HC Deb 06 March 1935 vol 298 cc1957-62

3.42 p.m.

Mr. SPENS

I beg to move, in page 10, line 5, at the end, to insert: Provided that such person is a barrister of England or Northern Ireland of at least ten years standing or a member of the Faculty of Advocates in Scotland of at least ten years standing, or has been for at least ten years a pleader of a High Court in British India or in a Federated State or of two or more of such courts in succession. This Amendment proposes to insert a proviso to the effect that the same qualifications shall apply in the case of the Advocate-General as those which apply to judges of the Federal Court. The Amendment seems to be necessitated by the fact that at the end of Sub-section (2) it is provided, quite rightly, that the Advocate-General is to have the right of audience in all courts in British India and in any Federated State. There are two grounds on which I suggest that, in those circumstances, the Advocate-General should have these qualifications. In the first place the right of audience in the courts is as jealously guarded in India as it is in this country. It follows that associations of persons who are entitled to the right of audience in the courts in India will look carefully into this Clause and if it remains as it stands they will find that any person irrespective of qualifications can be appointed Advocate-General—though of course no one could imagine the appointment of a wholly unqualified person. But they will naturally desire that qualifications at least similar to those of a judge of the Federal Courts should be inserted in the Clause.

There is a further and a much more important point. It is a trite saying that federalism always means legalism. Every federal constitution carries in its train constitutional questions of great importance. The Federal Constitution contemplated in the Bill will, as much as, if not more than every other Federal Constitution in this Empire involve such questions. The Bill proposes that those who are to deal with the solution of those constitutional questions when they arise, namely the judges of the Federal Court, must have certain legal qualifications. I submit that prevention is better than cure and as the Governor-General will be dependent on the legal advice of the Advocate-General in taking steps in many cases to prevent these questions from arising at all, it is most important that he should be properly advised. I suggest that it is a necessary precaution to provide that the Advocate-General must at least have the same qualifications as the judges who are to deal with these questions when they have arisen.

3.44 p.m.

The SOLICITOR-GENERAL (Sir Donald Somervell)

We are grateful to my hon. and learned Friend for having put down this Amendment. For the reasons which he has given, we agree that it is desirable that the qualifications for this post should be specially inserted in the Bill. If he will be satisfied with that undertaking for the present, we would like to consider further the exact form of words to be employed, and also whether the qualifications for the office of federal judge should be followed literally in this case. We will, however, undertake to put in qualifications on the lines of his Amendment at a later stage.

Mr. SPENS

While thanking the hon. and learned Gentleman may I express the hope that the qualifications will not be less than those required for the judges of the Federal courts. It seems to me that the importance of the Advocate-General is almost greater than that of the judges who will have to deal with these questions when they have arisen. On the hon. and learned Gentleman's undertaking I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Sir REGINALD CRADDOCK

I beg to move, in page 10, line 9, after the word "him," to insert "by the Governor-General."

The object of this Amendment is to make clear that the duties of the Advocate-General shall be assigned to him by the Governor-General.

The SECRETARY of STATE for INDIA (Sir Samuel Hoare)

I am quite willing to accept this Amendment.

Amendment agreed to.

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

3.46 p.m.

Mr. ATTLEE

We had an Amendment down to this Clause to leave out Subsection (4), but as that Amendment has not been called, I would like to draw the attention of the Committee to the point involved. It relates to the dismissal and appointment of the Advocate-General being absolutely in the power of the Governor-General. In our view there is no reason why the Advocate - General should not be appointed by the Governor-General on the advice of his Ministers. We see no reason why this official should be something apart from the Government. I take it that his duties are not wholly different from those of the Law Officers of the Crown in the country who form part of the Government of the day. Before we pass from this Clause I should like to hear from the Secretary of State why it was considered necessary that the Advocate-General should be appointed by the Governor-General acting on his individual judgment.

3.48 p.m.

Major MILNER

I would point out that the Advocate-General is the Advocate-General of the Federation, that is to say, he is acting for the Government of India and is, in no sense, the personal adviser of the Governor-General. As my hon. Friend has pointed out, he is like the Attorney-General or the Solicitor-General in this country; he is the legal adviser to the Government. It is, therefore, for the Government to exercise the powers set out in this Clause. Furthermore, with regard to Sub-section (4), we take exception to what has so frequently been described as government from Whitehall. The phrase, "the Governor-General shall exercise his individual judgment" means in effect, according to Clause 14, that the Governor-General shall be under the general control of, and comply with the directions, if any, which may from time to time be given to him by, the Secretary of State. Therefore, the position is that this officer, who gives advice to the Government and not to the Governor-General, is to have his appointment made and determined and his remuneration fixed by the Secretary of State in this country.

In the short time that I was in India, as I think I have already stated, one of the strongest points made by those Indians to whom I spoke was that they might not have much objection to a Governor-General provided by this country, but that they had the strongest objection to India being governed from Whitehall. Here is a typical instance where that will continue in the future as in the past. The matter of the appointment of an Advocate-General is not a very important one, and surely it might well be left to the Governor-General to act upon the advice of his Ministers and it ought not to be in the last resort the prerogative of the Secretary of State in this country, who cannot possibly have the local or the particular knowledge which the Governor-General personally may have. Unless the Solicitor-General can satisfy us, I think we must take objection to this Clause.

3.52 p.m.

Major-General Sir ALFRED KNOX

I understand that the Advocate-General is a new appointment, because at present these duties are carried out by the Advocate-General in Bengal, and I want to know where provision is made for a salary for this new appointment. Is it included in the £520,000 that we are told is to be the extra cost of Federation?

Major MILNER

May I add that the remuneration of this officer is paid for, not by this country, but by India and the Indians, and for that additional reason, in our view the Government of India should have the say as to his appointment, dismissal, and remuneration.

3.53 p.m.

The SOLICITOR-GENERAL

If I may deal first with the question put by my hon. and gallant Friend the Member for Wycombe (Sir A. Knox), I think it would be so included, but I have not all the items before me. It is quite right to say that at present the Advocate-General in Bengal acts as Advocate-General to the Central Government, and under this scheme there will be an Advocate-General for the Federal Government as well as an Advocate-General for Bengal. There will, therefore, be two offices. In the part of this Clause referred to by the hon. Member for Limehouse (Mr. Attlee) and the hon. and gallant Member for South-East Leeds (Major Milner), we are following the recommendation of the Joint Select Committee, which says, with regard to the Federal Advocate-General: Here also we think it essential that the Advocate-General should hold his office on a settled tenure and should have no political associations with the Federal Ministry. Therefore, I think it was under some misconception of the position that my hon. Friend referred to him as performing functions similar to those of the Law Officers here. No doubt he will perform functions performed by Law Officers here, but he will have no political affiliation with the Ministry, and so far as Ministers require a law officer in the political sense, that is to say, a man who will assist them in their Bills and political work, he will not be the Advocate-General, but he will be a different individual who will assist them in their parliamentary work. Both hon. Members are right in saying that the Advocate-General will be the adviser of the Federal Government, but, of course, the Federal Government includes the reserved departments, and therefore he will advise the Governor-General and his councillors on those reserved departments with which the Ministry will not be concerned.

There is another point which is of importance. It being provided that this office shall go on even though the responsible Government may change, it is, of course, of the utmost importance that the person selected for it should be a person who will command the confidence of successive Governments. We do not anticipate that conflicts will always or necessarily ever arise, but having regard to those two facts, first, that he will advise as to the reserved departments, and, secondly, that it is of vital importance that we should have a man who will command the confidence of the successive Ministries, we have provided that the Governor-General will have the controlling voice in the unfortunate circumstance of any difference arising as to who should be appointed to this post. The hon. and gallant Member referred to this as an example of government from Whitehall, but the Governor-General is on the spot and will know the people likely to be suitable for this office, and I should think it would be very unlikely that there will be any coercion by my right hon. Friend or any successor of his in this matter. I hope my hon. Friends will see their way to withdraw their objection to this Clause.

3.57 p.m.

Mr. HERBERT WILLIAMS

The Advocate-General has the right of audience in all courts in British India and in the Federated States, and that introduces rather a novel conception. I can imagine that some of the Princes might desire to exempt from their conditions on their accession the automatic right of the Advocate-General to appear in their courts. What is the intention of the Government should any Prince raise an issue of that kind?

The CHAIRMAN

I do not propose to prevent a short reply to that question, but it must not be debated at length.

The SOLICITOR - GENERAL

The issue never has been raised, and I do not think there is likely to be any objection such as my hon. Friend imagines.

Question, "That the Clause, as amended, stand part of the Bill," put, and agreed to.