THE GOVERNOR AND THE MINISTRY.

New Zealand Herald, Volume XXIX, Issue 8960, 18 August 1892, Page 5

THE GOVERNOR AND THE MINISTRY.

APPOINTMENTS ip LEGISLATIVE goij^eiL. OFFICIAL CORRESPONDENCE. IMPORTANT CONSTITUTIONAL QUESTION. [rr TELEGRAPH.SPECIAL CORRESPONDENT, J Wellington, Wednesday. THfe long expected Correspondence between the Governor and Ministers relative to the proposed appointment! to.the Legislative Council wad presented to Parliament to day. It is very voluminous., THE POSITION TAKBN OP BT HIS EXOKLLKNOY.

1. First comes the memorandum by, the Governor, dated 27th July, in which Lord Glasgow (referring to a previous memorandum from the Premier, not published) remarks, on the authority of Todd, that the difference between himself and his Ministors is "a question of an Imperial nature in which, In a sense, the general policy of the empire is involved, and in which it is the duty of a Governor to Exercise thd power vested in him in his capacity of aii Imperial officer without limitation or restraint." He proceeds to say "that this is sO it is evident, because it is only under such circumstances that according to the latter part of the same paragraph Ministers can claim that While they are responsible to Parliament for the advice they have given they cannbt be strictly held accountable for their advice not having prevailed. This being so His Excellency is at a loss to understand how Ministers can be of opinion that the responsibility of appointments to the Council should' have rested with the responsible advisers of His Excellencyi and that the refusal to accept their advice is in derogation of the rights and privileges "of a -governing colony* and he desires to point Out that no self - governing colony possesses the right they claim. With regard 'to the statement that in offering a smaller number of appointments than MirtiStei"S asked for he withdre# ff-'6rn those responsible the confidence which the constitution requires him to repose in them, upon the inadequate ground that nine (9) are preferable to twolve (12) additions to the Council, in the first place he replies that he feels himself bound to resist their advice upon the ground that to grant the numbers Ministers asked for would be 'an ' unconstitutional interference with the liberties of the Legislative Council. In the ' second place, considering that His Excellency is personally responsible to the Crown for the manner in which he exercises the prerogative right of making appointments to the Council, he considers that the difference between nine and twelve appointments is fen inadequate reason for Creating a question between His Excellency and Ministers." ' . ■ . y

MINISTERS DENY TUB GOVERNOR'S RESPONSIBILITY. 2. Iti reply to Hip Excellency's memorandum the Premier denies that tile case is one in which it is the duty of a Governor to exercise the power vested in him in his capacity as an Imperial officer without limitation or restraint. If this were so, the Governor might make appointments to the Council without the advice of Ministers. The reference of Ministers in the memorandum quoted (Todd) was merely a reply to the assumption oF those who would contend that while the appointment of Councillors was different from the ordinary exercise of the Governor's power, Ministers were bound to resign if their advice was not taken. That this limitation was placed on the quotation, was evident from the fact that Ministers immediately proceeded to state their own opinion with re spect to Ministerial responsibility. Ministers submit that they have given reasons why the appointment of 12 members would be constitutional and proper, and that His Excellency has stated no reason why nine would be constitutional and 12 uuconstitu tional, or upon what grounds it would be "an unconstitutional interference with the liberties of the Legislative Council." Ministers do not agree that the Governor is "personally responsible to the Crown for the manner in which ha exercises the prerogative right of making appointments to the Council " in any other sense than the uxercise of responsibility upon the advice of his responsible advisers. They contend that the appointment of Councillors is not a " prerogative v right," but a Statutory Act under the Legislative Council Act 1891 ; and that according to Lord Knutsford'S dispatch to Lord Onslow, this appointment of Council lorß is not " a pergonal act" on the part of the Governor in the sense referred to. Ministers agree with His Excellency that the difference betwoen nine and twelve appointments is " an inadequate reason for creating a question between His Excellency and Ministers;" but they also-think that this argument applied also to the effect on the " liberties of the Legislative Council" of the three appointments His Excellency h&s been unwilling to make. Ministers thought and were therefore bound to advise that leas than twelve would riot be sufficient to enable the functions of the Council to be proporly discharged; they also think their advice was nob unreasonable nor unconstitutional.

FULL INFORMATION NOT BURNISHED TO THE

GOVERNOR. 3. The Governor, in reply, complained that full information had not yet been furnished to him, and concluded his memo, in the following terms "This information has never been given to His Excellency. He has felt himself procludod hitherto from obtaining it from other than his constitutional advisers, and if Ministers, with their greater experience, had afforded it to him when they tendered their advice, there might have been no hitch in the negotiations, for His Excellency has repeatedly assured the Premier that he will be only too happy to accept Ministers' advice, if it were proved to him that he could conscientiously do so. His Excellency now directs that the information ho asked from the Premier now some ten days ago, but which he has not received, be supplied him, namely, a list of the members of the Legislative Council who support the Government, and in addition any other information which will enable him to ascertain the effect which the addition of twelve appointments, as advised 'by Ministers, would have on the present condition of the Government and the Opposition benches in the Legislative Council, and he requires this information to be forwarded by Tuesday at noon at latest. IT IS PROMISED. 4. The Premier promised to Supply information desired. STATE OF PARTIES IN THE COUNCIL. 5. On tho following day (August 1) the Premier sent a further memo, analysing the condition of parties in the Council which he held gave Ministers only three certain votes (Buckley, Dignan,'and Taiaroa), therefore he contends the adlition of twelve Councillors would give the Government the hope of fifteen votes. Though this would still leave Ministers in a clear minority, it would insure full discussion for their measures. At present, beyond the speech of the Minister in charge, no advocacy is given in the Council to tiie Government policy. Its demerits are ably urged by many speakers, its merits are not even heard beyond the speech of the Minister. The addition of twelve members would raise the numerical strength of the Council to 47. Ministers submit a following of 15 or 16 is not an undue strength for the Government to possess in a Council of that sue. . ~ — NOT THE INFORMATION ASKKD FOR. 6. The Governor in reply remarks that the information given is " not 'as to the strength of parties but as to the support which the Attorney-General receives in that Chamber ; " he therefore asks as to the respective appointments hitherto made by various Governments. - THE PREMIER'S REPLY. ' . 7. This is supplied, but the Premier maintains that the support given to the At-tbrney-General is the exact measure of the strength of parties, and that many councillors appointed by "Liberal" Governments hare subsequently become "Conservatives." ' .

THE GOVERNOR'S REASONS FOR REFUSING TWELVE A^POINTMfcNTij. v

8. The Governor replies that the appointment Of' councillors Is " in his opinion a matter "to whieh he is hot bottffdTa follow the advice of his Minister*, except) dri Occasions of great emergency; and that precedent® in the history of the mother country Sufficient to tihow. what are to b® considered Sufefi 'dccislofiS. "In ordinary cireUmutonees the Governor Would naturally accept Ministers' Advice as to appointments, But ' occasions may arise' when the Governor is of opinion that the appointments proposed • nifty '' interfere 'with the balance of parties in the Upper House. ' 1 In such a case it Is■'essential iii the interests of the colony that appointments should Only be made to sUch an extent &s shall be safe. In reply to Ministers' remark that the Governor has given no reasons for thinking that it Would be unconstitutional to grant tWelve members and constitutional to grant nine, Lotd Glasgow Bays his reason aS Based on the best Information he Was able to get On His arrival in the colony, and it is Supported by the return of the presCht hißinbers of the Legislative Council, from which he finds that thfcr'e Are in the CflUncil, excluding the Speaker, " eighteen councillors appointed by Conservative Governments, 1 and sixteen ' Appointed by Liberal Government's; but fie understands that four of those appointed by Sir Robert Stout $erd really the Appointments of coalition members 'of hi* Ministry, And should, therefore, be Counted as Conservatives. Taking the four lfi&nbGrs frbriri the Liberals and giving' them to the Conservatives, brings up the ndmberS "as twelve Government supporters agAirtSb twonty-t\*ro Opposition members, or a difference Of te'n. The Governor,' therefore, conclude# that nine is the " largest number he 'can offer. The Governor is aWarfe that the Premier does not agree that this iB a'proper measure of the strength of p&rtids, And He admits that it 16 not) eaSy to COnSe to a conclusion in a non-repffesentAtive Hotise, bub he believes that When a new policy of an advanced kind i 3 introduced in eiicli 4 chamber members vote according' tb their consciences And not Oh party lines) And that when the crisis is over members Jgeilferally will return t0 their party allegiance.' With regard to ' Ministers' reft'Sonft for pfefeFrlng 12, the Governor points out that the Premier in his reply to the leader faf tti6 Opposition on the 24rtl June gave A reason of a different nature, the gist of which was that the Government had been advised to graht such appointment's a* Would bfiable the Chamber mora efficiently to discharge its functions and to perform those functions more in harmony With the feelings of tha country. The latter phrase confirms the (Governor in his Opinion that he Should not grant more than the number he haS offered, and having recondidef&d " the whole question, he finds that he cannot recede from the position he has taken up.

MINISTERS LECTURE THE GOVERNOR. 9. Ministers deny that the proposed appointments will interfere with the balance of parties. Ministers observe that " the beat information " referred to by tho Governor was never submitted to them in order that its character or soured might have been examined by responsible Ministers, bo that they might have had the Opportunity of advising His Excellency upon it, and they elpress their astonishment and regret that a course should have been taken which tends to discredit the Government. They assert that only nine councillors Were appointed by a " Liberal" Government, as against 20 by "Conservative Ministries," and dispute His Excellency's version of the number as 12 and 22 respectively. They assert that when " once members !eav» the Liberal fold they leave for good." Ministers contend that the present question at issue is the well-developed policy of the Liberal party in the country,' which an overwhelming majority of Tory gentlemen in the Legislative Council have found themselves in a position to mutilate and destroy. Ministers submit that the Governor being neutral in politics, is in no way permitted by the spirit of the Constitution to do anything that will prevent the feeling of the country from being expressed in legislation. It would, indeed, be A dangerous doctrine, keeping in view the friendly relations that should exist between the colony and the Mother Country, that the representative of Her Majesty should consider it to be his duty to thwart the people of the colony in giving expression to their feelings and opinions. Ministers request that the whole of the memoranda on the subject may be forwarded to the Secretary of State.

STATKMKNT OF THEIR CASK FOR THB Colonial secretary. 10. The Premier next (on sth inst.) forwarded a memo, for transmission to the Secretary of State. It recapitulates fully relation of last Atkinson appointments to Council, ami proceeds to state that shortly before Lord Onslow'* departure from the colony Mr. Ballance advised him to appoint twelve Councillors as the smallest number thought necessary to allow a fair representation of tho Government in the Upper House, and enable the Council's function to be properly performed. Lord Onslow refused to appoint more than eight, which Ministers refused to acccpt. Lord Onslow left a memo, for his successor which he submitted to Mr. Ballance for perusal, which contained an extract from an extremoly hostile newspaper. The circumstances already recorded which occurred after Lord Glasgow's arrival are then recorded, and the memorandum concludes as follows : —"Ministers are of opinion that the responsibility of appointments to the Council should have rested with the responsible advisers of His Excellency, and that the refusal to accept their advice is in derogation of the rights and privileges of a self-governing colony. In this case His Excellency is placed in the position of acting without advice unless it be the advice of persons who are not responsible, and withdrawing from those responsible the confidence which the Constitution requires him to repose in them upon the inadequate ground that nine are preferable to twelve additions to the Council. It is further to be observed that while the advice of a Government that had just been defeated at a general election was accepted, the advice of a Ministry enjoying the confidence of a large majority of the representatives of the people in New Zealand was not accepted. Ministers, in fact, are impelled to the conclusion that the way in which their advice has been treated is more in harmony with the methods of a Crown colony than with the practice followed in a great self-governing colony, which has long enjoyed the advantages of a free constitution and a wide autonomy within the limits of the Empire."

THE GOVERNOR DESIRES TO END THE CORRESPONDENCE. 11 and I*2 (dated the Bth instant). The Governor, in reply to Ministers, explains that " the best information he was able to obtain" was procured solely from public documents and the memo, left by Lord Onslow. In the second place, with regard to the passage where Ministers submit " that the Governor, being neutral in politics, is in' no way permitted by the spirit of the Constitution to do anything which will prevent the feelings of the country from being' expressed by Legislation," he wishes it to be distinctly understood that the sentence quoted accurately expresses the principle which has actuated him in the course he has adopted. The country should not in any way be prevented from expressing its feeling as to legislation ; the fact is that the idea underlying the whole case of Ministers is that whatever measures an administration may bring forward are certain to express the feeling of the Country. The Governor directly traverses that assumption, and points out that the suspensory powers conferred by the Constitution on the second Chamber it! a constitutional check intended to give power to the electorate through the intervention of the Legislative Council, at any time to step in ana control legislation. This plan insures greater freedom to the electorate than that favoured by Ministers. The Governor sees no reason for continuing the correspondence, and he intends to send the aeries of communications between Min isters and himself, of Which this is the last, along with the reference which he has been asked to send to the Secretary of State for the Colonies.

THE MINISTERIAL ARGUMENT. 13. The Premier, in reply, holds that the circumstances affecting the Council have greatly changed since the departure of J .on I Onslow, and his views could hardly be supposed to express the present condition of affairs. Ministers take exception to the statement that the idaa underlying

the whole case of Ministers is that, whatever measured an administration Bring forward are certain to express the feeling of the cdttfitfy; " It eOrt'ect to say that the lafigsucgp passed by large majorities of tbe House of Representatives within l&montna election, arc sufficient to entitle Ministers 'fa fclie confidence of His Excellency, and to express in terms nob to be misundgrstbbd In a self-governing pompaunity that the nieiasur§s do express the feelings of the country. Ministers contend that the Govfernor'a argument, if ap£lie*d In practice, proVe immediately tf&lttfuctive'ld the Goflstitutfiori. " It irieaha that with the 'sanction arid support of the Governor, tlip Council is at all times to possess the power to impose a penal dissolution on the country that a nominee chamber is to he accepted as a better judge or exponent of the feelings of the country than the representatives of the people, and that a decisive majority in the second chamber is to be maintained by the representatives of H e Majesty in order to " control legislation." It also means that a majority, irresponsible Joe its acts, may harass by the expense and worry of an election the representative body, and it suggests the fatal position that the Governor is to be associated with the doupcil. As the practical application of the doctrine the construction may " be stated to be this:—A majority in the Legislative Council should be in harmony with the minority in the Bouse of Representatives when the Liberals are in power, with a" penal dissolution suspended over the heads of the Government, but whet) the Conservatives are in power they should have, majorities in both Chambers wjthout the ■' Constitutional check." It is against the application of such constitutional doctrines as these that Ministers enter their protest. THE GOVERNOR'S DESPATCH TO THE "* • secretary op STATE.''

14. The Governor, in' a lengthy despatch to the Secretary of State, dated 6th August, cdinmeritS very' 'fully upon the arguments usdd by Ministers. Aa showfrig the results of granting to Ministers the powers they now claim, ne states a hypothetical case as ' follows" Let it be supposed that in A colony' possessing repre- i sentative institutions Ministers resign, appeal to the country, are' defeAted, and replaced by the Opposition. On coming into poWer the new Ministry introduces, as Ministers are not unlikely to do, a measure which it thinks will be popular, besides bhit which they were returhed * to carry out. The Legislative Council throws it out; the Ministry advises the Governor to appoint'sufficient legislative councillors to overcome opposition in the Chamber; the people have not been cohsulted, and Blipport the arguments advanced in the Council ; but, supposing Ministers have the power they think Should be theirs, the Governor must grant the appointments asked for. The result would be that the Cotihcil is coerced, the measures are passed, and the people come under a law to which they may object, and on which they have not been consulted." Lord Glasgow proceeds to say;—" The two Houses of the New Zealand Parliament possess each at present absolute liberty of speech, but Under the proposed change the freedom of the Legislative Council would be at the mercy of the Ministry. The consent of both Chambers is how necessary before a measure dan receive the Governor's assent. Should a measure be thrown out it is open to Ministers to appeal to the conntry, thereafter if the Legislative Council were to disregard the wishes of the electorate, as expressed at the polls, sufficient emergency would then have risen to justify the Governor in granting Ministers a sufficient number of appointments to bring the Upper House into harmony with the country. This is, I submit, the constitutional practice, and it is more in accordance with the principle of freedom that the people should be the ultimate Court of Appeal in any difference between the Chambers than that the power should rest with Ministers." His Excellency further says :—" Only two days had elapsed after my arrival' in the colony when the Premier waited oil me and tendered the advice, my refusal to accept of which has given rise to this despatch. ' When I asked for delay, that I might make myself acquainted with the subject, Mr. Ballance explained that to enAble his supporters to settle down to their.' work in Parliament it was absolutely necessary that this question should be settled and the appointments made before Parliament met (which event occurred on the 23rd of June). Whatever may be your Lordship's opinion of the course I have pursued, you will not fail to observe that my position was one of considerable difficulty. The same advice that was tendered to me had been offered to my predecessor, who with his three years' experience of the colony had not been able to accept it. His secret memo, on this subject lay before me; I had not bad time to examine the matter for myself when I was confronted with a reason for an immediate decision as to the value of which I had not had time to decide. The difference between the number declined by Ministers and the number they would accept was so small that I could not think the reasons given were suffi ient to account for their action, and they appeared to be so incommensurate with the gravity of the step they took in creating a difference with the Governor that I felt convinced that "much more cogent reasons should be givon than I had yet heard before I would be justified in accepting the advice tendered by Ministers. This concluded the correspondence.