HC Deb 19 July 1915 vol 73 cc1272-82

Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read a second time."


Does the hon. Member in charge of the Bill propose to give any explanation of it on Second Reading? It is not entirely a Consolidation Bill. If there are changes in the law, there ought to be some explanation.

Sir J. D. REES

I congratulate the Government on having introduced this Bill. It is a measure that is very much wanted. Nobody can better appreciate its desirability than those who, like myself, have been accustomed to perform secretarial functions in India and have lost time, trouble and temper, in hunting over some fifty Statutes which are here consolidated and made available for those who have to endeavour to carry them out. There are, however certain points in the Bill to which I should like to refer. As an amending Bill is to be introduced, and as the Government—properly, I think—will not accept any Amendments, there is less reason for taking up questions which undoubtedly arise on the Bill. It is almost entirely a consolidating Bill, the Amendments being merely explanatory in character. On Clause 3 reference was made in another place to the prerogative of the Secretary of State in regard to the appointment of members, the point being the length of time necessary for such members of the Council to serve in India. I do not think "the prerogative of the Secretary of State" is the proper expression to use. The Secretary of State has no prerogative in this matter; he has merely the right of selection. I think the word was an unfortunate one to use.

On Clause 4, I believe it is understood that the Government are to take into account whether a peer can be appointed on the Council of India. That such an appointment should be possible is, I think, extremely desirable. It is not really clear at present that a peer is disqualified. I believe the reason why no provision was made in 1858 to enable a peer to sit on the Council of India is that at that time it was never supposed that a peer would care to sit on the Council. The same explanation obtains with regard to the fact that a peer of Scotland is ineligible to be a Member of this House. At the time of the Union of Scotland and England it was never supposed that a Scottish peer would want to be a Member of this House. At a later period, when Ireland was included, provision was made for Irish peers to become Members of the House of Commons. I believe that that is the historical explanation why no provision was made enabling Scotch peers to sit in this House. With regard to bringing the accounts before Parliament, do I understand that everything relating to that question and the discussion of the East India Revenue Accounts is incorporated in the Bill? There is no provision for discussing the East India Revenue Accounts, but there is a provision for their being laid before Parliament. If that exhausts the whole obligation, I am satisfied. There is no doubt a very widespread belief that Parliament is bound to provide at least one day for the discussion of those accounts in this House. This year they will not obtain even that one day. I am extremely glad that they will not. I welcome the decision of the Government. But I should like to know quite clearly whether there is any provision in any Statute of an earlier date requiring that those accounts shall be discussed in Parliament.

On Clause 35 I have always been under the impression, as one who was for some years an additional member of the Governor-General's Council, that there was only one Council, and that the additional members were additional members of the one Council. In this Consolidation Bill the Council is described as the Executive Council, and when the additional members are sitting, as the Legislative Council. That is obviously a convenient practice. Nevertheless, when I was a member a strong point was always made of the fact that there was only one Council of the Governor-General. I will not say more on that point, because it is obviously a useful discrimination, and I have no objection to raise. In Clause 36, under the heading of the Governor-General of India in Council, where it provides that the Executive Council shall be appointed, it goes on to say that the number of the members of the Council shall be five. Surely it should be "Executive Council" again. Perhaps the Under-Secretary will look into that. An objection was raised in another place to Clause 39, Sub-section (2), which states that:—

"At any meeting of the Council the Governor-General or other person presiding and one ordinary member of the Council may exercise all the functions of the Governor-General in Council."

If that is a reproduction, as it seems to be, of the Statute of 1833, I do not see that any advantage can result from taking exception to it. As to the phraseology itself, I rather adhere to what was said by one distinguished Indian Civil servant, and by other distinguished authorities upon this point, and I should like to know from the Under-Secretary, when he speaks, as to how this would be affected by the Amendment proposed by Lord Macdonnell.


I have been following the hon. Member very closely, and I notice he refers to some Under-Secretary. I do not know any Under-Secretary. The hon. Member in charge of the Bill is the Comptroller of the Household.

Sir J. D. REES

I know that the Under-Secretary for India is in another place, and I apologise to my hon. Friend on the opposite Front Bench (Mr. C. Roberts). Nobody is better qualified to deal with this matter than he is. He has been Under-Secretary, and he has been consequently entrusted with this Bill. I am very glad that he is here to answer the remarks that I am making. On Clause 52 I understand—

Mr. DEPUTY-SPEAKER (Mr. Whitley)

I think I ought to remind the hon. Member that the Second Reading of a Bill is not for the purpose of going through the Bill Clause by Clause. We have another stage to deal with that. I am a little alarmed at the prospect of the hon. Member going Clause by Clause through the Bill.

Sir J. D. REES

I do not wish to make any lengthy remarks if you tell me that there shall be another stage. But I really understood that the Government were going to try to get the Bill now through all its stages. I did not intend to trespass at any length upon the time of the House. I mentioned the Clause for the purpose of introducing the subject. I have no intention of dwelling upon it, but the matter refers to a point raised in another place. One of the chief points in this Clause is as regards the provision of an Executive Council for the United Provinces. I understood the suggestion to be, that, though, under the existing law, an Executive Council might be provided for that province, a Legislative Council could not be provided. I think that that is the case. If I am right in that respect then in the amending Bill care must be taken to see that due provision is made on this count. I think I must be in order in referring to this matter because it was the chief point of discussion in another place. I understood that in Clause 52 of this Consolidating Bill legislation would be required to provide a Legislative Council, although an Executive Council might be provided in the same way in which it was provided for the Province of Bengal. I will just take my subjects as they come in the Bill of over a hundred Clauses.

In Clause 96 a description is given of the natives of India. Exception was taken in another place to the phrase "no native of British India." Personally, I think that no other phrase can be so clear, so unambiguous, or so suitable for the occasion. If anything derogatory to the natives of India is supposed to be assumed from the use of the expression "native of India," I would suggest that European and British subjects should be described as "natives of Europe" In each case it is perfectly obvious that no invidious distinction is intended. The suggestion that the inhabitants of India are disparaged leads at once to difficulty and doubt. As, for instance, in the case of the Eurasians, who are now described as Anglo-Indians, which is exactly what nobody else calls them. What provision is made here as to the subjects of native States? What about the subject of a native State? He owes allegiance to his own particular Maharajah, who no doubt is a tributory of the King-Emperor, and in another sense he owes allegiance to the latter. Does "native of British India" cover the case, because the subjects of native States can hold office under the Crown in India, and as a matter of fact, are frequently appointed thereto. Towards the end of the Bill, in Clause 127, Sub-section (2), it is provided that

"Every British subject shall be amenable to all Courts of Justice in the United Kingdom, of competent jurisdiction, to try offences committed in India, for every offence committed within India, and outside British India, as if the offence had been committed within British India."

Does that mean competent jurisdiction to try offences committed in India synonymous with or identical in substance to similar offences in England? The phraseology seems to me to be exceedingly doubtful. My hon. and learned Friend who sits beside me (Mr. Rawlinson) is going to speak, and I shall be glad if my remarks have led him to look at this matter, and if he thinks the matter at all doubtful to make an appropriate suggestion to the Front Bench. Coming to the end of the Bill I note the Fifth Schedule. I do not propose to make any reference to this. I shall follow the example of the Noble Lord in another place; but I would like to ask the Secretary as to certain Clauses—


On a point of Order, Mr. Deputy-Speaker. I would like to ask if the hon. Member is justified in quoting remarks made in another place in reference to this matter?


I did not quite follow what the hon. Baronet was saying, but what the hon. Member (Mr. Booth) says, is correct. We have a rule which precludes us from debating here the speeches made in the other House.

Sir J. D. REES

I have not quoted the speech; I was not even about to quote it. I had merely referred to the speech; but, perhaps, my hon. Friend wishes to come on, and is anxious that my remarks should be brought to a close. As a matter of fact they are brought to a close. I thought it was desirable to make a few remarks in regard to points, some of which have not been dealt with in another place. This Consolidating Bill covers the whole of the legislation connected with the constitutional Government of India up to the present day. It has advanced the subject comprehensively to an extent that does not apply to any other Bill which has probably come before the House since I have been a Member. I hope I have not taken an unduly long time this evening. I am the only Member of this House who has been an additional Member of the Governor-General's Council, and I am equally surprsied and equally sorry, therefore, if it should be thought that I have detained the House at too great length.


I want to assure the hon. Member that, at any rate, I paid him the compliment of hearing his speech, and came in to hear it. That is not what I objected to. The hon. Member was doing that to which he has before taken objection—that is, quoting arguments made in another place for the purpose of answering them. He must not say he has a right to quote when it is a matter of interest to him and not allow my hon. Friends on other occasions to do so.

Sir J. D. REES

I have not quoted.


I merely interfered in the interest of law and order, which I understood was dear to the heart of the hon. Member. I want to know what connection this Bill has with the vigorous prosecution of the War. I do not know whether any Member of the Government can justify its introduction. I understood we were to have no emergency legislation unless connected with the vigorous prosecution of the War or the arrangements consequent upon that. Therefore, I put a plain question which I shall repeat upon some subsequent occasion.


I think the hon. Gentleman opposite has asked rather an awkward question of the Government, because, as I understand this Bill, it is the efforts of forty years. I think I am not wrong in saying that for forty years the various Governments which have sat on the bench opposite have endeavoured to bring in a Bill of this description, and, as the hon. Member opposite says, it seems rather curious that they should have chosen this particular year to consummate their efforts. However, I am always most anxious to give every facility to the Government, and I have no reason to oppose the Second Reading of the Bill. But I have taken some little trouble to acquaint myself with its provisions. It is a very long Bill, but I believe it is to a certain extent a Consolidation Bill. I fancy there w as a Committee, and that the Committee who sat upon this Consolidation Bill did make certain representations which they did not wish to put into the Bill, because it was a Consolidation Bill. It is curious, and I presume it is owing to the Coalition Government, that so much advantage is taken of the other place, because in the old days any of the right hon. Gentlemen and hon. Gentlemen who sit on the bench opposite would never have taken advantage of another place; but apparently they have taken that advantage to put in certain alterations which, although I am informed they are not vital and do not make any great change in the laws relating to India, certainly are not alterations which should be put into a Consolidation Bill. I know the Comptroller of the Household, who seems to have taken Mr. Masterman's place as maid-of-all-work in the Government—the other day he was answering for insurance and he is now answering for the India Office—will say my statements are not correct, but I think on reflection he will admit that they are. I only rise to say I do not object to the Second Reading, but we ought to have time to consider the Committee stage, and I think that will be accepted by the hon. Gentleman.

Mr. C. ROBERTS (Comptroller of the Household)

I want to say, in the first place, that I am only taking charge of this Bill at the request of the Secretary of State for India. As a matter of fact, when I was at the India Office I took a close interest in this Bill during the whole of last year, and indeed the Bill was in the making in the year before I was at the India Office. It takes, naturally, a very long time to examine a Bill of this kind, which must be considered, not merely by the various Departments of the India Office, but by the Government of India in India itself, and, under the circumstances, a very careful examination was made. I think there are really two things which the House will want to be assured about; in the first place, that it is a Bill which it is proper at the present time to bring forward. I agree that it was stated that nothing should be brought forward in this House except that which was purely non-contentious, unless it had something to do with the prosecution of the War. I trust this Bill may be regarded as a non-contentious Bill, and in that connection I would remind the House of Commons that they did hand this Bill over to the Joint Committee on Consolidation Bills, and earlier in the Session they agreed that the Joint Committee should investigate the Bill. Consequently, when the House of Commons has given the Joint Committee the trouble, which they were glad to undertake, of going through the Bill, I hope the House of Commons will not at the present time turn round and say it is not a proper Bill to introduce at this time. That depends on this point, on which I must satisfy the House that it is an honest Consolidation Bill. I think hon. Members want to be assured that, under cover of a Consolidation Bill, we are not smuggling in Amendments which are not proper to insert in a Consolidation Bill. That is the real point, and I think it arises on almost all the points of detail which were put to me by the hon. Member for East Nottingham (Sir J. D. Rees). The point which underlay the whole was whether, in dealing with these various Clauses to which he directed attention, we were really embodying the law or whether we were introducing Amendments under cover of this proposal.

I can only say that this Bill has been very carefully gone through and examined by all the Departments of the India Office. It was examined by a very strong advisory committee consisting of the experts of the India Office and their legal advisers, and I think in this connection the House will not mind my saying it has received the close attention of a trusted adviser of this House, Sir Courtenay Ilbert, whose Digest of the Law of the Government of India is a recognised authority on the point. It went then before the Joint Committee on Consolidation Bills. That Committee, as the House knows, is presided over by Lord Loreburn, who takes on that Committee the strictest view of its functions. He induces the Committee to rule out practically all Amendments in pure Consolidation Bills except such as are really almost indispensable to introduce in the process of consolidation. In this particular case great care was insisted upon by him on the ground that in a large Bill like this it was quite impossible for the House of Commons to satisfy itself that all care had been taken to reproduce existing law. If the House or any Member of the House cares to refer to the Report of that Joint Committee, they will find the Amendments set out which were in fact introduced in the House of Lords. They were on very minor points. The House of Lords accepted no Amendments, and I cannot accept to-night, or at any later stage, any Amendments except those which the Joint Committee recommended Parliament to insert in the Bill. In one instance the House of Lords did not accept one minor matter which the Joint Committee thought might have been appropriate to introduce. It was a small point. But there has been no Amendment introduced into this measure except those Amendments which Lord Loreburn and the Committee on Consolidation thought were appropriate. I know the hon. Baronet the Member for the City of London realises, and has frequently recognised, the care with which that Committee deals with these Bills, and if he has the guarantee of that Committee I trust that he will be satisfied that this measure is a very honest Consolidation Bill.


What do the Amendments refer to?


I think I may group the Amendments under the four heads. In the first place in one or two Clauses the word "British" was left out of the expression "British India." May I give the hon. and learned Member an instance. The Council of India had in the unamended Bill, control of all the correspondence going out to "British India." That is the law as it stood before the Amendment was introduced. But the Amendment made the law say that in future the Council of India had control of all the correspondence dealing with "India." This came about owing to a particular definition in the Act of 1858, which limited the expression "India" to "British India." The practice has always been as the Bill stands at the present time, but in this case there was a divergence between the law and the practice, and we thought it was legitimate in such cases to put into this Bill the law as understood and construed by constitutional practice. Another point is that there is power to declare the extent of the authority of a Lieutenant-Governor, and that was to be exercised in three different ways. There were small differences of detail in procedure, and by the Amendment inserted in the Lords the procedure was rendered uniform. It is a very minor point, so small that I do not think I need explain it any further. Another small point was that the Crown has power to disallow an Act passed by the Indian Legislature. That disallowance under the existing law might date from one of two dates. That was thought to be administratively inconvenient, and the Joint Committee thought it might be legitimate to make it date from one date instead of from one of two alternative dates.

9.0 P.M.

There is one other matter of rather more importance. There were various provisions in the old Acts dealing with prohibitions as to trading and receiving of presents. Those who came to look at the old provisions of the Acts of 1793 and 1772 found them to be very capricious, limited in territorial extent, and applying to certain officials and not to others, and it was almost impossible to reproduce them with absolute accuracy. An Amendment was carried to provide a uniform provision to cover all the cases. I think that deals with all the Amendments which the House of Lords has made, and the hon. and learned Member will see there was nothing there which was not of a character which really you cannot avoid when you come to deal with consolidation. I do not mean to imply that the Bill now before the House does not contain points which are open to criticism, and which upon grounds of administrative convenience might be altered; but you are dealing with Acts dating back to 1770, some forty in number, and it is inevitable that if you begin to propose Amendments great opportunities would be given for criticism. If you once begin that task it would be impossible to consolidate, and therefore the line has been rigidly drawn in favour of reproducing the law as it stands. If you did begin to allow such Amendments, then the process of consolidation would be simply impossible. As to the points of the hon. Member for East Nottingham (Sir J. D. Rees) I ought to say, without going through the whole of them, that it was announced in another place that an amending Bill would be introduced and was in fact being drafted, and this might deal with points like the right of a peer to sit on the Council of India. That point might be considered in reference to that Bill, but it would be entirely improper to consider that change in connection with a Consolidation Bill.

With regard to what the hon. Member said in reference to Budget statements, Clause 26 actually reproduces the law. There is no absolute statutory provision that there should be a Budget discussion every year, but the documents have to be laid before Parliament, and on that point I am certain the Bill is correct. Upon the question of the Executive Council of India, which was referred to by the hon. and learned Member, it is mainly a question of wording and drafting. The Council which sits for executive purposes is technically the same as the legislative Council, but it is practically a different body from the Council of sixty-nine which acts for legislative purposes. There is some statutory authority for the drafting of the Bill. It is only a question of drafting, and it does not alter the powers and provisions of the Council, although there may be some slight difference of nomenclature. I do not think it is necessary for me to deal with any other points except to say that in regard to each point raised the Bill correctly reproduces existing law. In reference to the phrase, "natives of British India," I should have been glad if it could have been left out, and I may point out that it has been omitted in all cases except two places. It is not an expression which is intended to be discourteous or to which any discourtesy need attach, but I know it is disliked in India, and if we could have removed it entirely from the Statute Book it would have been done. The phraseology of Clause 96 is very famous, and we could not find any words which would have expressed exactly the same meaning without deviating too far from that phraseology. Under the circumstances, I think that we had to reproduce that language, though, of course, it can be considered in an amending Bill. Those are all the points which have been raised. I am quite ready, after the opinion that has been expressed, to recognise that we should not take more than the Second Reading to-night, but I hope that when we get to the Committee stage the House will allow the Bill to pass.

Question put, and agreed to.

Bill read a second time, and committed to a Committee of the Whole House for to-morrow (Tuesday).