HC Deb 27 March 1935 vol 299 cc2011-27

8.37 p.m.

Colonel WEDGWOOD

I beg to move, in page 67, line 24, leave out "domiciled in the United Kingdom."

This is a most interesting Clause, and mine is a most interesting Amendment. I think the Clause is almost unique. It is to prevent discrimination in India against British subjects domiciled in the United Kingdom. They may not be specially selected for taxation or put out of office because they talk English; they may not be prevented from entering the country or residing in it simply because they are British citizens. That, of course, is quite a proper Clause, which we should all support, but the really interesting thing about it is the proviso. The proviso states that they shall not be discriminated against in any way so long as Indian subjects of His Majesty are, by and under the law of the United Kingdom, not subject to a similar restriction. It is a double-sided right; as long as we treat Indians on fair lines here they will not treat Englishmen on unfair lines in India. In the first place this sort of Clause pleases the Indian people. It is equality of status, and there is everything to be said for it from that point of view; but the Amendment carries this excellent new principle a stage further. I want to secure this right for all British subjects in India, even though they are not domiciled in this country but come from South Africa or Australia, provided the same reciprocity Clause is present in their legislation.

As the Clause stands the Indian law can, as I understand it, discriminate against a South African or against an Australian. As we know, Indians in South Africa are discriminated against at the present time. It would tend to put an end to the discrimination against Indians in South Africa if we altered the Clause as I suggest and extended to British subjects in the Dominions the same rights, under the same proviso, as are extended to British subjects domiciled in this country. Hon. Members ought to realise the extraordinary strength of feeling on this subject in India. The whole basis of equality of status, the whole question of race, caste and of what Gandhi calls, "The change of heart" is brought to a focus where we get, as in South Africa, this penalising discrimination against British-Indian subjects as differentiated from ordinary British subjects. On this subject they feel deeply, and even our champion reactionary Assembly, given the power, as they are under this Measure, will almost certainly be compelled to discriminate against South African produce, and possibly against South African nationals, by the pressure of public opinion in India demanding equal treatment for British Indians in all parts of the British Empire.

The Clause is almost an invitation to such discrimination. We do not want that discrimination to start by the act of the Indian Government. It would be much better if it started by the act of the South African Government in doing away with these discriminations, so as to avoid the necessary penalty of having discriminations imposed. Do I make myself clear to the Committee? The Clause as it stands is admirable. We have no discriminations here against Indians. They have every right under the law that we have. In some of the Dominions they have not. Let that state of affairs be swept away by giving to the Indian subjects in the Dominions the same right as, under this law, we shall possess in their country. I hope that the Government will find it possible to accept some form of words to meet this point, even if not these particular words. The important thing is that Indians themselves should realise that under this Clause they at last have an acceptance by this country of the fact that what is sauce for the goose is sauce for the gander, and that as they treat us we will treat them, and that as they treat South Africans, so South Africans may treat them.

8.43 p.m.

The ATTORNEY-GENERAL

Nobody can object to the proposal of the right hon. and gallant Gentleman so far as its substance is concerned. He recognises that the Clause is a good one and would like, from his point of view, to make it a better one still, but on this occasion, I am afraid, his admirable instincts would be defeated by the adoption of his proposal. The effect of including his Amendment would be that we in this Parliament would be undertaking the task of legislating in a matter which affects the Dominions. That does not seem to me to be quite right, and I should think the right hon. and gallant Gentleman himself would demur to any suggestion that at this time of day the Imperial Parliament is to undertake the task of legislating even for the good of His Majesty's subjects domiciled in any of the Dominions. That is to look at the matter from the point of view of the Dominions. We may look at the matter with the same result from the point of view of India. So far as the relations of the United Kingdom and India are concerned, they are of so special a, character as to permit this Parliament, of course, to embody in the Bill for the future government of India a proposal which will ensure reciprocity in respect of discrimination or freedom from discrimination. When it comes to a proposal to impose upon India such reciprocity as is desirable, not only between the United Kingdom and India, but between India and the Dominions, one would not be surprised to find India taking objection, not because they do not desire freedom from discrimination by their fellow subjects in the Dominions, but because they would prefer to be free to negotiate and to arrange for themselves rather than to have an arrangement imposed upon them by the Parliament of the United Kingdom.

It is not because we do not share the desire of the right hon. Gentleman that there shall be no discrimination in India, or elsewhere if possible, between any of His Majesty's subjects, but because we feel that the more proper and regular way to deal with the matter is to leave India to make arrangements, that we hope and trust that so far as relations between India and the Dominions are concerned, they will be regulated by the action of the two parties in the Empire more immediately concerned. Therefore, we feel unable to accept the right hon. Gentleman's proposal.

8.47 p.m.

Mr. ISAAC FOOT

The question of discrimination on the part of India against other parts of the Dominions was discussed on an earlier Amendment which proposed to take away from the Indians under the new Constitution the power of discrimination against other parts of the British Empire. It was then thought that this House ought not to impose a restriction of that kind. I thought that that issue was settled in the Debate that took place at that time.

Major HILLS

That was in regard to tariff restrictions.

Mr. FOOT

Yes, I know, and that is where discrimination is apt to be generally exercised. The right hon. Gentleman who has moved this Amendment has touched upon a subject which is of capital importance in India. The treatment of the Indian abroad is one of the main causes of the demand for status in India. I believe that that is not merely a sentimental demand on the part of the Indian people. They believe that that status can secure better conditions for their nationals abroad. When, some time ago, a distinguished Indian went to America, he was received with the distinction which was due to his position as a leading teacher, and then he passed into some part of Canada and had to undergo restriction and control which were not applied in America itself. The resentment that was felt in India was very strong.

The best way in which we can secure the Wiping out of unfair treatment of Indians in other parts of the Dominions will be to give power to the Indian Government to make their own negotiations. I believe that probably their tariff policy and their policy in relation to other parts of the British Dominions will very largely be determined by the manner in which their nationals are dealt with in other parts of the Dominions. I am glad that the right hon. Gentleman has called attention to it, but I believe that the settlement can better be brought about by the Indians themselves and not by any attempt on our part to ensure it. I am in full sympathy with the spirit which prompted this Amendment, but I hope that we shall not keep it in our hands to remedy this evil, but shall see that as far as possible the remedy is secured by giving the Indians power to make their own negotiations, which will be based upon their desire, not merely to extend their trade, but to secure for those who leave their shores treatment that is consistent with people like the Indians, who have a high history and a great tradition.

8.51 p.m.

Mr. McENTEE

I would like to ask whether the Indians in fact have the power to negotiate with South Africa or any other Dominion. The effect of the Amendment would be that there would be no discrimination between Britishers domiciled in this country and the Indians. I take it that that is what the Amendment means.

Colonel WEDGWOOD

Perhaps I might say that the Clause itself establishes reciprocity. The Amendment is intended to extend that to the Dominions as well, under similar conditions.

Mr. McENTEE

To extend it particularly to South Africa, which has been mentioned. The Attorney-General said that he thought it would be much better if the negotiations for the extension which is asked for were left to the Indians themselves and the South Africans or any other Government. Is it possible, if the Bill be carried out in its present form, for such negotiation to take place with any hope of success? I am satisfied that the Clause is a good one, but I am wondering whether, if the Clause remains as it is and negotiations were carried on some time in the future between India and South Africa, when the negotiations have been concluded and the parties desire to give effect to this Clause, it will be possible to do so without amending the Bill, if the Bill becomes an Act in its present form.

8.53 p.m.

The ATTORNEY-GENERAL

I think I understand what the hon. Gentleman's doubt is, but may I put it in this way: If the right hon. Gentleman's Amendment were accepted, it would still be necessary for the Dominions and India to arrange for the reciprocity for which the Clause, if amended, would provide. The acceptance of the right hon. and gallant Gentleman's Amendment would not create the state of reciprocity but would merely provide that there should not be discrimination against Dominion subjects, always provided that the Dominions made reciprocity to Indian subjects. It would still be necessary to arrange that the state of reciprocity should come into existence. By accepting the Amendment we do not take the effective step of bringing about that state of reciprocity. We think, therefore, that it would be better, inasmuch as India has to negotiate or to make proper arrangements with the Dominion concerned, that we should not try, so to speak, to do half the work for them, as it does not concern us but concerns India and the Dominions. That is the reason for which the Government think that it is better not to accept the Amendment; it is not because we have no desire that reciprocity should not exist, but because we think that it would be more conducive to a suitable arrangement if India had the whole of the responsibility for negotiating this much desired reciprocity.

Colonel WEDGWOOD

It is clear that, if the Bill goes through unamended in this respect, India will be able to bargain with the Dominions. I, therefore, beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.55 p.m.

Mr. MOLSON

I beg to move, in page 67, line 31, after "residence," to insert: or any other matter calculated to afford a ground for discrimination against British subjects domiciled in the United Kingdom. This is little more than a drafting Amendment. The purpose of Clause 111 is to give effect to what was generally agreed at the first Round Table Conference, namely, that there should be no discrimination as between Indian and European British subjects. Since the Clause is drafted in order to enumerate more or less exhaustively the grounds upon which there is to be no discrimination as between Europeans and Indians, there is, of course, a great danger that, if some other ground of discrimination which was not expressly forbidden in this Clause were discovered, and if discrimination of that kind were attempted, it would then be held that that kind of discrimination was not forbidden.

I would like to draw the attention of the Attorney-General to an example of that kind of thing which occurred in connection with the reservation of coastal traffic to Indian vessels, as showing how extremely important it is in this Clause and in the next three Clauses to make certain that there are no omissions. In Section 736 of the Merchant Shipping Act, 1894, it was provided that the Act or Ordinance of a Colony should treat all British ships, and ships of any other British possession, in exactly the same manner as the ships of the British possession in which it was made. In spite, however, of the very clearly expressed intention of the Imperial Parliament that no Colonial Legislature should have power to give preference to ships of that particular British possession, it was possible to introduce into the Indian Legislature a Measure reserving the coastal traffic of India to Indian vessels, and, in the opinion of the then Law Officers of the Crown, that did not come within the Section I have quoted.

Therefore, I hope that, in order that this Clause may be quite exhaustive and comprehensive, the Government will be willing to accept these additional words, so as to include some other ground of discrimination which perhaps it is not now possible to foresee. I would only add that to-day I handed in a Clause to enable the application of all the Clauses in this Chapter to be suspended by Order in Council, with the approval of both Houses of Parliament, if some unforeseen difficulty arises, and, in view of that, I hope the Government will be prepared to accept this Amendment.

8.59 p.m.

The ATTORNEY-GENERAL

If he Committee will look at Sub-section (1, b) of the Clause, in which it is proposed to insert these words, they will see that the sort of discrimination from which a British subject is to be exempt is that which is imposed by reference to certain definite matters which are likely to be grounds of discrimination against a British subject—birth, race, descent, language, religion, domicile, residence, or duration of residence. That is a fairly wide category of grounds of discrimination, which would appear to exhaust the grounds upon which a British subject might be made the subject of discrimination. My hon. Friend wants to add some words which, I am bound to say, I find some difficulty in fully understanding. He wants to add to these specific matters a general phrase: or any other matter calculated to afford a ground for discrimination against British subjects domiciled in the United Kingdom. When it is realised that the Clause is to provide for the exemption of a British subject from discrimination of a particular character, I think everybody will see at once what a great advantage there is in defining the character of the discrimination from which the particular person or class of persons is to be exempted. It is not a question of making discriminatory legislation void, or anything of that sort; it is a question whether a British subject, or a class of British subjects, shall be exempt from discrimination legally imposed upon other people, possibly, but a discrimination, as the Clause says, imposed by reference to birth and so on. If my hon. Friend's Amendment were accepted, there would be very great difficulty in knowing whether the discrimination in question was a discrimination from which a British subject was exempt. One would have to try to consider whether a discrimination was imposed by reference to a matter calculated to afford a ground for discrimination against British subjects domiciled in the United Kingdom. I would like to ask my hon. Friend what is a matter calculated to afford a ground for discrimination? I have turned these words over and over in my mind to try and see what comes within them which is not a discrimination imposed by reference to birth, race, descent, language, residence, domicile, or religion, and I am bound to say I cannot think of any ground which comes within these general words of my hon. Friend and which does not come within the special words contained in the Clause as it stands. For the reason that, first of all, it is very desirable, having regard to the nature of the proposal, to be quite specific, so that everyone may know whether a man is subject to or exempt from the discrimination and also because the words in themselves are, in my humble submission to the Committee, very difficult to interpret, I ask the Committee to reject the Amendment. I do not believe that it would really add any protection to a British subject; I think he will get all the protection he can possibly need by the very wide enumeration of special grounds upon which discrimination may be said to be imposed. For that reason I do not think the Amendment is quite so important as it might be thought to be, and I hope that my hon. Friend will be satisfied with the words which are to be found in the Clause.

Mr. HANNON

Would the Attorney-General make clear to the Committee how the point raised by my hon. Friend the Member for Doncaster (Mr. Molson) stands as regards discrimination in the case of shipping? Could an Indian Government, under the new Constitution, discriminate against British shipping in favour of the shipping of another nation? Is there any provision in this Bill to prevent discrimination of that kind? That I think, is the point which my hon. Friend desired to make.

The ATTORNEY-GENERAL

My hon. Friend's point would more properly be raised on a later Clause, which deals with the reciprocal treatment of ships. This Clause deals with the freedom from discrimination of individuals, and not of ships or companies.

9.5 p.m.

Sir J. WARDLAW-MILNE

I was not surprised, and in fact I expected that my right hon. and learned Friend would take the line in reply to this Amendment, that the words in the Bill are so comprehensive that there is really nothing more that you could add, and that they embrace every discrimination of which one could think. I can understand that argument, and I sympathise with it to some extent, but my right hon. and learned Friend put forward two contradictory reasons. Having said that with which I had great sympathy, he said that it was desirable to differentiate clearly between the restrictions to which a British subject shall be liable and to which he should not be liable. The whole point of the Amendment of my hon. Friend, and certainly the point which I have always understood, perhaps wrongly, as underlying the whole principle of the Bill, is that a British subject should not be liable to any discrimination whatsoever. There is no reason why a British Subject should be liable to discrimination, and if that be so, I cannot see any particular objection to the proposed words, although I can understand the argument that one cannot think of any other reason for discrimination not covered by the words of the Bill. That I can understand. But if I am right, and I hope that the Committee hold the same view as I do, that there should be no discrimination against a British subject, then I cannot see any objection to the words, because there might be some circumstances in future years which might provide a ground for discrimination which no one can think of to-day. I cannot see any objection to the Amendment from that point of view.

9.7 p.m.

The ATTORNEY-GENERAL

Perhaps I may deal with the point which my hon. Friend has mentioned. I think that there is a little confusion. It may have been partly due to the way I expressed myself, but it is quite true that the intention is that a British subject, by virtue of his being a British subject, shall not be exposed to any discrimination. You get that freedom from discrimination in respect of his being a British subject by referring to all these matters which are characteristics of, or connected with, his status as a British subject. Place of birth, race, descent, language, religion, and other circumstances enumerated, are, I suggest to my hon. Friend, everything which touches his status as a British subject upon which it may be sought to impose discrimination against him.

Sir J. WARD LAW-MILNE

Everything that we can think of.

The ATTORNEY-GENERAL

Yes, everything that we can think of, and if I were satisfied that the Amendment of my hon. Friend really added anything to those conditions which we have thought of I should be very glad indeed to accept it, but I am very much afraid of adding words which are so cloudy as, at any rate, to convey very little meaning, if any, to my mind, in the absence of a precise explanation of what they do mean. When you add general words of this character, they are very apt to confuse the point that may arise. I do not want it to be supposed for a moment that we are intending that a British subject is to be made the subject of discrimination in relation to his status as a British subject, except, of course, in the sense that persons may be discriminated against as, shall I say, the surtax payers in this country are discriminated against with regard to legislation, but it is not to be by reference to their birth, or descent, or anything connected with their position arising from being a British subject.

9.10 p.m.

Mr. ISAAC FOOT

The Clause deals with the subject of discrimination which has aroused a great deal of interest in India as well as here. When the hon. Member for Kidderminster (Sir J. Wardlaw-Milne) supported the Amendment he himself could hardly suggest any other words than those specifically mentioned in the Bill as it stands.

Sir J. WARDLAW-MILNE

I cannot suggest any at all.

Mr. FOOT

It occurs to me that inasmuch as we know how sensitive Indian opinion is on this matter they would, if these words were added to the Bill, impute to these words a meaning which probably they would not bear. I think that they would be inclined, after all the expressions of feeling there has been in India upon the discrimination Clauses, to say that we were endeavouring to widen the Clauses upon which they have directed so much criticism. I am anxious, at any rate, that we shall have regard to Indian feeling and sentiment on this matter, and that we shall not enlarge the field of discrimination as the proposed words would suggest If there were something tangible in what has been proposed in the Amendment and some grievance against which we ought to make a real safeguard, we might pass these additional words. I hope that we shall be extremely careful in adopting any Amendment that would add to the criticism and the resentment that has already been expressed in India about the discrimination Clauses. For that reason, I hope that the Government will not be able to accept the Amendment which has been moved by the hon. Member, although we are all, I think, agreed in this Committee that we want to avoid discrimination, but I hope that while we are entering upon this territory we shall have regard to what has been said in India in recent months.

Sir J. WARDLAW-MILNE

I really do not think that the hon. Member for Bodmin (Mr. Isaac Foot) made himself sufficiently clear. I do not think that the actual words used will have any effect on Indian feeling whatever. The whole question would not have arisen if we had used very much simpler language and had said that there should be no restriction of any sort or kind whatever. It is merely because the Government have used words which cover everything one might think of at the present time as a reason for discrimination, but which, after all, may not cover something which may arise in the future, that we propose to add these words. It is not very important one way or the other, and I really do not think that it is a matter which affects India one way or the other.

Amendment negatived.

9.13 p.m.

Mr. MOLSON

I beg to move, in page 67, line 31, after "any," insert "disability."

This is merely a drafting Amendment. After what the hon. Member for Bodmin (Mr. Isaac Foot) has said, perhaps I might mention that I understand that the purpose of the Clause is to be wholly comprehensive, and the only purpose of this, as of the last Amendment, is to make it certain that there are no loopholes in the Clause.

Mr. BUTLER

We are prepared to accept the Amendment.

Amendment agreed to.

Mr. BUTLER

I beg to move, in page 67, line 32, after "residence," insert: "the acquisition holding, or disposal of property."

This and the following Amendment are drafting Amendments. The words "holding of property" contained in paragraph (b) of Sub-section (1) of this Clause might probably prove insufficiently wide to cover discrimination which might be taken in relation to property.

Amendment agreed to.

Further Amendments made: In page 67, line 33, leave out "property or."—[Mr. Butler.]

In line 37, leave out "claim."

In line 38, leave out "or."

In line 38, after "liability," insert "or disability."—[Mr. Molson.]

In line 39, leave out "Indian subjects of His Majesty," and insert "British subjects."—[Sir S. Hoare.]

In page 68, line 2, leave out "or."

In line 2, after "liability," insert "or disability."—[Mr. Molson.]

Mr. McENTEE

I beg to move, in page 68, line 12, to leave out Sub-section (3).

I am moving this formally.

Mr. BUTLER

As we have had no indication from the hon. Member why he desires to omit this Sub-section it is rather difficult to attempt to interpret the reasons why the Amendment has been moved.

9.18 p.m.

Mr. ATTLEE

The Sub-section deals with the entry into India of individuals and the restrictions which may be placed upon them. In this Sub-section the Governor-General or the Governor of any Province if there is any grave menace to the peace of India may prevent persons, British subjects domiciled in the United Kingdom, from entering India. That is a very dangerous power to give; and we have had instances in which it has been abused. I am suspicious of this kind of proposal, which on the continent is called "a suspension of the constitutional guarantee." It is too big a power to put into the hands of the Governor-General, and we should like to hear from the Under-Secretary the kind of persons aimed at by this proposal.

9.19 p.m.

Mr. BUTLER

The Sub-section enables the Governor-General or the Governor of any Province to disregard the anti-discriminatory proposals which we have just been discussing. It may be desirable in the case of Europeans themselves that this power should be vested in the Governor-General and the Governors, because it may be necessary for the Governor-General actually to discriminate against Europeans in their own interests. We wish the Governor-General to have these exceptional powers in order to act as the friend of those people whom we are trying to protect in certain cases of emergency. If the Sub-section is left out it might be impossible to take the steps necessary in their own interests. In view of the importance of preserving some such power as this in cases of emergency I hope the hon. Member will not press the Amendment.

Amendment negatived.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

9.21 p.m.

Mr. BAILEY

There is one matter I should like to raise on this Clause which has not yet been covered by any of the Amendments. Sub-section (2) says: For the purposes of the preceding Sub-section, a provision, whether of the law of British India or of the law of the United Kingdom, empowering any public authority to impose quarantine regulations, or to exclude or deport individuals, wherever domiciled, who appear to that authority to be undesirable persons, shall not be deemed to be a restriction on the right of entry. I suggest to the Attorney-General that the Sub-section needs some recasting. I am loth to criticise it because, as I was reminded some time ago, it is the work of four or five years of some of our finest minds, and one does not like, therefore, in any way to criticise it unnecessarily. We shall all agree, however, that it is quite proper to deal with the type of person whom it is desired to deal with by this provision, but the Sub-section in the hands of an unscrupulous authority could be used to defeat the whole purpose of the Clause. There must be hundreds of authorities in India who will have this power, any one of whom might use it to get their own back on their political opponents. We cannot supervise all the authorities in India. They may desire to deport an individual as undesirable because he does not share their political views or because he has opposed this Bill. I do not say that they will go as far as that, but when we are taking all the trouble we are to prevent discrimination to leave a Clause which may be used, and could very easily be used, for the purpose of discrimination is a mistake. We have also to remember that there may be authorities who would not desire to work the Bill in a spirit of co-operation but to use any provisions they can to hurt their political opponents. What is the use of putting in safeguards if we are to leave a loophole like this which can be used for purposes which we never intended. I should be very grateful therefore if the Attorney-General can give us an assurance that the Government will consider recasting this particular Sub-section in a more detailed and precise form.

9.23 p.m.

The ATTORNEY-GENERAL

The observations of the hon. Member compelled me to say a word. He suggests that the Sub-section requires recasting. All I can say is that the hon. Member might perhaps have taken the opportunity of suggesting a new form of recasting.

Mr. BAILEY

I thought it better to leave that to the wisdom of those who have been considering it for three or four years, but since the Attorney-General addresses that invitation to me I would suggest a form of recasting which would provide that the Governor-General could at any time revise any single one of the decisions by these authorities; and that there should always be a right of appeal to the court on the part of the individual.

The ATTORNEY-GENERAL

That is not a recasting of this Sub-section; it is a new proposal. If the hon. Member would study the Bill a little closer he would find that there are Clauses in the Bill which impose on the Governor-General exactly the duty which he suggests. He has to take care, under his special responsibilities, of seeing that in the sphere of executive action the purposes of Chapter III, Part V, are secured. That is a special responsibility of the Governor-General. It is in effect precisely the proposal which my hon. Friend now makes, in answer to my challenge, as his idea of how things could be improved. He has twice twitted me with having told the Committee that a particular proposal was the work of men who have been examining the matter for four or five years. I cannot have put upon me a suggestion of that sort, that I take objection to any criticism because I say other people have considered it. I made that observation solely in relation to a particular demand by my hon. Friend, that he was raising a particular criticism of one Clause for the first time. I took leave to remind him that he was not raising it for the first time, but that it had been considered for four or five years by other people. He must not suggest that I put it forward as a reason for not listening to fair criticism of the language of the Clause.