HC Deb 14 July 1947 vol 440 cc122-9

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

Mr. H. Macmillan

Like Clause 8, this Clause covers the interregnum between one system and another, and it is, of course, inherent in the whole scheme of the Bill that there should be rather a difficult period which has to be overcome. Neither I nor My friends are in any way complaining of that. That is the part of the scheme for which we are passing an enabling Act in order to give a Constitution for the Dominions of India. However, there are one or two points on which I am sure the Attorney-General or the Under-Secretary of State will help us, particularly where this scheme has appeared to change since the period of its birth.

I cannot help thinking that this Clause—although I am aware of the Interpretation Clause—was drawn with the earlier plain in view, that was with one Governor-General in mind, who during this interregnum period would act as a link between the two parts of British India which are now being created. Had that been so, there would have been some great disadvantages involved with equal advantages in the scheme, and it is quite right that the appointment of a Governor-General of Pakistan should be made to suit the wishes of the Muslim League or the parties to that appointment. I am not objecting to that, but it seems to me to complicate what was bound to be a difficult process, because as I understand it—and I am speaking with great diffidence because it is difficult to follow what is likely to happen under Clause 9 now that we have got two Governor-Generals —there was to be one Governor-General, but now there is a Governor-General for Pakistan and one for India. The difficulty is to bring into operation the arrangement between both Dominions to deal with matters which are now common matters.

Subsection (1) provides for the dividing of various problems between the two Dominions and the powers, rights, property, duties and liabilities of the Governor-General in Council, which, I presume, covers a period, between the passing of the Bill and the appointed day. That we assume refers to the person we knew as the Viceroy. Also under this Clause, each of the Governors-General has to divide the authority of the Central Indian Government; and, secondly, to arrange to carry on the function of the present united Governor-General in Council. The Clause also provides for the removing of difficulties in regard to the new monetary system, dealing with the Reserve Bank of India and a variety of other matters which cover a pretty wide field. I think it is clear—and I am not trying to make the thing more difficult, for we all hope and pray it will succeed—that when the plan was originally drawn, it was hoped that one Governor-General would act as a kind of independent umpire. Now there will be two Governors-General and two sets of Ministers advising them.

Therefore, as I understand Clause 9, it is really a legal instrument for making effective agreements by goodwill between the two Dominions. If the two Governments of the Dominions reach an arrangemen+ in regard to monetary matters or the Bank of India or some such matter, this provides the instrument by which such an arrangement can be made effective. It does not, however, provide the instrument by which the negotiations are carried on. As I understand it, each Governor-General will act constitutionally on the advice of his Ministers, and not in the sense of Subsection (2) of this Clause, namely: to exercise their individual judgment Therefore, we have to contemplate these two Governors trying to secure negotiations with each other about matters which are now matters of joint concern to the whole of British India with their Legislatures carrying on legislation at the same time. A very heavy task lies upon all those who are concerned in this plan, and it makes it more pleasing that the present Viceroy has consented to remain as Governor-General of India, because I feel his presence will be of considerable value apart from being the legal instrument of carrying out this Clause. Certainly, his presence will be of great value in helping to reach an accommodation and a settlement upon a number of problems which are immense and because of whose immensity it has been necessary to draft this Clause in very wide terms.

8.15 p.m.

There is just one further point. understand from the Second Reading Debate that there was likely to be an Arbitral Tribunal of some kind not unlike the boundary commission. I think it was understood that a Hindu lawyer and a Muslim lawyer would probably be appointed, and perhaps a third lawyer as chairman. I should he very glad if we could have a little more information about what is happening regarding this Arbitral Tribunal. So far as I can see, it will be the only body yet devised to deal with the situation if, the parties cannot reach agreement. If the two do not agree about the monetary system, or upon the assets of the Central Government, or about how the railways should go, or about aviation, this tribunal will be the only appeal body in existence. It will be valuable if we can hear more about it. Moreover, since the boundary commission has been written into the Bill, and we have amended it here today in order to make it effective, the Arbitral Tribunal might also be written into the Act in the same way, as it appears to be the peg upon which the whole prospect of a final settlement is likely to depend. I would be grateful if we could have some more information.

We do not raise these matters in a cavilling spirit. They are inherent in the handling of the problem. I wonder whether His Majesty's Government would, between now and the final stages of the Bill, look rather carefully at Clause 9, which was clearly drawn with a somewhat different plan in mind, and decide whether any change is necessary, similar to the Amendment they have introduced today on the boundary question. Otherwise, all one can say is that an immense burden will be thrown upon the two Governments to reach these rapid conclusions. I am sure one hopes that they will take the advice of the British officials who we know are readily working with them for a solution of these great problems. A great deal will depend on the personalities of the leaders themselves, and of the Governors-General of the new Dominions. If there is an absolute impasse there is apparently no machinery for its resolution since I gather that the Arbitral Tribunal merely an arrangement reached between the leaders.

Therefore, we part from the Clause in the knowledge that it is a very vague and generalised instrument, but in the hope that the general sense of the immensity of the problems and of the vast issues which hang upon their solution will result in satisfactory arrangements and that an agreeable accommodation will be made. I hope that we can have a statement from the Government on the matter. I ask that the questions which I have mentioned should be dealt with before we pass this Clause in Committee, and that we might have more information about the Clause.

Lord John Hope (Midlothian and Peebles, Northern)

I would ask the Attorney-General to give us information about the Arbitral Tribunal because upon it will depend much of the success of this tremendous experiment. When a disagreement between two communities comes up before the tribunal and the tribunal gives its decision, what sanction is there for the acceptance of that decision? Is the decision to be in the nature of an award? I am left in the air about the use of the tribunal on the one hand, while, on the other hand, I see that the tribunal will be the linch-pin of the whole future set-up.

Dr. Haden Guest (Islington, North)

This is a very important Clause. As far as I can judge, there has never before been an Act of Parliament containing a Clause conferring such gigantic powers on one man, except perhaps in time of war. When one contemplates the vast power which there will be in the hands of the Governor-General between now and the appointed day, one wants to take the opportunity of making quite sure that he has the power in his hands to remove some of the difficulties which the right hon. Gentleman the Member for Bromley (Mr. H. Macmillan) said might arise. It is a good augury of the possibilities of action in other spheres, that this Parliament can, through an Act of Parliament, confer on one man powers of such immense importance and magnitude and bring to a happy ending a dispute which, in other circumstances, might have led to war and revolution. It is a most astonishing triumph that that should be possible, but we should be sure that the powers of the Governor-General are so used that we do not have any constitutional impasse as was suggested by the right hon. Gentleman the Member for Bromley. We should he quite sure that the Governor-General has sufficient power in his hands, as he has so much other power, to avoid anything unfortunate of that kind.

The Attorney-General

As the hon. Member for North Islington (Dr. Haden Guest) has indicated, this is a very important Clause. It confers very wide but temporary powers of legislation by Order. As I indicated when speaking on the last Clause, this is really the necessary corollary to Clause 8. It provides for the machinery for adaptation of the 1935 Act, by which transitional difficulties can, so far, at least, as their legal aspects are concerned, be overcome. It is a wide Clause. It is inevitable in the circumstances of the case that the powers which are vested in the Governors-General should be very wide powers. Even if it had been politically expedient, it would have been quite impracticable to attempt to deal by express provision in the body of the Statute itself with the various matters which the Clause will bring within the scope of the Governors' order-making powers.

The Governors-General have, in effect, under this Clause to bring the Act into practical operation and to provide by law for all the manifold and difficult practical matters, such as how certain matters under the central control can be dealt with, how assets and liabilities are to be dealt with, and how the properties of India as a whole are to be divided up, and so on. As the right hon. Gentleman the Member for Bromley (Mr. H. Macmillan) said, these are all matters which, before they can be the subject of legislation, must be the subject of examination and negotiation on the spot. It is hardly necessary to go into all the different classes of matter which will have to be the subject of Order eventually under Clause 8. The right hon. Gentleman mentioned some of them, such as the currency system and the central banking arrangements; and one might add the whole question of the division of the existing central administrative organisation. All these matters, before being embodied in a Bill, would have to be the subject of negotiation and agreement. As they have not yet been the subject of negotiation and agreement —or not complete agreement—they are matters which, inevitably, have to be left to the powers of the Governors-General.

That leads me to say a word about the position of the Governors-General. After the appointed day they will act constitutionally on the advice of the Ministers in each separate Dominion. Quite clearly, there will be many difficult and complicated matters arising out of the division of India, in regard to which they will have to seek accommodation and agreement with each other, and with the respective Governments of the two Dominions. This Bill does not attempt to lay clown how such differences shall be resolved, if unhappily, they arise and, of course, this Bill could not attempt to lay down how such differences should be resolved if they did arise consistently with giving complete sovereignty to each of the Dominions.

In regard to some matters it may be that an Arbitral Tribunal should be set up, and discussions have taken place already in regard to that. I am told by the Under-Secretary of State that the Chief Justice has been invited to be president of such a tribunal, but I do not know whether he has yet accepted. I make that reference to show that such arrangements have gone some way. However, there is no provision in the Bill for such a tribunal, nor does the Bill contain any sanction to ensure that the award of such a tribunal must be carried out. That is a matter which, in the last resort, will depend upon the goodwill of the Dominions concerned, although, of course, if they both enter, as they are entitled to do, into a freely-negotiated treaty to establish an Arbitral Tribunal to deal with particular matters, that would become a binding agreement under the ordinary rules of international law.

Mr. H. Macmillan

The right hon. and learned Gentleman says that of necessity there could not be introduced an Arbitral Tribunal into the Bill. How does it differ from the conception of the boundary commission?

The Attorney-General

There is, in my view, a fundamental distinction between the two. The boundary commissions are laying down in advance the boundaries of what are to be the two new Dominions; the Arbitral Tribunal will continue in existence after the Governments of those Dominions—their boundaries once settled and defined—are themselves functioning. If one had provided for by Statute for an Arbitral Tribunal the awards of which had to be obeyed by each Dominion, one would, to that extent, be derogating from the sovereign powers conferred on each Dominion. That is a distinction in principle between the two. The boundary commission comes into operation now, before the Legislature of each Dominion can exercise sovereign power over the whole of its territory, because ex hypothesi,the boundary of the territory has not yet been settled. Once the boundary is settled, then the Legislatures, under the scheme of this Blil, are to have sovereign powers within their Dominions and within the Commonwealth. It would be a detraction from those powers to say, "If you do not agree with another Dominion, then you must abide by the award of some outside Arbitral Tribunal."

Brigadier Low

Does that mean, supposing for example, Mr. Jinnah now consents to the Arbitral Tribunal, and therefore gives it some foundation, and after 15th August is advised by his Ministers to disregard the award of the tribunal, that the Arbitral Tribunal's award is of no validity?

The Attorney-General

The impelling necessity of reaching agreement will, no doubt, result in agreement being reached. That is the real sanction. These two Dominions will not be able to deal with many of these matters, which have hitherto been of central concern, unless they can reach agreement as to their division and as to their future administration. One cannot deal with problems of that kind by legislative enactments, one must rely on the common sense and good will of the two Governments to reach agreement and to find some solution of their problems. I have been mentioning the matter now only in order to emphasise the fact that, great though these powers are which are vested in the Governors-General, they are powers which will be exercised on the advice of the Ministers concerned. They are also powers which are temporary in their nature. They come to an end at the end of March next year unless, indeed, the Legislatures terminate them earlier, and the Orders that they make in the exercise of their powers are subject to repeal by the Legislatures of the Dominions.

8.30 p.m.

Mr. H. Macmillan

We are grateful to the Attorney-General for explaining this. As he has rightly said, it is part of the structure of this Bill not to try to lay down a solution of all these problems. I think I am right in saying that the powers of the Governors-General are really given them in order that there may be some legal method of making fixed agreements, freely entered into, between the Governments of the two Dominions. We provide them with the instrument to carry out their agreements during this preliminary period, and that being inherent in the plan, it would be foolish for us to attempt to do more. That is why we have not asked for more than elucidation. We must trust that they will succeed because, to use the Attorney-General's words, the impelling necessity of reaching agreement will result in agreement being reached.

Question put, and agreed to.

Clause ordered to stand part of the Bill.