after all the whole position of the Treaty must rest.
1205 I speak in this matter very differently from my right hon. Friend, who is an old Home Ruler and was in favour of that Treaty. I am an old Unionist. I am one of those who were prepared in 1913–14, if necessary, to resort to armed force to prevent Ulster being coerced within a Home Rule Ireland. I am one of those who afterwards supported forcible suppression of the Irish Rebellion. I should not have put my hand to that Treaty. I was for maintaining the Union by force. I still regret what took place. I do not say now that I am altogether sanguine as to what might happen in the future. What I do know is that, once we had set Ireland upon the footing of a Dominion, there was only one way to treat it, and that was like the other Dominions, and in everything I had to do, whether as First Lord of the Admiralty or as Secretary for Dominion Affairs, I extended to my colleagues from the Free State the same complete confidence and the same loyalty and wholehearted welcome that I extended to any other statesmen of any other Dominion. If you give you must give generously and without looking back.
I am not so optimistic as to believe that all Irish troubles, that all difficulties between this country and the Irish Free State are ended for ever, but I do say that, having set the Free State upon the footing of a Dominion, you must treat it as a Dominion. The main basis, the first Clause of the Treaty of Agreement, was that the status of Ireland was that of Canada and the other Dominions. I do not know what lawyers may say as to what that means, whether they say that it means the status of Canada as at the date, 1921, and that Irish nationhood was, as it were, put into cold storage at the 1921 temperature. It cannot be done in practice. You must agree that Ireland as a Dominion should develop with the other Dominions and share the same position with them. This does not affect the validity of the Treaty or its binding moral force upon both sides by one whit. Nor does it affect our position if it comes to any issue which affects us in time of war. If Ireland in time of war were minded not to fulfil its obligations it is not to the law courts that we should go!
§ Mr. AMERY
I say that there are other issues which far transcend the legal issues in importance, and that when you are dealing with a nation which you have resolved to treat as a nation, you cannot control it by niggling points of law or by Amendments to any Act. Do not let us forget the fact that if there is equality it must be on both sides, and that we in this House have complete power, as far as law goes, to break the Irish Treaty. No one has ever suggested that we should not be free to alter any law which has ever been passed in this Parliament. But does anybody suggest that our maintenance of this agreement is really weakened by our legal power to go back upon it? We may have our misgivings and our doubts as to the actions of certain parties in Ireland, but I cannot see how, on the basis on which we have been acting ever since the Treaty, we can insist by law on obligations being imposed on one party and not on both:
I believe that we must deal with this matter on the basis of trust and confidence and still more on the basis of making it worth Ireland's while to be loyal. Her interests arc inextricably bound up with ours. Her whole trade is dependent upon us. For ten years and more she has experienced how high is the status in the world of a British Dominion and how absolutely free is such a Dominion. Why should she break away If there are forces which are determined to upset all that we have done for Ireland in the past, then no. Amendments of this Statute are going to restrain those forces. Now may I say a word about India. Of course, this Statute is one to make us consider very seriously and very carefully what we have to do in regard to India. It is just as well that, whatever we decide upon that issue, we should go into it. with our eyes fully open. We must realise what would be the power and what would be the position of India if she had full Dominion status.
I have spoken, perhaps not altogether in line with the feelings of a good many of those who are here. But I have given most of my life to keeping in touch with Dominion sentiment, to studying what the Dominions feel and to working for Imperial unity. The unity of the Empire has been, I think, a not ignoble 1207 passion of mine. I have felt from the very start that it is only by equality in the Empire that we can progress. There was a time when I hoped that that equality might be based on some federal constitutions so that certain powers could be exercised equally by us all through a common legislature. Experience taught me that, not only in the Dominions but even more in this country, there is a reluctance to consider the possibility of a power above us, of a legislative control above our own. I had hopes 25 years ago that if this country met the wish of the Dominions and freely and readily co-operated with them in the field of trade, there might, as happened between the Provinces of Canada, as happened between the States of Germany, have arisen an atmosphere in which some form of federation was possible. That opportunity was missed.
Even now we have reached a point in time at which the loosening of the old bonds actually precedes, though I hope not by many weeks, the forging of the new ones. Do not let us spend our time in trying to reconstruct the British Empire of the past or even the United Kingdom of the past, or even such remnants of that United Kingdom as still remain in our legal relations with the Irish Free State. Let us rather take the broader view. I do not believe with my right hon. Friend the Member for Epping that the nation the other day gave this Parliament a mandate to call a halt. It was a mandate to go forward, to act boldly, to act with confidence, and it is confidence which will weld this Empire more closely together. It is because of these things that I have always passionately and, perhaps, impatiently urged that we should get ahead with those matters which mean practical union. That is why I have been anxious that this Government should declare here and now what it means to do about Preference because every month that passes with nothing done, is a month of danger, of far greater danger than any arising out of the presence or absence of some legal restraint.
Let us go forward. We have come to the end of one great chapter in British history, a chapter to which we can look back with immense pride and satisfaction. If that chapter were all, then its inevitable end in this Statute would be the end of the British Empire. But I 1208 accept the closing of this chapter only because I believe that it is the prelude to a new chapter. On that new chapter we ought to enter with courage, with confidence, with the forward view. I would like to say, in words which were used upon an issue not fundamentally different from that of to-day, what Burke said more than 150 years ago:Magnanimity in politics is not seldom the truest wisdom; and a great Empire and little minds go ill together." Let us "elevate our minds to the greatness of that trust to which the order of Providence has called us.
Mr. HOPKIN MORRIS
I beg to move, to leave out word "now", and, at the end of the Question, to add the words "upon this day six months."
I do not propose to enter into any inquiry as to whether the right hon. Gentleman the Member for Epping (Mr. Churchill) who sits below me or the right hon. Gentleman the Member for Sparkbrook (Mr. Amery) who sits behind me, has changed more since 1914. The right hon. Gentleman the Member for Epping who was a Home Ruler in 1914, is to-day if not actually opposing this Bill, treating it with great caution, while the right hon. Gentleman the Member for Sparkbrook who in 1914 was prepared to resort to force in order to maintain the Irish connection, to-day supports this Bill in its present form upon the curious ground, as I understand him, that whatever is put into legal enactment in regard to the relationships of the different parts of the Empire does not matter very much. I agree with every word he said about the real bond which unites the Empire, and so, I must add, does the right hon. Gentleman the Member for Epping. It is perfectly true that you cannot keep the Empire together except by the good will and co-operation of all the Dominions and the mother country.
No one seeks to enforce upon the Dominions something to which they themselves are not prepared to consent, but that is a different thing from saying that if you are going to pass a Bill through this House which is to represent our views on the relationship of the Dominions one to another, that legislation should not contain at least a coherent principle of legislation. One agrees that you cannot put in exact legislation what shall be the precise relationship of one Dominion to 1209 another or of those Dominion Parliaments to the Imperial Parliament. That has never been capable of being done, but if that is true, I fail to see the necessity for any legislation at all being introduced. Why has the position not been left as it was? It is true that before this Bill was introduced, it was very difficult to enforce—and I do not know of any attempt made by the Imperial Parliament in the last 50 years to enforce—legislation against the will of the Dominions. It has not been the practice to enforce it, but if that is the case, why could it not have been left to the actual practice of the last 50 years, without recourse to this Bill?
This Bill makes far-reaching and fundamental changes. It may be true that those changes will have very little practical effect and that the only way in which Ireland can be kept to its bargain and to the Treaty made in 1921 is by the good will of the Irish people themselves. I have no doubt that that is true, but the material point is this—and it was very validly made by the right hon. Member for Epping—that if they broke away from the Empire, if they so decided to-day, they would be breaking away unlawfully and in breach of their contract. Quite apart from the Statute that enacts the Irish Treaty of 1921, they entered into the Treaty itself, and they would be breaking the Treaty to which they themselves were a. party. But once this Bill becomes law, then they can, as the right hon. Gentleman pointed out, under the forms of law and without being open to any charge of a breach of obligation, and indeed without breach of any moral obligation even, do what they like.
I think it was before the Franco-Prussian war that Russia herself was a party to a treaty which renounced her rights in the Black Sea and agreed to the Black Sea becoming an international waterway. Russia signed a Treaty in Paris renouncing those rights, but four years later, when she saw her opportunity to regain the Black Sea, she recaptured it, and tore up the Treaty in that regard; and the argument was put forward in the German Parliament and in this country that the action of Russia was immoral. It could not be argued that it was illegal, because Russia was a sovereign Power, but Bismarck replied, and rightly replied, 1210 that it was useless to talk about whether or not the action was immoral. If Russia was once admitted to be a sovereign Power, as she was, she had a complete right to do what she had done. The same argument was put forward by Lord Salisbury in the House of Lords in this country, and that is, I think, sound constitutional doctrine at the present time.
Once this Bill is passed, that will be the position of the Irish Free State. She will be a sovereign Power, as every Dominion Parliament will be a sovereign Parliament quite as much as this Parliament itself is a sovereign Parliament, though with certain exceptions. Exceptions have been put into the Bill at the request of the Dominions of Canada, Australia, and New Zealand, bet in the case of South Africa and the Irish Free State, the position will be that they will have complete sovereign rights; and the case of South Africa is really a very important illustration of the position in which we find ourselves. It is clear that, as the hon. and learned Gentleman the ex-Solicitor-General said, there have been misgivings. Divergent views have been expressed when this Bill has been discussed in the Dominion Parliaments, and there have been misgivings on the part even of those who have been ready to support the Bill, but the South African Parliament found it advisable to pass a special Resolution to be attached to the Bill. It does not form part of the Bill, but it is a Resolution placing on record their views on the Bill and on the application of the Bill.
That is a very important point, because they are concerned about the Act of 1909, which gives South Africa her own constitution. They are concerned about what they term the entrenchment Clauses of that Constitution. If those Clauses become open to repeal by the South African Parliament, the constitution of South Africa can be altered, not by a two-thirds majority, as is now necessary under Sections 35 and 150 of the Act of 1909, but they can be altered by a simple majority. South Africa was very concerned about that position arising, and she passed this Resolution:That on the understanding that the proposed legislation wilt in no way derogate from the entrenched provisions of the South Africa Act, this House, having taken cognisance of the draft clauses and 1211 recitals which it was proposed by the Imperial Conference of 1930 should be embodied in legislation to be introduced in the Parliament at Westminster, approves thereof and authorises the Government to take such steps as may be necessary with a view to the enactment by the Parliament of the United Kingdom of legislation on the lines set out in the Schedule annexed.It is very unsatisfactory that a Statute of this importance should be passed when even the Parliament of South Africa had misgivings about it and passed a Resolution, which is not even to be given a place in the Statute, making an attempt to safeguard the constitution which was set up by the Imperial Parliament and under which the freedom of South Africa has grown up. Now to-day we are passing a Statute here, or we are asked to do so, under which the Dominion Governments themselves are trying to safeguard Statutes passed by us. It speaks well for the good feeling of the Empire, but it speaks badly for the attempt at legislation by the Imperial Parliament.
I now come to another Clause. I do not want to go over the ground, which has been so ably covered by the right hon. Member for Epping, with regard to Ireland, but I want to draw attention to some other Clauses of this Bill. Towards the end Clause 2 provides:and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.Once a law becomes part of the laws of the Dominions, the Dominion Parliaments will be enabled to repeal that law at their own free will, whenever they please. The right hon. Gentleman pointed out that in Clause 4 there is still reserved a power by which the Dominions can make a request to the Imperial Parliament to pass legislation, and that a Clause shall be put into an Act so passed to the effect that that Act was passed at the request of the Dominions, and it then becomes part of the law of the Dominions. What is the effect of that when we come to Clause 2? Immediately a Bill is passed by this House at the request of a Dominion and the Clause is inserted in that Bill, it becomes part of the law of the Dominion and subject, immediately it is passed, at the request of the Dominion, to the procedure of the Dominion itself, and it can be repealed the next day.
1212 This is a new departure in regard to legislation. What is the whole point of this legislation? It would be simpler to say, "Let the Dominions legislate completely for themselves." That may be a right thing to do; I do not know. It might be better to rely on the good will of the different parts of the Empire to keep the Empire together, but why make this attempt to legislate in this form, which is really an untenable form of legislation, and which enables the Dominions of Canada, Australia and New Zealand to make certain exceptions safeguarding their own rights? If that is necessary for the maintenance of liberty in the case of the federal Dominions, surely it is necessary in order to maintain the safeguards with regard to minorities in the other Dominions. They have their rights, and they are very anxious about them. I shall certainly ask the House, as far as I can, to pause a good deal before it passes this Statute in this form. If we are to legislate, we might at least legislate in a logical form, and not introduce legislation which will never be looked at or will be forgotten. The best defence I have seen of this Statute was that of an ex-Lord Chancellor, Lord Hailsham, who pointed out that the consequence of passing this legislation would not be serious, because it would share the fate of its predecessors and never be looked at. If that is to be our view with regard to important legislation of this kind, cannot the same argument be urged against any law passed by this country I Surely a larger responsibility rests upon those in whom is placed the custody of the British Empire.
§ Mr. MARJORIBANKS
I beg to second the Amendment.
I think that a fundamental objection to this Statute is the way in which it is brought before Parliament, but I think that its history is not without interest. It is my view—I know that my right hon. Friend the Member for Spark-brook (Mr. Amery) disagrees with me—that it arose after the Imperial Conference of 1926. At that time even under a Conservative administration the Dominions despaired of anything like economic assistance or economic unity in the Empire. What had they then to discuss? They were shown as a subject for discussion this shadow of Dominion 1213 independence—not independence so much, perhaps, as Dominion equality. This was a shadow of a thing compared to economic unity, and in the disputes which arose Lord Balfour was called in to try to bring members to agree among themselves, and he, in charming and clear English, introduced a statement of what he thought was the true relationship between the Dominions and the mother country and between themselves; but Lord Balfour, although a very discreet and kindly man, never concealed his hatred for lawyers. He continually repeated his dislike for lawyers, and once in this House he described a trade union as a corporation, and was immediately corrected by Sir Robert Reid, who said it was no such thing. Mr. Balfour as he then was, replied "I am not talking law; I am talking English."
Little could he understand how the whole working class movement rebelled against him because of a mere decision in law on the Taff Vale case; but here I think lies the curious irony. When they met in 1930 at the Imperial Conference, the Dominions themselves were in a far more hopeless situation. There they were not even treated with courtesy, and their proposals were thrown back in their face as being nonsense and humbug, and when they saw that they could not get any help from the Mother Country on economic lines, of course they turned once more to the old idea of Dominion equality, and demanded that Lord Balfour's sentence should be put in the form of a Statute. Nobody could have been more angry or surprised than Lord Balfour to think that his five sentences should be put into an Act of Parliament by a number of lawyers, his words imprisoned, deformed and embalmed by a committee of lawyers at the head of whom was a Socialist Attorney-General. That is the history of this Statute. It has been framed by a Socialist Attorney-General as head of that legal committee, and now it comes before us and my right hon. Friend (Member for Sparkbrook), said that we are not entitled to move Amendments. With regard to Lord Balfour, in this instance Mark Antony's cynical judgment is true.
1214The evil that men do lives after them;The good is oft interred with their bonesand this Statute is in the ironic sense the descendant of the declaration of Lord Balfour in 1926. I think that now when there is a hope of economic unity in the Empire, this other shallow thing does not matter at all. All our plans are built upon unity and co-operation, and this is a moment when we are asked to assent in legal form to the idea of separatism. It is unfortunate, it is inopportune I think, and may lead to very grievous and unhappy results. Members in this House should not be blind to those results. This Measure comes before this House on a Friday afternoon, and I think the Government had not judged how great the opposition to this Measure would be. They hoped to slip it through on a Friday afternoon. I trust that they have now realised their mistake. Why, they were asking this House to give less attention to a matter of this imperial importance than they would give to their own affairs in drafting a lease for a new house.
It is a monstrous proposal that we should allow this to go through without any question, examination or criticism whatever, and it is very strange that a Parliament which has been elected for quite different and urgent reasons should be called upon in the very first week almost of its existence to deal with a Statute for which it has really no mandate. I know that my right hon. Friend despises lawyers and the legal point of view, but I daresay in his own private affairs he may have some reason to consult lawyers with regard to his own personal interests. Let him now consult this lawyer, however humble, on matters of first importance to our vast empire. He is better than none. Are we not entitled to examine these provisions, to criticise them and see whether evil may not befall the Commonwealth, which I believe he prefers to the word "Empire."?
In the first place, I propose to divide the proposals of this Statute into two main divisions—the constructive side and the destructive side of this Statute. What is the constructive side? It is to be found in the Preamble. The Preamble, as my right hon. Friend the Member for Epping (Mr. Churchill) has said, has no force in law, where the words of the Statute are clear. The Preamble says 1215 that there should be no change in the Royal Style and Title or Succession to the Throne without the consent of all the Dominions. This is really unfortunate. It is no guarantee of imperial unity. All who take an interest in the past of our party will remember that Mr. Disraeli by his own will changed the title of the Crown and made Queen Victoria Empress of India. We may have great changes in India in the next few years which may, perhaps, necessitate a change in the Title of the Crown, and I would ask hon. Members even on this side to remember that you would not be able to secure a change unless ratified in all the Dominions. There is no guarantee of Imperial unity, but there is a great hindrance to what is still of some value to our Commonwealth. Of course, there is no guarantee of Imperial unity, because Subsection (2) of Clause 2 makes perfectly clear—and I cannot think that the Solicitor-General can argue otherwise—that those Dominions which have no special reservation concerning constitutional status from the operation of this Bill will have the power to repeal any law passed by the Imperial Parliament including their own Constitution. Their Constitutions are Imperial Acts like the rest. Nothing could be clearer than the powers of Parliament in Subsection (2) of Clause 2 which says:the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act".Of course, that means that they can repeal not only this Act but the Act under which they derive all their rights and constitution.
But the matter does not end there. The ambiguity of the Statute, which was so sedulously prepared by our busy Attorney-General last year, does not end there. This is a matter of the first importance. Has the Solicitor-General really realised that by this Bill any discussion of any future Imperial statute is absolutely barred by a form of clumsy wording. It will be observed that in the Preamble it is said that no Act of the Imperial Parliament shall apply to a Dominion Parliament except at the request and with the consent of the Dominion. Those words are also included in Clause 4 so that there can be no doubt about it. It means that a Dominion has first to request such 1216 an Act. Then it has to come here, and in order to avoid any kind of dispute, the Act which is passed here must be the very same Act which they have requested. That does away with all Amendments in Committee and all discussion. Then it has to go back to the Dominion Parliament to be assented to.
Could any procedure be more clumsy? It must be the same Act which is requested which must be assented to, and the Dominion Parliament, from the moment it has let the Act come from them to be passed formally here, cannot consent to more than they have requested; if they do, the Act becomes absolutely invalid under this Statute. One could easily devise a form of words which would get over this difficulty, but my right hon. Friend says that we must not be allowed to amend it. There is a further difficulty about this. It will be observed in Clause 9, Sub-section (3) thatIn the application of this Act to the Commonwealth of Australia the request and consent referred to in section four shall mean the request and consent of the Parliament and Government of the Commonwealth.I suppose that that is inserted at the will of the Commonwealth of Australia, but in regard to the other Dominions it is merely said at the request and consent of the Dominion. If we are to have definitions, they must be precise. There will be no difficulty in saying exactly what the consent and request of the Dominion means having regard to the more precise definition with regard to Australia.
There is yet another very serious defect in this Statute. In Clause 10 it is said that the Dominion may adopt it at what date it pleases. After the 1st December, which is the date by which we have been told we must pass this Statute, they may adopt it on 2nd December or on any future date, but we are told that the adoption, whenever it may be, even if it is in 10 years, shall have effect either from the commencement of this Act or from such later date as is specified in the adopting Act. In other words the Dominion may not adopt it next year but 10 years afterwards, and it will revert back ten years, upsetting every decision of the Imperial and Dominion courts. Just imagine the state of chaos in which Dominion decisions may be thrown by 1217 this Bill, and yet my right hon. Friend says we may not amend it. All these things, I should have thought, would have occurred to the able Socialist Attorney-General, and surely the House must not be deprived of the opportunity of amending these glaring errors in draftsmanship and principle. These are matters of legal examination, and we shall surely betray the mandate and interests of the people who sent us here if we do not examine very carefully the provisions of this last Imperial Act. I think that I have shown by reference to the Bill and to a sufficient number of provisions in the drafting of this Statute, that someone has blundered.
I have shown that the Bill is an attempt at construction. Let me turn to the destructive side. What does it destroy? The Colonial Laws Validity Act is destroyed. Perhaps I may be allowed to say two or three sentences as to what that Act means. It began in 1865 as a. great charter of liberty to the British Empire. It has since become a badge of inferiority. It said that Imperial legislation should not apply to the Dominions or Colonies unless it was expressly stated to do so, and that any Dominion Act should not be void if it contained any clause repugnant to English law except with regard to that part of it which was repugnant. That has since become a grievance. Nevertheless, the Colonial Laws Validity Act has been the instrument for uniformity, and if you are to have an Empire at all, you must have uniformity. It has been the instrument of uniformity in matters of common concern to the whole Empire at times of stress and crisis, and no one has questioned its authority in those times. It has enabled the Empire to act together both by legislative and executive action. It is essential in certain respects to have uniformity, and under that Act we could in times of crisis and stress have it; and when it has been used it has been welcomed. It is not a question of resignation of power. It is a question of having a means by which in times of stress the Empire can work together. That is what we had before this Statute came upon the scene. That is what we shall not have when this Statute is passed, and the Statute does nothing to set up anything in its place. One knows that in times of war the Empire must act together. We had no other means of doing it except by 1218 the Colonial Laws Validity Act. That was the position before this Statute came into existence.
In legislating for the Empire, we legislated under three heads—the head of criminal extradition, which I will not deal with, and which is a comparatively minor and technical matter which concerns international law; and the heads of merchant shipping and nationality. With regard to nationality, I ask hon. Members really to appreciate this. Before this Statute came into existence any man under the British Crown, whether black, brown, yellow or white, could boldly say all over the world, "Civis Britannicus sum"—the proudest boast of nationality since the days of the Roman Empire. It is said that a convention is going to see to these matters, but it is not in the Bill. If this Bill is passed, we shall do away with the old Imperial nationality and will have only Dominion nationality. Until this Statute we had the pride of Imperial nationality, and unless something is set up in its place, all that will be gone. It is a serious matter. With regard to merchant shipping, the pride and cause of our Imperial position, it is essential to have uniformity. How are we to set it up? By a convention? It is not in the Bill. The complex nature of the law relating to the mercantile marine, the necessity for uniformity all over the world, and the danger to shipping interests which will arise as the result of the decentralisation of control, make this matter of greater moment than of mere academic interest, with which, one gathers, the right hon. Gentleman the Member for Sparkbrook regarded it; because these are matters of the most vital moment.
We are told by the right hon. Gentleman, however, that we are having the substitution of affection for coercion or potential coercion. Whoever dreams of coercion or talks of it now? There is no coercion; it does not exist. What we want is the power and ability to act together. You are substituting impotence for power and rigid rules for elasticity. You are substituting this badly drafted Statute of Westminster for old traditions and machinery of great antiquity, efficiency and incalculable value. That is the substitution that you are making. When a wise and good man has children, he does not set them to play games without rules; and when they grow up, he does not put them into business together 1219 without a deed of partnership. That is all we are doing by this Bill. We are playing the greatest game, and we are committed to the greatest deed of partnership to which any nation has been committed in the history of the world.
Before I made my maiden speech in this House, I made a careful study of the Soviet constitution of Russia. There I found a system very much like what we shall have if the Statute of Westminster is passed in theory and in law. In the Soviet system a number of independent republics are tied in some sort of way, by some political machinery, to a central republic. Theoretically they can break away at any time they like, but if they did, or when they did, they would hear, not from the law, but from the central republic, that they must not do these things.
Let me turn to quite a different aspect of the question, and try to make the House of Commons regard this matter not as we see it with our own British eyes but with the eyes of foreigners. Supposing one of our great Dominions, say Australia, were the victim of aggression by a foreign Power, and that she had to put herself on the defensive and to make or respond to an act of war. Do you suppose that a foreign power would regard the British Empire according to the definition of Lord Balfour? No, they would say that the British Empire was one and indivisible, and they would seize British possessions and British shipping as though they were part of the Dominion with which they were at war. It is a monstrous thing that at a time of stress like that, which might involve the whole Empire in war, the voice of Westminster should, owing to this Statute of Westminster not only be silent in command but silent in consultation. We are told by the right hon. Member for Sparkbrook that we cannot alter this Statute, and the Secretary of State for the Dominions told us the same thing, by inference. Why cannot we alter it? I have read the Debates on this matter here and in the Dominion Parliaments. There was not a breath of suggestion that we could not alter it or amend it. Indeed, in New Zealand and Australia we were expressly invited to discuss it and amend it. While I am on this point let me ask the learned Solicitor-General this question. Amendments which were passed by 1220 the Australian Parliament have been incorporated in this Bill, but there are two other Amendments, passed by the Australian Commonwealth without a Division, which are not included.
§ The SOLICITOR-GENERAL (Sir Thomas Inskip)
I do not want to interrupt, but it is not desirable that, even inadvertently, any inaccuracy should be stated in this Debate. I think the hon. and learned Member is referring to two Amendments passed in July. Perhaps he is not aware that in October another Amendment was passed which got rid of one of the previous Amendments, and that the final conclusions of the Commonwealth Parliament are embodied in the terms of this Bill.
§ Mr. MARJORIBANKS
I am very much obliged to my hon. and learned Friend who, with his usual courtesy, has set aside one of my arguments, I am glad to say a minor argument, with that explanation. But with regard to South Africa there is a very curious position. There they did not include it in their ratification of the Statute, but they passed a resolution which would have the same effect as the reservation of the other Dominions, Australia, New Zealand and Canada, who have safeguarded their own Constitutions. In effect, South Africa did the same thing by resolution, although they did not ratify the Statute. That seems to be a distinction without a difference in principle, but in law it is extremely important, and I should have liked to see that in the Statute as we have it before us now. Of course I am treading on very delicate ground, but in logic and in principle, I do not see why that should not be included.
I would have hon. Members understand that this is not merely a constitutional question, this is a question of moral obligation, at any rate as regards the Dominions which have not reserved their contributions. I cannot see how the Solicitor-General can argue that if this Statute is passed in its present form, Ireland and the other Dominions which have not expressly safeguarded their Constitution may not secede from the Crown and the Empire and may not repeal any provisions under these Acts. If he can argue that I will be delighted to hear him, but at present I cannot see that it is really arguable, having regard to Clause 2. It is not a question merely 1221 of Imperial credit; it is a question of honour and obligation, treaty and duty owed in the past in Ireland and in other Dominions, and the antiquity of the debt should not alter its obligation. Are we going to allow the whole question of racial minorities and religious minorities to be thrown back into the melting pot of Dominion politics? I hope that will not be so, that that will not be allowed by this present House of Commons, remembering that these obligations of honour and the British name mean nothing if we cannot protect the weak against the strong.
I would like to say one word in defence of that great and honourable Court, the Privy Council, as a court of law for the Empire. Many people do not appreciate what a very convenient thing an antiquated tribunal can be. It is a fact that it is extremely doubtful whether one Dominion can sue another in the Privy Council. I believe there is a decision which says they cannot. It is a court for individuals of the Empire, and not a Court in which Dominion can meet Dominion. I think that is a very good thing. That one Dominion should be constantly litigating another in some arbitration court which it is proposed, according to my hon. and learned Friend to set up, would not make for unity but for separation. Nothing could be more undesirable than that one Dominion should be suing another in a court of the Empire.
I gather from my hon. and learned Friend that it is proposed to set up a voluntary arbitration Court ad hoc for each dispute. That presents a very strong contrast to the compulsory arbitration clause which every Dominion has signed with regard to the world court at The Hague. Among ourselves, arbitration is to be voluntary, but in the world outside we must submit to this strange court of foreign judges who believe in a quite different system of jurisprudence. It is a strange contrast. For my part I do not welcome any constitutional court under which the Constitution of the Empire may become hard and frozen and crystallised. I know that Lord Balfour was a great master of English, and that he had a difficult position to deal with in 1926, when the Dominions were being refused anything in the way of economic unity, but I have been reading lately 1222 about the American Revolution, and I think that Madison, immediately after the Revolution, stated the principles on which the American Colonies has been fighting better than did Lord Balfour. This is the same position which the Dominions have already obtained without any Statute of Westminster. This is what Madison said about the men of 1776:The fundamental principle of the American Revolution was that the Colonies were co-ordinated members with each other and with Great Britain of an Empire united by a common executive Sovereign but not united by any common legislative Sovereign.And this the Dominions have won without the Statute of Westminster and without going to war with the Mother Country. We are told that in some mysterious way by this Statute we are going to get a closer unity by means of legal separation. I have no faith that any form of law or statute will be able to bring that about. Where the law cannot increase, cannot unify, and cannot help, the law may freeze, it may narrow, it may confine, it may imprison, it may embitter. The seeds of all these things are in this Statute, in my view. It is true the British Empire depends upon moral unity and can only continue upon a highly refined and intelligent moral unity, but do not let us now, at a time when everything depends upon closer unity, when our whole plan is based upon such unity, make it impossible for us as an Empire to act and to think together.
§ Mr. DONALD SOMERVELL
I ask the indulgence of the House in addressing it for the first time. Particularly, I ask for that indulgence for venturing to address you, Mr. Speaker, on matters so weighty as those which are raised by this Debate. This Bill is primarily a Measure for declaring and enacting full powers of legislative self-government for the Dominions. It is not suggested that the Dominions are in fact at the present time not in a position to exercise those powers. The position is that neither this House nor the Government of the United Kingdom would think of using its legal powers to interfere with legislation passed by the Dominions or to pass legislation referring to them which the Dominions themselves do not desire. The right hon. Gentleman the Member for Epping (Mr. Churchill) referred to the words of this 1223 Bill as pedantic and repellent. With the permission of the House I will read a paragraph from the Imperial Conference of 1926 from which the provisions of this Bill seem to take their origin. It says:On the question raised with regard to the legislative competence of members of the British Commonwealth of Nations other than Great Britain, and in particular to the desirability of those members being enabled to legislate with extra territorial effect, we think that it should similarly be placed on record that the constitutional practice is that legislation by the Parliament at Westminster, applying to a Dominion, would only be passed with the consent of the Dominion concerned.2.0 p.m.
It is clear, I think, that that paragraph refers to the placing on record of these powers in a statute because it also deals with the right to legislate extra territorially and that could only be done by an Imperial statute. It seems to me that Clause 4 of the Bill, which is perhaps the most fundamental of the whole of the Clauses, is taken from the proceedings and the report of the Imperial Conference and very little alteration or modification has resulted from the later Conference presided over by the present Attorney-General. That being the position as to Clause 4, it is clear from the speeches that nobody opposes the intention as set out in that Clause. That being so, I suggest that Clause 2 follows as a matter of logic and common sense. Clause 2 is the Clause which makes in applicable the Colonial Laws Validity Act, and it says:No law, no provision of any law made after the commencement of this Act shall be void or inoperative on the ground that it is repugnant to the law of England.How can you say to a Dominion, "You have full legislative capacity for the future but you are to remain forever bound by a statute passed by another member of the Empire to whom you are in no way subordinate in any aspect of your domestic affairs." It would be quite impossible to retain the Colonial Laws Validity Act or any other similar provision if you are going to put on record what the Imperial Conference of 1926 recommended.
I would like to say a few words on the question of the Irish Free State and the position of that State in the Treaty under this Bill. I do not want anything I am going to say to be taken to mean that 1224 I think the events suggested may occur, but this House is entitled to consider what changes, if any, have been made or will be made in the position of the Irish Free State if this Bill is passed into law. The Irish Free State came into existence as the result of what is called a treaty. Whatever legislation may be passed by this House or by the Irish Free State that Treaty remains a Treaty and it remains an agreement binding the two parties who entered into it unless it is modified by agreement or a subsequent Treaty. I submit that this is not a doubtful point, because it is plain that if this statute is passed it will be wholly wrong to say that the Irish Free State would have power to repeal the Treaty it has entered into with this country.
Two things have to be kept distinct. One of them is the obligations imposed on the parties by the Treaty and the other is quite a different point as to whether either or both parties choose in their wisdom to give the terms of that treaty legislative sanction by passing an Act of Parliament making its terms the law of the land. This House passed an Act under which an Order in Council was made giving legislative effect to certain sections of the Treaty of Versailles and under that Order those sections have and had the full force and effect as law. If the Order in Council had been repealed it would be absurd to suggest that the repealing of that Order would in fact repeal the Treaty of Versailles or affect the obligations of His Majesty's Government to other signatories to the Treaty. The position, as I understand it—