HC Deb 29 April 1935 vol 301 cc93-105

Whereas difficulties may arise in relation to the transition from the provisions of the Government of India Act to the provisions of this Act, and in relation to the transition from the provisions of Part XIII of this Act to the provisions of Part II of this Act:

And whereas the nature of those difficulties, and of the provision which should be made for meeting them, cannot at the date of the passing of this Act be fully foreseen:

Now, therefore for the purpose of facilitating each of the said transitions His Majesty may by Order in Council—

  1. (a) direct that this Act and any provisions of the Government of India Act still in force shall, during such limited period as may be specified in the Order, have effect subject to such adaptations and modifications as may be so specified;
  2. (b) make, with respect to a limited period so specified, such temporary provision as he thinks fit for ensuring that, while the transition is being effected and during the period immediately following it, there are available to all governments in India and Burma sufficient revenues to enable the business of those governments to be carried on; and
  3. (c) make such other temporary provisions for the purpose of removing such difficulties as aforesaid as may be specified in the Order.—[The Attorney-General.]

Brought up, and read the First time.

6.30 p.m.


I beg to move, "That the Clause be read a Second time."

The new Clause which I propose now I put to the Committee as absolutely essential for the purpose of ensuring that the provisions of the Bill are brought into operation by successive stages. The Committee will appreciate that the part of the Bill which deals with the establishment of Provincial Government will come into operation, and Part XIII creates certain transitional provisions with a view to reaching that which is contained in Part XI of the Bill, namely, the establishment of Federal Government. An effort was made, in Clauses 287 and 288 of the Bill as originally drafted, to deal with the difficulties that were likely to arise in connection with the essential provisions for the carrying on of the Government while those processes were taking place. Clause 287 provided for elections being held in advance of the dates fixed for the commencement of Parts II and III of the Act, and Clause 288 for temporary financial provisions which were omitted from the Bill. Those Clauses were an honest and, as far as they went, an ingenious attempt to provide for difficulties which could be foreseen, but it was realised, when we came to the Clauses, that it was beyond human power to foresee exactly the events for which provision would have to be made. [HON. MEMBERS: "Hear, hear!"] I hear some of my hon. Friends express satisfaction at that statement of mine, but I think it is an observation which must have occurred to those who have given attention to this matter.

I can illustrate the difficulty by asking the Committee to consider the difference in the provisions which would have to be made in the case, for instance, of the whole Federal machine starting on the first day of the financial year, as compared with a day in the middle of the financial year. There would be difficulties in the one case which would not exist in the other. In order to make it quite certain that the Bill will not be ineffective because some difficulty has not been foreseen and arrangement made for it, it is proposed that, within the very limited provisions of the Clause on the Paper, there shall be a power for His Majesty, by Order in Council, to direct that there shall be certain adaptations and modifications during such limited periods as may be specified in the Order. The Committee will, of course, remember that under the Bill every Order in Council which His Majesty may be pleased to make must be laid before Parliament, and will not become operative until Parliament has given its approval. I do not know whether any of my hon. Friends are lying in wait to tell me that this is a very drastic provision. Let me remind them, in the first place, how excellent the intentions of the Government are in this matter, because we have not followed the precedent contained in the Act of 1919, which provided that: If any difficulty arises as to the first establishment of the Indian legislature or any legislative council after the commencement of this Act or otherwise in first giving effect to the provisions of this Act, the Secretary of State in Council or the Governor-General in Council, as occasion may require, may by Order do anything which appears to them necessary for the purpose of removing the difficulty. That has always seemed to me to be a most delightful Clause; if there is any difficulty let a Minister remove it. It is a Clause which appears in some of the social legislation of the 1925 Parliament. I could refer the Committee to many other Clauses which almost approach the boldness of that Clause in the Government of India Act; but most of those Clauses have been subject to some attempted safeguard in the way of Parliamentary control. For instance, some of those Clauses for adapting or modifying the provisions of a Measure to meet unforeseen difficulties have been subject to the necessity of laying a draft of the Clause on the Table of the House, and requiring that, if no affirmative approval is given for a period of, say, three months the Clause shall cease to be operative. Other safeguards have simply been that the Clause shall lie on the Table of the House, it being left to Parliament to take such steps as any Member might initiate to get rid of the objectionable Order in Council or Regulations.

But the high watermark of safeguards is that which is adopted in the Clause which I now propose, namely, that the Order in Council or Regulations shall not be operative at all unless Parliament has considered and actually given its approval to the provisions; and the Committee will mark that both Houses of Parliament will have an opportunity of considering whether or not the adaptations or modifications of the Bill should be approved. There is no question, therefore; of a dictatorial power on the part of the Minister, or of his abrogating to himself the powers of Parliament. It is a provision that, with a view to making effective the wishes of Parliament, Parliament shall have it in its power, by appropriate machinery, to consider what adaptation of the Act shall be made for a temporary purpose. It is a power that will last merely while the transition from the existing Government to Provincial Government, and from Provincial Government to Federal Government is taking place.

I conclude by reminding the Committee that this class of Clause was the subject of consideration by the Donoughmore Committee, as it was called, and that Committee recognised that there are perfectly proper cases in which a Clause of this sort should be used. Indeed, the Committee recognised that in some cases the essential machinery of legislation could not be carried on unless a Clause of this sort was included. But they said that it should be made subject to proper safeguards, and that, when used, it should only be used for a very definite purpose. Those two conditions are satisfied in the Clause which I propose. These powers are to be used for a very definite purpose for a limited time, and they are only to be used subject to the supreme safeguard that Parliament will always retain control.

6.39 p.m.


The Committee will have listened with interest to the remarks of the Attorney-General, but I think that everyone who listened to the previous discussions must be still more alarmed at the recurrence of the words, which have been used in recent Debates on this Bill, with regard to successive stages and temporary measures, with regard to government in the Provinces, and so on. From the very commencement it has been emphatically laid down from the Front Government Bench that it is impossible to conceive that you can go forward with Provincial self-government without, practically speaking, almost simultaneously, bringing Federal Government into being. In fact, we have heard most eloquent speeches from some of the highest authorities in the Joint Select Committee and elsewhere telling us that they personally would not be prepared to consider going on with the Bill at all unless they were convinced that the Federal scheme was coming into being. I think the Attorney-General will agree that I am not interpreting his remarks wrongly when I say that the provision which it is now proposed to set up is one under which Provincial self-government can go forward in the event of Federal Government being held up, and I think the Committee is entitled to know for how long that would be. What is a temporary period? Can the Attorney-General tell us whether it is six months, six years, 10 years, or more? As far as we know, the principal partners in Federation outside British India, namely, the Princes, have not yet consented to come in, and, therefore, we are going straight ahead doing the very thing that the Government have assured us must not be done, that is to say, establishing Provincial Home Rule. Are we not entitled to something more definite than we have yet had?

The position in India, since the House rose for the Easter Recess, has changed again to this extent, that the only remaining organised authority in India which had not previously expressed its opinion on the Bill, namely, the organised Labour movement, has now declared that it will have nothing to do with it, and the great central body of opinion as represented by the National Liberal Federation has also met and has again passed a very strong resolution. Consequently, we see the greatest uncertainty. Are we right in this Committee in taking steps to make a move forward when we are quite unable to say at this stage whether Federal Government is coming into being? I see that the Solicitor-General is looking querulous. Perhaps I have misinterpreted what the Attorney-General said. But he did not correct me, and I think I am right in saying that this is really setting up machinery by which one step can be taken when hitherto we have always been told that Provincial Government and Federal Government are one and indivisible. I should like to hear whether I am right in this suggestion.

6.43 p.m.


It will be noticed that this Clause has a Preamble, and it is, as far as I know, the first Clause to have a Preamble all to itself. It is a very frank Preamble. It says: Whereas difficulties may arise in relation to the transition from the provisions of the Government of India Act to the provisions of this Act … And whereas the nature of those difficulties, and of the provision which should be made for meeting them, cannot at the date of the passing of this Act be fully foreseen: That is the frankest little bit that we have had yet, and I congratulate the draftsmen upon it. I do not know why they gave the Clause a Preamble—there does not seem to be any necessity for it—unless they were rather ashamed of it, and thought that they would not get any acceptance of it at all without a Preamble. The Attorney-General has explained to us, that, after all, much more care is being taken over this Bill than was taken over the Government of India Bill in 1919, because in that Measure a very drastic power was given to the Government of the day to do certain things without any check from Parliament, whereas, under the provisions of Clause 286 of this Bill, any Order in Council must receive the approval of affirmative resolutions in both Houses of Parliament. I should like, however, to draw the attention to the proviso, which will be found on page 170 of the Bill as amended in Committee. It says: Provided that, if at any time when Parliament is dissolved or prorogued, or when both Houses of Parliament are adjourned for more than fourteen days, the Secretary of State is of opinion that on account of urgency an Order in Council should be made under this Act forthwith, it shall not be necessary for a draft of the Order to be laid before Parliament, but the Order shall cease to have effect at the expiration of twenty-eight days from the date on which the Commons House first sits after the making of the Order"— and so on. Let us take the circumstances that arise at the end of our Summer Session. In these days we usually adjourn before 1st August. We resume towards the end of October. Under this Proviso an Order can be made on 1st August, and Parliament would not meet for approximately three months. If Parliament did meet, the Order would still have another 28 days to run before it lapsed, so that in fact you might have an emergency Order running for four months without the possibility of Parliament challenging it. Nearly everything you intended to do under such an Order could effectively be done beyond the power of revocation before, in fact, Parliament had a chance of saying anything. In this country we do not in general do things that are sharp practice. We do not expect it. Our Government have a high standard and do not try to do funny tricks. But here is a Bill about which many of us are very anxious, and in connection with which we have seen a few funny tricks. There has never been a Bill about which those opposing it have been more suspicious than they are about this Bill. I do not like the way it has been handled, and the character of many of the negotiations. We think that they have been rather too cunning, and, therefore, those of us who are against this Bill are much more suspicious than we have been in regard to any other Bill, especially when we find that it is possible that these transitional provisions can be made by Order-in-Council and for four months can operate without challenge. Paragraph (a) says: direct that this Act and any provisions of the Government of India Act still in force shall, during such limited period as may be specified in the Order, have effect subject to such adaptations and modifications as may be so specified. That is, for a temporary period, a complete power of legislation by Order in Council. The Attorney-General draws our attention to the fact that the great safeguard is contained in Clause 286, but he did not make any reference to the Proviso. I hope that when he replies he will deal with the Proviso, as it seems to whittle away a very great deal of the security which apparently Clause 286 offers to us. I agree that when you introduce a Bill of this magnitude, the difficulties that are foreseen are great enough, but this Clause deals with difficulties which the Government up to now have not foreseen. As a matter of fact, many of us have foreseen them, but it is only now that the Government have foreseen them and are putting in a Clause to enable them to do things which they would have put into the Bill if they had been more far-seeing. I agree that a provision of this kind is necessary, but I really doubt whether it is quite satisfactory that important acts of transition can be done in such circumstances that they cannot subsequently be undone. A period of four months with regard to transitional provisions means for all time. There is no possibility of reversal, and it means that for at least three months when Parliament is not sitting, the Secretary of State becomes a complete autocrat for the purpose of bringing the Act into operation. There ought to be some check, so that things that are undesirable cannot be pushed through in an autocratic way while we are under the delusion that Clause 286 safeguards us against that risk.

6.50 p.m.


The air of sweet reasonableness with which the learned Attorney-General moved this Clause, was really, I suppose, designed to make the ordinary layman believe that there was absolutely nothing in it, but what occurs to one is, that here is a proposal to rule India by Order in Council for a period, it may be, up to five or 10 years. We have heard a great deal on the part of the Press about a proposal of the Socialist party, if they get into power, to rule this country by Order in Council, but here is a proposal to rule India by Order in Council put forward by the National Government. What is there in this Clause that you cannot do? Paragraph (a) provides that you will have the Government acting and making such changes, adaptations and modifications as may be specified. Secondly, if any of the Governments of India go bankrupt, as in all probability they will, funds will be made available to them; and, thirdly, there is paragraph (c) in which you can make such other temporary provisions for the purpose of removing such difficulties as aforesaid as may be specified in the Order. It appears to me that you can do anything either in the air, on the earth, or under the earth. It really is not the very slight and unimportant Clause which the learned Attorney-General has made us believe. Apart from this, does not the Clause stultify every Second Reading speech of Government supporters in which they contended time after time that it is quite impossible to introduce in India provincial autonomy without, at the same time, bringing in this blessed Federation? We heard this time after time. Here is a Clause which envisages bringing in provincial autonomy, and we do not know whether it is five or ten years, or how long it will be before there is Federation.

6.53 p.m.


My hon. and gallant Friend the Member for Wycombe (Sir A. Knox) has charged me with a crime of which I should like to be guilty, namely, sweet reasonableness. If I gave him and the Committee the impression that this is a perfectly proper Clause, then I gave them no more than an impression of what is, in fact, the truth. I am glad that my hon. and gallant Friend has appreciated the fact. He is rather of the mind of my hon. Friend the Member for South Croydon (Mr. H. Williams) who says that he has been very suspicious of this Bill, of the way it has been prepared, and of all the tricks that have been played. I gathered some time ago that my hon. Friend and his friends were suspicious, and I am not very envious of that mood in them. If my hon. Friend the Member for South Croydon complains of the Government being guilty of tricks, and if he thinks fit to make that charge, I cannot agree, but I cannot say that it disturbs me very much. He may think that we have been guilty of tricks, but that does not convict the Government of being guilty of the offence. My hon. Friend made a charge. I see that he has gone to acquire fresh ammunition from the hon. and gallant Member for Bournemouth (Sir H. Croft).




Well, he needs it. I will deal with the point made by my hon. and gallant Friend the Member for Bournemouth. He said that this is going back upon the assurances repeatedly given from the Government Front Bench, that there is no intention of bringing into force the Provincial Government part of this Bill unless, at the same time, the Federal part of the Bill comes into force. My hon. and gallant Friend said that I did not rise to correct him. I thought it was better to make my correction in the right way and at the right time. It has never been said from the Government Front Bench that the two parts of the Bill were to be brought into effect simultaneously. I agree that the general intention of the Bill, is that we should regard it as a whole. The advantages of this Bill are not to be found only in the Provincial part but are to be read in the Federal part of the Bill also, and the Government offer it to the Committee as a whole. But it is perfectly obvious. I think, to any student of the Bill that there are certain things to be done in connection with the accession of the Princes, and the approval of Parliament, after the accession of the Princes and the Instruments of Accession have come into existence, which make it impossible as a matter of practical politics that simultaneously in point of time, Federation is to come into existence compared with the Provincial Government.


I appreciate that, and I am sorry if I gave any other impression. I certainly did not wish to dispute what has been said by right hon. Gentlemen on that, Bench. We have always heard from them that it might be a question of two or three months, and so on, but something more than that has been indicated in recent Debates in the House and that there may be delay of years. We have been told that these two great forms of Government stand together, and is it not possible with the machinery we are adopting in the Clause, that you can establish Provincial self-Government without going on apparently to Federal Government?


I am glad to acknowledge the candid way in which my hon. and gallant Friend always makes his statement. He recognises and always has recognised that the two parts of the Bill cannot come into operation at the same time. That puts my hon. and gallant Friend and myself on common ground. He says there may be an interval of three months. It might well be 12 months or some period of that kind. I do not suppose that my hon. and gallant Friend would quarrel with me if I said that it was likely to take 12 months.


It might take 12 years.


When my hon. and gallant Friend says 12 years, he will perhaps recollect that there are such things as general elections in this country and changes of Government, and, if my hon. and gallant Friend is so sure that he and his friends will have a majority of electors who disapprove of this Bill, they will be able to prevent an abuse of the powers which this Clause gives the Minister. My hon. Friend the Member for South Croydon said that he recognised that some provision of this sort was necessary. That puts him and me on common ground, but assuming some provision of this sort is necessary, I have listened to my hon. Friend with great interest to see what sort of a provision he would approve. He took a point which was hardly worthy of him, that the whole difference was made by the proviso to Clause 286, which provides for an emergency Order-in-Council which could not come before Parliament because Parliament was not in session. My hon. Friend envisaged a state of things which could only come into existence if a Minister were in a position on 1st August when the House was separating to say: "Here is a matter of urgency; I will make an Order-in-Council knowing that Parliament is not going to meet until the end of October." Talk about tricks, my hon. Friend knows the answer to his own speech. The fact is that Clause 286 gives Parliament control over these Orders-in-Council, subject to a provision that in a real state of urgency or emergency, Parliament may not be able to make that control effective for some period which, even on my hon. Friend's assumption, could not possibly exceed three months. Therefore, the proviso is not quite as important as my hon. Friend suggested to the Committee.

It has been admitted that there must be some lag between the coming into operation of the different parts of the Bill. It has been admitted by opponents of the Clause that some provision of this sort is necessary. Therefore, all that stands in the way of the Committee accepting the Clause is the unworthy idea that it is a plan by which we can govern India by Order-in-Council for 12 years. My hon. and gallant Friend asks: What is a limited period? If there is any anxiety on the part of the Committee on this point, I shall be perfectly prepared to consider whether 12 months, or at the outside, two years, as limiting the periods of these Orders-in Council could not be put into the Bill, so as to make it quite plain that there shall be no attempt by the Minister to govern India by Order-in-Council. I hope that the Committee, subject to that, will be prepared to accept the Clause. I ought to add that the word "any" is omitted from paragraph (c) on the Order Paper. It does not really make any difference in substance, but perhaps the Committee have already taken notice of the slip.

7.0 p.m.


It is very rare that we find ourselves a happy family, and I am glad to think that the learned Attorney-General found so much wisdom in the speeches of my hon. Friend the Member for South Croydon (Mr. H. Williams) and myself. I am glad that he appreciates the fact that they cannot bring the whole of this machinery into force in a moment, and I am grateful for his suggestion that he will consider between now and the Report stage whether there cannot be some limit of time. Although a year seems rather long in this agony in India, if the Government would consider this they would really meet the objections that many of us feel. Quite frankly we are alarmed at the whole change of outlook in His Majesty's Government in recent days on this question, and we do feel that there is a danger that they are going to bring in a half-baked measure of reform in India, which we have always been told is impossible, by some such proposal as this. But if the hon. Gentleman will consider this matter and give us a limit of time, so as to make it clear that this is to be a transitional and not a permanent stage, then on behalf of my friends I would say that we are grateful for it.


By saying that he would reconsider the matter did the right hon. and learned Gentleman mean that it should be a term during which this Clause was valid, or a term during which the Order in Council should be valid?


It would define the limited period for which alone the Order in Council could operate.

Motion made, and Question proposed, "That the Clause be added to the Bill."


There has been a proposal to insert a limit of 12 months or two years when we come to Report stage. Will not the interval be governed by the time it takes to bargain with regard to the Instruments of Accession? Until Instruments of Accession of a sufficient number of States are completed will it not be impossible to bring about a Federation? Therefore, is it possible to insert any limit of time in the Bill with regard to the bringing into effect of Federation?


I think a discussion of that sort probably ought to be taken on Clause 5. But I think that the point is really met by the question which the hon. Member for Morpeth asked and which I answered.