Provincial Council.

Lyttelton Times, Volume III, Issue 147, 29 October 1853, Page 9

Provincial Council.

The Council did not sit on Friday, the 21st October. TUESDAY, 25th October. The Council met at 4 o'clock, p.m. i^'he Government Gazette Bill was passed through Committee, and the report brought up. Mr. Hamilton applied for leave to postpone the further consideration of the Limitation of Patronage Bill, and of the Appropriation Bill, until Wednesday. In both cases, a legal opinion was required as to certain clauses ; and in the latter case great care was necessary in consequence of the peculiar way in which the Provincial Government was dealing with the revenue.

PROVINCIAL executive government bill. This Bill was read a second time. Mr. Hamilton then, according to notice, moved for the suspension of Standing Order No. 59, in order to bring the Bill, in its new state, up to the same stage which it would have reached if unaltered. There was no real alteration in it, but some simplification had been effected. An immediate necessity bad been felt for these Government measures when it was thought that the General Assembly would soon meet; but as it is now not expected that that body will meet immediately, there is no longer such need of haste. That was why the Bills had been first introduced in so hurried a manner as to require revision. And he much preferred introducing a new Bill to the practice, which he was sorry to see beginning to prevail in this Council, of so altering clause after clause in Committee as to change the whole measure (hear.) Mr. Tancred seconded the motion. Mr. Hall still retained his wish to oppose this dangerous practice of suspending the Standing Orders, except in cases of great emergency, which he did not acknowledge in the present instance. But he would not divide the Council, as he felt he could not command a majority. The Council went into Committee, Mr. Bowen in the Chair. On the discussion of the Preamble and Clause 1, Mr. Hall trusted the honorable gentleman in charge of the Bill (Mr. Hamilton) would afford some further explanation of the functions of the proposed Executive Council. It only appeared from the Bill, that they were to advise and assist the Superintendent,—a very vague duty. Mr. Hamilton said the Executive Council was intended to bear the same relation to the Superintendent as the Executive Councils of New Zealand and of the late Provinces had borne towards the Governor and late-Lieu-tenant Governors: which used to advise the Head of the Executive, to record their deliberations and proceedings, and transmit the written protest of any member disagreeing with the Governor's policy, with his reasons, to the Secretary of Slate in England, for his judgment and decision. The proposed Council would advise the Superintendent, and assist him in carrying on the Executive Government of the Province, and would have the power of restraining the Superintendent from dismissing public officers without duly investigating and recording the circumstances leading to sucli dismissal; a guarantee for security of tenure which would be required by gentlemen capable of the duty before they wouid accept such offices. A Council, composed of several persons, was less likely to be influenced by hasty and unjust anger towards a public officer, than the Superintendent alone. By some clauses of the Bill, the Superintendent was empowered to make regulations for the conduct of the public officers, which being adopted by the Executive Council, would become binding In this respect members of that body, well versed in the details of business, might render useful service to any Superintendent who should come newly into that office, perhaps, unacquainted with the details of business although perfectly capable of guiding the general policy of the Province. The Executive Council would also act as a check on any arbitrary measures of the Superintendent. And it would be useful in pointing out to that officer desirable improvements in the management of public business: or, perhaps, in pointing out that some alterations supposed by him to be improvements, would be practically inconvenient and undesirable. Moreover, if there were not members in the Provincial Council prepared to support the measures proposed by the Superintendent, public business would come to a stand-still, Even if volunteers were found to take charge, one of one Government Bill, and another of a second, there would be no unity among them : and when part of one Bill might bear on another, the promoters, if totally unacquainted with the policy of the Superintendent, would perhaps differ from each other on both. Nor could they answer questions in the Council as to the views and intentions of the Provincial Government.

Mr. Hall would support the clause, because he believed it to be a bona fide attempt to devise a system of responsible Government adapted to our peculiar circumstances; but he could not forbear expressing his doubts as to

the success of the plan now proposed. He had no serious fears for the independence of the Provincial Council, for practically he believed the machinery now to be introduced, would breakdown long before any such result could be arrived at. He would consider the Executive Council in its two capacities, first, as assisting the Superintendent in the administration of the Government, and secondly, as representing His Honor in that House. In the first case, he thought with a Superintendent willing to govern in the spirit of the Constitution, and competent to administer the affairs of the Province, it would be a cumbrous piece of machinery, unnecessarily hampering his proceedings, and relieving him of the responsibility which ought to rest upon him. Upon a Superintendent, on the other hand, disposed to act arbitrarily, or to make use of his power for party and interested purposes, the Executive Council would be no efficient check, for he had the legal power (and in such a case would doubtless use it) of dismissing any persons opposed to his proceedings, and appointing his own partisans in his stead. For representing the Executive in the Provincial Council, he fully admitted that some provision was necessary, but he did not think the one now proposed was a satisfactory solution of the problem as to what that representation should be. Composed of persons buvthened with private occupations, and frequently absent from Christchurch, it was impossible for them to accomplish what might fairly be expected from a body of men assuming the responsibility of Government. Of such a body it might be expected that they should make themselves thoroughly conversant with the machinery of Government, with the working of such machinery, until the resources of the Province, as well as all the calls upon those resources, and especially that they should by frequent opportunities for discussion among themselves, be able to come before the Council agreed upon what measures it was expedient to bring forward or to agree to, and what proposals it was necessary to resist. That they should, in short, exhibit united action, and represent the Superintendent in a vigorous and efficient manner (hear, hear.) "With due respect for the members of the Executive Council, he did not think that this had hitherto been the case; it could not be expected from them ; he believed that no man, or body of men, however great their ability, could govern a country during their leisure hours, or even carry on the administration of a Province during their intervals of business (hear.) Then again, upon whom, the Superintendent or the Executive Council, did this plan throw the responsibility of the acts of the administration? Which of the two was answerable for the measures brought forward, or what was perhaps more important still, for those omitted to be brought forward ? In England this responsibility rested upon the Ministry, because they chose their own policy ; but he could hardly suppose that this was to be the case here, as the Superintendent would, in that event, be reduced to a mere cipher. On the other hand, he could not believe that the gentlemen composing the Council looked upon themselves as merely the organs of the Superintendent, pledged to carry out any policy that might be dictated by him. He presumed the responsibility was to be divided, (a very objectionable principle) and only such measures brought forward as both parties could agree upon. The advisers of the Superintendent would thus be placed between two fires. If they could not agree with His Honor they must resign, and they must do the same if the Provincial Council did not agree with them ; the consequence would probably be a constant fire of resignations, interrupted only by the want of material, or, in other words, of men who would take office on such terms (hear.) It might be objected, that did he not suggest an alternative ; he did not feel called upon to do so, because he wished the Government scheme to have a fair and a liberal trial. While he had felt it to be his duty to make these remarks, he thought that the difficult position in which the Government of the Province was placed, gave it strong claims on the support of that Council, and ou that principle he would support the Government whenever he could conscientiously refrain from opposing it (hear, hear.)

Mr. Dampier had great difficulty in coming to a decision on this subject. He could not see that the Government of the Province were in any such difficulty as to need an extension of their powers ; and he greatly doubted the power

of this Council to extend them as proposed. In Sir John Pakington's despatch to the Governor in chief, accompanying the Constitution Act, he found these Provincial Governments not considered by the Secretary of State to be on the pattern of the English House of Commons, or of the Government of Great Britain, hut to consist of a Superintendent, and of a Provincial Council before whom he had the exclusive power of laving laws ;(Mr. Tailored,''money bills only;")—well—but he was competent at all times to submit to them any laws he may think proper. He apprehended the proper way to do this was, precisely as the Act provides, and in no other way. He considered this Council rather as a municipal corporation than like the House of Commons. The Superintendent was not intended to be, like the Crown, represented in this Council by ministers. If it was only intended that the measures of the Superintendent should he submitted to the Council through a legitimate channel, by means of persons appointed by him, so far he thought the measure good. But there were other differences, and other points in which he doubted the power of this Council to pass the measure. According to the Act, there is a discretion imposed upon the Superintendent himself, and it is by the election of the people of the colony that he is in a position to exercise that discretion. Sir J. Pakington, in the 7th clause of his despatch said, "it has been thought advisable that the Provincial Councils should consist of a single Chamber, consisting wholly of elected members. They have been led to this conclusion by the comparatively unimportant nature of the functions of these Councils; which will be limited to local objects, such as would be considered hereto be of a municipal character, rather than partaking of the higher attributes of legislation." Again, in the 9th clause, he said "Nor have

provisions been inserted giving executive authority of any kind to the jSuperintendents. This is a point on which Her Majesty's Government did not feel that they had sufficient information to adopt any definite course, while the general prerogative of the Crown and the power of the General and Local legislatures, (loud cries of " hear") seemed amply sufficient to provide what ever might be ultimately deemed advisable." Sir John went on to say, at clause 10, "It is, however, my wish that any such executive powers as may be found necessary to carry on the functions of Government in the respective settlements, may be entrusted to these officers. This may be done by your own authority, as representing tfie Crown, or by Act of the Central Legislature, as the case may require." Now the Superintendents were chosen by the electors to exercise responsibility on account of their own qualities, and should therefore continue to exercise it, and not cast it off on an Executive Council. If this Council have power to substitute in that exercise of authority other persons, not elected to it by the people, but empowered by the Council to control him, the people will be represented by other parties, and uot by the Superintendent. It might, possibly, be better and more convenient that such an arrangement as that proposed should be made, but the powers of this Council were not large enough to establish it. They might seem large powers, but they were really very small ones. For in. stance there was a very limited power of criminal jurisdiction. If Ministers were appointed as in England, similar powers could not be given to them. If, however, the Council thought they had these large powers, it remained to be questioned whether this was a proper measure for the purpose. The selecting of members of the Executive from this Council deprived the people of a share of representation in it :it formed a sort of party :—the number ought to be limited. As the bill now stood the Speaker of this Council was to be one of the Executive. He very much questioned the propriety of such an arrangement: the Speaker had, on many occasions, to be a Judge of important matters of form, and it seemed most imperative that he should be perfectly free from party bias of any kind. Circumstances might occur to place him in a position of difficulty, if one of the Executive - (hear.) There was another point. By this Bill, a Provincial Solicitor to be the legal adviser of the Government, was to be appointed by the Superintendent. Now he thought the Council had already, in their Standing' Orders, retained the appointment of the legal adviser , for themselves. Was not this the same person ? Mr. Hamilton said no; the Provincial Council would appoint their Legal Adviser,

and the Superintendent, the Provincial Solicitor. Mr. Dampier. If so, there would be two legal officers; that would be a matter for seperate discussion. But the Bill went on to say that "not more than two members of the Provincial Council, besides the Speaker, should be members of the Executive Council." The provision should be in the opposite direction, to forbid Executive Councillors from voting at all in the Provincial Council. Mr. Tancred rose to order. The first clause and not the whole Bill, was under discussion. Mr. Dampier. And the Preamble, which includes the discussion of all Classes. Well, the sth Clause provided a representative for the Superintendent in case of his death. This was not in the power of the Council. Mr. Hamilton said no such Clause was in the Bill as read a second time. The learned Gentleman was reading from a draft of the Bill as first brought in. Mr. Dampier, after looking at a correct copy, apologised for having taken up the time of the Council vainly, through this mistake. He would stun up, however, the grounds of his objection to the Preamble of the Bill as it stood. He felt serious difficulty as to the powers of this Council, and entertained great doubts as to the expediency of the measure, even if within their powers. He thought there was no real call so to carry them out. This was one of the very first pieces of law-making by this Council ; until it were found to be expedient, he should object to anything like a stretch of its powers. They should err on the right side, and not be too forward in legislating, unless clearly within their defined powers. He would opppose the Clause. After some conversation, in which Mr. Bealey and Captain Simeon took part, on the wording of the amendment Mr. Dampier, moved that the Preamble and Clause 1 be expunged.

Mr. Tancred said that, although the second reading, and not the committal, was the most convenient and proper opportunity for discussing the general principles of a measure, he would follow honorable members who had done so, because an erroneus impression appeared to prevail in some quarters as to the actual position of this Couucil, and that in passing this measure it would overstep its powers. The learned gentleman (Mr. Dampier) had a very low view of those powers: if it were a correct one, they could do hardly anything. If the powers of this Council were reduced to that gentleman's estimate of them, they wonld have no powers at all, and no laws could be made. (Mr. Dampier,—" The General Assembly.") The other day the learned gentleman had remarked that that Assembly did not exist (laughter); and it certainly was not now exising for legislation : therefore this Council ought to assume the largest powers legally possible (hear). A great deal had been said about Sir J. Pakington's despatch. Now that gentleman might be a very clever Colonial Minister, but his despatch was not an Act of Parliament. His view of the Act was perhaps, erroneous ; he considered that the Council possessed inferior municipal powers only : but if he had intended it to be so, he should have procured the enactment of a different law, and not one which empowered these Councils, except on certain specified subjects, to make all laws for the peace, order, and. good government of the Province (hear, hear). He denied that a member of this Council if appointed to the Executive Council, would be abstracted from the representation of his constituents. Although he might support the policy of the Superintendent he would still represent them. He would fstill have considered, and made up his mind, though not in this House, whether the measures were, or were not, for the benefit of his constituents. Moreover, the connection would be dissolved at any time. The member may resign his seat in the Executive Council, or the Superintendent dismiss him, on any difference of opinion. Therefore he would not be abstracted from the representation, because in no way fettered or bound by the appointment (hear). The Superintendent is not like the Queen, acting only on the advice of responsible ministers; he can use his own dhc etion. Bui, in order not to bring affairs to a dead lock, he would take advisers from the Provincial Council, thus securing advice in accordance with

the wishes of the peoples' representatives. And here is the check upon him, that if they disagree with him and resign, be must find others who do agree with him, and who can command

a majority of the Provincial Council, in order lo carry his measures through (hear, hear). There was a provision making the approval !of the Executive Council necessary to rules and regulations for the conduct of the Executive Government. These rules would be so framed as to make the Government really responsible to the Executive Council. He acknowledged that it had not hitherto been so ; the members of the provisional Executive Council had not been able, owing to the press of business, to meet together and agree thoroughly enough. Some measures had, in consequence, been withdrawn after introduction. But he felt sure that in future, any member of the Executive Council who might seriously disagree with the Superintendent, would resign his seat there (hear). «

Mr. Hall said this would be no check on the power of a bad Svperintendent ; who might remove obnoxious members, and put in others who would do as he liked.

Mr. Tancred said this was the very object of the Bill; to make the Superintendent, by law, obliged to take the advice of the Executive Council, and carry on the Government according to regulations approved by them. If a majority of the Provincial Council, did not approve of the measures advised and cousented to by the Executive Council, the Government of course could not go on, and the Superintendent would have to find other advisers. This, of course, referred to the general policy of the Superintendent, and not to details. If that policy was bad, he would be checked and controlled by the Executive Council; he would have, eventually, to bow to their advice, or else the Government would come to a dead lock. He was sure all members would agree that if any man in this Province could be trusted to carry on its government without help or control from an Executive Council, it was the present Superintendent (hear); but this measure was. framed with a view to the future so as to provide an efficient check on any future Head of the Provincial Executive, who might be more presumptuous, and endeavour to enforce his own opinions (hear).