HC Deb 27 March 1935 vol 299 cc2039-50

10.5 p.m.


I beg to move, in page 69, line 39, to leave out "directly or indirectly."

This is really a drafting Amendment. These words only occur in this Clause in the Bill. It is not thought that they are necessary and, if they were left, an argument might be based on them that there was an express reference here to indirect effects, and that indirect effects were not to be taken into account in the other provisions of the Bill where these words are not actually inserted. We are satisfied that they do not add anything and that they are unnecessary; and, as there are other parts of the Bill where they do not occur, it is undesirable to leave them in one of the principal provisions.

10.7 p.m.

Viscount WOLMER

It is a rather strong measure to pass an Amendment of this sort without any debate at all. If Members will look at Clause 115, they will see that it reads as follows: No ship registered in the United Kingdom shall be subjected directly or indirectly by or under any Federal or Provincial law to any treatment affecting either the ship herself, or her master, officers, crew, passengers or cargo, which is discriminatory in favour of ships registered in British India. The Government come along and ask us to leave out the words "directly or indirectly." If I understand my hon. Friend aright, the only reason he gave for doing this was that these words do not occur in any other Clause of the Bill. That, surely, is not the end of the question. The essence of this discrimination is that so much of it may be carried out indirectly; and those of us who are apprehensive as to the future of British trade in India after the passage of this Bill have attached importance to words of this sort which would enable a company or individual in the courts to contend that he was subject to discrimination that was at any rate indirect.

We have not had an opportunity of discussing the big question of trade discrimination—I understand that opportunity will not come until we reach a new Clause—but I should like to hear from the Solicitor-General what harm will result if these words are left in. He says that they do not occur in any other part of the Bill. Could he indicate any Clause of any importance where they would be equally appropriate, and where their omission might lead to an unfortunate construction by the courts? Unless he can point to a Clause of this sort, I suggest that there are very good reasons for leaving these words "directly or indirectly" in the Bill. I should like to ask the Government another question: At whose suggestion is this Amendment being moved? Has my hon. Friend received any suggestion from any quarter that it was undesirable to have these words in? If so, I should very much like to know what that quarter is. I think the Committee really ought to consider the point, and not to pass this as being purely a drafting Amendment. It does not seem to me to be a drafting Amendment at all.

10.11 p.m.


A question of very grave concern to me is as to how these words got here. Clearly these words were put in for a definite purpose by the excellent draftsmen, and because it was intended to show that you were not going to have this kind of thing, either in a direct or indirect way. That is the meaning of the words as I understand them. Now the Government come along and say the words do not occur anywhere else in the Bill. Presuming that these words are of value and that the people who put them in were sensible people not accustomed to using words to no purpose, then what has happened? There has been an admission that they ought to be put in in other places. It is not treating the Committee with very great respect to tell us that these words do not mean very much and that we may as well cut them out lest it might lead to a difficult legal interpretation in another place. If that be the case, let us put the words in in another place, and let the Government tell us where they might be put in.

I do think that when we are putting in these safeguards the indirect form of discrimination, which many of us fear more than anything else, should be guarded against. It is the indirect forms of pressure that we are most concerned with. This is a Clause which refers to shipping. I am not going to deal with an Amendment which comes later, but I would say that there is a very much more importrant matter even than shipping; and if the Government happen to have their way on this Clause you are dealing with the other point as well, where you have a very much more vital question in the future than shipping. There you have a developing and growing thing. Therefore, we want to be very careful so far as this Amendment is concerned. I would urge the Government to get us out of this difficulty by leaving the words in now and by amending the Bill, if necessary, in another place rather than taking these words out now when every one of us knows that in all probability there will never be any other occasion when we can raise this question in the House again. It is much better to leave the words in and let the Government reconsider their position. If it is absolutely essential to take the words out, we can take them out, but, if not, we should put them in in the places where they should be inserted.

10.14 p.m.


I do not remember having had the privilege of agreeing with my Noble Friend on this Bill before, but I do most strongly sup-port the point which he has just put before the Committee. This question of shipping is a very delicate and difficult one. I very much hope, therefore, the Government will reconsider the Amendment and not press it at the present moment. It does not seem to be reasonable to knock out words which, to some of us without the knowledge that others have, seem to be very important words, just because they do not occur in similar Clauses elsewhere in the Bill. This is a shipping matter, and I do not at all agree with the hon. Member for Torquay (Mr. C. Williams) that it is unimportant compared with other things.


It is a most important matter, I agree. What I said was that the air is growing in use and will be of very great importance in the future.


Well, I do not wish to detain the Committee, but I would urge the Government not to press this Amendment to-day.

10.16 p.m.


I cannot quite see the point which my Noble Friend the Member for Aldershot (Viscount Wolmer) has made. It seems to me that the words "directly or indirectly" are absolute verbiage in this connection and do not mean anything at all. It is difficult to see how they have got into the Clause and, as we are told, into no other corresponding Clause in the Bill, but I think my hon. and learned Friend is right in saying that the words do not help the contention they have been making and have no particular force of any kind.

10.17 p.m.


I can assure the Noble Lord that there is no sinister black hand behind this Amendment. It is entirely a question of drafting, and our object in moving it is to prevent an argument from other parts of the Bill being used to defeat the obvious intention of my hon. Friends who have spoken and indeed of the Committee. I was asked why these words occur in the Clause and not in other similar places in the Bill. It must, of course, be obvious to the Committee that in a Bill of this size and complexity more than one hand must be engaged in making the draft and in dealing with different parts of the Bill. It is, on the other hand, most important that when the Bill reaches the Statute Book there should be uniformity of terminology in these matters. If one looks, to take one example, but there are others, at Clause 111, one sees: Subject to the provisions of this chapter, a British subject domiciled in the United Kingdom shall be exempt from the operation of so much of any Federal or Provincial law as—

  1. (a) imposes any restriction"—
There is a case where you might add "directly or indirectly," but, as my hon. and learned Friend who has just spoken said, those words would add nothing, and it is undesirable and bad drafting to insert unnecessary words. However carefully you may go through a Bill of this kind, if you do insert unnecessary words you are always liable to lay yourself open to the argument that because those words are found in a number of places, the obvious and proper meaning should not be given to words in places where they do not occur. I sympathise, of course, with the point of view which has been put forward by speakers, because their point of view is ours. They want to make these Clauses as watertight as possible and to preclude possible arguments which might be raised that some particular Clause is not to be construed as having an indirect effect. It is entirely a matter of drafting. We are satisfied that the intention of the Committee in this Clause and in the other similar Clauses is best served by omitting the words and bringing this Clause into conformity with the various other Clauses rather than taking the opposite course.

10.21 p.m.

Viscount WOLMER

I am not satisfied with the learned Solicitor-General's explanation. It is not merely the lawyers who read an Act of Parliament. An Act of Parliament is read by those who have to work it, and it would be very valuable to put here and in every other part of the Bill where it is necessary as an advertisement, as a sign post, that no discriminatory action should be taken against) British interests, directly or indirectly. I want that to be written up quite plainly as a warning, like "trespassers will be prosecuted," for the direct or indirect information of all concerned. I am sure that the educative effect of an Act of Parliament in that sort of matter is very real. I would like to put this point to the learned Solicitor-General. It is all very well to say, as my hon. and learned Friend the Member for Central Nottingham (Mr. O'Connor) said, that these words are pure verbiage. I deprecate that attack on the most excellent draftsman who drafted the Bill. If you are going to scrutinise the words of this or any other Clause with a microscope, you will find a lot more verbiage. Let me ask the Committee to look at some later words. The Clause says: No ship registered in the United Kingdom shall be subjected directly or indirectly by or under any Federal or Provincial law to any treatment affecting either the ship herself, or her master, officers, crew … Is not the master an officer? Are not the officers part of the crew? How can it be said that of the three words two are not verbiage? The words "passengers or cargo" also appear, and I am sure that my hon. and learned Friend the Member for Central Nottingham would be capable of arguing that passengers were cargo if it suited him. The point of putting all these details into this Clause is to make it abundantly clear to those who are framing legislation in the Indian Legislatures that there must not be any unfair discrimination against British interests or anyone concerned with them, either directly or indirectly. If my hon. and learned Friend the Solicitor-General can only give as a reason why these words should be left out that they do not occur in other Clauses, then I say with my hon. Friend the Member for Torquay (Mr. C. Williams) that the obvious answer is that they should be inserted in other Clauses where they are appropriate.

I can assure the Government that there is no matter on which commercial circles in this country are more apprehensive than indirect discrimination against British trade under these tremendous powers. If the Government persist with this Amendment, I propose to divide the Committee, but I do not desire to do so if we are given a promise that the Government will reconsider the matter between now and the Report stage. It would make a very bad impression if the Government, in order to strike out these words, should force us to divide. I believe their deletion would concede a principle which is of very great importance to British trade. We should be saying that in this Constitution Act we are not going to refer to the danger of indirect discrimination, and to that extent we should weaken those safeguards which have been put into the Bill in favour of fair play for British trade.

10.26 p.m.


I am sorry to hear my Noble Friend say that he intends to divide the Committee upon this Amendment if the Government persist in it.


Why not?


I suppose I may say that I am sorry. I am sorry because my Noble Friend and the Government are indeed at one. The only thing we differ about is a question of drafting. As my hon. and learned Friend the Member for Central Nottingham (Mr. O'Connor) quite truly said, "If you subject a man to taxation indirectly, or to discrimination indirectly, you subject him to that taxation or that discrimination, and you do not really save him from it by using the word 'indirectly'." In answer to those who say that these words ought to be left out it has been said that they ought to be put in everywhere else in the Bill, as a signpost or a finger-post to show that there must be no indirect discrimination. Anyone who looks at the number of places in the Bill in which it would be necessary to insert the words "directly or indirectly" if that view prevailed, will feel that they might as well be sprinkled in with a pepper pot. We should have to scatter the words "directly or indirectly" all over the Bill, and even then it would probably be found that we had omitted them at several points where they ought to be inserted, and the argument would then be that as they had not been inserted in those particular places there was no intention to legislate against indirect discrimination at those points.

It is always very attractive to say that lawyers constantly differ, and that while lawyers will say that an Act will mean one thing the Courts will say it means another. Lawyers are always fair game for that sort of criticism. But, after all, my hon. and learned Friend the Solicitor-General and myself have some responsibility in this matter, and having formed definitely the opinion that it would be positively against the desire which my Noble Friend, together with the Government, entertains, if these words were left in we cannot take the responsibility of allowing them to remain; and it would clearly be misleading the Committee and my Noble Friend to suggest that we are going to reconsider the matter with a view to leaving them in permanently. My Noble Friend offers not to press the matter at this stage if we promise to reconsider it, but in view of the conclusions we have formed it would be absurd to hold out that sort of hope, because we really cannot entertain the suggestion.

10.29 p.m.


I should really like to see these words retained, because then indirect discrimination would not be covered in any of the other Clauses, and I think that would be a really excellent result, as far as we on these benches are concerned.

Duchess of ATHOLL

Are we to understand from the hon. and learned Gentleman that he really is in favour of discrimination against British trade?


I am in favour of leaving it to the Indian Legislature to decide themselves what they want to do, just as every sovereign Power decides what it wishes to do, subject to arrangements with other countries, in the matter of putting on tariffs or not. But it is undoubtedly the fact that the words where they are in this Clause mean nothing at all. This is not a question of direct or indirect discrimination that is not what the Clause says—but a question of subjecting directly or indirectly to treatment, and the question of discrimination does not follow until a good deal later. It will have to mean, as the Noble Lord wishes, directly or indirectly discriminatory in favour of British ships. If he wishes, directly or indirectly, complete discrimination, the Clause would not read as it now reads. The question of discrimination must always be direct or indirect because the very meaning of discrimination is any difference in treatment between the two of whatever sort it may me. My submission, therefore, is that if the object aimed at is the object of the Noble Lord, these words ought to come out of the Clause.

10.31 p.m.


One listens to these feeble arguments with a great deal of interest. My Noble Friend said that the action of the people was going to be determined by the way in which they read the Statute. The lawyers will come in only when breaches of the Statute have been committed. May I, as an amateur, lay lawyer, suggest that the objection of the Attorney-General could be met by a new Clause? He need not search the whole Bill through. The Government have only to put in a new Clause with a definition of discrimination and all those other matters, including indirect discrimination. The Government could meet the, point if they really wanted to, by the methods which I suggest. I am very disappointed that we have got into legal entanglements, and I hope the matter will be reconsidered.

10.33 p.m.


I think I can help the Government as to how these words came to be inserted by their draftsmen. If the Committee will carry their minds back they will remember that the Joint Select Committee made one real improvement with regard to the discriminatory trade clauses which I think have had a direct bearing upon this, in that it differs from the White Paper by those three words. May I read three lines on page 270 of the Joint Select Committee's report? It should further be made clear that the 'discriminatory or penal treatment' covered by this special responsibility includes both direct discrimination (whether by means of differential tariff rates or by means of differential restrictions on imports) and indirect discrimination by means of differential treatment of various types of products. That was the one strengthening part of the whole of that particular subject. Is it not possible that His Majesty's Government really desire to strengthen this Clause in that way? May I urge the Attorney-General to consider the way out which my right hon. and gallant Friend has just suggested?

10.35 p.m.


If my hon. and gallant Friend will turn to paragraph XIV of the Instruments of Instructions, he will see that it is there stated specifically that the provision which we have placed in the Bill carries out the suggestions of the Joint Select Committee. I am not going to repeat what I have already said, but let me point out to my right hon. and gallant Friend the Member for Burton (Colonel Gretton) where his proposal would lead. He suggests that, instead of putting in these words all over the Bill, we should introduce a special Clause to say that discrimination means direct or indirect discrimination. What would be the result of that? It would be that, in relation to matters other than discrimination, the argument would be that, if it is necessary to say that discrimination means direct as well as indirect discrimination, then in the case of other matters to which these words are not applied the meaning is that it is only the direct and not the indirect at which the Bill aims. My right hon. and gallant Friend would then have got this Committee into a position from which it would be too late to escape.

I appeal once more to my Noble Friend not to divide the Committee on this point, but to accept the view which is offered with all humility, but with a sense of responsibility, to the Committee. If the Committee divide, it will give the impression that the Government are not opposed to indirect discrimination, and that is wholly contrary to the fact. The intention and desire of the Government is that indirect as well as direct discrimination should be precluded. Although the hon. and learned Member for East Bristol (Sir S. Cripps) speaks with an authority on legal questions even greater than my own, and, although my right hon. and gallant Friend the Member for Burton says that he is an amateur lawyer, the responsibility rests upon me, and I cannot take the responsibility of telling the Committee that it would be wise to leave these words in and to put them in in other places. That would be really absurd. It would have to be applied to all sorts of provisions with regard to discrimination and otherwise. Again I beg my Noble Friend not to divide the Committee, because that would give a completely wrong impression.

Amendment agreed to.

10.40 p.m.


I beg to move, in page 70, line 4, at the end, to insert: (2) This Section shall apply in relation to aircraft as it applies in relation to ships. The object of this Amendment is to apply to aircraft the same reciprocal treatment that is suggested in the case of ships. It is not possible to draw any logical distinction between aircraft and ships, and we believe it will be in the interests of aircraft in the future if we submit them to the same reciprocal treatment as is suggested in the case of ships. I hope, therefore, the Committee will agree that it is a suitable addition to the Clause.


Will the hon. Gentleman be good enough to explain to the Committee the definition of aircraft, and what are the limitations?

10.41 p.m.


I should like to congratulate the Government on this Amendment. It shows that they are entering into this question with a really genuine and whole-hearted desire to protect British interests. Shipping is of immense importance to-day, and aircraft is a great factor. It shows that the Government are looking ahead, and from that point of view I think that many of us will view the Amendment as one of the more satisfactory parts of the Bill. I thank the Government for putting it in. It shows, at any rate, that the right hon. Gentleman who is in charge of the Bill himself remembers the time when he was a most successful Air Minister.

10.42 p.m.


I think that the hon. Member for Don Valley (Mr. T. Williams) may take the definition to be on these lines, that if an aircraft concerned had a value in transporting cargo or in transporting a master, crew and so forth, as you find in the case of ships, it would certainly be covered by the definition of aircraft, but any sort of balloon which went into the air without any direction or motive power would not, I think, be defined as aircraft. I am afraid that I am not able to compete with learned lawyers who have addressed the Committee, but I believe that this is a commonsense definition which they have already informed me is correct.

10.43 p.m.


I suggest to the Government that this matter is deserving of something more important and dignified than the mere line which is sought to be inserted here. It has far too much the air of an afterthought, and an afterthought at a pretty long interval of time. Not all the Clause as it at present stands applies with accuracy to aircraft. Consider line 41, for instance: the ship herself, or her master, officers, crew, passengers or cargo. I do not know about the master of aircraft. I do not think that all that language applies to aircraft. I suggest that the intention of the Government would be more adequately and worthily realised if the subject matter of the Amendment were included in a new Clause which dealt specifically and solely with the subject of aircraft, and were not, in this unsatisfactory way, merely tacked on to a Clause dealing with ships.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.