HC Deb 30 July 1935 vol 304 cc2512-23

Lords Amendment: In page 13, line 27, leave out "and every counsellor," and insert "every counsellor and the Advocate-General."

4.42 p.m.

Mr. BUTLER

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This Amendment gives the Advocate-General the right to speak in the Federal Chamber on behalf of the Governor-General on occasions when it may be found necessary to do so. It was pointed out in another place that it was often wise that the Executive should express its view of a matter at an early stage and that a plain, clear statement at an early stage might in certain cases avert the possibility of danger and disaster later. It is true that at the Centre the Governor-General will have certain counsellors in the Chamber but it is also true that those counsellors will be primarily attached to specific departments with which their work is connected. When we come to the provincial section of the Bill I trust that the House will be willing to accept, as consequential, an Amendment that the provincial Advocate-General should also have the right to speak. In the Provinces there are no counsellors and therefore it may be said that there is a stronger case for this change in the Provinces but at the Centre and in Burma we think there is also a case for allowing the Advocate-General to speak, for the reasons I have given. We consider that the Advocate-General would be the suitable person for this purpose. If hon. Members study the terms of his appointment in Clause 55, they will see that he is appointed by the Governor or Governor-General and is a suitable person to express, where the necessity arises, the view of the Governor-General or Governor.

4.44 p.m.

Mr. MORGAN JONES

I am afraid we shall have to carry our opposition to this Amendment to a Division. I am sorry that the Government should persist in extending the area in regard to which the Governor-General may intervene in the discussions in the Legislature. We, on these benches take a rather different view from hon. Members opposite as to the place which the Governor-General should take in relation to Indian affairs. We want to keep him, as much as possible, above the battle, so to speak. We should regard it as a very bad thing, and as the years go by I believe those who will be in charge of Indian affairs will see that it is a bad thing, that the King's representative in India should be brought into contact with the controversies of the Assembly in this way. We have just decided that the Governor-General shall intervene by way of an extra right to send an address to both Houses, but now he is to be entitled to send down to the House a spokesman on his behalf. Who is it that is to go down? If hon. Members will look at Clause 16, they will find the duties of the Advocate-General set out in Sub-section (2), but, first of all, what kind of person is the Advocate-General? Sub-section (1) states: The Governor-General shall appoint a person being a person qualified to be appointed a judge of a High Court to be Advocate-General for the Federation. That is the quality of person, and his duties are set out in Sub-section (2), as follows: It shall be the duty of the Advocate-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Governor-General, and in the performance of his duties he shall have right of audience in all courts in British India and in a case in which federal interests are concerned, in all courts in any Federated State. This person, whose primary function is a legal function, is to be entitled to go down to the Legislature from time to time to speak on behalf of the Governor-General. I have every regard for legal gentlemen, but I cannot quite see what case there can be for sending down a person of that sort, who acts in the capacity of a judge, who has the qualities of a judge, who gives advice strictly on legal matters, and who is not therefore what we might regard as a day-to-day politician at all, to the House of Commons to take part in the discussions there. I cannot imagine anything more irritating and annoying to the Indian people than to have persons sent down in this way periodically to participate in their discussions. It is a bad thing, in my judgment, to have a person who is not elected at all and who is not a member of the Legislature, but merely goes down there in his official capacity as a legal adviser to the Governor-General, to participate in the discussions or to deliver orations upon given topics from time to time. I am sure that this House would not tolerate it, and I am sure that the Indian people, who study very closely, after all, our Parliamentary forms and proceedings and are very closely acquainted with what we do here and how we do it, will very much resent the interpolation of speeches by a person of this sort in their ordinary discussions.

Apart from that, I suppose this person will be sent down on controversial occasions, but it is not he who will have to bear the brunt of responsibility for it. The resentment felt against him will fall, not upon him, but upon the Governor-General, and I should have thought that Conservatives above all people would have been particularly careful to prevent the King's representative from being brought into these political controversies in India from time to time. I am sure it is a bad procedure. I deplore it very much, and I know that my hon. Friends are entirely in agreement with me upon it. Therefore, without delaying the House any longer, I merely intimate that in the absence of a much more reasonable defence than we have yet heard, we shall feel obliged to vote against this proposal in the Lobby.

4.50 p.m.

Viscount WOLMER

The hon. Member for Caerphilly (Mr. Morgan Jones) seems to me to live in a land of his own imagination. He acts and speaks on the assumption that this constitution which is being given to the Indian people is a democratic constitution, but he must know perfectly well that the forms of democracy in this constitution are but a shop window and that the whole of this constitution cannot function without the mainspring of the Governor-General and the Governors. That being the case—and he knows it perfectly well—it is nothing but common sense that the Governor-General should have the widest opportunities of explaining to the Legislature the reasons that have prompted the actions that he or the Government may have taken. Under the Bill as it stands at present counsellors may address either Chamber, but, as the Under-Secretary of State has pointed out, those counsellors will generally be appointed by reason of their administrative ability or knowledge of a particular department, and we in this House—and I think my hon. Friend the Member for Caerphilly will welcome the analogy of the House of Commons—certainly would find it very difficult to get on if we did not have the assistance of lawyers to explain to us from time to time what we were talking about.

Mr. MORGAN JONES

But they are elected.

Viscount WOLMER

Does my hon. Friend think a lawyer derives any increased lucidity or knowledge from having received the election of the electors of a particular constituency?

Mr. JONES

No, but my point is that our resentment would be all the keener against any lawyer interposing in our Debates if he came down here without being elected to this House.

Viscount WOLMER

The interposition in this case is merely explaining the point or the policy to the Chamber in question. This officer will have no vote, I think I am right in saying in either Chamber, so that there is no question of interference in that respect.

Mr. ISAAC FOOT

On what grounds does the Noble Lord say that he will simply have the right to explain a point? If he is able to take part in the discussion, will he not be able to use arguments?

Viscount WOLMER

I said to explain the point or the policy, and they are both equally necessary. It is desirable, not merely that people should think clearly, but that they should think rightly, and lawyers are as competent, or in many respects more competent, to make people think in the direction desired than ordinary administrative Ministers. Therefore, it seems to me, from the point of view of the efficiency of the Chambers themselves, that there is nothing but gain in giving the Governor-General the opportunity of having the skilled exposition of a lawyer of high standing where he considers it necessary. But I rose to protest, if I may use the expression without offence, against the fatuity of my hon. Friend the Member for Caerphilly, who will persist in drawing analogies between this House of Commons and the Federal Assembly of India, when he knows that there can be no proper analogy at all.

4.54 p.m.

Mr. CHURCHILL

I thought the hon. Member for Caerphilly (Mr. Morgan Jones) really threw an illuminating flash upon the whole of this subject in his speech just now, because we can see quite clearly what is in the mind of the party which he represents. He says the Governor-General must be above the storms of controversy, that the King's representative must not be drawn into controversial matters about which heat may be generated. Well, that is not the view which this Bill takes of the powers of the King-Emperor's representative. On the contrary, during the whole of the discussions on this Measure we have been exhorted to put our confidence in the fact of the immense powers, powers almost despotic, which are placed in the hands of the King's representative— power to act in every case of the most dire consequence and of the most bitter controversy, power to adjourn or dissolve the chambers, power to veto legislation, power to initiate legislation, power to disallow whole series of Bills, power to suspend the whole working of the constitution, power to carry on the whole administration of India in his own hands. This is no constitutional functionary, this is no constitutional sovereign such as we have developed in this country after centuries of Parliamentary practice. This is a sixteenth or seventeeth century Crown functionary which has been created in India, and it is well known that it is the whole purpose of a whole series of Clauses in this Bill to enable the Viceroy, if the Parliamentary machinery which we are now erecting in India should be found, as many of us think it will be found, unsuited to the situation, to assume what are unquestionably dictatorial powers.

But what is the use of saying that a person of these formidable attributes should be most carefully kept out of controversy, and what is the use of the hon. Member at this stage in our Debates imagining that the Viceroy can confine himself to the customary well-meaning platitudes which people use when they wish to avoid controversy? This is a real functionary, this is an officer of State of the highest possible activity and practical consequence, and to suppose that he can be treated as a mere instrument of Government, as a mere instrument of the chambers, is altogether to misread the intentions of His Majesty's Government in framing the Bill. I should have thought the hon. Gentleman, who took the trouble to sit on that lengthy Committee, had in his mind very clearly that the reality, the almost overpowering reality, of the functions which reside in the Governor-General is to intervene in the fiercest controversy, and if he is to do this, why should he not be equipped with the necessary means of explaining his position as well as possible to the Legislature? Surely that is a very reasonable thing.

Here you have a sixteenth or seventeenth century Crown and you have a modern Parliament. You are erecting that in the Constitution, and what we are now going to witness is a clash and collision of these two opposite principles, drawn from different centuries of our development. If that clash is not to carry consequences far and wide, it is indispensable that the Governor-General should have every means of access to the Assembly and should be able to use every process of discussion, advice and warning before he is called upon to repair to his well-stocked armoury of absolutism and draw forth the weapons with which he can, by a stroke of the pen, disband the entire structure of the so-called constitutional and democratic government which is contained in this bulky Measure. I cannot see any reason why, if he is to have the right to send messages, he should not have messengers, and what messenger, I should like to know, could be more suited than an Advocate-General?

How should we have got on in this House if we had not had at our disposal the services of the Attorney-General? The Bill would never have reached its present stage, if he had not always been there at hand, with his vast knowledge of the law and his extraordinary ability at adapting his readings of the law to the exigencies of Government business. Such a functionary would, I believe, be welcome in any assembly. The hon. Gentleman said that the Attorney-General is elected, but, as my Noble Friend has pointed out, that precedent has already been conceded so far as the Indian Legislature is concerned. When we passed this Measure through the House there was no resistance, as far as I can remember, to the principle of the counsellors speaking.

Mr. MORGAN JONES

There was.

Mr. CHURCHILL

If so, it was overborne by an overwhelming majority and brushed aside as mere factious opposition.

Mr. COCKS

The right hon. Gentleman was also brushed aside.

Mr. CHURCHILL

I am glad to think that others have tasted that medicine, too. This principle of the counsellors having the right to speak in the assemblies without having been elected was conceded and established by the House when the Bill was passing through. Therefore, it is not a question whether a man should enter an elected assembly when he himself has not been elected. Objection can only be taken on the ground that you are adding one additional member to those who now already have the right. If, when there are four or five, and perhaps more counsellors, everyone of whom may go in, I cannot conceive that any serious inconvenience would be caused or that there would be any violation of Parliamentary prestige and authority if an additional one were added, especially when the legal qualifications of that member, his great aptitude in discussion, and his knowledge of the law will probably make him the best fitted of all.

Then there is the objection which the hon. Gentleman raised that the Advocate-General is a judge. Ought a judge to be an advocate? Here we have a very exact precedent in no less a person than the Lord Chancellor himself, who combines in his own person the highest judicial office in the country, the supreme authority in the law and the head of the highest court in the land, with being a party politician undoubtedly engaged in doing his utmost to secure the return of a particular set of gentlemen to office whenever a general election occurs. No trouble has occurred in regard to this extremely anomalous position. On the contrary, it has resided in our constitution and has grown up here, and no difficulty has been found. Although constitutional students may amuse themselves by dwelling and dilating upon this apparent inconsistency and anomaly, there is no reason why, with good sense and good feeling in the regular practice of a Parliamentary system such as we have here, and such as we hope will develop in India, such an anomaly as that should not one of these days be found to exist year after year without apparent inconvenience or even public notice. In this case, however, the judge is not a judge occupying the highest position. I presume that his functions of sitting on a bench and trying cases would be suspended during the period when he was the Advocate-General. I can, therefore, see no objection why his services should not be given to assist the Viceroy.

I have endeavoured, as far as I can, to answer the rather disturbing and disquieting points which the hon. Member for Caerphilly raised. I do not think that there are any that I have left untouched. I may not have satisfied him, but I trust that I may have satisfied some members on this side of the House who will be glad to embrace this opportunity of voting with His Majesty's Government on a step which, although it appears a small one, is undoubtedly intended to emphasise the reality of the authority of the Governor-General, and consequently the reality of the safeguards of which he is the guardian.

5.6 p.m.

Mr. ATTLEE

The right hon. Gentleman chastised my hon. Friend the Member for Caerphilly (Mr. Morgan Jones) for drawing analogies between the new constitution in India and Parliamentary institutions. He then proceeded to fall into a far deeper sin himself, because he went on to tell us that the Advocate-General was something like the Attorney-General. He went even further, and said he was something like the Lord Chancellor. As far as I know, the Advocate-General has no judicial functions at all—

Mr. CHURCHILL

I said so.

Mr. ATTLEE

The right hon. Gentleman will perhaps remember that in the Debate on the Advocate-General we on this side took exception to the fact that he was to be appointed by the Governor in his individual judgment, and we pointed out that in our view at that time—we shared the delusion of the right hon. Gentleman—he was something like the Attorney-General and we thought that he should be a responsible Member of the Ministry. The Government representatives were at pains to point out that the Advocate-General was nothing like the Attorney-General and that he did not perform similar functions, but that he was an officer merely giving advice. The objection here is that this officer, who is to be outside politics, is to be appointed by the Governor, is to be kept out of controversy, and is not to be a kind of combination of legal luminary and politician. He is, by this Amendment, to be brought in as the Governor's mouthpiece at a time when political controversy will be running very high. Therefore, the right hon. Gentleman's arguments are cancelled out by those of the hon. Member for Caerphilly, inasmuch as he says that it is dangerous to draw these analogies. Our original objection remains to this appointment. It is unnecessary, for we have already got counsellors at the Centre, and they have the power to send messages to the Viceroy. The point of sending someone to make speeches can only be to use his eloquence or to indulge in oratory. We want to see a clear line drawn between where there is some kind of Parliamentary Government and where Parlia-

Government is suspended and the Governor-General acts.

Question put, "That this House doth agree with the Lords in the said Amendment."

The House divided: Ayes, 213; Noes, 42.

Division No. 306.] AYES. [5.9 p.m.
Acland-Troyte, Lieut.-Colonel Goodman, Colonel Albert W. Muirhead, Lieut.-Colonel A. J.
Adams, Samuel Vyvyan T. (Leeds, W.) Granville, Edgar Munro, Patrick
Apsley, Lord Grattan-Doyle, Sir Nicholas Nation, Brigadier-General J. J. H.
Aske, Sir Robert William Gretton, Colonel Rt. Hon. John Nicholson, Godfrey (Morpeth)
Assheton, Ralph Grigg, Sir Edward Nunn, William
Atholl, Duchess of Grimston, R. V. Oman, Sir Charles William C.
Baldwin, Rt. Hon. Stanley Guinness, Thomas L. E. B. Ormsby-Gore, Rt. Hon. William G. A.
Balfour, Capt. Harold (I. of Thanet) Gunston, Captain D. W. Orr Ewing, I. L.
Barclay-Harvey, C. M. Guy, J. C. Morrison Palmer, Francis Noel
Barrie, Sir Charles Coupar Hacking, Rt. Hon. Douglas H. Patrick, Colin M.
Beit, Sir Alfred L. Hamilton, Sir George (Ilford) Pearson, William G.
Bennett, Capt. Sir Ernest Nathaniel Hanbury, Sir Cecil Peat, Charles U.
Bernays, Robert Hannon, Patrick Joseph Henry Percy, Lord Eustace
Blindell, James Hartington, Marquess of Peters, Dr. Sidney John
Bowyer, Capt. Sir George E. W. Haslam, Henry (Horncastle) Petherick, M.
Braithwaite, Maj. A. N. (Yorks, E. R.) Headlam, Lieut.-Col. Sir Cuthbert Pickthorn, K. W. M.
Braithwaite, J. G. (Hillsborough) Heilgers, Captain F. F. A. Ponsonby, Col. C. E.
Brass, Captain Sir William Heneage, Lieut.-Colonel Arthur P. Powell, Lieut.-Col. Evelyn G. H.
Broadbent, Colonel John Herbert, Major J. A. (Monmouth) Radford, E. A.
Brocklebank, C. E. R. Herbert, Capt. S. (Abbey Division) Ramsay, Capt. A. H. M. (Midlothian)
Brown, Col. D. C. (N'th'f'd., Hexham) Hills, Major Rt. Hon. John Waller Ramsay, T. B. W. (Western Isles)
Brown, Brig.-Gen. H. C. (Berks., Newb'y) Horsbrugh, Florence Ramsbotham, Herwald
Browne, Captain A. C. Howard, Tom Forrest Reid, William Allan (Derby)
Burnett, John George Howitt, Dr. Alfred B. Rickards, George William
Butler, Richard Austen Hudson, Capt. A. U. M. (Hackney, N.) Rosbotham, Sir Thomas
Cadogan, Hon. Edward Hudson, Robert Spear (Southport) Ruggles-Brise, Colonel Sir Edward
Campbell, Sir Edward Taswell (Brmly) Hurd, Sir Percy Runge, Norah Cecil
Campbell-Johnston, Malcolm Hurst, Sir Gerald B. Rutherford, Sir John Hugo (Liverp'l)
Caporn, Arthur Cecil Inskip, Rt. Hon. Sir Thomas W. H. Samuel, M. R. A. (W'ds'wth, Putney)
Castlercagh, Viscount James, Wing-Com. A. W. H. Sandeman, Sir A. N. Stewart
Cazalet, Capt. V. A. (Chippenham) Jamieson, Rt. Hon. Douglas Shakespeare, Geoffrey H.
Chamberlain, Rt. Hn. Sir J. A. (Blrm., W) Jones, Lewis (Swansea, West) Shaw, Captain William T. (Forfar)
Chamberlain, Rt. Hon. N. (Edgbaston) Ker, J, Campbell Shute, Colonel Sir John
Chapman, Sir Samuel (Edinburgh, S.) Kerr, Lieut.-Col. Charles (Montrose) Somervell, Sir Donald
Christie, James Archibald Kerr, J. Graham (Scottish Univ.) Somerville, Annesley A. (Windsor)
Churchill, Rt. Hon. Winston Spencer Keyes, Admiral Sir Roger Spencer, Captain Richard A.
Clarke, Frank Kirkpatrick, William M. Spens, William Patrick
Clayton, Sir Christopher Knox, Sir Alfred Stevenson, James
Collins, Rt. Hon. Sir Godfrey Lamb, Sir Joseph Quinton Stewart, J. Henderson (Fife, E.)
Conant, R. J. E. Lambert, Rt. Hon. George Storey, Samuel
Cooke, Douglas Leckie, J. A. Strauss, Edward A.
Cooper, T. M. (Edinburgh, W.) Leighton, Major B. E. P. Strickland, Captain W. F.
Copeland, Ida Levy, Thomas Sugden, Sir Wilfrid Hart
Courthope, Colonel Sir George L. Lewis, Oswald Summersby, Charles H.
Craddock, Sir Reginald Henry Liddall, Walter S. Sutcliffe, Harold
Croft, Brigadier-General Sir H. Lindsay, Noel Ker Tate, Mavis Constance
Crooke, J. Smedley Locker-Lampson, Rt. Hn. G. (Wd. G'n) Taylor, C. S. (Eastbourne)
Cross, R. H. Lockwood, John C. (Hackney, C.) Thomas, Rt. Hon. J. H. (Derby)
Cruddas, Lieut.-Colonel Bernard Lovat-Fraser, James Alexander Thompson, Sir Luke
Dalkeith, Earl of Mabane, William Thomson, Sir Douglas
Davies, Maj. Geo. F. (Somerset, Yeovil) MacAndrew, Lieut.-Col. Sir Charles Thorp, Linton Theodore
Davison, Sir William Henry MacAndrew, Major J. O. (Ayr) Todd, Lt.-Col. A. J. K. (B'wick-on-T.)
Denman, Hon. R. D. McCorquodale, M. S. Touche, Gordon Cosmo
Dickie, John P. MacDonald, Rt. Hn. J. R. (Seaham) Tufnell, Lieut.-Commander R. L.
Donner, P. W. MacDonald, Rt. Hon. M. (Bassetlaw) Turton, Robert Hugh
Doran, Edward Macdonald, Capt. P. D. (I. of W.) Wallace, Captain D. E. (Hornsey)
Duncan, James A. L. (Kensington, N.) McEwen, Captain J. H. F. Wallace, Sir John (Dunfermilne)
Eales, John Frederick McLean, Dr. W. H. (Tradeston) Ward, Lt.-Col. Sir A. L. (Hult)
Eastwood, John Francis Macpherson, Rt. Hon. Sir Ian Wardlaw-Milne, Sir John S.
Emmott, Charles E. G. C. Maitland, Adam Warrender, Sir Victor A. G.
Emrys-Evans, P. V. Makins, Brigadier-General Ernest Waterhouse, Captain Charles
Entwistle, Cyril Fullard Manningham-Buller, Lt.-Col. Sir M. Watt, Major George Steven H.
Erskine-Bolst, Capt. C. C. (Blackpool) Margesson, Capt. Rt. Hon. H. D. R. Wells, Sydney Richard
Evans, R. T. (Carmarthen) Mayhew, Lieut.-Colonel John Williams, Charles (Devon, Torquay)
Fermoy, Lord Mellor, Sir J. S. P. Williams, Herbert G. (Croydon, S.)
Fielden, Edward Brocklehurst Mills, Major J. D. (New Forest) Willoughby de Eresby, Lord
Fleming, Edward Lascelles Mitchell, Sir W. Lane (Streatham) Wilson, Lt.-Col. Sir Arnold (Hertf'd)
Fraser, Captain Sir Ian Molson, A. Hugh Elsdale Wise, Alfred R.
Fyfe, D. P. M. Morgan, Robert H. Womersley, Sir Walter
Galbraith, James Francis Wallace Morris-Jones, Dr. J. H. (Denbigh)
Gault, Lieut.-Col. A. Hamilton Morrison, G. A. (Scottish Univer'ties) TELLERS FOR THE AYES.—
Gluckstein, Louis Halle Moss, Captain H. J. Mr. James Stuart and Lieut.-Colone
Llewellin.
NOES.
Acland, Rt. Hon. Sir Francis Dyke Griffiths, George A. (Yorks, W. Riding) Mason, David M. (Edinburgh, E.)
Addison, Rt. Hon. Dr. Christopher Hall, George H. (Merthyr Tydvil) Paling, Wilfred
Attlee, Rt. Hon. Clement R. Hamilton, Sir R. W. (Orkney & Zetl'nd) Parkinson, John Allen
Banfield, John William Harris, Sir Percy Smith, Tom (Normanton)
Bevan, Aneurin (Ebbw Vale) Janner, Barnett Thorne, William James
Cleary, J. J. Jenkins, Sir William Tinker, John Joseph
Cocks, Frederick Seymour Johnstone, Harcourt (S. Shields) Williams, Edward John (Ogmore)
Daggar, George Jones, Morgan (Caerphilly) Williams, Dr. John H. (Llanelly)
Davies, Stephen Owen Logan, David Gilbert Williams, Thomas (York, Don Valley)
Edwards, Sir Charles Lunn, William Wilmot, John
Foot, Dingle (Dundee) Macdonald, Gordon (Ince) Wood, Sir Murdoch McKenzle (Banff)
Foot, Isaac (Cornwall, Bodmin) McEntee, Valentine L. Young, Ernest J. (Middlesbrough, E.)
Gardner, Benjamin Walter Maclean, Neil (Glasgow, Govan)
Glbbins, J. Mallalieu, Edward Lancelot TELLERS FOR THE NOES.—
Grenfell, David Reel (Glamorgan) Mander, Geoffrey le M. Mr. Groves and Mr. D. Graham.

Question put, and agreed to.