HC Deb 21 May 1935 vol 302 cc951-63

3.11 p.m.

The CHANCELLOR of the DUCHY of LANCASTER (Mr. Davidson)

I beg to move, in page89, line 19, after "guarantees," to insert: or (b) in return for the discharge of the State from obligations to provide military assistance. This Amendment is put down to cover a small point. It was found that the existing drafting did not cover the case of the State of Sangli, one of the five States which have ceded territory or waived guarantees. Sangli is a small State in the Deccan, which has ceded territory, and these words are necessary in order to cover the point.

3.12 p.m.

Mr. CHURCHILL

The House is much indebted to the Chancellor of the Duchy of Lancaster for the explanation which he has given, though it was, from some points of view, commendably brief; but I think it is a pity that we are not in formed why a point like this was not foreseen when the Bill was going through its Committee stage. It has now been found necessary, on Clause 148, to put down nearly half a page of Amendments. The point here, as stated by my right hon. Friend, appears to be a fairly simple one, but we should be very glad, as my right hon. Friend has exhausted his right to speak, if one of the other Ministers in charge of the Bill could tell us exactly what is the reason why it was not fore seen before.

3.13 p.m.

The SECRETARY of STATE for INDIA (Sir Samuel Hoare)

The point, I think, was foreseen, but it was not covered by our original wording. In a Bill of this kind, immensely complex as it is, it is not to be wondered at that the first edition is not word perfect.

Amendment agreed to.

Mr. DAVIDSON

I beg to move, in page 89, line 21, to leave out from the second "State," to "guarantees," in line 22, and to insert

but in the first mentioned case on condition that the said.

Mr. CHURCHILL

Do I understand that this is covered by the explanation that has been already given?

Sir S. HOARE indicated assent.

Amendment agreed to.

The following Amendments stood upon the Order Paper:

In page 90, line 38, to leave out "privilege," and to insert "right, privilege, advantage."

In line 38, to leave out from "character," to "'as," in line40.

In line 41, to leave out paragraph (a), and to insert: (a) rights, privileges or advantages in respect of, or connected with, the levying of sea customs or the production and sale of untaxed salt.

In page 91, line 14, to leave out "privilege," and to insert "right, privilege, advantage."

In line 15, to leave out "a privilege or immunity," and to insert "one."—[Sir S. Hoare.]

Mr. DAVIDSON

I beg to move, in page 90, line 38, to leave out "privilege," and insert" right, privilege, vantage."

These five Amendments are purely drafting. They make no alteration of substance, but are merely for the purpose of greater accuracy of language.

3.14 p.m.

Mr. CHURCHILL

I think we might be told what advantage is gained by the insertion of these words "right" and "advantage "in addition to the word "privilege." I do not quite understand what their effect will be. Undoubtedly they are not mere repetition. It is true that there are some aspects of the word "privilege" which would coincide with some aspects of the word "advantage," but "right" is quite different from "privilege." It is in sharp contrast with" privilege." Privilege is favour; right is what anyone in particular, in respect of a particular case, is entitled to. How, then, can it be said that the insertion of the words "right" and "advantage" as well as "privilege" is merely repeating in more precise language what was originally intended? There may be a perfectly good explanation, but certainly the explanation which has been given by my right hon. Friend in no way covers the point.

3.15 p.m.

Mr. CHARLES WILLIAMS

I wonder if I might add a short question on this matter? It seems to be a tremendously large experiment to extend the word "privilege" to cover the three words "right," "privilege" and "advantage." An advantage puts someone in a far stronger position than privilege, while, as the right hon. Gentleman the Member for Epping (Mr. Churchill) has pointed out, rights are in a very different position from privileges. If, in a rather important Clause of the Bill, the word "privilege" is to be extended to cover these other points, we ought to be told fairly clearly and, if possible, concisely, precisely why it is that these changes are being made. They are not merely verbal; the words mean entirely different things. I have no doubt that some Members of the Government have looked them up in the dictionary, and may be able to explain how the use of these three different words will affect the Bill as it stands.

3.16 p.m.

The SOLICITOR - GENERAL (Sir Donald Somervell)

I hon. Members will look at the place in the Bill where these words occur, they will see the generality of the words already in the Bill. The Clause says: In this chapter privilege or immunity 'means any such privilege or immunity of a financial character enjoyed by or under any treaty or agreement, or by usage, as is hereinafter mentioned.? As the House is aware, the treaties and agreements which have been made from time to time with the Indian States fill several volumes, and a variety of terminology is used in these various documents. There will not be any such difference in meaning between "privilege" and "right" as the right hon. Gentleman the Member for Epping (Mr. Churchill) suggests, but, in considering the vast variety of terminology and the number of different phrases which have been used, it has been thought that, as a matter of drafting, the words "right" and "advantage" should be added to the word "privilege," in order to cover the very varied terminology which is used in these documents. Nothing will thereby be added to the effect of the Clause, but, purely as a matter of expression, to cover the subject-matter, it is better to use these words, which are already used in the different documents.

Amendment agreed to.

Mr. DAVIDSON

I beg to move, in page 90, line 38, to leave out from "character," to "as," in line 40.

3.19 p.m.

Mr. CHURCHILL

I suppose we shall be assured that this also is merely a draftingAmendment, but at first sight the words

enjoyed by or under any treaty or Agreement, or by usage, which it is proposed, at this ante penultimate stage of the Bill, to delete, appear to be important words. They have been found necessary during all the years that the Bill has been in preparation, and, during all the months that it has been discussed in this House, no doubt has been cast upon the need for their presence in the Bill. Why, then, are they to be cast away as if they were of no purport? I suppose that the effect of cutting them out would greatly to broaden and widen the scope of the rights, privileges and advantages which are to be preserved, giving security not only to anything that may have arisen from any treaty or agreement or by usage, but to matters even outside those wide provisions. In no sense is it pure drafting.

I do not say that the Government may not be right in omitting these words, but do not let us be told that they are merely drafting Amendments, when, as a matter of fact, they are obviously intended to give wider scope to the already widened privileges now to be defined as "rights, privileges or advantages" which the House has just agreed to in regard to preceding Amendments. I think that we must have some fuller explanation upon the point. May I ask, if you leave out "treaty, agreement, or by usage, "what other class of rights or privileges or ad vantages are contemplated except those derived from the words" treaty, Agreement, or by usage "I agree that it is always very difficult on the spur of the moment in handling matters like this to consider what may not be included. It is always very difficult to take an ex- haustive view of the position, but, judging by the proposals made by the Government, it seems to me that the words they have in the Bill cover almost every thing. Why then do they wish to take them out, and what is it they wish to include which is not comprised in these words? I hope that, as we have been disappointed with the explanation of the Secretary of State, we may have an explanation from the learned Solicitor' General.

3.22 p.m.

Mr. C. WILLIAMS

I agree with the right hon. Gentleman the Member for Epping (Mr. Churchill) that this appears to be an enormous widening of the whole position of the Sub-section, and I can well imagine that if any private Member came down to the House with an Amendment of this kind he would be told that it would be opening the door to all sorts of things. I see my right hon. and learned Friend the Attorney-General looking at me very severely—and muttering, and I wonder whether he or anyone else will explain to the House whether the word "usage" covers the meaning which might be applied to it. One might use the word "custom" as well. Usage and custom are fairly closely allied as words, and sometimes one can be used and sometimes the other. When the Government make an Amendment of this kind and move it in such away, though we have the greatest faith in their ability to have gone into all these things, it rather gives their case away. I should like to know what influences have been at work to enable this very large and widening Amendment to be brought in. We should like to know something about the factors which suddenly caused the Government to widen the Clause in such a curious way.

3.25 p.m.

The SOLICITOR-GENERAL

The right hon. Gentleman and the hon. Gentleman said that the Clause has been widened, but I can assure the House that they are both wrong. As I understand the position, one can properly describe an Amendment as being a drafting Amendment if it does not alter what the ordinary person reading the Clause would take to be its original effect. It has been discovered that, owing to some detail which was overlooked, that the correct words have not been used. I can assure the right hon. Gentle man, the hon. Gentleman and the House that we are not really widening the Clause at all by the use of the proposed words. The Clause as drafted referred to privileges or immunities of a financial character enjoyed by or under any treaty, or agreement, or by usage. The right hon. Gentleman said that it was very difficult to imagine anything which would not fall under those three heads, and, therefore, any Member of the House reading the Bill as originally drafted would say that that was our intention, and that there was no room left for widening in any material sense words which originally appeared to be as wide as possible. There is no sinister motive in the proposed words, and the reason for their introduction is somewhat similar to that explained on the last Amendment. It has been discovered that the words previously used might be held not, to cover the origin of some of the things which are referred to in paragraphs (a), (b), (c), (d). For instance, there might be a great deal of discussion of one kind or another as to what actually the word "usage" means. It is undesirable to put into a Bill, unless you have to do so, a word as to the meaning of which there is considerable controversy. There might be an item of this kind which arose unilaterally which could not properly be called a treaty or an agreement.

Mr. CHURCHILL

Could it not be called "usage"?

The SOLICITOR-GENERAL

It might be. The word "usage" is one which has created controversy between the States in the past as to what exactly it covers. I am not sure that it is right to say that, if there be a definite grant by a document, the immunity enjoyed under it would be enjoyed by usage. I do not think that it is. It is enjoyed by reason of the grant. It it for these reasons that it has been thought better, as a matter of drafting, to omit the three words relating to specific objects and leave the matter at large, the limitations being in the later part of the section, which make it quite clear what are the items to be covered irrespective of their origin. That is the whole explanation of the Clause. I apologise to the House for detaining it at such length, but I hope that the explanation meets the desires of the right hon. Gentleman.

Amendment agreed to.

Mr. DAVIDSON

I beg to move, in page 90, line 41, to leave out paragraph (a), and to insert: (a) rights, privileges or advantages in respect of, or connected with, the levying of sea customs or the production and sale of untaxed salt. This Amendment is consequential.

3.29 p.m.

Mr. CHURCHILL

The Chancellor of the Duchy of Lancaster ejaculated the phrase that the Amendment is consequential.

Mr. DAVIDSON

I ought to have said drafting.

Mr. CHURCHILL

But surely it is part of the general series of Amendments which are now being inserted. They are intended as being drafting Amendments, but what is their cumulative effect? It is to make or to endeavour to make this Clause more acceptable to the Princes concerned. Far from being a drafting Amendment it is part of the attempt to make what one might describe as a new deal with the Princes. It may be a small part but, at any rate, it is a part, and to pretend that it is simply a case of the draftsman looking over the Clause in retrospect and coming to the conclusion that he had put down something that was wrong and that he wanted half a page of the Order Paper in order to make the Clause more word perfect, is surely falling short of the actual truth. I have of ten seen, especially after Questions have come to an end early, the Government endeavouring to sweep through a whole set of Amendments by the mere suggestion that they are really drafting Amendments, or purely consequential on what we have already done. Therefore, the House ought always to look rather narrowly at the legislation which is passing through the House; otherwise, some parts of the Bill may slip through with out receiving that meticulous attention which it requires.

With regard to the proposed change, I have read and re-read the existing words and the words which it is pro posed to substitute for them, and it is clear that a greater assertion is to be made of the power of levying sea customs and of producing and selling untaxed salt. I suppose that untaxed salt means salt which is immune from Federal taxation by the Government of India, but it does not mean that a Prince having produced this salt which is immune from the taxation of the Government of India, cannot tax it himself for his own revenue. He can. Is that not so 7 I gather from the Chancellor of the Duchy that that is so. The object is to make sure that the Prince has a more assured facility for imposing a salt tax upon his subjects. Whereas the Federal Government, the Imperial Government have a tax which runs over the whole country and whereas some of the States have, as it were, the right to produce salt without its being taxed now, the proposed wording will give a greater right and a greater facility for the Princes to impose a salt tax. That may be very desirable. No doubt it is very desirable when you want to win the assent of the Princes, but it is perfectly clear that the whole purpose of these Amendments is to secure to the native Prince a greater privilege, a more assured application for the purposes of imposing a salt tax upon his subjects. That is the intention. No doubt he has that right at the present time, but this Amendment is to make his right far more secure than it was. I have no doubt that what is called a mere drafting Amendment is the result of a long process of haggling between the advisers of the Secretary of State and the legal advisers of the Princes. Did I say the legal advisers of the Princes? There is, I should say, one legal adviser who is carrying on negotiations at the present time. I have no doubt that prolonged discussion has gone on with regard to this point, which is represented to us as a mere drafting Amendment.

I do not see why the draftsman should have made any move if the Amendment were not the result of a bargain. I do not remember that this point was discussed in Committee. It is new to me. When our discussions reached this part of the Bill nothing was said about this matter. Therefore, it is not a question of the draftsman going through the Bill between the Committee stage and the Report stage and saying: "Let me look at the Bill; let me take note of the pledges given by Ministers; let me note the weak points which have been ex posed; let me tighten up the armour in these respects, and let me prune away excrescencies." What has moved my right hon. Friend the Secretary of State and his right hon. colleague the Chancellor of the Duchy to bring forward this Amendment? It is, as I say, part of an attempt to sugar the pill for the Princes. I do not at all blame the right hon. Gentleman for doing that. Much of the fortunes of his Bill rest upon his being able topersuade—I will confine myself to the word "persuade," because I do not wish to get on to controversialgrounds—the Princes to accept it, but what I object to is that after he has engaged in this elaborate piece of eighteenth century diplomacy he should come down to the House and pretend that the whole series of Amendments which he has presented to us are merely drafting and con sequential.

3.37 p.m.

Mr. C. WILLIAMS

I notice that my right hon. Friend the Member for Epping (Mr. Churchill) is in a very suspicious mood this afternoon. He seems to see round every corner some terrible conspiracy on the part of the Minister or some of the people who are working with him to get round the Bill and to sugar the pill for the Princes, as he put it. I am not sure that this comparatively innocent Amendment, the description of which changed very quickly from consequential to drafting, is really a matter of any importance, but there is one point which might be explained by the Government, and that is why the word "retention" has been left out of paragraph (a). That word had considerable meaning and had an important bearing on the original wording of the Clause. By leaving it out we are making the matter entirely different. If we leave out the word "retention" it may be possible that we in crease the privileges. Perhaps my right hon. Friend will say whether there is any intention in, the proposed new words to extend the rights and privileges. It would not be polite to say that originally the draftsman made a mess of it, but certainly the word "retention" did have a meaning. If we are making the Bill better, I think we ought to know why this word has been left out.

Lieut.-Colonel ACLAND-TROYTE

Would not the Bill be made very much simpler and easier and much more satis- factory to the Princes, if we took out all these complicated words and simply said "privileges or immunities of any sort enjoyed by any Prince whatsoever"

3.39 p.m.

Sir S. HOARE

My right hon. Friend the Member for Epping (Mr. Churchill) his face suffused with smiles, has put to the Government a number of questions about a series of Amendments, and he appears concerned whether or not they are drafting. He said that the Government are very apt when questions come to an end before the time to try and rush Amendments through without pro per consideration. Is it not rather that my right hon. Friend's eyes were on the clock and that he thought we were going too fast? Let my right hon. Friend take it from me, if he will take anything from me.

Mr. CHURCHILL

No.

Sir S. HOARE

I will withdraw my appeal to him and make it to the House generally, excluding him, and will say to the House that these are definitely drafting Amendments. They are not the result of any sinister negotiations; and if accepted would not add one jot or iota to any rights and privileges at pre sent possessed by the Princes. With that explanation I ask the House to accept the Amendment. The omission of the word "retention" makes no difference whatever.

Amendment agreed to.

Further Amendment made: In page 91, line 14, leave out "privilege," and insert "right, privilege, advantage."—[Sir S. Hoare.]

Sir S. HOARE

I beg to move, in page 91, line 15, to leave out "a privilege or immunity," and to insert "one."

3.42 p.m.

Mr. CHURCHILL

What is the point of this How is it that when the Bill was maturely considered this point was not dealt with, and that it is only now that the redundancy or tautology is deemed to be cacophonous. Why has not this been noticed before? I should have thought that it was legally necessary to repeat the words "privilege or immunity." If this is mere repetition, it is extraordinary that it has not been noticed by the draftsman before. Is there no explanation at all on the point?

The ATTORNEY - GENERAL (Sir Thomas Inskip)

The only explanation is that the draftsman has gone through the process which the right hon. Gentleman goes through in polishing up his speeches.

Amendment agreed to.

3.43 p.m.

Mr. DAVIDSON

I beg to move, in page 91, line 19, to leave out sub-section (7), and to insert: (7) His Majesty shall not accept the Instrument of Accession of any State, un less it contains such particulars as appear to His Majesty to be necessary to enable due effect to be given to the provisions of this and the next but one succeeding sections, and in particular provision for deter mining from time to time the value to be attributed for the purposes of those provisions to any privilege or immunity the value of which is fluctuating or uncertain.? This Amendment has the effect which the right hon. Member for Epping (Mr. Churchill) feared that the other Amendments had. It definitely widens the scope of the Clause, and it is moved in order to be certain that a complete balance-sheet of the debits and credits shall be inserted in the Instrument of Accession, to make the position clear and final.

3.44 p.m.

Mr. CHURCHILL

It appears to me to be a considerable addition to the Instrument of Accession. All the minor particulars upon which the rights, privileges and advantages are to be based must be set forth in the Instrument of Instruction. That is not unreasonable. If we are to give these privileges it should be perfectly clear and plain the basis upon which they are exercisable and enforceable. No one will object to that. I am, therefore, all the more puzzled when the right hon. Gentleman says that the Amendment is of a widening character. The effect produced on me by reading it is that it is of a narrowing character. Without this Amendment the general assertions of the Princes in regard to their rights, privileges and advantages would receive an indefinite sanction and authority, whereas the moment you put this in you say that they must be catalogued before hand and that only such rights, privileges and advantages as are catalogued will he held to be valid. How then does the right hon. Gentleman say that it is a widening Amendment? It is a narrowing Amendment, and, although it may be a proper one to make, the reasons given for its insertion are diametrically opposite to the truth.

3.46 p.m.

Mr. C. WILLIAMS

Can the Secretary of State give us any explanation—I am sure the right hon. Member for Epping (Mr. Churchill) cannot—as to what is meant by. the words "fluctuating or uncertain"? There are some people and some things which are fluctuating and uncertain, but I want to know what is a fluctuating or uncertain privilege. The fact that the proposal widens the whole scope of the provisions under which the Princes can come in seems to me to be of great value. We want to see the Princes come in on a fair and reasonable basis, and I take this opportunity of congratulating the Government on making things easier and fairer. I do not take the view Which some hon. Members do in regard to the Princes. I think everything should be done to allow them to come in on proper terms when they think best for their own people, and if that is what the Government are doing they should make a little more of their case and explain that they are doing something which is really valuable.

Mr. ATTLEE

I think I can answer the question of the hon. Member for Torquay (Mr. C. Williams). We have a fluctuating and uncertain privilege in the assistance of the right hon. Member for Epping (Mr. Churchill)in these Debates.

Mr. EMMOTT

May I point out that it is not the privilege or immunity which is fluctuating or uncertain; it is the value of the privilege or immunity which is fluctuating or uncertain.

Mr. ATTLEE

It is the same thing.

3.48 p.m.

Sir BASIL PETO

The Amendment is drafted in a rather unusual form. It says: His Majesty shall not accept the Instrument of Accession of any State, unless it contains such particulars as appear to His Majesty to be necessary. Suppose the schedule of the rights, privileges and immunities has been prepared to the best ability of the legal advisers of the Princes and is believed to be comprehensive, and that after they have joined the Federation it is found that other immemorial privileges have been omitted, what is the position then? It says that "His Majesty shall not accept the Instrument of Accession," but it has been accepted under a misapprehension. Does it mean that no privilege which has been omitted by accident can be allowed in the future?

Earl WINTERTON

There is one question to which I hope I shall have an answer. As far as I recollect, no Bill has ever given instructions to the Crown. In this Amendment we have the words: His Majesty shall not accept the Instrument of Accession of a State.? The question, I think, was raised in the Joint Select Committee, and I think it is necessary that we should not create any constitutional innovation in this way. I am sorry that I have not raised The point before, but it has just occurred to me.

3.49 p.m.

Sir S. HOARE

I will certainly look into the point of drafting mentioned by the Noble Lord the right hon. Member for Horsham (Earl Winterton). As at present advised, I understand that the phrase would not be objectionable in this connection, but I will look into it again. The answer to the hon. Member for Barnstaple (Sir B. Peto) is that the Instrument of Accession will be final; it will not be possible to raise claims subsequently. I do not think he need feel any anxiety. I shall be very much surprised if a Prince in any part of India fails to draw attention to any special rights or privileges that he may possess.

Amendment agreed to.