HC Deb 30 April 1935 vol 301 cc290-8

If at any time it appears to the Governor-General to be in the interests of good government in India that any of the preceding sections of this chapter should not apply in relation to any provision of a Federal or Provincial law, the Governor-General in his discretion may recommend to His Majesty that the application of the said preceding sections be limited accordingly, and His Majesty may, by Order in Council declare that the application of the said preceding sections is limited to the extent necessary to give effect to such recommendation, or to such lesser extent as shall to His Majesty seem expedient, and the application of the said preceding sections shall, as from the date of such Order in Council, be limited accordingly:

Provided that the Governor-General shall not in any case make a recommendation under this section which would have the effect of excluding the application of any of the provisions contained in the said preceding sections ensuring reciprocity in the treatment of British and Indian subjects of His Majesty, respectively, and of companies incorporated under the laws of the United Kingdom and under the laws of British India, respectively.—[Mr. Molson.]

Brought up, and read the First time.

8.19 p.m.


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

This Clause relates to the Chapter in the Bill which has already been passed dealing with commercial discrimination, and its purpose is to give to it some element of flexibility or elasticity. It provides that in cases where the Governor-General is of opinion that the interests of good Government in India require that some of the provisions of that Chapter should be limited, he may make a recommendation to the Secretary of State, and, if the Secretary of State is of the same view, he may advise His Majesty to limit the operation of those provisions by Order-in-Council. Under Clause 286 of this Bill, it is provided that in all cases where Orders-in-Council are made under the Bill they shall only be made after the draft has been approved by both Houses of Parliament by an affirmative resolution. The last part of the Clause is a proviso. The Committee has provided in this Chapter that British subjects domiciled in this country and resident in India shall be protected against certain discriminatory measures, but only so long as no similar discriminatory measures are taken in this country against British subjects domiciled in India. Since the purpose of this Clause is to enable the Order-in-Council to limit the operation of the safeguards which have been inserted in the Bill for the benefit of the European community in India, it was not intended that this power should extend to removing that limitation upon the safeguards which have already been inserted. The purpose of the proviso therefore is merely to prevent the power being used to make unconditional the protection given to Europeans and restrict it to limiting the protection which has already been given.

It may seem inconsistent that, after I have moved so many Amendments to this Chapter in order to tighten up and increase the protection which is given to British commerce and to the British community in India, I should now be moving a new Clause the effect of which will be to enable that protection to be suspended or limited in certain cases. There is really no inconsistency at all, as is shown by the fact that I am moving the Clause with the approval of the European community in India. We have always recognised that one of the great difficulties of statutory safeguards of this kind is their rigidity. If the Imperial Parliament provides that certain measures shall be ultra vires the Indian Legislatures, it is difficult for the draftsmen of the Bill to foresee all the possible contingencies which may arise and exactly what interpretation by the courts maybe put upon the wording of the Statute. There is, therefore, a great danger either that the safeguards may not be wide enough for our purpose, or that they may be wider than is intended. This has become clear in the Debates upon some of the Amendments I have moved in which I asked the Government to agree to wider terms in order to include all possible contingencies, and the Government have very reasonably taken the view that because it was impossible to foresee all contingencies it would not be wise to put in any words the full effect of which they could not foretell.

That is an important consideration from the point of view of the Government, because these safeguards will be interpreted by the courts, and the safeguards as they are provided in the Bill can only be suspended or repealed by Act of the Imperial Parliament. But it has occurred to us, and it was implicit in the report of the Simon Commission when they thought there were insuperable difficulties in the way of including in the Government of India Bill statutory safeguards of this kind, that it might happen that reasonable people would consider that something which might technically be ultra vires was a perfectly reasonable and proper step for the Indian Legislature to take. It is not inconceivable that what would be interpreted by the courts as being discriminatory against Europeans would really be in the interests of the European community, but because these safeguards were absolutely rigid and were being interpreted by the courts it would be possible for a single disgruntled and unreasonable man to impugn in the courts the validity of legislation of this kind, and it would then be impossible for that legislation to be brought into effect in India without an Act of the Imperial Parliament. I do not ignore the fact, in fact, is an argument in favour of this Clause, that the Government have anticipated the possibility of something of that kind arising in Clause 111, where they have already given the Governor-General power, under certain conditions, to suspend the operations of Clause 111. It is also, of course, provided that the whole of the safeguards may be suspended if, under Clause 117, a convention is entered into between this country and India. We consider that it is desirable that there should be some elasticity, some flexibility, for dealing with unforeseen and perhaps unforeseeable circumstances.

We are in favour of this Clause for three reasons. In the first place, because, while we demand that there shall be adequate protection for the European community in India, we do not desire that that protection shall at any time in the future operate in an oppressive or unreasonable way and unduly restrict the liberty of the Indian Legislature. In the second place, we foresee that should some difficulty of that kind arise, and should there be need for legislation in this House to repeal some of the provisions of this Bill, it might very well be that the repealing Bill would be far wider than we should desire; that while something was repealed which ought to be repealed, another protection which was most necessary and most valuable might be repealed at the same time. In the third place we advocate the Clause because, on a number of Amendments which I moved, the Government undertook to consider matters between now and the Report stage, and if this Chapter remains as rigid as it is at the present time it is obvious that the Government will find it very difficult to go very far towards meeting us; whereas if there was this provision by which unforeseen difficulties might be removed without the laborious and cumbrous procedure of legislation in this House the Government could give us more complete and adequate protection on the Report stage than has been accorded so far.

8.31 p.m.

The SOLICITOR-GENERAL (Sir Donald Somervell)

My hon. Friend the Member for Doncaster (Mr. Molson) has pressed for an extension of the non-discrimination Clauses, if I may so describe them. He supports them as far as they go but would like to see them go further. He also submits that his Clause would introduce a measure of flexibility which would enable the safeguards against discrimination contained in those Clauses to be abrogated or modified by the simpler procedure of Order-in-Council in preference to an amending Bill. I think that is a fair summary of the arguments which he put forward. He also said, quite frankly, that he has pressed the Government in Committee on various points and may press them further on the Report stage, in order to extend the purview of these Clauses, and that in view of that it is only fair that he and those for whom he speaks should be willing to agree to a Clause of this kind to introduce what he describes as a measure of flexibility into the non-discrimination safeguards set out in the Bill. I can assure my hon. Friend that what he has said, particularly in these circumstances, deserves and will receive very serious consideration. He comes before the Committee as someone specially interested in certain safeguards but saying he is willing that they should not be so rigid as they would be if this Clause were not inserted.

But having said that I must say that, as at present advised, we prefer the Bill as it stands. These non-discrimination Clauses are Clauses to which every section in the House attaches very great importance. I agree with him that the European associations represent the people primarily interested at the moment, but I think my hon. Friend will not dispute that all sections in this House attach very great importance to these non-discrimination Clauses, and our idea is that we should restrict these Clauses to what I may call the fundamental principles of non-discrimination. That is why, when my hon. Friend has moved his Amendments we have said at times that he was going rather outside what would be proper in a Constitution Act. My hon. Friend said this procedure by Order-in-Council was clearly more flexible than procedure by Bill. If by express words we introduce into a part of this Bill this element of flexibility, to some extent we are obviously contemplating the necessity of change. If we are right in thinking that these Clauses should be restricted to what I call the fundamental principles of nondiscrimination, I suggest that it might well be undesirable to accept a new Clause of this kind and to introduce into the Bill a procedure which inevitably suggests you contemplate the necessity for changing them.

The matter depends, of course, largely upon the difference between passing Bills in this House and the procedure by Order-in-Council. If we are successful in enshrining in these Clauses those principles and those principles alone which ought to be observed and preserved for all time, we need not contemplate as a likely contingency the possibility of ever having to pass an amending Bill or submitting an Order-in-Council. Those, it seems to me, are the issues which are raised by the proposed new Clause. I can assure my hon. Friend that, for the reasons which I have given, what he has said will certainly receive our serious consideration, but I should be deceiving him if I said that, as at present advised, I thought the proposed new Clause would be an improvement of the Bill.

8.37 p.m.

Viscount WOLMER

I have listened to the speech of the Solicitor-General with more pleasure and appreciation than to all his other speeches on the Bill. It would be a very dangerous thing if the Government accepted the proposed new Clause of my hon. Friend the Member for Doncaster (Mr. Molson). Goodness knows, the protection of British trade in the Bill is scanty enough as it is, but my hon. Friend proposes that the Governor-General may get the home Government completely to remove by Order-in-Council those few safeguards. I cannot imagine a more dangerous proposal. The Government are telling the people of Lancashire and other British traders who are concerned in this matter, as well as British traders in India, that there are certain fundamental safeguards in the Bill to which the Government attach a very great deal of importance, and it appears to be a preposterous proposal that those fundamental safeguards can be wiped out by Order-in-Council and that the Governor-General and the Secretary of State together, in fact, by a stroke of the pen, as I understand from the speech of my hon. Friend, can remove those safeguards without this House—


Will the Noble Lord forgive me for interrupting him, but is he aware that in Clause 286, where it is proposed to issue an Order-in-Council under the Bill, an affirmative Resolution of both Houses of Parliament is required?

Viscount WOLMER

I had not understood that my hon. Friend's Clause was covered by that provision, and, if that be the case, I withdraw that particular criticism. It seems to me very wrong indeed that safeguards of this importance should be subject to such uncertainty. A Clause of this kind might very often put the Governor-General into a very invidious position. He may have a ministry which is anxious to do something discriminatory against British trade which they would not be permitted to do by the Bill as it stands. The Government would go to the Governor-General and say "We want you to get an Order-in-Council passed to enable us to do this, and if you do not agree we shall make ourselves objectionable to you in the hundred-and-one ways which are open to us under the Constitution." The Governor, if he is mortal, will be sorely tempted to try to make a compromise.

I would remind the Committee that it would not be the first time that the interests of British trade have been given away by our politicians. There is a very sorry history in that regard. Even the greatest statesmen are apt—so far as I can make out, the greater the statesman the more apt he is—to give away what belongs to other people and to give it away with the very greatest generosity. Very often the maxim in politics is "Peace in our time, O Lord," and concessions are made to get out of some Parliamentary difficulty although a few years afterwards, and not immediately, they may have the most calamitous effects upon British trade. I hope that the Government will stick to their present advice, and that they will not be influenced by the persuasive speeches of the hon. Member for Doncaster to knock down the few remaining safeguards which are in the Bill.


In view of the reply which has been given by the Solicitor-General, who, I understand, has undertaken to consider the matter between now and the Report stage, I beg to ask leave to withdraw the proposed new Clause.



8.43 p.m.


I wish briefly to call attention to the arguments put forward in support of the proposed new Clause by the hon. Member for Doncaster (Mr. Molson). He said that he could not be accused of inconsistency or of any opposition to the principle of safeguarding trade, because he had been so anxious during the passage of the Bill to get such safeguards inserted, but he felt that there might be too much rigidity in the matter. So he proposed that what he had so carefully been putting into the Bill—into what will be an Act of Parliament—it should be within the power of the Governor-General and the Secretary of State to take out by Order-in-Council. It is true, as the hon. Member pointed out, that under Clause 286 an Order-in-Council has to have the approval of Parliament within 28 days after the date on which the Commons House first sits after the making of the Order: unless within that period resolutions approving the making of the Order are passed by both Houses of Parliament. Anybody who has had any considerable experience of government as it is practised in this House, will know the enormous difference between the likelihood of amending legislation being introduced which has to pass all through its stages in this House and then all the stages in another place, and the Government finding time for any such legislation. There is no question that the procedure by Order-in-Council would be a perfectly simple, easy and short way of annulling what this House has been spending 30 days in Committee to consider and put into final shape. I am surprised at the hon. Member for Doncaster—I always thought he was a stickler for constitutional and Parliamentary practice—placing so light a value on the labours of this House that he would deliberately introduce this new Clause to give power to the Government very simply to annul many of the safeguards which we have been asked to regard as so fundamental and so essential, and to do it by a cheap and easy way, almost on any occasion, without any loss of Parliamentary time. We all know the argument about loss of Parliamentary time; the Government seem to make it a general rule. Therefore, if a safeguard is to be really a safeguard, the one fundamental need is that it shall not be possible to take it aw ay without another Act of Parliament. That is the important point, which probably my hon. Friend fully appreciates, but which he ignores. In using the argument that this proposal is not inconsistent with what he has hitherto been proposing, he shows how completely ingenuous and honest he is in his intentions. I believe that, when speaking in the House yesterday—I was not myself present—my hon. Friend made some rather scathing references to the consistency of hon. Members who were proposing that some security should be provided for British trade. He said: When I hear their speeches I am no longer surprised that Englishmen have, unfortunately, a reputation for hypocrisy in so many countries of the world."—[OFFICIAL REPORT, 29th April, 1935; col. 137, Vol. 301.] My hon. Friend is very scathing about hon. Members who disagree with him on this Bill. He uses a very nasty word, "hypocrisy," with regard to us, which I think is quite undeserved. But I shall not make any retort of that sort. I can only say that this Clause, far from showing that my hon. Friend is consistent, seems to me to lay him open to the imputation that he is very inconsistent, in that he has taken, according to his own admission, a considerable amount of the time of the House in helping to put into the Bill safeguards for various British interests, and now proposes at the eleventh hour largely to make them nugatory by doing away with the ordinary and, as some people would say, cumbrous process of amending legislation and putting a weapon in the hands of this or any future Government by which they could defy what Parliament is now so laboriously doing. I should have thought that my hon. Friend was too good a Parliamentarian and constitutionalist to have lent himself to such procedure as that which he now proposes.

Question, "That the Clause be read a Second time," put, and negatived.