HC Deb 12 March 1935 vol 299 cc310-7

9.5 p.m.


I beg to move, in page 20, line 14, to leave out Sub-section (3).

We look upon this Sub-section as one which ought not to be allowed to pass without a vigorous protest. In Subsections (1) and (2) the utmost care is taken to see that the Act referred to in Sub-section (3), when it was a Bill, was looked at in every detail, and every conceivable precaution is taken to see to it that the authorities, both in India and in this country, have given their consent to the Bill. When the Bill becomes an Act, and after it has been in operation perhaps for almost 12 months, power is given to His Majesty to disallow its continuance. We take that to mean that the Secretary of State will advise His Majesty ultimately to advise the Governor-General that the Act, to which the Secretary of State himself has assented, shall cease to operate. We think that that is an objectionable provision.

During the same period of 12 months it would be easy for the Government of this country to change. Suppose that the present Government were to give its approval to a Measure passing through the Legislature, and that it was replaced 11 or 12 months afterwards by a Socialist Government, who considered that the legislation approved by the previous Government was wrong and disallowed it. Such a procedure would make good government impossible. Think of the position in which the Indian people would be placed. They would have no security from interference from this country. Whatever objections we may have had to the Bill on the Second Reading, we find, as we come to details of this character, still stronger objections. In view of the adequate provision in Sub-sections (1) and (2), we feel that to allow further interference 12 months after the Measure has been operating in India is most objectionable.

9.8 p.m.


Might I ask a question before my right hon. Friend replies? What would be the position of a man who had been convicted under an Act which had been passed and then was disallowed by the Governor-General? The point is a small one, and I do not wish to press it, but it seems to me that there is a possibility of a rather curious situation arising. Perhaps my right hon. Friend, when he replies, will be good enough to clear up the point.

9.9 p.m.


I daresay in theory a great many of the awkward results suggested by the hon. Member for Ince (Mr. G. Macdonald) might happen, but in actual practice they never have happened, and they are not likely to happen. This is a provision that is contained in every Constitution Act of a similar kind within the British Empire, and it is necessary from the point of view of the prerogative of the Crown.


Is it in the Statute of Westminster?

9.10 p.m.


That does not affect my point. The argument is that in practice it has not created the kind of difficulties which the hon. Member contemplates. It has been in operation for half a century in the Dominions, and has not raised the difficulties that he has in mind. Without it, the Crown would part with its prerogative under which it can withhold its assent to the Act of any subordinate legislature, and, technically, legislatures of this kind are subordinate legislatures. From the point of view of the prerogative of the Crown the provision is necessary, and in actual practice it is not in the least likely that these difficulties will arise. The answer to the question of my hon. Friend the Member for West Islington (Mr. Donner) is that in the case he supposes the Act would not be a valid Act, and the individual would not be convicted.

9.11 p.m.


May I suggest that there is some slight misunderstanding? My point is as to the position of a man who has been convicted and is in prison under an Act when that Act is subsequently disallowed. Is he to be set free and compensated, or merely to be set free; or does he still remain in prison, convicted under an Act which later on is disallowed? It seems to me that, unless the matter is cleared up, it might open the way to grave injustice.


I have just asked the Attorney-General, who tells me that the Act would be a valid Act until it had been disallowed. The conviction, therefore, would be a valid conviction until the Act had been disallowed. I can, perhaps, reassure my hon. Friend by saying that I do not think any case of this kind has ever arisen, although this actual provision has been in operation in every part of the Empire for 50, 60 or 70 years.

9.12 p.m.


Would the right hon. Gentleman give us a little more reason for this provision? Is it not the case that the provision was inserted to preserve the Royal prerogative at a time when it took about a year for an Act to come back from India? What is the real reason for it at the present time? Suppose that an Act has been passed and assented to by the King's representatives. That Act will be sent back to this country, and not seen by the Secretary of State or anyone else; and yet it is to be left, after 12 months, in a state of uncertainty, with the possibility of its being disallowed. Meanwhile all kinds of things may have been done under it. People may have been executed; all kinds of contracts may have been effected under it. Why should 12 months be allowed in which to advise His Majesty whether the Act is a good Act or not?

9.13 p.m.


I should like to put a question to the Secretary of State. I put it in no hostile or critical spirit, but purely in a spirit of inquiry. He said that this provision is included in the Acts which contain the Constitutions of the Dominions. Will he tell the Committee whether in fact this provision has been used, and, if so, whether it has been used frequently?

9.14 p.m.


Arising out of the question of my hon. Friend the Member for West Islington (Mr. Donner), suppose that a certain person, under an Act which had been disallowed, had been sentenced to a long period of imprisonment, say, two years or five years. The Act is disallowed. The sentence will stand, because it was passed when the Act was valid. Are we to understand that a man might be kept in prison for two or three years afterwards, although while he was in prison the offence for which he had been in prison was no longer an offence?

9.17 p.m.

Lieut.-Commander AGNEW

I should like to ask the Secretary of State for India a question. I am not altogether satisfied about the position of the man whom the Noble Lord the Member for Perth (Lord Scone) has been describing. If an Act passed by the legislature was subsequently disallowed, would a man rightfully committed at the time, in the event of subsequent disallowance, be in the position of an individual who has benefited from a change of the law? If that were so, the position of such an individual would be virtually the same as that of any other individual who benefits when the legislature changes the law and it happens to react in his favour. If that is the case, the Committee need have no doubt about letting the Subsection stand as it is.

9.18 p.m.


Surely, this provision is simply a piece of antiquarianism. It existed before the advent of the electric cable and wireless and when the Governor-General gave consent on his own without consulting the Government, but now the Governor-General does not give consent without communicating with the Secretary of State, thereby giving the assent of His Majesty's Government; and surely 12 months later he would not go back on his own signed word. I suggest that this provision has been put in by mistake and that now there is no need for it at all, as it is an anomaly.


I should describe it as a piece of Conservative constitutionalism.


That is an anomaly.

9.19 p.m.


The answer really is that which I gave just now, namely, that it is the position in every Dominion Constitution, and it is unrepealed. The Statute of Westminster, of course, has made a difference as to how it is exercised, but there is the position unrepealed in every Dominion constitution. I am further informed that it is necessary to have it from the point of view of the prerogative of the Crown. When I am asked these difficult questions as to what is to happen to hypothetical individuals in hypothetical contingencies, my answer is that none of these as far as I know has ever arisen. If such a case as that suggested by my hon. Friend the Member for West Islington (Mr. Donner) did arise, the individual, I am informed, would be legally convicted, but as soon as the Act is disallowed equally legally would he be released. I do not think that my hon. Friend need get worried because it is never used, and I think it is less likely to be used in future than in the past, for the reason raised by the hon. Member for Limehouse (Mr. Attlee), who pointed to the better means of communication between India and this country. It has never arisen in the past when it took weeks and months to come from India, and much less is it likely to arise in future when we can communicate by telegraph, aeroplane, and the telephone.


May we not ask for more information on this matter? We have, heard something vague to the effect that it is necessary to preserve the prerogative of the Crown. Can the learned Attorney-General tell us how the prerogative of the Crown is preserved, and why it needs 12 months to preserve it? The reply of the Secretary of State is open to the same objection which St. Joan in the play made to the other side, when they said torture was always customary, "Thou are a rare noodle, master, that what has been must be."

9.21 p.m.


No doubt the 12 months is a great deal longer than is necessary to communicate with India, but as my right hon. Friend the Secretary of State has said, the 12 months is a piece of conservative constitutionalism, but it really does not matter at all if communication can be made in a much shorter time; no reasonable Secretary of State is ever likely to take advantage of the fact that 12 months is in the Clause But if you are to have a Clause of this sort in common form with all the constitutions given to different parts of the Empire, you may as well preserve the Clause in the form in which it is invariably inserted in the various constitutions. The hon. Gentleman asks in what way is the prerogative of the Crown preserved. The prerogative of the Crown was at one time, of course, exercised by the Governor-General in a self-governing Colony as the representative of the Crown. Now the difference is that he exercises his right of giving assent upon the advice of the responsible Ministers in the self-governing Dominion where they have full status under the Statute of Westminster. As far as India is concerned, of course, that is not the position, and the right is still reserved in the Constitution which is proposed to be given to India to be exercised by His Majesty, not upon the advice of Ministers who are not fully responsible in India, but upon the advice of the Secretary of State, and in that way the prerogative of the Crown is preserved constitutionally with the form of the Constitution which is to be conferred upon India by this Bill.

9.22 p.m.


It is a very remarkable thing that we should introduce a provision in this Bill solely because it has been in existence all the time. It ought to be possible for us to make an adaptation in the legislation so as to make

it fit in with a change in the circumstances. There is no reason why we should not have 12 days in the Bill rather than 12 months. While I have been sitting here I thought of one reason why perhaps it ought to be left in the Bill. It has probably not occurred to the Secretary of State for India. In the Constitution which we shall be giving to India it is very probable that the legislation will be carried in India against the Indian masses, and, in view of the fact that they will have 12 months to agitate against the Act, they may transfer the agitation from India to England in order to try to secure a repeal of the Act within 12 months. If, therefore, the Secretary of State for India thinks that it is desirable that the veto of the Crown should become the football of Indian politics, and that we should have the game played over here and not there, it is as well that we should have this provision left in. We should have merry times in the future if the Secretary of State for India and Members of the House of Commons were importuned to repeal within a year an Act of Parliament which would become universally objectionable to the masses of India. I do not know whether the Secretary of State has considered that point, but if he has perhaps he will take this out before the Report stage.

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided: Ayes, 243; Noes, 31.

Division No. 94.] AYES. [9.25 p.m.
Acland, Rt. Hon Sir Francis Dyke Brass, Captain Sir William Craddock, Sir Reginald Henry
Acland-Troyte, Lieut.-Colonel Briscoe, Capt. Richard George Cranborne, Viscount
Adams, Samuel Vyvyan T. (Leeds, W.) Broadbent, Colonel John Craven-Ellis, William
Agnew, Lieut.-Com. P. G. Brocklebank, C. E. R. Croft, Brigadier-General Sir H.
Albery, Irving James Brown, Col. D. C. (N'th'I'd., Hexham) Crooke, J. Smedley
Allen, Sir J. Sandeman (Liverp'l, W.) Brown, Ernest (Leith) Crookshank, Col. C. de Windt (Bootle)
Allen, Lt.-Col. J. Sandeman (B'k'nh'd) Brown, Brig.-Gen. H. C. (Berks., Newb'y) Crookshank, Capt. H. C. (Galnsb'ro)
Amery, Rt. Hon. Leopold C. M. S. Browne, Captain A. C. Croom-Johnson, R. P.
Apsley, Lord Buchan-Hepburn, P. G. T. Crossley, A. C.
Aske, Sir Robert William Burghley, Lord Culverwell, Cyril Tom
Assheton, Ralph Burnett, John George Davies, Maj. Geo. F. (Somerset, Yeovil)
Atholl, Duchess of Butt, Sir Alfred Davison, Sir William Henry
Bailey, Eric Alfred George Cadogan, Hon. Edward Denman, Hon. R. D,
Baldwin, Rt. Hon. Stanley Campbell, Vice-Admiral G, (Burnley) Denville, Alfred
Balfour, George (Hampstead) Caporn, Arthur Cecil Dunglass, Lord
Balniel, Lord Cazalet, Thelma (Islington, E.) Eady, George H.
Barclay-Harvey, C. M. Cazalet, Capt. V. A. (Chippenham) Ellis, Sir R Geoffrey
Barton, Capt. Basil Kelsey Chapman, Col. R. (Houghton-te-Spring) Emmott, Charles E. G. C.
Beaumont, Hon. R. E. B. (Portsm'th. C.) Christie, James Archibald Emrys-Evans, P. V.
Belt, Sir Alfred L. Cobb, Sir Cyril Erskine-Bolst, Capt C. C. (Blackpool)
Benn, Sir Arthur Shirley Colfox, Major William Philip Evans, Capt. Ernest (Welsh Univ.)
Bernays, Robert Colville, Lieut.-Colonel J, Everard, W. Lindsay
Boulton, W. W. Cook, Thomas A. Flslden, Edward Brocklehurst
Bower, Commander Robert Tatton Cooke, Douglas Fleming, Edward Lascelies
Bowyer, Capt. Sir George E. W. Cooper, A. Duff Foot, Dingle (Dundee)
Boyce, H. Lestle Courtauld, Major John Sewell Fremantle, Sir Francis
Bralthwaite, J. G. (Hillsborough) Courthope, Colonel Sir George L. Ganzoni. Sir John
Gault, Lieut.-Col. A. Hamilton Lockwood, John C. (Hackney, C.) Russell, R. J. (Eddisbury)
George, Megan A. Lloyd (Anglesea) Lockwood, Capt. J. H. (Shipley) Rutherford, John (Edmonton)
Gledhill, Gilbert Lovat-Fraser, James Alexander Rutherford, Sir John Hugo (Liverp'l)
Goff, Sir Park Lumley, Captain Lawrence R. Salt, Edward W.
Goldie, Noel B. MacAndrew, Lieut.-Col. C. G.(Partick) Samuel, Rt. Hon. Sir H. (Darwen)
Grattan-Doyle, Sir Nicholas MacAndrew, Capt. J. O. (Ayr) Scone, Lord
Greene, William P. C. McEwen, Captain J. H. F. Selley, Harry R.
Grenfell, E. C. (City London) McKeag, William Shaw, Helen B. (Lanark, Bothwell)
Griffith, F. Kingslety (Middlesbro'. W.) McLean, Major Sir Alan Shaw, Captain William T. (Forfar)
Grimston, R. V. Manningham-Bullar, Lt.-Col. Sir M. Shute, Colonel Sir John
Gritten, W. G. Howard Margesson, Capt. Rt. Hon. H. D. R. Simmonds, Oliver Edwin
Hacking, Rt. Hon. Douglas H. Martin, Thomas B. Smiles, Lieut.-Col. Sir Walter D.
Hamilton, Sir R. W.(Orkney & Ztl'nd) Mason, Col. Glyn K, (Croydon, N.) Smith, Sir J. Walker- (Barrow-in-F.)
Hanbury, Cecil Mayhew, Lieut-Colonel John Smith, Sir Robert (Ab'd'n & K'dlne, C.)
Harris. Sir Percy Mills, Major J. D. (New Forest) Somervell, Sir Donald
Hartington, Marquess of Milne, Charles Somervliie, Annesley A. (Windsor)
Harvey, Major Sir Samuel (Totnes) Mitcheson, G. G. Soper, Richard
Haslam, Henry (Horncastle) Molton, A. Hugh Elsdale Spencer, Captain Richard A.
Haslam, Sir John (Bolton) Morris-Jones, Dr. J. H. (Denbigh) Spans, William Patrick
Headlam, Lieut.-Col. Cuthbert M. Morrison, G. A. (Scottish Univer'ties) Stanley, Rt. Hon. Oliver (W'morland)
Hellgers, Captain F. F. A. Muirhead, Lieut.-Colonel A. J. Steel-Maitland, Rt. Hon. Sir Arthur
Henderson, Sir Vivian L. (Chelmsford) Munro. Patrick Stones, James
Hepworth, Joseph Nail, Sir Joseph Stourton, Hon. John J.
Hoare, Lt.-Col. Rt. Hon. Sir S. J. G. Nation, Brigadier-General J. J. H. Strauss, Edward A.
Holdsworth, Herbert Normand, Rt. Hon. Wilfrid Strickland, Captain W. F.
Hornby, Frank Nunn, William Sutcliffe, Harold
Horobin, Ian M. O'Connor, Terence James Tate, Mavis Constance
Horsbrugh, Florence Oman, Sir Charles William C. Templeton, William P.
Hudson, Robert Spear (Southport) O'Neill, Rt. Hon. Sir Hugh Thomas, James P. L. (Hereford)
Hume, Sir George Hopwood Orr Ewing, I. L. Thompson, Sir Luke
Hunter, Dr. Joseph (Dumfries) Palmer. Francis Noel Thomson, Sir Frederick Charles
Hunter-Weston, Lt.-Gen. Sir Aylmer Patrick, Colin M. Thorp, Linton Theodore
Hutchison, W. D. (Essex, Romf'd) Peake, Osbert TItchfield, Major the Marquess of
Inskip, Rt. Hon. Sir Thomas W. H. Pearson, William G. Todd, Lt.-Col. A. J. K. (B'wick-on-T.)
James, Wing.-Com. A. W. H. Penny, Sir George Todd, A. L. S. (Kingswinford)
Jesson, Major Thomas E. Perkins. Walter R. D. Train, John
Johnston, J. W. (Clackmannan) Petherick, M. Tree, Ronald
Jones, Henry Haydn (Merioneth) Peto, Geoffrey K.(W'verh'pt'n, Bilston) Tryon, Rt. Hon. George Clement
Jones, Lewis (Swansea, West) Pickthorn. K. W. M. Tufnell, Lieut-Commander R. L.
Ker, J. Campbell Pybus, Sir John Turton, Robert Hugh
Kerr, Lieut.-Col Charles (Montrose) Radford, E. A. Ward, Lt.-Col. Sir A. L. (Hull)
Keyes, Admiral Sir Roger Ralkes, Henry V. A. M. Ward, Irene Mary Bewick (Wallsand)
Kimball, Lawrence Ramsay, T. B. W. (Western Isles) Wardlaw-Milne, Sir John S.
Kirkpatrick, William M. Ramsden, Sir Eugene Wayland, Sir William A.
Knox, Sir Alfred Rathbone, Eleanor Wells, Sydney Richard
Lamb, Sir Joseph Quinton Reid, David D. (County Down) White, Henry Graham
Law, Sir Alfred Reid, James S. C. (Stirling) Wills, Wilfrid D.
Leckie, J. A. Reid, William Allan (Derby) Wilson, Lt.-Col. Sir Arnold (Hertf'd)
Leech, Dr. J. w. Rhys, Hon. Charles Arthur U. Wilson, Clyde T. (West Toxteth)
Leighton, Major B. E. P. Rickards, George William Wise, Alfred R.
Lennox-Boyd. A. T. Roberts, Aled (Wrexham) Womersley, Sir Waiter
Lewis, Oswald Robinson, John Roland Worthington, Dr. John V.
Liddall, Walter S. Ross Taylor, Walter (Woodbridge)
Llewellin, Major John J. Ruggies-Brise, Colonel Sir Edward TELLERS FOR THE AYES—
Lockar-Lampson, Com. O. (H'ndsw'th) Russell, Alexander West (Tynemouth) Sir Victor Warrender and Mr. Blindell.
Attlee, Clement Richard Gardner, Benjamin Waiter Maxton, James.
Banfield, John William Grenfell, David Rees (Glamorgan) Milner, Major James.
Batey, Joseph Grundy, Thomas W. Nathan, Major H. L.
Bevan, Aneurin (Ebbw Vale) Jenkins, Sir William Parkinson, John Alien
Buchanan, George Jones, Morgan (Caerphilly) Smith, Tom (Normanton)
Cape, Thomas Lawton, John James Thorne, William James
Cleary, J. J. Logan, David Gilbert West, F. R.
Cocks, Frederick Seymour Macdonald, Gordon (Ince) Williams, David (Swansea, East)
Cripps, Sir Stafford McEntee, Valentine L. Williams, Thomas (York, Don Valley)
Dagger, George McGovern, John
Davies, David L. (Pontypridd) Mainwaring, William Henry TELLERS FOR THE NOES.—
Mr. Groves and Mr. Tinker.

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

Clause ordered to stand part of the Bill.