Clause 1.—(OPERATION OF EXISTING LAW IN RELATION TO PAKISTAN IN VIEW OF PAKISTAN'S BECOMING A REPUBLIC.) (Hansard, 13 March 1956)

§ Mr. G. R. Mitchison (Kettering)
I wish to ask two questions about subsection (2). I understand that this Bill applies the law of this country, the law of the Colonies, Territories and Trust Territories, as it exists at present, to Pakistan, Pakistanis and Pakistani property in the future. I understand that, as regards this country and any countries in relation to which vie have legislative powers, as of course we have in the case of Colonies and those other places. I apprehend that it is for the reason that here we have no legislative powers in relation to the Dominions that no Dominion is mentioned in the Bill. I apprehend, therefore, that the fact that the Federal Legislature of Rhodesia and Nyasaland is mentioned in the Bill is a reaffirmation of the Preamble of its own Constitution which recognises that that Federation is not presently a Dominion. I should be most grateful if the hon. and gallant Gentleman would confirm that point.
I proceed from that to the second point. This Bill follows very closely a similar Bill which became law as the India (Consequential Provision) Act, 1949. For similar reasons that Bill mentioned, of course, Colonies generally, and the like, if I may use that phrase. For similar reasons it mentioned no Dominion and referred specially to Southern Rhodesia, because the definition is taken out of the British Nationality Act, 1948, and for the purposes of that Act, as I understand it, Southern Rhodesia was in the excepted list of the Dominions and therefore needed a special mention.
The provision then made as regards Southern Rhodesia was that the Act should apply so far only as concerns law which could not be amended by a law of the Southern Rhodesian Legislature and that provision is repeated in this subsection regarding Southern Rhodesia, Northern Rhodesia and Nyasaland, the 254 Territories for the purpose of the Federation, I undertsand that; and I understand that it needs some extension because of the present existence of the Federation, which, of course, did not exist at the time of the 1949 Act relating to India. What I do not understand is why this Act does not extend to any law passed by the Federal Legislature at all. There are some subjects upon which the Governor has either a discretionary or an obligatory right to reserve the matter for the Royal Assent. I will not trouble the Committee with an enumeration of them, but there is a general discretionary power. There are two particular matters—differentiating Measures and certain constitutional Measures—which he is obliged to reserve for the Royal Assent.
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I take it that those are matters in regard to which the law cannot be amended merely by the Federal Legislature, since in respect of those matters the Royal Assent is also required—and the type of Royal Assent in this case is that which is required in regard to reserved powers in similar cases. What I should expect to find in this subsection, therefore, would be that the provision did not extend to any law passed by the Federal Legislature which could be amended by the Federal Legislature itself. That is to say, I would have expected it to apply to laws of the Federal Legislature which required the reserved Royal Assent—again using a slightly inaccurate phrase—in order to become effective.
I have no doubt that the point has been considered and that the learned Solicitor-General—whom I see busily taking notes—will provide me with a complete answer. I would hesitate to suggest that that answer might be that this is not customary or common law; paragraph (a) refers only to certain ordinances, unlike the two following paragraphs which refer also to common law, as it were, in Southern Rhodesia. That may be the explanation. It is possible that there is no Statute to which it would apply, and that for that reason there is no reference to it. I ask the question, however. It is a slightly complicated one, but I trust that I have been reasonably clear and not impossibly tedious.

§ Mr. Gordon Walker (Smethwick)
I should like to know whether subsection (2) is really necessary. Is a similar provision now to be applied to India? If not, we shall have an extraordinary situation in which the new Federation of Central Africa has certain powers in relation to India but not in relation to Pakistan, because the Federation is mentioned in this Bill but not in the original Act concerning India. That will be the position unless an Order in Council is issued under subsection (3). Will an Order in Council have to be issued to bring the relationship of the Federation of Rhodesia and Nyasaland with India into line with what it will be with Pakistan? Shall we have to do all this all over again when the British West Indies Federation is set up with a similar status to that of the Central African Federation—because it will go through the same stages?
If that is to be the process, we may have to have an endless succession of orders under subsection (3) to cope with similar situations which will arise in other parts of the Commonwealth as they reach the same kind of half-way stage. It seems to me that some very ingenious lawyer has thought up this point, and that if he had not thought it up nobody would have been affected. It opens up a host of doubts which would not have existed if this finicky Clause had not been put into the Bill. What difference will it make if we leave it out?

§ Commander Noble
I hesitate to join forces with the hon. and learned Member for Kettering (Mr. Mitchison), but I think I can satisfy him that the Government are at one with him in this matter, and that the reason for these provisions is very much as he suggested. As the House knows, both Southern Rhodesia and the Federation are practically self-governing, but there are certain reserves. What we really want to do is to enable Southern Rhodesia and the Federation to legislate as much as possible on their own, and in this Clause we are covering any United Kingdom legislation with which they are not able to deal.

§ Mr. Gordon Walker
It would not apply to India.

§ Commander Noble
I was just coming to the question of India. As the right hon. Member for Smethwick (Mr. Gordon Walker) quite correctly said, the Federation was not in being at the time when 256 a Bill similar to this one went through the House, when India became a Republic. Without having gone into the matter very carefully, I would say that we will now most certainly see whether any Orders in Council are necessary—although I should think that this would now be a matter for the Federation and for India. I will, however, most certainly see whether Orders in Council are necessary either on this occasion or in the future, as the right hon. Gentleman said, when the Federation of the West Indies or any similar Federation in another part of the world comes into being.

§ Mr. Gordon Walker
If this is to be a matter between the Federation and India, could it not be left in the same state with regard to Pakistan? The moment the Measure is passed, Pakistan will be in the same position as India. It would be simpler to leave these complicated matters out of this Bill. If it works with India it would work with Pakistan on the day after the Royal Assent is given to the Bill, because Pakistan would then be in the same position as India. All this is nonsense.

§ Commander Noble
I cannot agree that it is all nonsense, because my legal advisers have advised me that it is necessary.

§ Mr. Mitchison
I am sorry to take up the time of the Committee again, but the hon. and gallant Gentleman did not answer either of my questions. Is the Federation and the Federal Legislature mentioned because it is not presently a Dominion? I understood the hon. and gallant Gentleman to assent to that.

§ Commander Noble
indicated assent.

§ Mr. Mitchison
I look to him to say so, because this question has caused a little apprehension on the part of my hon. Friends.
My second question is this: Why does not this Measure apply to those matters within the competence of the Federal Legislature which require the reserved Royal Assent? I should welcome an answer to that second question, from whichever distinguished Member of the Government it came.

§ The Solicitor-General (Sir Harry Hylton-Foster)
I rise not on account of the epithet addressed to me, but in order 257 to try to help the hon. and learned Member for Kettering (Mr. Mitchison). There is no great mystery about this. I do not know whether any kind of Federal law of this variety exists at the moment—but, if it does, it seems to us that the provisions of the Bill afford the right means of dealing with the matter. If a Federal law exists which requires some special form of reserved consent, we still desire, under the Bill, that the amending initiative shall come from the Federal Legislature, and we undertake to provide the requisite special consent, whatever it may be. The pattern which we seek to arrive at is to ensure that the amending initiative comes from the Federal Legislature. That is what the wording of the provision will ensure.

§ Mr. Gordon Walker
If these words have the effect of ensuring that the initiative in regard to certain relations between the Federation and Pakistan come from the Federation, for that very reason such an initiative cannot come in regard to the relationship between the Federation and India. India and Pakistan are in the same legal position, and if these words are necessary to enable this process to happen in regard to Pakistan, some similar words are surely necessary to enable it to be carried out in regard to India.

§ The Solicitor-General
As the right hon. Member and his right hon. Friends did in 1949, in relation to India, in similar circumstances, we are adapting existing law to the new circumstances when they come into being some days hence. All that has to be done hereafter can be done as between ourselves and the Dominion, colonial, or whatever it may be, legislature.
258 The Bill follows precisely the 1949 Act, except for the adaptation required. We adapt the law on the date of the Bill and the future rests, as it has always done. The same thing happened in the India Act. That is why India does not, in this context, require a special enactment.

§ Mr. Mitchison
There is a change, and I regret the nature of it. The India (Consequential Provision) Act applied to the law of Southern Rhodesia. It said, and I am reading from it: As concerns law which cannot be amended by a law of the legislature thereof. That is the Southern Rhodesian Legislature. I should have preferred to see that formula repeated with regard to the Federal Legislature.
I find the reason given by the hon. and learned Gentleman the more unconvincing in that he does not seem to have appreciated that a difference has been made in the wording. In view of what was said, I find it necessary to ask that some member of the Government, instead of nodding on the Front Bench, should get up and say that the reason for the reference to the Federal Legislature is that the Federation is not presently a Dominion.

§ Commander Noble
I thought I made that point clear to the hon. and learned Member, both in the speech when I explained the Bill and just now. It is clear that the Federation is not yet a full Member of the Commonwealth.