Lord Blanesburgh-

This appeal is concerned with the validity of the election in July 1928, of two of the appellants, Messrs. Mifsud and Borg to be members of the Senate of Malta, representatives there of the Trades Union Council of the island. The Court of Appeal in Malta, by a judgment of 14th August 1928, has declared their election to be null and void and this is an appeal from that judgment. A preliminary question of serious importance at once arises : viz., whether His Majesty can be advised further to entertain the appeal, and their Lordships, in the first instance at all events, must direct their minds to the consideration of that question to the exclusion of every other.

Although special leave to appeal had been granted by His Majesty in Council, it was recognized that it was not thereby intended that the Board, with all the facts before it, should be precluded from reconsidering whether the appeal was competent, and counsel on both sides before their Lordships agreed that that problem could only be satisfactorily solved after the Board had become seized of the history and nature of the controversy out of which it emerged. The arguments accordingly proceeded on that footing to their conclusion. Their Lordships will follow the same course, and before specifically dealing with this preliminary issue, will, without canvassing in detail the legal and constitutional questions discussed before them, give some account of the circumstances which have led up to the present situation.

Responsible self-government for Malta in internal affairs was in 1921 granted by His Majesty through the Malta Constitution Letters Patent, 1921. The Maltese Legislature thereby brought into existence consists of two houses, the Senate and the Legislative Assembly.

The Senate is a House of seventeen, seven general members and ten special members. Of these special members, two nominated by the Archbishop of Malta, represent the clergy; two, the nobility; two, the graduates; two, the Chamber of Commerce, and two, and it is with these that this case is concerned, the Trade Union Council, a body so described in the Letters Patent. The method of electing the representatives of the nobility, the graduates, the Chamber of Commerce and the Trade Union Council, the registration of voters in and for any such classes and the conduct of such elections, are all matters under S. 5 (3), Letters Patent, to be governed by such rules as may from time to time be determined by the nobility, the graduates, the Chamber of Commerce and the Trade Union Council respectively. It is apparently left to each of these orders to resolve how it shall be constituted for electoral purposes and particularly whether every member, say, of the Trade Union Council, must himself be a member of a constituent Trade Union. S. 6 (1), however, in effect provides that no person may be elected as a special member of the Senate who is not himself qualified to vote at the election.

It was apparently assumed that at the date of the Letters Patent there was in Malta a Trade Union Council as definite in its constitution as the Chamber of Commerce. But in fact no such Council existed, and it became necessary in order to overcome the difficulty thus ensuing for the Governor to utilize the power conferred upon him by S. 67, Letters Patent, by which he is enabled to make to the Letters Patent, within one year from their commencement, such additions as might be necessary in order to carry out their purposes.

Accordingly His Excellency, with the previous consent of the Secretary of State by Proclamation dated 15th September 1921, declared that the term "Trade Union Council” wherever used in Ss. 5 and 7 inclusive of the Letters Patent, should mean a Council or other Body recognized by the Governor as representing the Trade Union Council of Malta for the purposes of the Letters Patent. In pursuance of the powers so vested in him a Trade Union Council was recognized by the Governor on 16th September 1921, and that