NEW CLAUSE.—(Governor-General may require Governors to discharge certain functions as his agents.) (Hansard, 11 April 1935)

§ Mr. BUTLER
I beg to move, "That the Clause be read a Second time."
The new Clause is composed of three Sub-sections. The first empowers the Governor-General to direct the Governor of any Province to discharge, as his agent, such function in the tribal areas as may be specified in the direction. The second Sub-section empowers the Governor-General, if necessary or convenient, to direct the Governor of any Province to discharge, as his agent, such functions in relation to defence, external affairs or ecclesiastical affairs as may be specified in the direction. The third Subsection lays it down that in the discharge of any such functions the Governor shall act in his discretion.
The object in moving the new Clause is to fill up a lacuna or, if we may pass from legal language, a gap in the Bill. The gap arose for this reason, that in Clause powers are given to the Federal Government to delegate certain functions to the Provincial Government for exercise on its behalf but no such similar power was included in the Bill for the Governor-General to delegate 1392 powers to a Governor in certain cases such as are set out in the Sub-sections. The Committee will remember that a certain Amendment was made in Clause 52, which related to the tribal areas. The new Clause will empower the Governor of a Province to act as the agent of the Governor-General in the tribal areas, particularly in the North-West Frontier Provinces, which come under the discretion of the Governor-General. It will also empower the Governor-General, if necessary, to delegate certain functions. For instance, the posting and grant of leave to chaplains in a particular Province is a function which might well be delegated by the Governor-General to the Governor in that Province. In view of the necessity of filling the gap and for the reasons I have stated, I move the new Clause.

§ Colonel WEDGWOOD
Does the term "tribal areas" include excluded or partially excluded areas, or has it a different connotation? Will not this new Clause make it more unlikely that we shall have any one person or any commission dealing with all the tribal areas and the excluded areas in India? As I see it it is a danger, because a single Governor may be given control over excluded or partially excluded areas, and it will be no longer the Province of the Governor-General to have supervision over the whole of these backward areas.

§ Mr. H. WILLIAMS
This new Clause indicates the disability that we suffer owing to the fact that we have started the new Clauses before we have had a reprint of the Bill. In a Bill of this magnitude it is very difficult for those of us who are back benchers and cannot engage someone to paste up all the Amendments. I gather from what the Under-Secretary has said that the new Clause is brought forward in consequence of an Amendment that was made to Clause 52 in regard to the tribal areas. Clause 52 specifies the special responsibilities of the Governor. I am not quite clear how the new Clause arises, because in the new Clause we are not dealing with the power of the Governor but with the power of the Governor-General, which he is going to delegate. I am not clear, therefore, how it is that this new Clause is consequential on an Amendment to Clause 52 with regard to the 1393 tribal areas. I am not clear what functions it is that the Governor-General it. delegating. That indicates the disability that we are under, first, because the Bill has not an index, and, secondly, because the Bill has undergone a vast number of changes, not changes of great substance but changes which have altered the phraseology a good deal. I would make this appeal now that we are dealing with the new Clauses, which in turn relate to changes already made in the Bill, that the Minister in charge should give us—I do not say this in any carping spirit but in order that we may know what we are doing—a rather fuller explanation than he gave in connection with this new Clause, otherwise things which are of real substance may go through unnoticed because we do not really appreciate what they mean.

§ Mr. LEVY
I am rather worried about this Clause for the reason that earlier in connection with the Bill I, along with some of my hon. Friends, had an Amendment down in regard to external affairs. In that Amendment we ask that the Governor should have the right to delegate to the minister dealing with trade—to a minister competent and experienced to deal with trade matters and not one who had simply obtained his knowledge by theory. It was held that the Governor would use his discretion with regard to external affairs. Now in this new Clause the Governor-General is having the right to allocate to the Governor of a Province certain matters, which include external affairs. If I am right, I suggest that external affairs must deal with trade, that is, goods imported into India from this country.

§ The CHAIRMAN
I think the hon. Member is misunderstanding the new Clause. This is a delegation by the Governor-General, that is, the head of the Federal Government, to the Governor of a Province of certain federal functions of the Governor-General. That is all.

§ Mr. LEVY
I am much obliged, but may I say that originally the Governor-General had the discretion in regard to external affairs in his own hands, with the assistance of three other administators?

§ The CHAIRMAN
In that case it has nothing to do with what are the powers of the Governor-General. This is a case 1394 of the Governor-General delegating powers which belong to the. Governor-General to the Governor of a Province.

§ Mr. LEVY
I want to be right on this question. Does that mean that the Governor of a Province would be able to deal with the external affairs of that Province quite irrespective of the Governor-General, once these powers have been delegated?

§ The CHAIRMAN
So far as they are passed over to him.

§ Mr. LEVY
Am I not right in saying that, if the new Clause be passed, the Governor-General has the right to delegate these functions to the Governor of a Province? That being so, the Governor of a Province would use his own discretion with regard to external affairs irrespective of the Governor-General. That seems to contradict an earlier Clause in the Bill, because these particular functions and powers in respect of external affairs were solely with the Governor-General and the three administrators who are to act with him. Now he is to be allowed by this new Clause to pass over to the Governor of a Province, to the various Governors of the Provinces, the function to deal with external affairs. What naturally follows from that? It follows that the Governor of a Province will have the right to deal with tariffs on goods exported from this country to India, and although the tariffs may be called revenue tariffs, they may, in fact, be discriminatory against this country. That is one of the grievances which Lancashire and Yorkshire people who are doing trade with India feel—

§ The CHAIRMAN
It is not my business to enlighten the hon. Member as to the meaning of the Clause. My business is to point out to the hon. Member that, probably through a misunderstanding, he is arguing something which is out of order on the new Clause. May I call his attention to the exact words of the Clause? Take the words— The Governor-General may direct the Governor of any Province to discharge as his agent…such functions…as may be specified in the direction.

§ Mr. LEVY
I am much obliged to you, Sir Dennis. I have not a legal mind and cannot readily interpret legal phraseology. What I feel is that, since my constituency does quite a large trade 1395 with India, I do not want any Clause to be put into this Bill which will worsen the position from a tariff point of view and allow it to become discrimnatory.

§ The CHAIRMAN
That does not arise on the new Clause.

§ Mr. BUTLER
The hon. Member for South Croydon (Mr. H. Williams) reproached me for not giving a sufficient explanation of the new Clause. The only part of his accusation in regard to which I feel at all guilty is that I did not actually read out the literal terms of the Amendment to Clause 52, but in order that there shall be no doubt about this matter I will read out the words which were then inserted. If hon. Members will look at Clause 52 (2) they will find these words: The Governor of the North West Frontier Province. These words were left out and the following words inserted: Any Governor who is discharging any functions as agent for the Governor-General. The words have the significance which I have described. If the Governor is to act as the agent of the Governor-General this will give the Governor the necessary power. In particular, it is intended to apply to tribal areas, and if hon. Members will turn to Clause 289, they will find a definition of tribal areas. It means the areas along the frontiers of India or in Baluchistan, which are not part of British India, or of Burma, or any Indian State or any foreign State. That is the definition of tribal areas, which under the new Clause come under the direct responsibility of the Governor-General, and we are giving powers under the new Clause to enable the Governor to act as the agent of the Governor-General in matters connected with tribal areas. I gave an instance to the Committee of a case in which it might be necessary to divert functions from the Governor-General to the Governor, in a matter like the arrangements with regard to chaplains, which also come under the control of the Governor-General, and in which it might he wiser on occasions to give to the Governor of a Province the power to act as the agent of the Governor-General. There is no deeper or more sinister 1396 meaning in the new Clause than this, that it is to fill a gap in the Bill equivalent to the powers given to the Federal Government to give directions to a Provincial Government.
In regard to the anxieties of the hon. Member for Elland (Mr. Levy), let me assure him that this new Clause imports no new significance into the tariff problem. It does not detract from the special responsibility of the Governor-General with regard to tariffs, or from his power to intervene if tariffs are of a discriminatory or penal nature. In certain circumstances it enables the Governor to act as the agent of the Governor-General. If the hon. Member has any further fears let me remind him that in any case in which the Governor has powers delegated to him he will be acting as the agent of the Governor-General and will be under the orders and direction of the Governor-General. There will be no danger about the delegation of these powers. The chain of responsibility will always be the same, that is, the chain of responsibility from this House through the Secretary of State to the Governor-General and then to the Governor. No new questions are imported by the new Clause and, therefore, I hope the Committee will accept the explanation which I have been able to give.

§ Sir H. CROFT
The hon. Member, quite naturally, found a difficulty in interpreting this Clause, a difficulty which I share. Do I gather that the words "tribal areas" govern all three Subsections?

§ Mr. BUTLER
In my first speech I explained each Sub-section. I said that the first related to tribal areas, the second to the powers of delegation to the Governor of functions in relation to defence, external affairs or ecclesiastical affairs. The words "tribal areas" cover the first part, and these other functions which may be diverted to the Governor are provided by the other parts of the new Clause.

§ Sir H. CROFT
I still cannot understand how far it is contemplated that the Governor-General may delegate such powers. I can quite understand it in the case of tribal areas. Is it limited to these areas? What does "external affairs" mean?

§ Mr. BUTLER
All we are asking the Committee to do is to give certain agency powers in certain matters, the most important of which are tribal areas. Other small matters may arise in which it may be necessary for the Governor to act as the agent of the Governor-General, and, if it becomes necessary, the Governor-General can ask the Governor to act as his agent and under his orders, so that the responsibility of the Governor-General is in no way altered.

§ Sir REGINALD CRADDOCK
I am not yet quite clear on one or two points. For example, under the Clause certain officers are to be known as the agents of the Governor-General, and I take it that in the same way a Governor may still be directed to be the agent of the Governor-General for a small State inside a Province. Take, for example, the Central Provinces. The chief commissioner had control as head of the Province over the small states. This has now more or less been taken over by the Governor-General, which, I think, is really regrettable. At the same time, is it not possible and likely that the Governor-General may want a Governor to take certain action regarding a small State? In what way has he authority to direct the Governor of a Province to intervene in his behalf and to give instructions to a small State, or to interfere in case of trouble arising with which he himself cannot possibly deal?

§ The DEPUTY-CHAIRMAN (Captain Bourne)
I have been studying the new Clause very carefully, and I cannot see that this can possibly have any effect on the Indian States. It deals solely with tribal areas, and it does not appear to me that any functions are being conferred or removed by it.

§ Mr. H. WILLIAMS
The Governor-General has power in certain circumstances to use troops in connection with trouble in an Indian State. That comes within the powers which are not transferred and therefore I submit that the question of the conditions in an Indian State does arise here.

§ The DEPUTY-CHAIRMAN
Not on this Clause. There is a later Clause dealing with the subject on which that question might arise, but it does not arise here.

§ Sir R. CRADDOCK
I only wanted to learn from the Under-Secretary how matters such as I have mentioned, which are bound to arise some time or another, are to be dealt with. If they are not dealt with by this Clause, are they dealt with by some other Clause which satisfies the needs I have indicated?

§ Sir BASIL PETO
I wish to draw attention to the fact that under Subsection (1) of the Clause the Governor-General may direct the Governor of a Province to discharge as his agent "either generally or in any particular case" certain functions in relation to tribal areas. Thus the Governor-General could, so to speak, get rid of the whole of his responsibilities in regard to tribal areas on the North-West Frontier by instructing the Governor of that Province to act as his agent. On the other hand, Sub-section (2) provides: If in any particular case it appears to the Governor-General necessary or convenient to do so he may direct the Governor of any Province to discharge as his agent such functions, etc. It has not been shade clear why it is necessary to have such sweeping powers. That he should be able to hand over to the Governor of a Province the whole of his responsibilities as regards tribal areas seems a large proposition, particularly when it is contrasted with the terms of Sub-section (2), which expressly says that "in any particular case" in which the Governor-General finds it necessary he may ask the Governor of a Province to act as his agent. I only wish to know why it is necessary to have these words in the Clause?

§ Mr. BUTLER
I think the object of the Committee in the examination of these Clauses is to investigate all these points. The hon. Member for the English Universities (Sir R. Craddock) asked whether it was possible for a Governor to exercise any function in relation to a State within the borders of a Province. If the Governor-General has authorised the Governor to undertake any duties of that nature, that is a matter which would be governed by paramountcy and the powers under paramountcy would be outside the scope of this Bill. However, it would still be possible for a Governor to act for the Governor-General in the exercise of paramountcy. The hon. Member 1399 for Barnstaple (Sir B. Peto) appeared to think that the words "generally" and "in any particular case" were somewhat vague.

§ Sir B. PETO
No, I did not intend to say that. My point is that under Subsection (1) the powers are transferable "either generally or in a particular case," whereas in Sub-section (2) they are apparently only transferable "in any particular case" in which it appears necessary or convenient to the Governor-General.

§ Mr. BUTLER
I see the hon. Member's point. May I remind him and the Committee once again that in any case in which a Governor is asked to act as agent of the Governor-General the responsibility will remain with the Governor-General? The Governor-General will not be asked to give up his responsiblity. The Governor will be acting as his agent. If the hon. Baronet will turn to Clause 52, the terms of which I have already read to the Committee, he will note that the Governor of the North-West Province is to have a special responsibility. The Clause provides that the discharge of his functions in respect of the tribal areas for which he is agent is not to be prejudiced in certain ways. The Governor of the North-West Frontier Province, therefore, is to have a special responsibility for the tribal areas, and this "generally" applies to any functions which the Governor may have to perform in the particular and vital case of the North-West Province, as agent of the Governor-General. That is why the word "generally" is included in the first Subsection. In the second Sub-section the words "in any particular case" are included because it is not intended that I lie functions of agent should be performed on very many occasions by the Governor for the Governor-General, but that in any particular or exceptional case the Governor-General should ask the Governor to act as his agent.

§ Mr. A. SOMERVILLE
In the case, say, of an attack from the air on a State by a foreign Power, would the Governor-General have to act without delegating his responsibilities to the Governor?

§ Sir R. CRADDOCK
There is one other point in regard to which this Clause as it stands does not seem quite satisfactory. 1400 I will give a simple illustration. In 1910 there was a rebellion in one of the States in the Central Provinces. It was necessary to send police from British territory into the State to deal with the rebellion and preserve peace. The same thing may happen again and the Governor-General not being on the spot, the Governor would have to send in police and in doing so he would have to get the sanction of the Minister—

§ The DEPUTY-CHAIRMAN
There is a new Clause in the name of the Secretary of State later on the Paper which appears to deal with the point which the hon. Member is trying to make.