HC Deb 22 March 1935 vol 299 cc1534-44

1.48 p.m.

Mr. BUTLER

I beg to move, in page 54, line 27, to leave out "powers of the Governor-General and," and to insert "power."

This deals with the same point as the Amendment on the previous clause.

Major MILNER

We ought to have a word or two from the Under-Secretary on this point.

Mr. BUTLER

I explained the whole thing on the last Amendment.

Major MILNER

As I understand it, Clause 88 refers to ordinances made during the recess, and Clause 89 refers to ordinances dealing with certain subjects.

The DEPUTY-CHAIRMAN

I think that the hon. and gallant Gentleman's point would come better on the Question "That the Clause stand part of the Bill."

Captain CAZALET

If, when the Under-Secretary moves an Amendment, he will read it out, it will help us very much. He simply refers to "this Amendment," and we do not know which he is moving.

Mr. BUTLER

The amendment was put from the Chair, and it deals with exactly the same drafting point as I explained at some length on the previous Clause. As I explained in moving the last amendment, there was no power provided in the Bill for the Governor-General to disallow Acts. It was therefore inaccurate in Clause 88 to include the words "powers of the Governor-General ". I tried to point out that it was inaccurate in Clause 89 to make the same drafting mistake. I therefore move this Amendment which restricts the disallowance of a Bill, which is provided for elsewhere, to His Majesty.

Amendment agreed to.

1.51 p.m.

Sir R. CRADDOCK

I beg to move, in page 55, line 10, to leave out from "discretion" to the end of the clause.

The object of the Amendment is to provide for cases in which the Governor's power to issue an ordinance shall not be qualified by requiring the prior consent of the Governor-General. When the matter came before the Joint Select Committee there was some doubt whether the Governor should have the power to issue ordinances at all, but as a compromise it was felt that the consent of the Governor-General should be necessary, but that there ought to be some limit to it in cases of great emergencies in which the Governor was not able to communicate with the Governor-General. One hears that communications are so good now that the Governor could obtain the consent of the Governor-General in a sufficient time, but there is one sort of case in which that might not be possible. For example, a case which required the Governor to issue an ordinance might be a strike or riot which severed all communication for the time being between the Governor-General and the Governor. He might in that case have to take necessary action at once without first obtaining the sanction of the Governor-General.

1.53 p.m.

Sir S. HOARE

There has been a good deal of discussion upon this question. As my hon. Friend has reminded the Committee, there are some people who think that only the Governor-General ought to issue ordinances, and there are other people who think that it should be done by the Provincial Governor. The Joint Select Committee took the view that the wise course would be to make the Governor of the Province primarily responsible, their reason being that Jaw and order is a provincial subject and that therefore the Governor is the person mainly responsible for its maintenance, but, in order to ensure that the Governor should not act rashly or independently of the general policy of the Governor-General—after all, an emergency of this kind is a very important moment—the Governor-General should have his concurrence. The Committee took the view that there need be no undue delay in the Governor-General giving his concurrence. He could give it by telegram or telephone, and therefore there was no need why the con- currence of the Governor-General should hold up action which in the nature of things ought to be urgent. My hon. Friend has raised the possibility of communications being broken between the Governor-General and the Governor. In a case of that kind the Governor-General ought certainly to give the Governor of the Province his previous concurrence. He ought to make it clear that in a case where communications are broken between the Centre and the Province the Governor is entitled to take his action with the tacit concurrence of the Governor-General. Speaking generally, I think the best course is to adopt the proposals of the Committee, namely, that it is the Governor who acts, but that he does obtain, in normal instances at any rate, the concurrence of the Governor-General.

Sir R. CRADDOCK

Will the possibility of acting in that way be made clear in some way? Otherwise, one can imagine a Governor who would hesitate to take action because it required prior sanction. If he had general instructions that in these cases of extreme urgency he should anticipate the Governor-General's sanction it would be very much plainer.

Sir S. HOARE

I think I can undertake to say that it shall be made clear to the Governor-General and the Governors that in cases of this kind there should be no delay. At the moment I am not quite clear whether it is so established in the Bill; but I will look into the matter. I agree with my hon. Friend that there ought to be no gap in the system.

Sir R. CRADDOCK

If the right hon. Gentleman can guarantee that the point will be looked into, at all events, and that there shall not be a gap of this kind, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

1.58 p.m.

Major MILNER

I hope the hon. Member for the English Universities (Sir R. Craddock) will not think me offensive in any way, but we have just had an example of how some civil servants—or perhaps I ought to say an example of a type of civil servant, of whom I think there are very few—who must always be secured or backed up, or safeguarded by higher authority. I myself should have thought that a responsible man like the Governor of a Province would have been prepared to accept responsibility under all circumstances, and that there would be very few conceivable occasions when he would require to have the prior concurrence of the Governor-General before he would dare to act. I recognise that the necessity for obtaining that concurrence is in many respects a safeguard, in that it may prevent a Governor acting hastily or foolishly, as we have known some persons of responsibility, particularly one or two military officers, act in the past in India, with very disastrous results. We understand this Clause to be the ordinance-making Clause. The previous Clause was one under which the Governor acted on the advice of his Ministers This is the Clause, I take it, under which he can act independently of, without regard to, and even contrary to the advice of his Ministers. That being so we take the strongest exception to this Clause. If time permitted and I were so disposed I could go into very great detail on the subject, but it will suffice to say that we take exception to this extremely wide and, as we think, oppressive and unnecessary power which it is proposed to give to the Governors of so-called self-governing Provinces. According to the second line of the Clause, all the Governor has to be satisfied of before he makes an ordinance under the powers given to him is that circumstances exist which render it necessary for him to take immediate action for the purpose of enabling him satisfactorily to discharge his functions. I ask the hon. Gentleman what circumstances are envisaged by those words. Is it not possible to define them much more clearly? Would it not be an advantage to have some sort of direction to the Governor as to what circumstances would be considered sufficient to justify him in exercising this extremely powerful weapon for making an ordinance without regard to his Ministers, to the Legislature or to anyone else than to the Governor-General at the other end of a telephone or telegraph wire? That is my first objection—that the Clause is too vague, too wide and does not give a sufficient direction to the Governor of a Province.

Secondly, there is no provision that the advice of the Governor's Ministers should even be asked. I can conceive circumstances in which, even if that advice were given, it might be right for the Governor not to have regard to it and, indeed, to act in direct contradiction to it. But there is no provision here that in a Province having a legislature and a responsible Government the Governor is under any obligation to consult his duly-constituted Ministers. That obligation ought to be put upon the Governor, whether he deems it right to act upon the advice he receives or not. Hon. Members on this side had put down an Amendment to leave out the first line and a half of paragraph (c). That paragraph apparently makes it obligatory upon the Governor when an ordinance extends a previous ordinance to communicate it to the Secretary of State and through him to Parliament. We certainly think that in view of the wide power given, and the consequences of ordinances in the past, many of which we believe to have been harmful to the whole Indian question, and to have made matters more difficult and feeling more bitter, that all ordinances without exception ought at once to be communicated to the Secretary of State and, through the Secretary of State, to Parliament, and had that Amendment been called we should certainly have moved to leave out the words which limit it to an ordinance extending a previous ordinance of a further period.

I personally regard the necessity for the concurrence of the Governor-General as desirable. If this power is to be conferred it must be exercised with some regard to uniformity and consistency, and should not depend on the mere whim of an individual Governor. For instance, the hon. Member for the English Universities who, with his hon. Friend sitting in front of him, is the only representative of the Diehards present in the Committee—I apologise to my hon. Friend the Member for Prestwich (Sir N. Stewart Sandeman) for overlooking him—might be inclined, if he were a Governor of a Province, to issue ordinances much more frequently than, for example, my hon. Friend the Member for Broxtowe (Mr. Cocks) who in the near or distant future may be a Governor of a Province. I cannot imagine my hon. Friend the Member for Broxtowe at any time exer- cising dictatorial powers of this kind, but the hon. Member for the English Universities would, I imagine, be frequently engaged, if, indeed, he were not engaged during the whole of his time, in promulgating such ordinances with, I am afraid, extremely disastrous consequences. That power should not be dependent upon a whim.

Sir R. CRADDOCK

The hon and gallant Member for South-East Leeds (Major Milner) has been attributing to me all those acts of rashness and precipitancy, and I really must protest against them. I trust that the hon. and gallant Member will see his way to withdraw them.

Major MILNER

I will certainly do so if the hon. Member in any sense took offence at my observations. I did not intend them in any way to indicate precipitancy on his part, but intended the words to bear a rather different construction. If he takes any exception to what I said, I withdraw my remarks. The power of making ordinances ought not to be dependent upon the mere whim of a Governor for the time being, but there ought to be some good sound advice. This very important power ought not to be put into the hands of one man, however responsible he may be. For that reason, as well as many others which I could adduce if time permitted, we take exception to the Clause, and, unless we are satisfied in regard to it, we shall certainly vote against it.

2.7 p.m.

Mr. TINKER

I oppose the Clause for reasons somewhat similar to those just put forward by my hon. and gallant Friend the Member for South East Leeds (Major Milner). He said that the hon. Member for Broxtowe (Mr. Cocks) would not make use of these powers if he had the opportunity, but I am not so sure of that. Mankind follows much the same line, and if you give a man general powers he may be inclined to use them. We, as Members of Parliament are here for the purpose of preventing absolute power being put into the hands of any one person. As democrats, we must adopt that attitude, and I ask the Under-Secretary why this power is being given. The first part of the Clause states that the Governor shall have power to put ordinances into operation for six months and that by a subsequent ordinance it may be extended for a further period of six months if he wishes. Sub-section (3, c) states that the ordinance extending a previous ordinance shall be communicated forthwith through the Governor-General to the Secretary of State and shall be laid by him before each House of Parliament. I am anxious to know why, in the case of the first six months period, that course is not followed. I know there may be cases where the Governor may have to take certain powers. Even in this country, under the Emergency Powers Act, the Secretary of State can exercise certain powers but he must immediately submit them to Parliament, and the powers can only continue for one month before they are renewed. If we are following somewhat similar lines in India to those which we followed here, how is it that these powers may continue for a period of six months and then for a second period of six months if the Governor desires? On a Clause like this, we—I am speaking also for myself—who have not great knowledge of the Bill or of conditions in India are very anxious to pick up the points, and to use our efforts in order to get to know as much as we can. I want to know why we are to give the Governors of Provinces exceptional powers such as are not exercised in this country.

2.10 p.m.

Mr. RHYS DAVIES

Before a reply is given on behalf of the Government may I put one or two additional questions in regard to the Clause? The power of a Governor of a Province is very great under the Bill. He can issue orders-in-council when the Legislature is not in session, and he can, under this Clause, promulgate ordinances even against the wishes of the Legislature. Under Clause 90, to which I shall do no more than refer at this moment, he can promote Acts of Parliament as well. It has been suggested that we are giving power to a Governor of a Province in India to do only what is done in this country in a case of emergency. When a Government in this country promulgates anything like an ordinance, Parliament meets and can question the Government on their action, but nothing of the kind can take place in India. The Governor is a permanent official who is not at the recall of the legislature of the Province but at the recall of the Government of this country. The parallel therefore does not hold good.

My hon. friends have been right in stressing the personal aspect of the matter and the attitude of mind of Governors of Provinces. The hon. Member for the English Universities (Sir R. Craddock) took umbrage when my hon. and gallant Friend the Member for South East Leeds (Major Milner) spoke of the attitude of one Governor as against another. I can very well imagine half a dozen Governors in half a dozen Provinces where exactly the same conditions prevail. One Governor who may be a very irritable gentleman will be promulgating ordinances on the slightest provocation, but the other, a very generous large-hearted man, would not do anything of the kind in exactly the same circumstances. An hon. Member smiles at that. It is not a question of party when you come to personality. I could trust my life on humanitarian grounds to some members of other parties, because they would be generously minded when in a position of trust. I am not speaking of their policy, but of their administration. Some hon. Members opposite, however, irritate me beyond measure as soon as they begin to speak. [HON. MEMBERS: "Name!"] On the other hand, I can listen to speeches from members of the Government, and, although I disagree with their policy, I am not irritated by what they say. The same applies to Governors of Provinces in India. I can visualise hon. Members of this House being appointed Governors of some of the Provinces. The first thing they would do would be to seek opportunity to promulgate an ordinance. If some Members of the present Government had an opportunity they would promulgate an ordinance against us at any time, but I am not going to dwell upon that. I see some hon. Gentlemen opposite who would not do so.

The point is: Is it not possible to put something into the Clause to indicate the conditions, under which an ordinance shall be promulgated? The Secretary of State rather suggested that that would be possible, when he said that there might be occasions when an ordinance will be promulgated in the interests of law and order, when the whole of a Province had got out of hand, when the Constitution which we are now giving had literally broken down, and there were riots and terrorism. We should be very much more satisfied had the Clause indicated the kind of condition of things which must prevail in a Province before the Governor were moved to promulgate an ordinance. Whatever we do on this Clause, I ought to inform the Government that we are not at all happy at the enormous powers which are being granted to Governors in these cases.

2.15 p.m.

The SOLICITOR-GENERAL

This, obviously, is an important Clause, and the hon. and gallant Gentleman who spoke first asked why is it here, and why is it necessary? This Bill, of course, sets up substantially Provincial autonomy, and, therefore, in ordinary circumstances the administration is carried on by Ministers. The Committee has already passed a Clause—more than one perhaps—which places on the Governor certain special responsibilities. I will not repeat them, because they are familiar to every hon. Member present. Obviously, you cannot place special responsibilities on a man unless you give him the means of fulfilling those responsibilities. So far as executive action is concerned, as any executive action is taken in his name, he can, of course, act executively in his individual judgment or discretion if the Bill empowers (him to do so, but, obviously also, if you look at the special responsibilities placed upon him, occasions may arise where, in order to fulfil those responsibilities, it is necessary for him to proceed by ordinance. Therefore, everyone on the Committee, wherever he sits, and whatever his general views about democracy, must agree that, granted that these special responsibilities are to be placed on the Governor, it is quite clear that, in order to fulfil them, it may be necessary for him to proceed by ordinance. Therefore, it would be quite wrong to put the responsibility upon him, and not to confer the ordinance-making power. The Committee having passed Clause 52 and the other Clauses giving the Governor special responsibilities, that must be unanswerable.

The question was asked as to whether the Governor ought not to consult his ministers. The hon. Gentleman who put that point will see that as you start with Provincial autonomy broadly speaking over the whole of the field, it is only when after consultation there is unfortunately a difference that it becomes necessary for the Governor to take any special action under such a Clause as this, and as had been pointed out previously, it is our intention, even although such a difference has arisen, that the Governor should take all reasonable steps to see that he remains in contact with his Ministers so that there is a chance of the difference being composed and getting back to the ordinary procedure which the Bill contemplates. My hon. Friend the Member for Westhoughton (Mr. Rhys Davies) and the first speaker on this Clause suggested that there might be some sort of definition. I do not think you can have a fresh definition. This Clause must cover all the places in the Bill where any special responsibilities are conferred on the Governor, and it would be quite impossible to depart from that in defining the ordinance-making powers of the Governor, because necessarily, if they are to be of any use to him, they must cover the whole field of his individual judgment and special responsibilities.

Mr. RHYS DAVIES

Suppose the working people of a Province wanted to become trade unionists and organise themselves into a very powerful organisation, would it be possible in that case for a subject like that to come within the purview of the issue of an ordinance?

The SOLICITOR-GENERAL

Plainly not. The hon. Gentleman knows that the Government of India to-day and in the past has always encouraged trade union organisation, and anyone who searched this Bill from one end to the other would not find any places where he could say that what the hon. Gentleman has just put enables or entitles the Governor to say that circumstances exist which render it necessary for him to take individual action satisfactorily to discharge his functions. I can assure my hon. Friend on that point.

The other point I was making was that, so far as this Clause is concerned, it must cover the whole ground that is covered by the Governor's individual judgment and special responsibilities. The other point as to the six months follows the recommendation of the Joint Committee, who said that if the ordinance were extended beyond the six months, there should be Parliamentary sanction. You can argue one way or the other, but we have in that matter taken the middle course. It is only if it is to be extended beyond six months that Parliamentary sanction should be required. For these reasons, I hope my hon. Friends may see their way not to vote against this Clause.