CLAUSE 90.—(Power of Governor to enact Acts.) (Hansard, 22 March 1935)

§ Mr. ATTLEE
Whatever justice in the scheme there may be for the promulgation of ordinances, there is no reason, I think, why the Governor should have power to enact acts—why he should have the power of making permanent legislation. I would like the Solicitor-General, if he deals with this, to explain what part of the Governor's particular responsibilities require the promulgation of permanent Acts. I consider that one must regard anything in the nature of an ordinance as something altogether apart from the general business of government. It is a confession that that government has broken down to a certain extent. But to propose that this power should be extended over permanent legislation, really does infringe very gravely the whole position of the Legislature. Will the Minister explain the kind of circumstances he thinks may arise which requires the enactment of permanent legislation as apart from the passing of a temporary ordinance?

§ Mr. COCKS
I would like to support my hon. Friend in the point he made. I cannot see circumstances arising to necessitate the passing of emergency legislation of this description. I can understand the value of an ordinance in certain circumstances, but I do not see the necessity of legislation of a permanent character being enacted by a Governor over the heads of the Legislature. There is a further point. It is the view of the 1545 Indian delegation that if such legislation were required, it should be by the Governor on his own responsibility, without attempting to get the consent of the Legislature for that measure. This is what they say in their report: In respect of the Governor's Act. … most of us would prefer that, if any legislation were required for the discharge of the special responsibilities imposed on the Governor, ho should take the entire responsibility for such legislation and should not be required to attempt to secure the assent of the Legislature.

§ Mr. TINKER
Will the Minister give attention to Sub-section (4), and say whether we should be able to overrule an Act of the Governor if we thought it was not the right thing to do?

§ Mr. BUTLER
The Committee have already agreed to give the Governor power to promulgate ordinances for certain specific purposes. This question of giving the Governor power to enact an Act is also regarded by His Majesty's Government as necessary in order that the Governor may have all the powers necessary for dealing with every contingency. We do not anticipate that this power to enact Acts will be one that will be used very frequently. In fact, if the Committee will refer to the Report of the Joint Select Committee, they will see that in paragraph 104 the Joint Select Committee say: If the obstacle to any legislation which the Governor thinks necessary to the discharge of his special responsibilities lies, not in the unwillingness of the Legislature to pass it, but in the unwillingness of his Ministers to sponsor it, his remedy lies, not in a Governor's Act, but in a change of Ministry. That shows that this power is not one intended for daily use. The object, I think, is best illustrated by taking the example of terrorism. In the case of terrorism it is a well-known fact that if, for example, the terrorists consider that a power taken by the Executive is likely to be terminated very shortly, all that the terrorists or those who are conspiring against the Government need do is to lie low for a short period, and raise their heads again after the time which the Executive have announced as the termination of the ordinance. In the case of an Act, the Governor could take the opportunity of putting upon the Statute Book some permanent legislation with the 1546 object of dealing on a permanent basis with such a grave menace to the peace and tranquillity of the Province. In the case of a long-term question such as terrorism, than which there is no greater menace to the stability of a Province, we feel that we must arm the Governor with powers of this sort. I repeat that we do not intend that this power should be frequently used, but I think the Committee will agree that it is a power which the Governor ought to have. I was asked whether Parliament could repeal the Act if it were sent home to it. The answer is that, if such an Act were sent home through the Governor-General to the Imperial Parliament, Parliament could not repeal the Act, but it could, of course, challenge the Government and the Secretary of State. In view of these arguments, I hope we may now be allowed to have the Clause.

§ Mr. COCKS
It seems to me that in this matter the Government have departed to some extent from the recommendations of the Joint Select Committee. Surely, the Joint Select Committee did not contemplate that an Act of a permanent nature dealing with such a subject as terrorism should be placed upon the Statute Book by a Governor in this way. In paragraph 104 of their Report, the Joint Select Committee say: We agree with the members of the British-India Delegation in thinking it undesirable that the Governor should be required to submit a proposed Governor's Act to the Legislature before enacting it. …. If, on the other hand, the obstacle lies in the unwillingness of the Legislature, there can clearly be no point in submitting the proposed legislation to it, and to do so might merely exacerbate political feeling. They go on to say that, since there may be intermediate cases where an opportunity may usefully be given to the Legislature for revising a hasty or unconsidered decision previously made or threatened, they consider that in such cases a Governor's Act might usefully be submitted to the Legislature. This seems to me to indicate that the Joint Select Committee only contemplated this happening in a case where the question involved was not one of first-class importance, but merely one of revising a hasty or unconsidered decision. They 1547 say earlier that they do not favour trying to pass the Act through the Legislature if the Legislature is opposed to it.

§ Mr. BUTLER
I think that possibly the hon. Member is under a misapprehension. The Bill is intended to implement the general findings of the Joint Select Committee. With regard to his previous remarks about the British-India Delegation, I think there is a great deal to be said for its advice. There should not be any confusion between the Legislature as such and the Governor; that is to say, we should not try to make a Governor's Act look as if it had been passed by the Legislature of the Province. With that end in view we have drafted the Clause as it is here. Sub-section (2) gives the Legislature a chance of associating itself with the Act, or with part of the Act, but there is no intention in the Bill of making a Governor's Act have the appearance of being an Act of the Provincial Legislature.

§ Lord EUSTACE PERCY
I think that the hon. Member for Broxtowe (Mr. Cocks) is right in substance, and that this Clause does not carry out the paragraph of the Joint Select Committee's Report. Clearly, our opinion was that it should not be necessary, in order to enact a Governor's Act, to submit a draft of that Act previously to the Legislature. In this Clause, I think by inadvertence—I have only just observed it—those who drafted the Bill have made it impossible for a Governor to enact a Governor's Act unless he has first submitted a draft to the Legislature, and that, I think, is the point which the hon. Member desired to make. That was certainly not the intention of the Joint Select Committee. I hope that the Secretary of State may be able to look into this point between now and Report, and make quite sure as to whether a slight mistake has not been made in drafting.

§ Sir S. HOARE
I will certainly look into the point which my Noble Friend has raised. Generally speaking it is our wish to carry out the recommendations of the Joint Select Committee, and, as I say, I will look into this matter and see why there is an apparent difference between the recommendation and the Bill itself.