HC Deb 11 April 1935 vol 300 cc1357-63

4.5 p.m.

The ATTORNEY - GENERAL (Sir Thomas Inskip)

I beg to move, in page 254, line 26, after "that," to insert: "(a)nothing in this section shall affect the Preamble to the Government of India Act, 1919; (b). The Committee will remember that my right hon. Friend the Secretary of State indicated in the course of his Second Reading speech—in answer to an interruption—that it was the proposal of the Government to make it plain by a suitable Amendment to the Fifteenth Schedule that the Preamble to the Government of India Act was not to be repealed. It would, however, be more appropriate to make the change by adding these words to the last Clause of the Bill as it stands at present, which provides that the Government of India Act shall be repealed. If these words are added, it will prevent that repeal from applying to the provisions of the Preamble.

4.6 p.m.


May I ask the learned Attorney-General a question arising out of the statement he has just made, namely, whether this is the endeavour of the Government to implement what they promised in relation to the retention of the Preamble to the 1919 Act when we had the general question of the status of India before us? The right hon. Gentleman said that the Government stood by that Preamble. We take objection to the proposed paragraph (a)as being an inadequate statement of the position, but there is also, as will be observed, an Amendment in my name when we come to the Postponed Clause 1, which is the next Clause to be discussed. I wonder whether you could tell us whether we could raise the question of the status more properly on the Question that Postponed Clause 1 stand part, or whether you would allow us to have our discussion at this point?


I am not sure that the hon. Member can raise the point anywhere, or at least not to its full extent. Neither on this Clause nor on Postponed Clause I can there be, I think, any discussion as to what may be the future policy of the Government or the intention of the Government as to any possible future legislation for India. That was a matter which, no doubt, could be debated up to a certain point on the Second Reading of the Bill, but we have got beyond the Second Reading. We have got a definite question before us now as to the Preamble to the Act of 1919, and as to the advisability or otherwise of adopting the Amendment which proposes specifically to continue the existence of that Preamble, but I do not think we can go beyond that.


May I submit this point? There is an Amendment in my name to Postponed Clause—in page 1, line 8, to leave out "Government of India," and to insert "Dominion of India Self-Government," and there is also a suggested new Clause on page 1621 of the Paper in the name of my right hon. Friend the Leader of the Opposition—(Act to be regarded as facilitating dominion, status.) Those two proposals, I respectfully submit, deal with the question as to what is to be the ultimate purpose of this Bill. I gather that you rule it is not competent for us to-day to discuss what the ultimate destiny of India may be, but may I submit to you that in discussing the Preamble itself we are doing so? The Preamble itself does, in point of fact, indicate the direction in which the Government wishes to go in respect of the Government of India, and if we therefore take objection to the Preamble on the ground that it does not adequately express the purpose of the Government implementing this Bill, I submit that we are entitled to move our Amendment today. I admit that I cannot very well anticipate what your ruling may be on my right hon. Friend's new Clause, but it would be a convenience to us to have a discussion on this point, either now or when we come to the Clause of my right hon. Friend, or where I have a Motion down.


On that point of Order. At the end of the Amendment Paper the hon. Member and his right hon. Friend have put down an Amendment to move a Preamble to this Bill which would deal exactly with the point. With great respect, may I suggest that perhaps that might be a convenient time for a discussion?


May I suggest that if the question is to be discussed right at the end of the Clauses, it would be very inconvenient?

4.10 p.m.


It may save trouble if I answer the points raised one at a time, and not have to carry them all in my mind until the end. I can dispose of the last one by saying that an Amendment to insert a Preamble when there is no Preamble is out of order.


Can we have some guidance from you, Sir Dennis, as to what our limits of discussion are now?


That is why I am anxious to answer the questions before they pass out of my mind.


I do not wish to be fractious in any way, but I gather that you said where there is no Preamble we cannot provide one. But is it not a fact that this Amendment in the name of the Secretary of State provides a Preamble by adopting the Preamble to the Act of 1919?


No; I think quite clearly not. What may be the effect of specifically continuing the Preamble to an Act which has been on the Statute Book for some years may be discussed, but as regards the procedure in this Committee this is a Bill to which there is no Preamble, and, in those circumstances, it is contrary to our Rules to insert any Preamble.


For my guidance, may I ask you this question? It is vital to us that we should be able to raise this important point, and I would ask you at what point may we raise the issue challenging the adequacy of this Amendment of the Government adopting the Preamble to the Government of India Act, 1919?


On that Amendment quite definitely. It is obvious that on an Amendment which proposes definitely to retain the Preamble to the Government of India Act, 1919, it is quite in order to discuss that. It is not for me to endeavour to find out what is in the minds of hon. Members, but, as far as I can say at this moment, I should have thought that that particular Amendment would give hon. Members and right hon. Members all the latitude they want. But, perhaps, I may say at once I do not propose to select any of the Amendment on the Order Paper to postpone Clause 1, nor do I propose to select the new Clause in the name of the right hon. Member the Leader of the Opposition—(Act to be regarded as facilitating dominion, status)—I prefer to say I do not select them. I have reasons for not selecting—if I do not select I avoid going into the question as to whether they are in order or not. As a matter of fact, we have had a fairly wide Debate on this particular Amendment within the limit of any Debate which can take place on it, and I have already given a Ruling.


On a point of Order. Is it your Ruling, Sir Dennis, that even the Government itself, if it wished to introduce a Preamble, could not now do it?


No, certainly they could not. I might be wrong in saying as I was going to that the Government can do no more than ordinary Members, because they can do more in certain matters connected with finance, but there is nothing in our procedure which would allow them to insert a Preamble where there is not one in the Bill.

4.16 p.m.


On that point of Order. The Amendment says: Nothing in this Section shall affect the Preamble to the Government of India Act, 1919. I do not quite understand how that phrase comes in. Will not this Bill really wipe out the Government of India Act?


Not the Preamble if this Amendment is passed.


But can we take the Preamble out of an Act which is to be abrogated and then put it in here in this form? I am not a legal gentleman, but I understand that this is a Preamble which is going to be stuck somewhere into the middle of the Bill. Anyhow, we are told that it is not, a Preamble. [Interruption.] Oh, it is a Preamble. Well, that is the point. There is a subtle distinction which lay people cannot understand. It is a Preamble to another Act which is dead, or will be dead when this Bill is the law. It is all very well to say there is not a Preamble, but where is the justification for saying that? I should like the Attorney-General to tell us whether this has happened before.

4.18 p.m.


I made my observations on this Amendment very brief because, to tell the truth, I thought the Government's proposal to insert words making it plain that the Preamble was not repealed with the rest of the Government of India Act, 1919, would meet to some extent—I am not saying it would go the whole way—the wishes of hon. and right hon. Gentlemen opposite. I was under the impression, and I think the Committee will be under the same impression, that during the Second Reading Debate some satisfaction was felt at the statement which my right hon. Friend the Secretary of State made in answer to a speech by the right hon. Member for Darwen (Sir H. Samuel). The Secretary of State said: In order to put all doubts at rest, I shall move at the proper time, when we come to the Schedule under which the Government of India Act, 1919, is repealed, an. Amendment to say 'except the Preamble.' It will be quite clear that the Preamble, whether it is susceptible to repeal or not, is not repealed."—[OFFICIAL REPORT, 6th February, 1935; col. 1181, Vol. 297.] My recollection is tat, so far as the two Oppositions were concerned, that statement went a considerable way, I will not put it higher than that, to give them satisfaction. Therefore, when it came to a question of implementing that promise of my right hon. Friend—true by putting it into the last Clause of the Bill instead of into the Schedule which deals with the Acts of Parliament that are repealed—if I had thought there was any objection to this proposal I should, of course, have dealt with the matter rather more fully and in a slightly more controversial form. If it will help the right hon. Gentleman opposite, I will offer some observations on the point he made as to what is the purpose of leaving in the Preamble and the legal effect, as I understand the matter, of the Preamble.

The present Bill was introduced without a Preamble for reasons which I need not discuss. Much anxious consideration was given to the drafting of this Bill, and it naturally occurred both to the Government and to private Members and to other persons interested in the Bill to consider whether it would not be desirable, as the Government of India Act, 1919, had a Preamble, to have a Preamble to this Bill. That question was decided in the negative and the Bill was introduced without a Preamble. Then hon. Members opposite and in other parts of the House took the view that, for what it was worth, the Preamble to the Government of India Act, 1919, had a certain value as marking the definite intentions of this country and not merely of the Government of the day, and that it would be just as well that no support should be given to the view that by repealing the Government of India Act, 1919, including the Preamble, there had been any desire to go back upon what was the policy of Parliament in 1919. My right hon. Friend the Secretary of State made it abundantly clear that the present Government have no intention whatever of going back upon the Preamble of 1919, that is to say, upon the expressions of intention contained in that Preamble. As the Committee will recollect, there are certain parts of the Preamble which may be said to be exhausted now. They are the parts of the Preamble which refer to the action of Parliament and to the extent to which that action would be guided by co-operation and so forth, but the part to which importance has been attached is the first Clause of it, which says: Whereas it is the declared policy of Parliament to provide for the increasing association of Indians in every branch of Indian administration, and for the gradual development of self-governing institutions, with a view to the progressive realisation of responsible government in British India as an integral part of the Empire. Those opening words are the words which my right hon. Friend the Secretary of State said, in a carefully phrased and prepared statement in the House on the Second Reading of this Bill, the Government intend to rest their policy on; that is to say, we do not depart one iota from the statements there made, and with a view to marking and emphasising that position, he was prepared to see that the Preamble was not repealed.

The right hon Gentleman opposite asks: "What is the purpose of leaving a, Preamble in the air? You are repealing the whole of the rest of the Government of India Act; what will that un-repealed part of the Preamble do? "The exact value of a Preamble is a matter which lawyers sometimes discuss, but I do not think that anybody has ever said that the Preamble has what lawyers call "an operative effect." It is, at best, a statement of the intentions of Parliament at a particular time, and may possibly be used by the Courts to throw some light on the interpretation of the operative parts of an Act. The value of that Clause in the Preamble which I have read would obviously not be that, as we are going to repeal the whole of the operative parts of the Act, but the value of putting in a rather unusual provision to say that we wish to keep alive the Preamble but to repeal the rest of the Act is, I should have thought, that it shows that some rather unusual importance is attached to a statement made 16 years ago, and that this Parliament still regards that as an accurate statement of the intentions of this great country towards British India, associated as it will be with the Indian States in a Federation. I cannot imagine that hon. and right lion. Gentlemen opposite will vote against this proposal. I think, Sir Dennis, that you have indicated that you would allow a certain liberty of Debate, so that hon Members opposite may indicate—

Whereupon, the Gentleman Usher of the Black Rod being come with a Message, The CHAIRMAN left the Chair.

Mr. SPEAKER resumed the Chair.

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