HC Deb 02 April 1935 vol 300 cc207-12

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

3.33 p.m.


I ventured to put a point of Order to you last night, Mr. Chairman, but you thought it might be more properly dealt with on the question being proposed "That the Clause stand part of the Bill." May I ask you to give your Ruling upon this point, which has arisen out of the arrangements which have been made for the discussion of the Bill? It has been agreed that a number of clauses may be put en bloc if there is no amendment to any clause; but last night there a case where six clauses were to be put, and there was an Amendment to the third of those Clauses. It was an Amendment which you did not select, but it was not an Amendment out of order. If it had been out of order it might be argued that it did not exist at all, but as it was an Amendment that you did not select it came into that category which I think you described as coming within the more questionable area of the selective power of the Chair in respect of amendments. We have always understood that that selective power related to making sure that the particular topic for discussion was taken at the best point which was on the Paper, and by no means related to the shortening of discussion and the excluding of any topics from discussion.

That being so, it would appear that an Amendment which was on the Paper and which you did not choose to select would nevertheless be an Amendment for the purpose of barring the putting of a series of clauses en bloc. I should very much like to know how you have decided upon that matter, and I must of course say that if you have decided that an amendment may be put on the Paper and you may not select it and that then a whole block of clauses may be put, obviously it would be necessary for those who are watching over the careful and thorough discussion of this important Measure to safeguard themselves from anything going with a run, by putting on the Paper an amendment to omit every Clause in succession from the beginning to the end. I hope that I may receive some Ruling from you on the point.

3.36 p.m.


I think it is necessary, in the interests of the Chair and of the Committee, to say that I cannot accept what the right hon. Gentleman has stated as to the Chairman's power of selection of Amendments. That, as the right hon. Gentleman knows, is a discretion the exercise of which is a great responsibility, and the purpose of it has not been hedged with any rules or acknowledged usages. The right hon. Gentleman's first point of Order is to some extent mixed up with a second one. At any rate, it deals broadly with the question of taking a number of Clauses en bloc. I have discussed that matter with some of the right hon. Gentleman's friends and others at a meeting of the informal committee to-day. The Resolution of the House is, perhaps, not drawn in very clear detail, but the whole intention of that Resolution and of the arrangement under which we are working was co-operation; and with that end in view, I have come to the conclusion that the proper course for me to take, whenever I propose to take a number of Clauses in a block, is to give hon. Members an opportunity, if they wish to do so, of signifying the fact if on any particular Clause they wish to speak. That no doubt will meet the right hon. Gentleman's view, and I hope it will be acceptable to the Committee. I can only say that, wishing from the point of view of the Chair to assist the business in that way, it will be a convenience if, generally speaking, right hon. and hon. Members will put on the Paper an Amendment to omit any Clause on which they are quite sure that they want to speak. But if there are other Clauses as to which there is no such notice on the Order Paper, I will none the less give hon. Members an opportunity, before putting the whole of the Clauses in a block, to say that they wish to discuss a particular Clause.

3.40 p.m.


I need not say with how much good will and gratitude the minority in this Committee will receive the statement which you have made and which ought to be satisfactory to all.


The question is "That Clause 202 stand part of the Bill."


If I may say so, Sir, you were rather "on the pounce" in rising to put that question. There are very important issues to be raised on this Clause. The Clause involves a point which we raised last night, namely, the question of the amenability of the Princes. It also touches the question of appeals to the Privy Council. These four Clauses numbered 200 to 203 inclusive combine to give us a picture, as it were, of the relations between the Federal and the State Legislatures. On these Clauses we have raised certain definite issues with the Attorney-General and the Solicitor-General which have not yet been very clearly or fully determined. This Clause 202 relates to the procedure between the Federal Courts and the Privy Council. It is of considerable consequence, and I think we might have from the Government some explanation of its exact purpose, having regard to the discussion which took place late last night. Perhaps in the light of that discussion the Government could now make a statement which would relieve some of the doubts and anxieties prevailing in certain quarters in the Committee at present.

3.42 p. m

The SOLICITOR - GENERAL (Sir Donald Somervell)

I am not sure whether this Clause raises or in any way affects the point which my right hon. Friend was discussing last night, but I will do my best shortly to explain what the Clause does. I think the Committee will see that its scope is limited and its effect obvious and desirable. What it says first is that the law declared by the Federal Court and by any judgment of the Privy Council shall so far as applicable be recognised as binding on and shall he followed by all courts in British India. That is an obvious and necessary provision, because these are superior courts and their decisions must be followed and recognised by lower courts. So far as the Indian States are concerned, it provides that any decision of the Federal Court and the Privy Council so far as respects the application and interpretation of this Act or any Order in Council thereunder or any matter with respect to which the Federal Legislature has power to make laws in relation to the State —in those cases the decision shall be recognised as binding and followed by the courts of the Federated State. I think that is quite clear. If a question comes before the court of a State as to the interpretation of the Constitution, or in respect of a matter on which the Federal Legislature has power to make laws in that State, the court in the State will follow the decision of what is for this purpose the superior court, namely, the Federal Court or the Privy Council as the case may be. It would be an impossible position if, in matters involving the interpretation of this Act in its application to a State, the Privy Council and the Federal Court were giving one interpretation and the court of the Federated State giving another. That is all the Clause does. It deals, first, with the position as far as British India is concerned, and, secondly, with the position as far as the Federated States are concerned.

3.45 p.m.


I am most grateful to my hon. and learned Friend for his explanation. Of course, the pith and point of this matter is the extent of the intrusion upon the sovereignty of the Federated States which is involved. It now appears, and it would normally appear, that the Federal Court dominates the States which are parties to the union. There is nothing wrong about that so long as it is recognised and properly understood. But, of course, one must note in passing the very serious abrogation of sovereignty involved, and what is required from the federating units for the sake of federal union. Here we come to the important question of judge-made or court-made law, and that process by which there is built up on a substructure of statute law, a whole new superstructure. Here I think the right hon. Gentleman the Leader of the Opposition will be with me. He, I am sure, remembers the Taff Vale case, and the cases of Quinn against Leather' and Lyons against Wilkins, and all those successive judgments by which the statute law —so it was contended by the Socialists and Radicals of those days—had been changed, and the real purpose of Parliament had been gradually subverted, and diverted from the direction in which it was launched by the Conservative legislation of Disraeli's Government of 1876, into an entirely different course, very much more favourable to the employers and property owners. I am sure the Leader of the Opposition has those matters in his mind.


The right hon. Gentleman wants to give me a headache.


Not at all. On the contrary, I only want to rouse the right hon. Gentleman to greater activity in the discharge of his constitutional duties.


I hope, however, that the right hon. Gentleman the Member for Epping (Mr. Churchill) will not seek to lead the right hon. Gentleman the Member for Bow and Bromley (Mr. Lansbury) into wrong paths of irrelevancy.


I am sure, Sir, you would not seriously think that I should attempt to induce the right hon. Gentleman into any wrong course or into referring to the Taff Vale decision or these other decisions otherwise than as illustrations to emphasise the actual argument now under discussion. The point is this. It ought to be marked that the Federal Court will move forward on its path making interpretations of the law in advance of the legislation—that is to say its interpretations will, until new statutes are passed, govern the actual practice. It is only from time to time that Parliament can pass Acts, but the courts are functioning continuously, and like the coral insects, they build up layer after layer until after a certain point has been reached you observe a new situation. At that point the legislature sometimes intervenes.

The question which we have now in view is what is the position of the Indian States in the Federation in this respect. It is clear that they are amenable to the Federal Court. They are not amenable only to the statute law which is now going through. They are not amenable only to the India Constitutional Bill, or Act as it may some day become—which God for- fend. Not at all. They are amenable to the continuous law making propositions and decisions which arise from the working of the Federal Court. Of course, we cannot resist this proposition. The Government must bear the consequences, but I think it necessary that the Princes of India and the Prime Ministers of these Federal States should realise that what they are subscribing to—if they should subscribe to it—is not a mere agreement to come into the Federal Constitution embodied in the Statute. There will be a ceaseless, perennial process of judge-made and court-made decisions in the far flung meshes of which they will certainly be enwebbed.

3.50 p. m.

The SECRETARY of STATE for INDIA (Sir Samuel Hoare)

My right hon. Friend is needlessly anxious and seems to think that he has made a great discovery that the sovereignty of the Princes and the Indian States may everywhere be undermined. Let me assure my right hon. Friend that he has made no discovery at all. This Clause has always been accepted by the Indian Princes.


No; surely in the speeches which were made at the Bombay conference, Clause 202 was specifically mentioned as one that would require amendment.


I can tell my right hon. Friend that there has never been any question at any of the discussions we have ever had with the Princes or their representatives that the Federal Court should not interpret the Clauses of the Constitution Act. They have never expressed anxiety upon that point, and I can assure my right hon. Friend that to the great weight of anxiety which he has placed upon his shoulders in connection with this complicated Bill, he need not add any weight of anxiety about this Clause.

Question, "That the Clause stand part of the Bill," put, and agreed to.