HC Deb 08 April 1935 vol 300 cc875-83

6.50 p.m.

Major-General Sir ALFRED KNOX

I beg to move, in page 145, line 10, at the end, to add: (4) The provisions of this section shall apply (save as hereinafter provided) to proceedings, civil or criminal, against any person in respect of any act done or purporting to be done by him in the execution of his duty as a servant of the Crown in India after the relevant date. Provided— (a) that such person is a person who may not he dismissed from the service of His Majesty except by the Secretary of State or the Governor-General or the Governor; and (b) that any consent required to be given by the Governor-General or the Governor, as the case may be, under sub-section (1) of this section shall in any case to which this sub-section applies be given by the Governor-General in the exercise of his individual judgment and after consultation with the Advocate-General or be given, as the case may be, by the Governor in the exercise of his individual judgment and after consultation with the Advocate-General for the Province. The Clause as it stands give a certain measure of protection to officials and civil servants in India on account of acts committed before the relevant date, that is to say, before the commencement of Part III, or tike Federation as the case may be. But there is no protection for acts committed after that date. I understand that the Services of India press very strongly for some measure of protection. I think that it would be understood that, if, as the Clause acknowledges, protection is necessary on account of acts committed previous to the relevant date, the case for protection for acts committed subsequent to that date must be at least as strong. The Services are not pressing for immunity from judicial proceedings, or for a special tribunal to try their cases. They simply ask that before any case goes to a judicial court the Government should satisfy itself that it has a prima facie case for such proceedings. It is obvious that it will be in the power of ill-willed people to start vexatious proceedings in order to harass public servants who have carried out certain actions really on behalf of the Government. It is only just that the Government should stand by and defend these people for actions which they have taken on behalf of the Government in all good will.

6.53 p.m.


I think it may be convenient if I rise at once to give the Committee our views on this point. The Clause to which the Amendment is moved deals with past acts. It does not take the exact form of an indemnity, but it is an indemnity of a kind, and, as the Committee will see, the marginal note is: "Indemnity for past acts." As far as the future is concerned, obviously it would not be right to give what would appear to be in any sense an indemnity in advance. There are no doubt special circumstances which make it desirable to have something in the nature of an indemnity in this Bill. In regard to the future, as I have indicated, obviously it would be very undesirable, and indeed wrong, to appear to be casting a cloak in advance irrespective of the type of charge that might be made or the liability or claim that might be made. In considering the Amendment of my hon. and gallant Friend it is important to draw a distinction between criminal proceedings and civil proceedings. They may stand on widely differing bases. As far as criminal proceedings are concerned, as my hon. and gallant Friend no doubt knows, though it may not be known by all Members of the Committee, the existing safeguard, which, I think, covers exactly the same classes of officers as those covered by the Amendment of my hon. and gallant Friend, is laid down in Section 197 of the Indian Code of Criminal Procedure, which provides broadly as follows, namely, that When any person who is a judge or magistrate or public servant not removable except by or with the sanction of the local government or some higher authority is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no court shall take cognisance of such offence except with the previous sanction of the local government. That is in the existing law, and it has been thought—and I think it will be agreed by those who have experience of this matter—necessary to have some such provision as that to prevent, especially magistrates and officials, from being harassed by vexatious criminal proceedings. Under the system which has grown up in India under our rule it is, I think, even easier to go into a court and get a summons or a criminal plaint than it is in this country. It is a very simple procedure and, therefore, unless you have some such protection, having regard to the circumstances which are bound to exist in a large continent such as India, if you had not some safeguard, you might not infrequently find officials harassed by vexatious criminal proceedings. If Members of the Committee will look at page 1474 of the Order Paper they will see that my right hon. Friend has put down a draft new Clause, which provides that: No Bill or Amendment to abolish or restrict the protection afforded"— by the Section to which I have just referred— shall be introduced …without the previous sanction of the Governor-General or the Governor as the case may be. That, of course, will preserve, subject to that sanction, the existing Clause. Under our present administration, this not being a reserved subject, a decision under that Clause as to whether the proceedings should go forward and whether the courts should take cognisance of a criminal complaint against an official rests with the official Government. Under the Bill this decision would be in the hands of ministers alone. It is very important in considering this matter—and I would emphasise this point to the Committee—that the question of some safeguard such as this—and the intention behind the Amendment of my hon. and gallant Friend—is really more necessary and desirable for the protection of the Indian members of the Civil Service than the English members. Let us get right away from any idea that we are here considering some hedge we want to put round people from these islands. After all, the English members of the Civil Service have their own special protection and safeguards. There are a very large number of Indians who at present are in high and responsible positions in the Indian Civil Service whom it is necessary to consider in relation to this matter.

In considering this subject one has to bear two things in mind on one side or the other. It is most undesirable and entirely against the best interests of the services of India, or officials in any country where British ideas prevail, that you should give, or tend to give, the impression that they are hedged off and free to do as they like, and that no one can get at them. On the other hand, it is equally necessary, particularly in a country like India, that where there is a danger of their being harassed by vexatious or maliciously-motived proceedings, they should be given fair and proper protection. After all, it not only causes mental anxiety, and so on, to a magistrate, but it is bad for the administration of law and justice if a magistrate, because some person thinks he has a grievance, should be put into the dock and have to justify his action. My right hon. Friend therefore proposes to take the course which I have indicated, and further, to provide that in these cases the head of the Government, the Governor-General or the Governor, as the case may be, shall have the last word and that it shall be in his individual judgment.

We hope, and indeed we anticipate, that Ministers will be as keen as we are in this House to see that the officials who are carrying out their policy, as it will be, shall be properly backed up and protected. We do not anticipate either on this or on the next item which I shall deal with any division of opinion. But in order to reassure those officials, Indians just as much as British, who are anxious that there shall be no doubt that there is proper protection against vexatious and unjustifiable criminal proceedings, we propose to give the Governor or the Governor-General the last word. I hope that my hon. and gallant Friend may think that that is a satisfactory way of dealing with criminal proceedings.


Am I to understand that this covers future Acts as well as past Acts?


I am dealing entirely with future Acts. The Clause deals with the past, but my hon. and gallant Friend's Amendment deals with the future, and I am dealing solely with what we think to be the reasonable and proper procedure for the future.

I come now to the question of civil proceedings. The Clause deals with what is past, and therefore with matters which are, at any rate, in people's minds. The Clause provides that in cases of civil proceedings, cases shall not be instituted except by consent. That is not an existing safeguard. At present there is nothing to prevent a person issuing a writ, or whatever may be the proper technical term in India, against an official for damages for some civil wrong which he alleges has been committed. I do not think it would be right as a permanent part of the Constitution, as it were, to impose a barrier, even though it be a discretionary barrier, between a member of the public and the official whom he is saying has invaded his private rights. After all, civil actions would extend to such cases as motor accidents; and they would extend no doubt to unjustified assaults. I suppose it might be possible to conceive a libel in which words might have been written or uttered in the course of carrying out official duties.

It is a great principle, and we do not wish to invade it, that if an ordinary member of the public has a wrong committed against him, be it by an official or a non-official person, he has the right to issue his writ and claim his redress in the courts. We think it would be undesirable to put up, or even to attempt to put up, as a permanent part of this constitution, a barrier in cases where officials are concerned. But it seems to us that what really affects an official who has a civil claim made against him is the question of costs and the question of any damages that he may have to pay. An official in India, as in this country, is in rather a special position in that in cases of civil wrongs, or torts, the Crown, who is the employer if I may use the analogy, cannot be sued.

Perhaps I may explain the matter in a little more detail. Suppose that you are knocked down by Messrs. Selfridge's van. You would then sue Messrs. Selfridge, the employer, and get your money if there had been negligence. But if on the other hand you are knocked down by an Army lorry you cannot sue the Crown; you have to sue the driver of the lorry.


You sue the Army Council, surely?


No, you sue the driver of the lorry. But, of course, the Army Council and the War Office stand behind the man and pay his costs—unless he has been off on a jaunt of his own or has been guilty of some wilful misconduct—and they pay the damages. That is right, I think, because if you had not this technical rule that the Crown could not be sued, proceedings would be against the principal, and not against the individual. That does produce rather a special situation so far as officials are concened. It is right, therefore, that in all proper cases where individuals are sued after having had the misfortune to have injured people, or whatever the case may be, in the carrying out of their duties that their employer, in this case the Government, should stand behind them in respect of costs or of damages. Here again, we do not anticipate that Ministers will not treat such cases as the official Governments have done in India in the past, and as Government Departments do here. But bearing in mind the quite reasonable apprehensions in these matters of civil servants, and in particular of the Indian members of the Civil Service, my right hon. Friend prefers here again to give the Governor-General or the Governor the last word where it is a question as to whether they should stand behind the official for any costs or damages. That will in the last resort be settled by the Governor-General or the Governor in his individual judgment. I think that covers the points that have been raised, and I hope my hon. and gallant Friend may feel that in making these suggestions for the future we are putting forward what is best and fairest both in the interests of the public and in the interests of the officials, and meeting what is a very real problem.

7.8 p.m.


I do not entirely follow the Solicitor-General with regard to the reserved protection under the existing law. I did not quite follow it as regards the civil suits and civil actions because at the moment I cannot recollect what the form of protection was under Section 80 of the Civil—


It is not really a very substantial matter, but the main point under Section 80 is that two months' notice is to be given before you can issue your writ. I did not go specifically into that, and perhaps I should have done so. That is the main protection, and that provision is covered by the new Clause.

7.10 p.m.


I understood the hon. and learned Gentleman to say that in this country the subject cannot bring a charge against the Crown as such. Do I understand that the effect of the Clause to be this: that if a subject desires to bring a claim for damages, say against some department of the Federal Government, Sub-section (1) means that such a claim cannot be advanced in the courts unless there is prior sanction of the Governor-General? If so, does not that mean that the Crown, or o the Governor-General, has to determine whether a case shall lie against itself in the courts?


This Clause deals only with proceedings against persons and that word does not include the Provincial Government or the Federation. The claim which the hon. Gentleman has in mind would be one against the Government or the Federation and would be a claim, almost certainly, arising out of breach of contract, or something of that kind. That is untouched by this Clause, which deals only with claims against individuals. You can, both here and in India, bring a claim against the Crown if your claim arises out of a contract. This Clause deals with a claim which does not concern a contract, but a tort against an individual, and the most obvious case being perhaps carelessness in the driving of a Government lorry.


In view of the explanation of the hon. and learned Member, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

7.13 p.m.

Duchess of ATHOLL

I do not know whether I shall be in order but I should like to ask the hon. and learned Gentleman if he would substitute the words "in his discretion" for "in his individual judgment," in the proposal which he is putting to the Committee.


I am afraid not. I think it would be wrong by putting in the words, "in his discretion" to short circuit the ministers, if I may so express it, and not to give every opportunity to them of backing up their officials as we believe they will and ought to back them up. It seems to us a case where it would be wholly wrong to appear to anticipate that ministers will not take the right action. Also, we think it might tend to mitigate the good feeling between ministers and their officials who will be carrying out their policy.

Duchess of ATHOLL

Of course, I recognise that a case might arise which would have nothing to do with the minister—something entirely outside anything with which he had to do. I quite see the hon. and learned Gentleman's point that the minister might wish to be given a chance of standing up for an official. Therefore, I will not press the point.