Southern Rhodesia Bill

Clause 2 – in the House of Commons at 9:30 pm on 12th November 1979.

Alert me about debates like this

Again considered in Committee.

Question again proposed, That the amendment be made.

Photo of Mr Norman Buchan Mr Norman Buchan , Renfrewshire West

I understand that the Lord Privy Seal is saying that any such modification will, in general, have been subject to prior discussion or agreement in the course of Lancaster House or later discussions for the interim arrangements and will therefore have been subject to some kind of view or agreement with the other parties involved.

Given that, and given the Lord Privy Seal's knowledge that I have put down a marker should the matter come before the House, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr Peter Archer Mr Peter Archer , Warley West

I beg to move amendment No. 39, page 2, line 15, leave out subsection (3) and insert— '(3) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless a draft of the Order has been laid before Parliament and approved by resolution of each House of Parliament.' The Committee has discussed how far the Bill is premature and how far the powers that it confers on the Government may be used before the proper occasion has arisen for using them. This amendment is concerned with the situation that may arise if the Government exercise their powers in advance of any supervision by Parliament. Clause 2 confers wide powers on the Government. Clause 1 confers on the Government power to provide a new constitution. The Government may do so by Order in Council. All that is required to exercise that power is that the Order in Council shall be laid before Parliament after it has been made. There is no provision that it shall be approved by Parliament.

Clause 2 then says that once that constitution has been proveded the Government may use that clause to activate any provision of the constitution that is authorised under clause 1, provided only that it can be said to be for the purpose of enabling the new constitution to function from the appointed day. It may provide for elections, but the powers go much wider. It may activate any constitutional provision which it is proper to make under clause 1, provided that it falls within that wide purpose. So the power extends to an entire constitution.

Clause 2 is about activating any provision in that constitution, and it may be done by Order in Council. Subsection (3) provides that the Government may enact the Order in Council to that effect without any reference to Parliament. It will remain in effect for 28 days, although, admittedly, it expires at the end of that period unless, meanwhile, it is approved by a resolution of each House.

The Committee may wonder what is to happen if, at the end of that period, either the two Houses have not considered the order or, if they have, either has declined to endorse it. There are some things which may have been done which cannot be undone. The White Paper makes provision for a judicature. Let us suppose that the Government either appoint a Governor and he appoints a chief justice or that the Government by Order in Council decide to appoint a chief justice so that disputes about the constitution may be resolved in the interim, and let us suppose, further, that the chief justice orders someone to be hanged. As lawyers know when they have had decisions reversed, often what is done cannot be undone.

But what of the things which could be undone? If the Bill said nothing on the subject, there would be a number of questions to be answered. There is some law on the conclusiveness of powers which have subsequently been revoked, but I have not been able to find very much guidance in the circumstances which the Committee is now discussing.

It is largely academic, however, because the Bill has made provision for such a situation. It might have provided that anything which can be undone shall be undone if the two Houses declined to endorse the Order in Council. But, on the contrary, it provides that the expiration of an order shall not affect things done in the interim. So the Bill confers on the Government very wide powers to affect the whole future of people in Rhodesia, and Parliament cannot stop them.

We are driven to ask why it is important that the Government should be able to act so precipitately without consulting Parliament. Why may the Government find that they cannot bring the matter before Parliament for 28 days? Of course, Parliament may be in recess, but usually it is not impossible to reconvene us. So what kind of provisions do the Government envisage making under the clause?

The Lord Privy Seal has already given a brief answer to my hon. Friend the Member for Newham, South (Mr. Spearing). His answer referred largely to preparations for elections. But, if that is all that the Government have in mind, why do we need such an extremely wide power in the clause? Fairly obviously, the Government have in mind a number of provisions which go very much wider than that.

If the Under-Secretary of State will say why the Government find it necessary to draft the clause in such wide terms and what provision they might have in mind to make under it, the Committee may be able to decide whether it is necessary for the Government to have power to set in motion machinery which Parliament cannot halt for up to 28 days.

The amendment would provide that the Order in Council should not become effective until it was confirmed by an affirmative resolution of each House. A few moments ago, the Lord Privy Seal said that any Order in Council under this clause required an affirmative resolution. That is perhaps a rather elliptical way of putting what the clause provides. It would be the effect of this amendment.

I suspect that it may be said that in the Southern Rhodesia Act 1965 a similar provision is to be found in section 2(5). I suspect that that may have been where the draftsman found the formula which is now in this Bill, though I appreciate that it is probably not unique. That section had a very different purpose. It was to confer on the Government power to make provision in consequence of any unconstitutional action taken in Southern Rhodesia in the early days of what has come to be called UDI. There, of course, legal sanctions for many activities may have been withdrawn. There may have been many detailed orders relating, for example, to specific commodities which required to be adjusted. Here, we are dealing with the provisions of a constitution, which are very much weightier matters.

During the Second Reading debate on the 1965 Bill, the Attorney-General of the day said that as soon as practicable the House would have a full opportunity to debate the provisions of any order. So far, we have had no similar undertaking from the Government in relation to this provision. Sir John Hobson, who was the Opposition spokesman in that debate, said that the undertaking would allay many doubts which there may have been about the wisdom of the 28-day period. The Opposition of that day may well have had reason to doubt the wisdom of the provision. But there at least there were some actions of a detailed nature which may have required to be carried out as a matter of urgency. We have had no such undertaking today, and we are not dealing with similar provisions Indeed, under section 3 of the 1965 Act, which give power to continue the provisions of the Act beyond the 12-month period, the Order in Council there requires an affirmative resolution before it becomes effective.

I understand that we can assume that the constitution which the Government still contemplate enacting under clause 1 is that set out in the White Paper. Let us consider some of the things that the Government might decide to do under that constitution. They might appoint a Governor who would be acting as President. He may appoint a commissioner of police. Suppose that he were to do that and that the commissioner ordered the police force to take certain action, for example, to arrest someone. That arrest would therefore depend indirectly on the powers conferred in this Bill and on the Order in Council made under those powers.

If, subsequently, either House of Parliament decided that that Order in Council should not have been made, the effect would be that the arrest was improperly made. But the effect of the clause would mean that the arrested person would have no redress. And the matter does not end there, because if the subsection remains unamended its effects continue into clause 3, where the Government are given very extensive powers to make such provision as appears to Her Majesty in Council to be necessary or expedient in consequence of any unconstitutional action taken therein". Admittedly, that is like the power to which I referred in the 1965 Act. However, then we were dealing with the situation in the early days of UDI. Now, I envisage that the Government have in mind acts of indemnity in relation to particular individuals in Southern Rhodesia.

The Government then have power to do what is necessary or expedient in connection wth the repeal, revocation, expiration or lapse of any statutory provision relating to sanctions"— a very wide power indeed to which the Committee will turn its attention later.

Then, without prejudice to the generality of subsection (1), an Order in Council might make provision for conferring power to make laws for the peace, order and good government of Southern Rhodesia, including laws having extra-territorial operation". It would be out of order if I were to expand on that, but those are the powers that we are talking about. The Order in Council may provide for suspending or modifying the provisions of the Constitution of Southern Rhodesia 1961 and for suspending or modifying the operation of any enactment or instrument in relation to Southern Rhodesia or persons or things in any way belonging to or connected with Southern Rhodesia". Those are the powers in clause 3. Subsection (6) provides that section 2(3) shall apply to any Order in Council made under clause 3. This provision, then, extends right through the Bill. We are discussing the control which Parliament may exercise over virtually all the powers in the Bill.

There are, therefore, questions to which we on this side would like an answer. First, what kind of provisions do the Government envisage using under this power in clauses 2 and 3? Second, what mischief would result if, first, they had to secure the consent of Parliament? Third, why is it not possible to provide that, if these powers are used and either House subsequently disapproves, at least some of the things done under those powers should not be deemed to be validly done?

I do not propose to drag out the debate. When the Committee has received answers to those questions, we may decide what are the appropriate conclusions to be drawn. I hope that the hon. Gentleman who replies may seek to catch your eye, Mr. Deputy Chairman, at an early stage in this debate so that we may have the answers and proceed from there.

Photo of Mr Bob Cryer Mr Bob Cryer , Keighley 10:15 pm, 12th November 1979

There are one or two points which should be brought to bear on this issue in the light of the comments of my right hon. and learned Friend the Member for Warley, West (Mr. Archer), who described in great detail the wide powers which the Bill gives to the Government. Those powers will be subject to an affirmative resolution only. I imagine that the spokesman for the Government will say that an affirmative resolution is better than an order by annulment under which an objection can be made simply by praying during the time that the order is laid before Parliament. However, the orders that we are dealing with determine the constitution of a country and they grant enormous powers.

It might be informative for us to examine some of the actions of the Foreign Office in relation to a similar order which conferred immunity on the persons taking part in the Lancaster House talks and which were subject to exactly the same procedure—an affirmative order to be laid before Parliament for 28 days.

Past experience of the House of Commons does not give one the greatest confidence that even the democratic safeguards built into an affirmative order will necessarily be observed. The Southern Rhodesia (Immunity for Persons attending Meetings and Consultations) Order 1979 was produced by the Foreign and Commonwealth Office and laid before the House. Subsequently, because of a miscalculation on the part of the Foreign Office, and contrary to instructions circulated in 1975 regarding the laying of statutory instruments, the order was allowed to lapse. This was an extraordinary thing to do. It meant that the participants could no longer enjoy the immunity granted by the order.

Cross-examination of officials of the Foreign and Commonwealth Office contained in the sixth report from the Joint Committee on Statutory Instruments, printed on 30 October 1979, demonstrated that there was cause for alarm. It was not simply a question that some officials had not read the instructions clearly or that they did not understand the proceedings of the House of Commons. Officials in Government Departments should at least have a full and competent knowledge of what goes on in the assembly which gives Ministers powers in the first place so that they may advise their ministers properly.

The Joint Committee noted that even were the order to have remained effective for the further week there was no indication that the Government were intending to table motions in both Houses to approve the order before it expired. In explaining that a Bill concerning Southern Rhodesia and including matters contained in section 2 of the 1965 Act would soon to be introduced, witnesses could not reassure the Committee that the Government intended fully to comply with the existing statutory requirements. The Committee can only infer that the Government would have found it expedient to lay a second order without the first having been approved even if the first had not already expired. This is an unusual use of powers. It is a possible use of powers that would allow the scrutiny which the House rightfully exercises on affirmative orders to be bypassed.

When there is bloodshed and when those involved have deep and lasting suspicions of each other, we must ensure that everyone feels that nothing underhand is being undertaken. In those circumstances, we must be involved in the affirmation of an order before it comes into effect. That would ensure that the loophole which was examined by the Statutory Instruments Committee last month was not circumvented by the Government.

In 1972–73, the then Joint Committee on Delegated Legislation drew the attention of the House to the power that we are now discussing. The Committee said: The attention of Your Committee has been drawn to the opportunity open to a Government artificially to prolong the period within which an affirmative instrument must be approved in both Houses, by laying a fresh but identical order just before the expiry of the period. In theory this could be done over and over again, thus keeping the order in force throughout a Parliament without ever obtaining approval for it. No Government is likely to engage in an abuse of that magnitude, but it appears to Your Committee that there is a standing temptation to postpone the moving of affirmative resolutions for reasons of mere convenience to the Administration. Recently, the Foreign and Commonwealth Office failed to bring before the House an affirmative order solely because it was inconvenient to do so. Is it not possible that the Administration may find it convenient not to bring before the House the order which we are discussing but to lay a further order, even if it is an affirmative order?

Wide powers are contained in the Bill. The amendment simply seeks to give all hon. Members the power to move an affirmative resolution to the order so that none of the parties to an agreement can accuse the Government of using backdoor methods of obtaining the powers. The amendment will ensure that we are allowed to debate the order before it is put into effect. That is a reasonable demand for the House of Commons to make.

I have quoted from two Select Committee reports which show that an affirmative order is not necessarily protection enough when considerable powers are handed over to the Government. I urge the Government to accept the amendment.

Photo of Mr Eric Deakins Mr Eric Deakins , Waltham Forest Walthamstow

When dealing with amendment No. 36, the Lord Privy Seal said that most, if not all, of the modifications to the constitution will have been agreed between the parties. I was not clear whether he meant that they will have been agreed at the Lancaster House negotiations or subsequently. If that is so, surely it would be possible to lay before Parliament draft orders in respect of those modifications prior to their coming into effect. I wonder whether the Minister will comment on that.

Photo of Mr Richard Luce Mr Richard Luce , Shoreham

As the right hon. and learned Member for Warley, West (Mr. Archer) implied, the effect of amendment No. 39 would be to compel the Government to lay before the House in draft any Order in Council made under section 2 for the purpose of introducing parts of the constitution before independence.

I remind the right hon. and learned Member that the purpose of the Bill is to allow the Government to implement the agreement quickly. As he knows, we made that point as strongly as we could during Second Reading. The constitution has been agreed by all the parties, subject to the pre-independence arrangements, and it would not be right to insist that orders to bring parts of it into effect for the purpose of holding elections should be subject to prior parliamentary approval. The orders will be subject to affirmative resolution, and hon. Members will have opportunities to express their views.

It is important that I should give specific answers to the right hon. and learned Gentleman's questions. I should first like to give him a clear picture of the provisions that we have in mind, which might help him to assess whether he wishes to press the amendment. I hope that he will not do so. The purpose of the three sets of provisions which I shall highlight is to advance the implementation of the constitution which has been agreed by all the parties and to enable the essential parts to be implemented in time.

The first provisions are for the elections to the House of Assembly which are to be held under the new constitution. Secondly, there are provisions for separate elections for the Senate, which again are part of the constitution that has been agreed and which apply also to the appointement of the President-elect. Finally, it is necessary to have provisions for appointing Ministers after the elections. We have those three sets of provisions in mind in asking the House of Commons for power under the enabling Act.

I listened carefully to the remarks of the hon. Member for Keighley (Mr. Cryer). I served on the Select Committee on Procedure and am also anxious that the rights of the House should be preserved. However, we are dealing here with a very short period. Once we have agreement, we want to move fast and the Government will have to take quick decisions. We cannot wait for 28 days. That is why we want the powers in these three areas to activate the elections and ensure that the pre-independence arrangements and the constitution are properly implemented.

Photo of Mr Peter Archer Mr Peter Archer , Warley West

I wish to put three further questions to the Minister. First, I remind him that I put two additional questions in opening. Secondly, what proposals do the Government have in mind under the powers in clause 3? Thirdly, the Minister said that the Government could not wait 28 days, but why would it be necessary for them to wait 28 days? If there is agreement, what is the difficulty in bringing the matter before Parliament at once?

Photo of Mr Richard Luce Mr Richard Luce , Shoreham 10:30 pm, 12th November 1979

The whole burden of the discussion about the Bill and its purposes—we have been over this many times—is that we are asking for powers to enable us to move swiftly once agreement is reached at Lancaster House. That is almost the salient feature behind the Bill. We feel that speed of action is essential if we are to make progress quickly. I am sure that there will be few on either side of the Chamber who dis- agree with that objective. Once we have an agreement, which we hope to have, we shall wish to pursue it as rapidly as possible.

I must apologise to the right hon, and learned Gentleman. I thought that I had answered his main questions. He asked about powers under clause 3. If it is in order, I shall seek to answer that question. The most important power that we seek under clause 3 is the power to establish the office of Governor. That is something on which we shall wish to act extremely rapidly. That is an essential power. There are other orders that we have in mind concerning the orderly termination of sanctions. Clearly, there are many technicalities that must be followed. Principally, there is the power to deal with the appointment of the Governor.

Photo of Sir John Morris Sir John Morris Shadow Attorney General

I do not think that the Under-Secretary of State has faced the case advanced succinctly by my right hon, and learned Friend the Member for Warley, West (Mr. Archer). There is an assumption all along the line that there will be an agreement. We have heard nothing about what happens in default of an agreement.

We are all anxious to make progress. It is in the interest of the House of Commons that the hon. Gentleman faces the questions asked by my right hon, and learned Friend. The Government seek to confer extremely wide powers. The greater the powers, the greater the entitlement of the Committee to scrutinise. Another Act will be required to implement the whole of the constitution. In that event there will be preliminary consideration by the House of Commons. However, when one is dealing with the implementation of parts of the constitution, no preliminary inquiry is allowed. I find that a contradiction in terms.

The reasoned amendment introduced by my right hon. Friend and learned Friend deserves and commands a full response. The hon. Gentleman says "We cannot wait 28 days." That was fundamental to his case. Nobody is asking him to wait 28 days. The Government wanted to complete all stages of the Bill in one sitting. Surely, it is not beyond the wit of the Government to imagine the House of Commons giving approval for an order to be made under the Bill within a similar, if not shorter, period. I do not know from where the hon. Gentleman gets 28 days for the preliminary approval of the House of Commons to implement an order made under the Bill.

We are deeply aware of the need for speed. The hon. Gentleman knows how ready the House of Commons is on such occasions to meet the needs of the Government of the day when the objects that they are seeking to achieve are approved.

Why should he put such a difficulty in our way when all that is desired is to scrutinise important powers? If we do not do so in advance, we shall be too late because the horse will have bolted.

I ask my right hon and hon. Friends to vote in support of the amendment.

Question put, That the amendment be made:

The Committee divided: Ayes 244. Noes 299.

Division No. 101]AYES[10.35 pm
Adams, AllenDunnett, JackLeadbitter, Ted
Allaun, FrankDunwoody, Mrs GwynethLeighton, Ronald
Anderson, DonaldEadie, AlexLewis, Ron (Carlisle)
Archer, Rt Hon PeterEastham, KenLitherland, Robert
Armstrong, Rt Hon ErnestEdwards, Robert (Wolv SE)Lofthouse, Geoffrey
Ashley, Rt Hon JackEllis, Raymond (NE Derbyshire)Lyon, Alexander (York)
Ashton, JoeEllis, Tom (Wrexham)McCartney, Hugh
Atkinson, Norman (H'gey, Tott'ham)English, MichaelMcDonald, Dr Oonagh
Barnett, Guy (Greenwich)Evans, Ioan (Aberdare)McGuire, Michael (Ince)
Barnett, Rt Hon Joel (Heywood)Evans, John (Newton)McKay, Allen (Penistone)
Beith, A. J.Field, FrankMcKelvey, William
Benn, Rt Hon Anthony WedgwoodFitch, AlanMacKenzie, Rt Hon Gregor
Bennett, Andrew (Stockport N)Flannery, MartinMaclennan, Robert
Bidwell, SydneyFletcher, L. R. (Ilkeston)McMillan, Tom (Glasgow, Central)
Booth, Rt Hon AlbertFletcher, Ted (Darlington)McNally, Thomas
Boothroyd, Miss BettyFord, BenMcNamara, Kevin
Bottomley, Rt Hon Arthur (M'brough)Forrester, JohnMcWilliam, John
Bradley, TomFoster, DerekMagee, Bryan
Bray, Dr JeremyFraser, John (Lambeth, Norwood)Marks, Kenneth
Brown, Hugh D. (Provan)Freeson, Rt Hon ReginaldMarshall, David (Gl'sgow, Shettles'n)
Brown, Robert C. (Newcastle W)Freud, ClementMarshall, Dr Edmund (Goole)
Brown, Ron (Edinburgh, Leith)Garret), John (Norwich S)Marshall, Jim (Leicester South)
Buchan, NormanGarrett, W. E. (Wallsend)Martin, Michael (Gl'gow, Springb'rn)
Callaghan, Rt Hon J. (Cardiff SE)George, BruceMason, Rt Hon Roy
Callaghan, Jim (Middleton & P)Gilbert, Rt Hon Dr JohnMaxton, John
Campbell, IanGinsburg, DavidMaynard, Miss Joan
Campbell-Savours, DaleGolding, JohnMeacher, Michael
Canavan, DennisGourlay, HarryMellish, Rt Hon Robert
Cant, R. B.Grant, George (Morpeth)Mikardo, Ian
Carmichael, NeilGrant, John (Islington C)Millan, Rt Hon Bruce
Carter-Jones, LewisHamilton, James (Bothwell)Miller, Dr M. S. (East Kilbride)
Cartwright, JohnHamilton, W. W. (Central Fife)Mitchell, Austin (Grimsby)
Clark, David (South Shields)Hardy, PeterMitchell, R. C. (Soton, ltchen)
Cocks, Rt Hon Michael (Bristol S)Harrison, Rt Hon WalterMorris, Rt Hon Charles (Openshaw)
Cohen, StanleyHart, Rt Hon Dame JudithMorris, Rt Hon John (Aberavon)
Coleman, DonaldHattersley, Rt Hon RoyMoyle, Rt Hon Roland
Concannon, Rt Hon J. D.Haynes, FrankMulley, Rt Hon Frederick
Conlan, BernardHealey, Rt Hon DenisNewens, Stanley
Cook, Robin F.Heffer, Eric S.Oakes, Rt Hon Gordon
Cowans, HarryHogg, Norman (E Dunbartonshire)O'Halloran, Michael
Cox, Tom (Wandsworth, Tooting)Holland, Stuart (L'beth, Vauxhall)O'Neill, Martin
Crowther, J. S.Home Robertson, JohnOrme, Rt Hon Stanley
Cryer, BobHomewood, WilliamOwen, Rt Hon Dr David
Cunliffe, LawrenceHooley, FrankPalmer, Arthur
Cunningham, George (Islington S)Horam, JohnPark, George
Cunningham, Dr John (Whitehaven)Howell, Rt Hon Denis (B'ham, Sm H)Parker, John
Dalyell, TamHowells, GeraintParry, Robert
Davidson, ArthurHuckfield, LesPendry, Tom
Davies, Rt Hon Denzil (Llanelli)Hughes, Roy (Newport)Penhaligon, David
Davies, E. Hudson (Caerphilly)Janner, Hon GrevillePowell, Rt Hon J. Enoch (S Down)
Davies, Ifor (Gower)Jay, Rt Hon DouglasPowell, Raymond (Ogmore)
Davis, Clinton (Hackney Central)John, BrynmorPrescott, John
Davis, Terry (B'rm'ham, Stechford)Johnson, James (Hull West)Price, Christopher (Lewisham West)
Deakins, EricJohnson, Walter (Derby South)Race, Reg
Dean, Joseph (Leeds West)Johnston, Russell (Inverness)Rees, Rt Hon Merlyn (Leeds South)
Dempsey, JamesJones, Rt Hon Alec (Rhondda)Richardson, Miss Jo
Dewar, DonaldJones, Barry (East Flint)Roberts, Albert (Normanton)
Dixon, DonaldJones, Dan (Burnley)Roberts, Allan (Bootle)
Dobson, FrankKaufman, Rt Hon GeraldRoberts, Ernest (Hackney North)
Dormand, JackKerr, RussellRoberts, Gwilym (Cannock)
Douglas, DickKilroy-Silk, RobertRobertson, George
Douglas-Mann, BruceKinnock, NeilRobinson, Geoffrey (Coventry NW)
Dubs, AlfredLambie, DavidRooker, J. W.
Duffy, A. E. P.Lamborn, HarryRoper, John
Dunn, James A. (Liverpool, Kirkdale)Lamond, JamesRoss, Ernest (Dundee West)
Ross, Stephen (Isle of Wight)Strang, GavinWhite, Frank R. (Bury & Radcliffe)
Rowlands, TedStraw, JackWhite, James (Glasgow, Pollok)
Sandelson, NevilleSummerskill, Hon Dr ShirleyWhitlock, William
Sever, JohnTaylor, Mrs Ann (Bolton West)Wigley, Dafydd
Sheerman, BarryThomas, Jeffrey (Abertillery)Wiley, Rt Hon Frederick
Sheldon, Rt Hon Robert (A'ton-u-L)Thomas, Mike (Newcastle East)Williams, Rt Hon Alan (Swansea W)
Shore, Rt Hon Peter (Step and Pop)Thomas, Dr Roger Carmarthen)Wilson, Rt Hon Sir Harold (Huyton)
Silkin, Rt Hon John (Deptford)Thorne, Stan (Preston South)Wilson, William (Coventry SE)
Silkin, Rt Hon S.C. (Dulwich)Tilley, JohnWinnick, David
Silverman, JuliusTinn, JamesWoolmer, Kenneth
Skinner, DennisTorney, TomWrigglesworth, Ian
Snape, PeterVarley, Rt Hon Eric G.Wright, Shella
Soley, CliveWainwright, Edwin (Dearne Valley)Young, David (Bolton East)
Spearing, NigelWalker, Rt Hon Harold (Doncaster)
Spriggs, LeslieWatkins, DavidTELLERS FOR THE AYES:
Stallard, A. W.Weetch, KenMr. Ted Graham and
Stoddart, DavidWellbeloved, JamesMr. George Morton
Stott, RogerWelsh, Michael
NOES
Adley, RobertDickens, GeoffreyHolland, Philip (Carlton)
Aitken, JonathanDorrell, StephenHooson, Tom
Alexander, RichardDover, DenshoreHowell, Rt Hon David (Guildford)
Alison, Michaeldu Cann, Rt Hon EdwardHowell, Ralph (North Norfolk)
Ancram, MichaelDunn, Robert (Dartford)Hunt, David (Wirral)
Arnold, TomDurant, TonyHunt, John (Ravensbourne)
Aspinwall, JackDykes, HughHurd, Hon Douglas
Atkins, Robert (Preston North)Eden, Rt Hon Sir JohnIrving, Charles (Cheltenham)
Atkinson, David (Bournemouth, East)Edwards, Rt Hon N. (Pembroke)Jessel, Toby
Baker, Nicholas (North Dorset)Eggar, TimothyJohnson Smith, Geoffrey
Banks, RobertElliott, Sir WilliamJopling, Rt Hon Michael
Beaumont-Dark, AnthonyEmery, PeterJoseph, Rt Hon Sir Keith
Bell, RonaldEyre, ReginaldKaberry, Sir Donald
Bendall, VivianFairbairn, NicholasKellett-Bowman, Mrs Elaine
Bennett, Sir Frederic (Torbay)Fairgrieve, RussellKilfedder, James A.
Benyon, Thomas (Abingdon)Faith, Mrs SheilaKimball, Marcus
Benyon, W. (Buckingham)Farr, JohnKing, Rt Hon Tom
Berry, Hon AnthonyFell, AnthonyKitson, Sir Timothy
Best, KeithFenner, Mrs PeggyKnox, David
Bevan, David GilroyFinsberg, GeoffreyLamont, Norman
Biffen, Rt Hon JohnFisher, Sir NigelLang, Ian
Biggs-Devison, JohnFletcher, Alexander (Edinburgh N)Langford-Holt, Sir John
Blackburn, JohnFietcher-Cooke, CharlesLatham, Michael
Blaker, PeterFookes, Miss JanetLawrence Ivan
Body, RichardForman, NigelLawson, Nigel
Bonsor, Sir NicholasFraser, Rt Hon H. (Stafford & St)Lee, John
Boscawen, Hon RobertFraser, Peter (South Angus)Le Marchsnt, Spencer
Bottomley, Peter (Woolwich West)Fry, PeterLester, Jim (Beeston)
Bowden, AndrewGalbraith, Hon T. G. D.Lewis, Kenneth (Rutand)
Boyson, Dr RhodesGardiner, George (Reigate)Lloyd, Ian (Havant & Waterloo)
Braine, Sir BernardGardner, Edward (South Fylde)Lloyd, Peter (Fareham)
Bright, GrahamGarel-Jones, TristanLoveridge, John
Brinton, TimGilmour, Rt Hon Sir IanLuce, Richard
Brittan, LeonGoodhart, PhillipLyell, Nicholas
Brocklebank-Fowler, ChristopherGoodhew, VictorMcAdden, Sir Stephen
Brooke, Hon PeterGoodlad, AlastairMcCrindle, Robert
Brotherton, MichaelGow, IanMacfarlane, Neil
Brown, Michael (Brigg & Sc'thorpe)Gower, Sir RaymondMacGregor, John
Browne, John (Winchester)Grant, Anthony (Harrow C)MacKay, John (Argyll)
Bruce-Gardyne, JohnGray, HamishMcNair-Wilson, Michael (Newbury)
Bryan, Sir PaulGreenway, HarryMcNair-Wilson, Patrick (New Forest)
Buck, AntonyGrieve, PercyMcQuarrie, Albert
Budgen, NickGriffiths, Eldon (Bury St Edmunds)Madel, David
Bulmer, EsmondGriffiths, Peter (Portsmouth N)Major, John
Burden, F. A.Grist, IanMarland, Paul
Butcher, JohnGrylls, MichaelMarlow, Tony
Butler, Hon AdamGummer, John SelwynMarshall, Michael (Arundel)
Cadbury, JocelynHamilton, Hon Archie (Eps'm&Ew'll)Mates, Michael
Carlisle, John (Luton West)Hamilton, Michael (Salisbury)Mawby, Ray
Carlisle, Kenneth (Lincoln)Hampson, Dr KeithMawhinney, Dr Brian
Chalker, Mrs LyndaHannam, JohnMaxwell-Hyslop, Robin
Channon, PaulHaselhurst, AlanMayhew, Patrick
Chapman, SydneyHastings, StephenMellor, David
Churchill, W. S.Havers, Rt Hon Sir MichaelMeyer, Sir Anthony
Clark, Dr William (Croydon South)Hawkins, PaulMiller, Hal (Bromsgrove & Redditch)
Cockeram, EricHawksley, WarrenMills, Iain (Meriden)
Colvin, MichaelHayhoe, BarneyMills, Peter (West Devon)
Cope, JohnHeath, Rt Hon EdwardMiscempbell, Norman
Cormack, PatrickHeddle, JohnMitchell, David (Basingstoke)
Corrie, JohnHenderson, BarryMoate, Roger
Costain, A. P.Heseltine, Rt Hon MichaelMonro, Hector
Cranborne, ViscountHicks, RobertMontgomery, Fergus
Critchley, JulianHiggins, Rt Hon Terence L.Moore, John
Crouch, DavidHill, JamesMorgan, Geraint
Morris, Michael (Northampton, Sth)Ridley, Hon NicholasTemple-Morris, Peter
Morrison, Hon Charles (Devizes)Rifkind, MalcolmThomas, Rt Hon Peter (Hendon S)
Morrison, Hon Peter (City of Chester)Rippon, Rt Hon GeoffreyThompson, Donald
Mudd, DavidRoberts, Michael (Cardiff NW)Thorne, Neil (Ilford South)
Murphy, ChristopherRoberts, Wyn (Conway)Thornton, Malcolm
Myles, DavidRobinson, Peter (Belfast East)Townend, John (Bridlington)
Neale, GerrardRost, PeterTownsend, Cyril D. (Bexieyheath)
Needham, RichardRoyle, Sir AnthonyTrippier, David
Nelson, AnthonySainsbury, Hon TimothyTrotter, Neville
Neubert, MichaelSt. John-Stevas, Rt Hon Normanvan Straubenzee, W. R.
Newton, TonyScott, NicholasVaughan, Dr Gerard
Nott, Rt Hon JohnShaw, Gies (Pudsey)Viggers, Peter
Onslow, CranleyShelton, William (Streatham)Waddington, David
Oppenheim, Rt Hon Mrs SallyShepherd, Colin (Hereford)Wakeham, John
Osborn, JohnShepherd, Richard (Aldridge-Br'hills)Waldegrave, Hon. William
Page, John (Harrow, Wast)Shersby, MichaelWalker, Bill (Perth & E Perthshire)
Page, Rt Hon R. Graham (Crosby)Silvester, FredWalker-Smith, Rt Hon Sir Derek
Paisley, Rev IanSims, RogerWall, Patrick
Parkinson, CecilSkeet, T. H. H.Waller, Gary
Parris, MatthewSpeed, KeithWard, John
Patten, Christopher (Bath)Speller, TonyWarren, Kenneth
Patten, John (Oxford)Spence, JohnWatson, John
Pattie, GeoffreySpicer, Jim (West Dorset)Wells, John (Maidstone)
Pawsey, JamesSproat, IainWells, Bowen (Hert'rd & Stev'nage)
Percival, Sir IanSquire, RobinWheeler, John
Pink, R. BonnerStainton, KeithWhitney, Raymond
Pollock, AlexanderStanbrook, IvorWickenden, Keith
Porter, GeorgeStanley, JohnWiggin, Jerry
Price, David (Eastleigh)Steen, AnthonyWilkinson, John
Prior, Rt Hon JamesStevens, MartinWilliams, Delwyn (Montgomery)
Proctor, K. HarveyStewart, Ian (Hitchln)Winterton, Nicholas
Raison, TimothyStewart, John (East Renfrewshire)Wolfson, Mark
Rathbone, TimStokes, JohnYoung, Sir George (Acton)
Rees, Peter (Dover and Deal)Stradling Thomas, J.
Rees-Davies, W. R.Tapsell, PeterTELLERS FOR THE NOES:
Rhodes James, RobertTaylor, Robert (Croydon NW)Mr. Carol Mather and
Rhys Williams, Sir BrandonTebbit, NormanLord James Douglas-Hamilton

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Mr Ian Lloyd Mr Ian Lloyd , Havant and Waterloo

I hope that I am in order in concluding that this debate on the clause is the only occasion on which one may discuss the provisions of the constitution which the clause empowers the House of Commons to bring into operation. I should like to discuss just that—very briefly, sensitive as I am to the impatience of hon. Members at this time of night.

I start by asking the Minister two questions in relation to the State and the independence constitution. First, it would seem that Zimbabwe is now to be the name of the new country and that the name Rhodesia is to disappear. Do I take it that is the considered conclusion of the conference? I think that this point will bring different degrees of support from different people. Many hon. Members will realise that Zimbabwe refers to a ruin, whereas Rhodesia refers to a country that was created by probably one of the greatest colonial servants of all time. [HON. MEMBERS: "Rhodes!"] Hon. Members who jeer at Rhodes may recall that Cecil J. Rhodes has supported at least 3,000 Rhodes scholars at Oxford university. Jeer at that if they wish.

Perhaps I may return to an important section to which I have already referred— Freedom from Deprivation of Property Paragraph V(2) on page 6 states: Exception will be made for the taking of possession of property during a period of public emergency. It is not clear whether this exception is qualified by the provisions of paragraph V(1), which properly states that "adequate compensation" should be paid. It would appear from reading this summary that paragraph v(2) does not fall within that provision. I shall be glad to have the Minister's assurance that my conclusion is correct.

On page 7, paragraph V(3)(b), the constitution provides that, where compensation is to be remitted to the United Kingdom, reasonable restrictions as to the manner in which the payment is to be remitted shall be applied in all cases. "Reasonable" has different meanings as between individuals. Sometimes it is unreasonable when handled by a Government such as that of Idi Amin. Who is to interpret the word "reasonable"? Is it entirely the new Government, their civil servants or the Zimbabwe Parliament? Or is there to be some arbitration procedure by the IMF?

The next question refers to a point that I made earlier. It comes under paragraph VI(2)— Protection for Privacy of Home and Other Property. Again, we have what I might describe as the six ugly sisers. Virtually anything can be done in the interests of defence, public safety, public order, public morality, public health, or town and country planning ". Who is to decide what these interests are? How are they to be interpreted? Are any criteria to be laid down? If so, where are they to be laid down? Are they to be laid down by the Zimbabwe Parliament, and are they to be interpreted by the Zimbabwe courts?

On page 8 there is an interesting qualification that is repeated on several subsequent occasions: What would be reasonably justifiable in a democratic society. That is a very broad definition. Which type of democratic society? Our type of democratic society? Again, what kind of reasonableness? I referred earlier to this being a coach-and-horses constitution. This is certainly a very wide gate through which all kinds of interpretations can be driven.

I turn now to page 13, paragraph XII— "Protection from Discrimination". I imagine that this must have been a very difficult provision for my right hon. Friend to bring to the point of agreement in a draft constitution. It is understandable that it should be forbidden for any law to contain a provision that is discriminatory. This is discriminatory not as qualified further down— race, tribe, place or origin, political opinions, colour or creed"— but in the broadest possible sense. For example, would this prohibit any new Government of Zimbabwe, for reasons which they considered justifiable, declaring a particular tribal area to be the property of a particular tribe or for a particular tribe to have defined or stated privileges in such an area? I can imagine circumstances in which the new Government of Zimbabwe would find it reasonable and justifiable to wish to do something of that kind. Under the clause, as I understand it, they are totally prohibited from doing so.

Finally, I ask the Lord Privy Seal to advise us whether the constitution is in its absolutely final form or whether, when it is printed, there will be considerable detailed emendations of the constitution which will affect the meaning of the very broad summary document which the House is being asked to approve under clause 2 this evening.

It seems to me that we bear the same relation to this constitution as the Senate in the United States of America bears to SALT II. We are not even asked to advise and consent; we are merely asked to consent.

Although, obviously, we wish to help my right hon. Friend in every possible way, it would be useful to have an answer to the points I have raised.

Photo of Mr Bob Cryer Mr Bob Cryer , Keighley

The clause is a very powerful one, conferring enormous powers on the Executive. We had a debate earlier, on an amendment put forward by my right hon. and learned Friend the Member for Warley, West (Mr. Archer), to which no answers whatever were provided, although the matter was of great constitutional importance. I thought that the House of Commons was here to do some sort of scrutinising job on the Executive. Parliament is handing over enormous powers to the Executive, and yet when we made a request that proper procedure should be followed we had no response whatever from the Minister.

Will the Lord Privy Seal give an assurance to the Committee that the Foreign and Commonwealth Office will not use the powers in clause 2(3) to avoid bringing an order before the House when the order has been laid for 28 days? In other words, will he assure us that he will not lay an order, avoid debate for 28 days and then lay a further order before the expiration of the first order, and so on, which would have the effect of continuing the powers but without giving the opportunity to the House for debate? It is a very important point.

Photo of Mr Ian Gilmour Mr Ian Gilmour , Chesham and Amersham

I certainly give the hon. Gentleman that assurance.

My hon. Friend the Member for Havant and Waterloo (Mr. Lloyd) said that the House of Commons was being asked to consent to the constitution under clause 2 of the Bill. That is not so. It is not being asked to consent to the constitution. As I explained earlier, when my hon. Friend may not have been present, in accordance with precedent the constitution is being worked out with two other parties at the conference, and it would be quite impossible if the House were able to alter parts of the constitution. It will be given to the House as a fait accompli in an Order in Council. Therefore, clause 2 does not have the effect that my hon. Friend suggested.

One or two of my hon. Friend's questions came out so fast that I could not catch them. I hope that he will forgive me if I write to him about them when I have been able to read them in Hansard. I can, however, answer one or two of them now. The answer to his first question is that the country will be called Zimbabwe. The courts will decide what "reasonable" means. "Democracy" is a notoriously difficult word to define, and I would not seek to do so at this moment. The constitution is not, of course, in its final form, as I stated earlier. It is in ordinary language. It is comprehensible, and the final version probably will not be.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.