CLAUSE 18.—(Provisions as to existing laws, etc.) (Hansard, 14 July 1947)

§ Mr. R. A. Butler
I should like to draw the attention of the Committee, even at this late hour, to the omnibus provisions of this Clause. The whole drafting of this Bill appears to consist of Clauses which, at one moment, leave large sections of the law in being, and at another moment remove large portions, thus leaving in a most indeterminate state that amount of law in existence. The proviso to Subsection (1) is the first example of that and Sub-section (3) is a further example. I presume that the reason the Government have had to adopt this very general form of drafting which really does not define the position to us, is because of the hurry and rush which has had to prevail in the drafting period. I would like to ask about Sub-section (4) which deals with the Instruments of Instruction. I was looking through the Bill and trying to find where the Instruments of Instruction were referred to. They were not referred to in Clause 9, and we find them tucked away here. The Instruments of Instruction 172 were a vital feature breathing life into the bones of the 1935 Act, in certain of its most important respects. As I understand it, these Instruments will not lapse until 15th August, and I want to know whether there is any further form of instrument or communication to which the Government would like to make reference which would operate for the purpose of assisting in the transitional period which will exist, for certain matters, up to next March. If there is not, I think it would be valuable to know. It is quite clear that the Instruments under the 1935 Act would continue to operate.

§ Mr. Molson
The right hon. Gentleman the Member for the Scottish Universities (Sir J. Anderson), in the Debate on India some nine months ago, criticised the policy of the Government for having, in fact, made the Viceroy into the constitutional head of the State acting upon the advice of Ministers, who were Members of the Council, as they technically were, but who were, in fact, nominated beforehand by the Congress Party. In this matter of the Instruments of Instruction, I should like to inquire, for the sake of information whether any change was made in the Instruments of Instruction which were approved by the House and issued to the Governor-General under the provisions of the 1935 Act. It is quite obvious that for the last twelve months the Governor-General has not been acting upon the Instruments of Instruction which were issued under the terms, and in accordance with, the general policy of the 1935 Act. Was that done simply as a result of instructions being given by the Secretary of State or has any modification been made of the Instruments of Instruction?

§ The Attorney-General
I will deal first with the point raised by the hon. Member for The High Peak (Mr. Molson). I understand that the answer is that no change was made in the form of instructions, and that Subsection (4) of Clause 18 provides that the existing Instruments of Instruction to Governors and Governors-General—which deal almost entirely, I think, with the manner in which the Governors should discharge those of their functions on which they are not advised by their Ministers—will lapse and the power under the 1935 Act, under which these Instruments were issued, will come to an end. It would, of course, be quite improper for any Instrument of In- 173 struction to be issued to Governors or Governors-General in future, because they will be acting on the advice of their Ministers in India or Pakistan, and will have no responsibility to the Government in the United Kingdom.
So far as the Clause in general is concerned, it deals with various consequential matters of a legal nature and it is largely, I think, self-explanatory. It raises no question of principle. As the right hon. Gentleman the Member for Saffron Walden (Mr. R. A. Butler) will realise, there is a considerable body of statute law, or law arising from Orders-in-Council, which is not confined in its operation to India and which might, indeed, operate altogether outside India, although it contains reference to India. With the establishment of the two new Dominions, this reference would not remain in all circumstances apt or exact, and these provisions are consequently required.