To ask the Secretary of State for the Colonies why he advised the use of an Order in Council whose object is to set aside the judgment of the West Africa Court of Appeal, which declared elections in certain constituencies in Gambia to be invalid; and whether, in view of the nature of such a precedent, he will now reconsider his statement published on 21st May and authorise the holding of fresh elections in the constituencies concerned.
With permission, I will now answer Question No. 79.
In order to explain my decision, I must give the House the facts which lie behind it.
The Gambia is made up of two areas, the Protectorate and the Colony. It has a House of Representatives, three-quarters of whose members represent the Protectorate and one-quarter the Colony. The difficulty which has arisen relates to the register of voters in the Protectorate. The Colony has a separate register, the validity of which is not in question.
The first register of voters in the Protectorate was compiled in 1959, but it was subsequently found to be very faulty. This was largely due to the fact that the names had originally been written down in Arabic script and then transliterated into Roman script, in the course of which a large number of names became so corrupted as to be unidentifiable.
It was, therefore, decided in 1961 to compile an entirely fresh register; and an amending law was introduced, the purpose of which was to substitute the new 1961 register for the defective 1959 register. This law was passed with the support of both Government and Opposition parties.
In 1962, a General Election, held on this new register, resulted in the defeat of the United Party Government. Although it was their Government which had introduced the amending law in 1961, and, although they had never questioned the validity of the register before or during the election, one of their defeated candidates decided afterwards to challenge it in the courts. While the High Court upheld the validity of the new register, the Court of Appeal later reversed this decision, owing to the imprecise drafting of one phrase in the law of 1961. This ruling, of course, at once called in question all the elections in the Protectorate.
Obviously, something had to be done to clear up this confused situation. I considered two possible courses of action. The first was to instruct the Governor to dissolve the House of Representatives and hold fresh elections. But since nobody can seriously recommend reverting to the faulty register of 1959, and since the court has declared the 1961 register to be invalid, it would be necessary before dissolution to compile a new register and that might take a considerable time.
Meanwhile, all the Protectorate members might be unseated and in the absence of any legally valid register, it would be impossible to hold any by-elections. The House of Representatives might thus have been reduced to seven Colony members and four Chiefs' Representatives and it would obviously be improper to leave this wholly unrepresentative rump to determine how the new register should be compiled.
The alternative course was to correct retrospectively the single defective phrase in the law of 1961 so as to give it the effect which both parties had clearly intended, and thereby validate the 1961 register and the elections held on it. Although I dislike as much as most hon. Members retrospective legislation, I decided that, in all the circumstances, it would be best to adopt this second course. I would, naturally, have preferred that the necessary amendment to the law of 1961 should be made by the Gambia House of Representatives itself. But, since the validity of the elections of three-quarters of its members is in doubt, the validity of any law it might pass would be in doubt, also. Thus, it seemed that the only sure method was to proceed by Order in Council. I shall, therefore, shortly be submitting a draft Order to Her Majesty for this purpose.
I hope that the House will agree that, in view of the complex legal and constitutional tangle with which I was faced, the course that I have decided upon is fair and reasonable.
I thank the right hon. Gentleman for his most detailed reply which itself shows that there are serious constitutional issues at stake here. Would not he agree that it is, in general terms, and I should have thought even in this particular instance, extremely serious to set aside a ruling of a court by administrative action in a part of the world in which we are at least trying to show how important it is to maintain the rule of law?
We are not setting aside a decision of the court. What we are doing is to pass legislation—something which very often happens—which has been shown to be necessary by a decision of the court. [Interruption.] It is all very well for the right hon. Member for Belper (Mr. G. Brown) to say that this is setting aside the law. This is not the first time that elections which have been shown to be invalid have been validated. It has happened in this House of Commons within the memory of those sitting here, and there is nothing improper in that.
Would not the Secretary of State agree that it is vitally important that we should not even appear to play fast and loose with the Constitution of this Colony? [Laughter.] Hon. Members opposite may think this a joke, but, after all, constitutional development in Africa is fairly important. The only possible way of putting this position right is to prepare a new register and hold new elections at the very earliest opportunity. This is the only urgent operation which can be undertaken. Otherwise, we shall be setting the very worst possible example to all the new independent states of Africa.
I do not think that the right hon. Gentleman can have heard my statement. I pointed out that I considered the very possibility which he suggests, which is dissolution after the compilation of a new register. But the question is: who is to compile the new register? We could have elections under the 1959 register, which would be hopeless; and I think that everyone agrees with that. If we are to have a new register, a new law is required. That new law will have to be passed by somebody. The only people who could pass that law would, I have no doubt, after a very short time be a rump of seven Colony members, and the Protectorate would be totally unrepresented except by Chiefs' representatives. That would raise the most serious objections and accusations of gerrymandering, and all sorts of things.
It is, therefore, quite impossible to leave the present House of Representatives, whose very existence is in doubt, to pass a law setting up a new register. For that reason, it seemed to me that the only proper course was, by Order in Council, to validate what both parties thought that they had done in the law which they passed in 1961. It is only a very minor flaw in the drafting of that law which has raised all this difficulty.
Is the right hon. Gentleman aware that the argument which he has just used was precisely that which is used in the West Nigerian Parliament to justify setting aside by retrospective legislation the decision by the Judicial Committee of the Privy Council yesterday? I am sure that many right hon. and hon. Members on both sides of the House will agree that it is a most dangerous precedent to set for the whole juridical system of the Commonwealth that decisions of a court of appeal should be set aside on a matter of this importance by retrospective legislation.
Nobody has so far suggested to me any practical course by which we can correct the situation other than by Order in Council. As for the question of validating legislation, I have already pointed out that this honourable House has itself done it in circumstances far less difficult than those with which I am now confronted.
Let us be quite frank. In countries which are in the early stages of democratic development, where people are not accustomed to registering as voters, it is inevitable that we do not get the same degree of accuracy as in a country such as the United Kingdom. I have, however, no reason to suppose that any new register would produce any more accurate result than the present register, nor have I any reason to suppose that the results of the 1962 election did not correctly reflect the opinion of the people of the Gambia.
Is not the Secretary of State aware that complaints were made in the court that, for example, six prospective candidates acted as registration officers, that due notice was not given, that there was a very limited time for objections, and that there were various other complaints about the register on which the last election was held? As my hon. and learned Friend the Member for Northampton (Mr. Paget) has suggested, if the Minister can use an Order in Council for one thing, surely he can use it to re-establish the proper processes of democracy.
It is worth remembering that the people who are complaining about all this are the party who were the Government when the register was introduced and were responsible for administering the law.
If the Secretary of State says that the existing register is quite all right or, at least, no worse than any future one, what is the objection to holding new elections on it? The right hon. Gentleman is saying that no new register would be any better than the present one. Therefore, why not hold elections on it?
Is my right hon. Friend aware that even in countries in an advanced state of development constitutionally like our own, when the courts draw attention to a defect of the law they may well be following that defect of the law because they have to; and the courts having drawn attention to the defect, it is then the duty of the legislature to cure it? Is that not all that is being done by my right hon. Friend in this case?
Yes. Perhaps the House should know that the difficulty arose over the phrase in the 1961 law which defined the register of voters which that law purported to validate. Although it was clearly the intention of both parties in the Gambia legislature—the law was passed without opposition, without a vote—to validate the 1961 register, the Court of Appeal has ruled that the phrase as drafted must, by a strict legal interpretation, be read as applying to the validation of the 1959 register, which would make complete nonsense.