HL Deb 07 July 1915 vol 19 cc282-310

Order of the Day for the House to be put into Committee, read.

THE UNDER-SECRETARY OF STATE FOR INDIA (LORD ISLINGTON)

My Lords, I think it will be for the convenience of the House and I hope expedite the passage of this Bill with its various Amendments through Committee if I make a few introductory observations by way of explanation of the position in which the Bill is now presented to your Lordships. There are a number of Amendments standing in my name on the Paper which, with a few exceptions at the end, with which I will deal in the course of my remarks, are all recommended for insertion in the Bill by the Joint Select Committee on Consolidation Bills. The object of the Bill, as the Joint Select Committee state in their Report, is to consolidate the existing law contained in a series of Acts dating back to the year 1770 relating to the government of India. In the Bill as now drafted, the Joint Select Committee have made certain Amendments for the purpose of bringing the Bill into closer conformity with the existing law or of simplifying the form of law without in any way altering the substance. These Amendments are included in the Bill as it is now presented to your Lordships, and they are set out in Appendix A of the Report of the Joint Select Committee with a brief description showing the reasons why such alterations have been proposed. The Committee report that the Bill thus amended represents the existing law as contained in the various Acts which they have examined and which are consolidated in this measure, and it reproduces the provisions of these Acts as understood and construed by existing constitutional practice. Therefore I think I may say with complete confidence that the Bill is purely and simply a consolidation measure construed as such on strict and rigid lines with no attempt at any actual amendment of the law.

In the case of a long series of enactments extending, as these do, over a period of upwards of 140 years and many of them overlapping each other, your Lordships will readily understand that, with the best intention to reproduce in a consolidation measure the actual effect of what I may term a jumble of ancient texts, considerable difficulties beset the Joint Select Committee in their work. They found themselves in this dilemma, that they must either on the one hand propose in many instances clauses which would be obviously unworkable and would, if inserted in the Bill, in modern conditions produce almost nonsense, or on the other hand they must suggest alternatives which in their essence would frankly depart from the original wording of the previous Acts. The Committee in their Report indicate very clearly the difficulties with which they were confronted; and having strictly kept to codification throughout they recommend, in addition to the alterations now inserted in the Bill, certain other Amendments which are to be found in Appendix B of their Report and which they suggest Parliament might accept in a Consolidation Bill as representing three vital principles—first, that such Amendments will clear up ambiguities in the existing law; secondly, that they will confirm constitutional practice; and, thirdly, that they will remove provisions which through lapse of time have now become inoperative. The object and character of each of these Amendments is briefly but clearly described in Appendix B in notes appended to each of these respective Amendments. It would occupy your Lordships' time unnecessarily were I to attempt to go through these various Amendments or to elaborate the explanations already given; but if any noble Lord desires further explanation of any of them I will endeavour to the best of my ability to answer any question put to me upon them.

I will take, by way of illustration, one class of Amendment and make a few explanatory observations to show the kind of, alteration which is suggested. Your Lordships will notice that in ten different places it is proposed, where the words "British India" occur, to omit the word "British." Among those ten Amendments I will take the one in Clause 5. That clause states that the Council of India, under the direction of the Secretary of State, shall conduct correspondence with British India., and it adds that every order sent to British India shall be signed by the Secretary of State. I think your Lordships will agree that in this instance common sense suggests that the expression "British India" as we see India to-day would limit to a pedantic degree the provision in this clause. There is, as your Lordships know, almost daily correspondence between the India Office and those parts of India which lie outside British India—the territories of India known as the Native States; and the Viceroy himself, in the course of his official duties, has from time to time to visit these Native States. You will therefore realise what unnecessary delay and quite unnecessary embarrassment would be caused if, by retaining the word "British," correspondence were delayed either to the officials resident in the Native States or to high officials visiting those States. Therefore the omission of the word "British," I think your Lordships will agree, would be an advantage.

We are merely restoring the language of the Act of 1858, which habitually speaks of "India" and not of "British India." But in order to lie quite frank with your Lordships I think it is right to observe that the Act of 1856 defines India as "territories vested in His Majesty," no separate phrase for India in the largest sense existing in those days. Since 1858 the distinction has been sharply drawn as between India in the wider souse and British India in the more restricted sense, in the Interpretation Act of 1889. That. Act lays down that British. India constitutes those parts of India under British government, whilst India represents those parts of India under British government and the Native States. In codifying old Acts like these, therefore, the question must arise in the minds of those who are undertaking this difficult and delicate task, to what extent are they to interpret the practice of to-day and to what extent are they to leave the actual phraseology in the original state. I hope your Lordships will agree that the proposed Amendment in the instance which I have cited is one which only complies with the common practice. The other nine cases in which it is proposed to omit the word "British" are on similar lines, and I will not delay your Lordships by further explanation.

I might, perhaps, be allowed to say a word with regard to an important clause which has undergone considerable verbal amendment on the recommendation of the Joint Select Committee. I refer to Clause 121, which deals with the liability in connection with certain offences by officers under the Crown. This Amendment is carefully explained by the Joint Select Committee in their note appended to the Amendment, and the clause as proposed is in accordance with existing law. The clause in the Bill as it stood without amendment, would be necessarily incomplete in accordance with modern conditions, because there are several important officers whose positions have been created since those early enactments. There is certain phraseology was not made in the early days for the modern joint stock company which has come into existence since those measures were enacted. This has alt been now brought up to date in accordance with the spirit and practice of the law as it obtains to-day in India.

I will not detain your Lordships longer with the Amendments on the Paper which are specifically recommended by the Joint Select Committee, but I would ask you to observe that at the end of the marshalled list there are certain Amendments standing in my name dealing with the Fifth Schedule of the Bill. Although not specifically recommended by them for amendment in this Consolidation Bill the Joint Select Committee, in paragraph 7 on page ii of their Report, give many instances where the Schedule is susceptible of alteration to effect an improvement of the law. I propose, after consultation with my right hon. friend the Secretary of State for India, to withdraw the Amendments on, Schedule 5 which I have placed on the Paper, with the exception of the one referred to at the bottom of page viii of the Joint Select Committee's Report which is merely consequential upon the Amendment to the clause with which I was dealing just now—Clause 121. My reasons for withdrawing those Amendments are two-fold. In the first place, there are so many provisions in this Bill in its consolidated form which must, to bring them in accordance with modern usage and practice, be amended that it is considered in the India Office advisable that no attempt should be made to deal with these amendments piecemeal. It has been considered that it would be much better to have this measure upon the Statute Book in its consolidated form, in order that it may then form a basis for comprehensive amendment throughout after deliberate consideration in the India Office and in consultation with the Government of India.

Lord MacDonnell has an Amendment on the Paper to omit the whole of the Fifth Schedule. I would ask him, and I hope he will favourably consider my suggestion, to withdraw his Amendment. I might, perhaps, be allowed here to point out that there are certain clauses in the Schedule itself which it would be most undesirable to have omitted from the Statute. For instance, there are certain clauses there—between 106 and 111—the omission of which from the Schedule would have the effect, I am given to understand, of withdrawing the authority of the Government of India Over the High Courts of India. It would necessitate the withdrawal of certain provisions in the High Court Act, which would have the effect of placing the High Courts independent of the Govern- ment of India, and I am sure the noble Lord would be the last person in this House to desire to see such an infraction of the law. I only point out that there are clauses in this Schedule which it is most desirable should be retained, and therefore it is very necessary that most careful consideration should be given to each respectively before any proposal is made for their omission. That is the reason why I ask noble Lords who have Amendments down to-day with the purpose of improving the Bill to be good enough to forego their Amendments on this occasion, and to wait—I hope not for long—until an Amending Bill is submitted to your Lordships dealing with the whole matter comprehensively. I may say that already an Amending Bill has been drafted, that portions of it have been sent out to India for consideration, and that directly this Bill is on the Statute Book it will he dealt with throughout and an Amending Bill introduced bringing all these matters up to date. That is the first reason why I propose to withdraw the Amendments standing in my name to the Fifth Schedule.

My second reason is in deference to the very strong desire on the part of the Joint Select Committee who undertook the difficult task of consolidating these Acts to confine this Bill purely and simply to consolidation. I appreciate, with my noble and learned friend Lord Loreburn and his colleagues on that Committee, the great importance of in no way infringing that principle, especially in view of the fact that there are so many other groups of Acts now under examination by that Committee the consolidation of which will be so important to Government in many departments of our public life. In conclusion, in submitting for your Lordships' approval the proposals both in the Bill and in the Amendments upon the Paper proposed by the Joint Select Committee, I would couple the hope that the noble Lords who have tabled Amendments which involve alterations in the law will on this occasion forego pressing their Amendments, and will leave them over to that more appropriate time—at no distant period, I should hope—when an Amending Bill will be presented to your Lordships.

Moved, That the House do now resolve itself into Committee.—(Lord Islington.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

Amendments made in the Bill by the Joint Select Committee for the purpose of bringing it into closer conformity with the existing law, agreed to.

Clauses 1 and 2 agreed to.

Clause 3:

The Council of India.

3.—(1)The Council of India shall consist of such numbers of members, not less than ten and not more than fourteen, as the Secretary of State may determine.

(2) The right of tilling any vacancy in the council shall be vested in the Secretary of State.

(3) Unless at the time of an appointment to fill a vacancy in the council nine of the then existing members of the council are persons who have served or resided in British India for at least ten rears, and have not last loft British India more than five years before the date of their appointment, the person appointed to till the vacancy must be so qualified.

(4) Every member of the council shall hold office, except as by this section provided, for a term of seven years.

(5) The Secretary of State may, for special reasons of public advantage, re-appoint for a further term of five years any member of the council whose term of office has expired. In any such case the reasons for the re-appointment shall be set forth in a minute signed by the Secretary of State and hid before both Houses of Parliament. Save as aforesaid, a member of the council shall not be capable of re-appointment.

(6) Any member of the council may, by writing signed by him, resign his office. The instrument of resignation shall be recorded in the minutes of the council.

(7) Any member of the council may be removed by His Majesty from his office on an address of both Houses of Parliament.

(8) There shall he paid to each member of the council out of the revenues of India the annual salary of one thousand pounds.

Amendment moved— Page 2, line 37, leave out ("British").—(Lord Islington.)

LORD MAC DONNELL OF SWINFORD

My Lords, I wish to explain my position at once. Nothing is further from my intention than in any way to interpose unnecessary or unreasonable opposition to the passage of this Bill, because I think it is an achievement of the legislative department of the Government of India which cannot receive too much praise. It is the completion of a work which was undertaken over forty years ago, and I would be the last person to do anything unnecessarily to impede its progress. At the same time there are one or two points which I think it desirable to bring to the notice of your Lordships. One is in connection with the Amendment now before the House, to omit from subsection (3) of Clause 3 the word "British." That Subsection runs as follows— Unless at the time of an appointment to fill vacancy in the council nine of the then existing members of the council are persons who have served or resided in British India for at least ten years, and have not last left British India more than five years before the date of their appointment, the person appointed to fill the vacancy must be so qualified. The omission of the word "British" would render it possible for a person who live the whole period in a Native State in which British law as current in the rest of India did not obtain, and who had no knowledge whatever of the system of British administration or of British law in India, to be appointed to the Council of I think that is a very serious matter. I submit that a gentleman appointed to the Council of the Secretary of State should have hail such a residence in India as had enabled him to become well acquainted with the system of British administration in India, the laws obtaining there, and the general practice. For this reason I think it would be unwise to omit "British" before the word "India" in the subsection in question.

EARL LOREBURN

My Lords, I do not profess to offer any opinion as regards the propriety of appointing to the Council of India a person who had served only in a Native State. That is a matter for those who are Indian experts. But I think it desirable to state now, at the first stage in Committee on this Bill, what is the real nature of what we have before us and what is the real danger which I apprehend. That has been admirably stated by my noble friend Lord Islington, but as Chairman of the Joint Select Commit1w who took this Bill in hand perhaps I may be allowed to say a few words upon it. This is a most complicated, intricate, and difficult Bill dealing with the government of India. It is very difficult in itself, but there is also a certain what. I may call filigree work which the Statutes have encrusted upon them representing customs and practice. The language of the old Statutes is at sonic places almost antiquated. The conditions have changed. For example, India is an infinitely greater place than British India used to be in the early days, and the task of kneading together what has been enacted in the past so as to make the measure a photographic reproduction of what the law is at the present time controlled by constitutional practice in India has been a most difficult one. What we have done may be illustrated by this particular Amendment now before your Lordships. In this particular case the question is who are to be allowed to sit on the Council of India. We have reported to the House that the law should he in the terms of this clause, unless at the time of an appointment to fill a vacancy in the Council nine of the then existing members of the Council are persons who have served or resided in British India for at least ten years. That is in the Bill as now before your Lordships. We present the clause in that form because that is the language of the existing Act. But the conditions have changed, and it has been thought that service in any part of India should be sufficient. The Government propose in this particular Amendment, as I understand it, to alter the Bill in pursuance of our recommendation—

Loan MAC DONNELL OF SWINFORD

I understand that the clause with the word "British" in it is the recommendation of the Committee, and that it is the Government who wish to alter it.

EARL LOREBURN

On our recommendation the Bill stands with the words "British India" in it, and the Government propose, acting on our recommendation in Appendix B, to omit the word "British." To that my noble friend Lord MacDonnell objects. It is undoubtedly the case that if Lord Islington's Amendment were accepted it would to a slight degree alter the Statute as existing at the present moment. We certainly did recommend this, but we did so thinking the Amendment would be unobjectionable and uncontroversial, because if you keep all these things upon the footing of British India you will in most cases depart from the actual intention of the Legislature when the Act in question was passed. I may tell my noble friend Lord MacDonnell that I have no sort of bias in this matter. I have only tried, as chairman of the Joint Select Committee, to inform the House that it is the case that if the Government's Amendment were accepted it would constitute a slight alteration of the law. Whether my noble friend will think it necessary in this particular instance to press the. Amendment is more than I know, but as the proposal seems controversial I suggest that it might be better not to press the Amendment.

LORD SYDENHAM

My Lords, this may seem an unimportant matter, but it does appear to me, as one who lived in India for five and a-half years and tried to study the conditions of life there, that it would make a great difference were you to render eligible for this high post one who might have lived during the whole of his time in India in Native States, for such a person would not be acquainted with the system and principles on which the administration of British India is carried on. I therefore hope that the Amendment will not be pressed.

LORD ISLINGTON

I hope that my noble friends will not press their objection, because this is an Amendment which was proposed by the Joint Select Committee and as such has been taken up by the Government and is now submitted to your Lordships. Lord MacDonnell suggests that there would be great danger in appointing to the India Council gentlemen who had occupied official positions in Native States, but in that he is assuming that the prerogative of the Secretary of State might undergo certain abuse. After all one must rely upon the Secretary of State, who has the authority for making these appointments, to see that proper appointments are made, and that those appointed are qualified not only from service in Native States but also from experience in British India.

I would point out a difficulty that might arise if the objection to this Amendment were insisted upon. There is a limitation in regard to appointment to the Council of India; an officer so appointed must not have left British India for more than five years before the date of appointment. If the noble Lord's objection to this Amendment were sustained, you might have the case of an officer who had served well in British India for fifteen years and had then been appointed to one of the important and responsible posts in a Native State and had resided there for five years, yet with all that accumulated experience lie would, by the limitation of British India being imposed, be disqualified from sitting on the India Council. I would ask the noble Lords who are opposing this Amendment not to press their objection on this occasion, because it seems to me that the Amendment only carries out the actual spirit and practice of the law as recognised in India to-day.

LORD PARMOOR

My Lords, I think that an important matter is involved in this Amendment. I was a member of the Joint Select Committee, but I do not go into the question of the merits as between the terms "British India" and "India." But if this Bill is to be a Consolidation Bill pure and simple, the word "British" ought to be retained unless there is general consent that it can be deleted. It. would be departing from the true principle of a Consolidation Bill to introduce an Amendment of this kind against the opposition of two noble Lords specially acquainted with Indian matters. I am most anxious to preserve the purity of consolidation work, and I think that in the circumstances my noble friend ought not to press the Amendment.

LORD MACDONNELL OF SWINFORD

Perhaps I may be permitted to say that so little ant I inclined to oppose the Amendments which the Under-Secretary of State for India has placed on the Paper that I intend to accept the whole of them, with the exception of this one; although I believe they are open to the objection which Lord Parmoor has just stated of being of a legislative character. But they all seem to me to be so reasonable and to be so required in the interests of India that I am determined to support all the Amendments down to and including Clause 19. Surely the noble Lord will recognise that on this point I would not raise an objection if I did not feel that you were incurring a great danger. The case which Lord Islington cited just now, of an officer who bad served for fifteen years in British India and then for five years in a Native State not being eligible for appointment to the Secretary of State's Council, is really not appropriate in any way. The danger which I have in my mind is not in connection with the appointment of British officials, but the appointment from a Native State of a gentleman who was not an official and who left England and went out to the Native State to make his fortune. I can recall an instance which occurred during the 'eighties where a gentleman, whose name I need not mention—it was a well known name in Indian politics at that time—came over here and afterwards became a Member of Parliament and obtained certain notoriety. It is quite possible that such a person in certain circumstances might be appointed to the Secretary of State's Council, and this qualification, were the Amendment agreed to, would enable him to be appointed. It is against non-officials acquiring by this means a qualification for appointment to the Secretary of State's Council that I have raised objection to the deletion of the word "British" from this subsection.

THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF CREWE)

My Lords, I think we are all in agreement with what fell from the noble and learned Lord opt (Lord Parmoor) as to the proper limitations to be imposed upon a Consolidation Bill of this kind. My noble friend behind me (Lord Islington), however, endeavoured to point out— and I think was able to point out with not a little foree—that although this proposed Amendment does involve a certain change in the law as it stands and on that account may not appear to find a proper place in a Consolidation Bill but should rather be deferred until the time comes for the Amending Bill of which I spoke when I originally introduced this Bill when I was Indian Secretary, and of which my noble friend behind me has spoken to-day, yet as a matter of fact the spirit anti intention of the at it has stood during the period of our rule in India is on the whole more completely carried out by the Amendment than by the terms in the clause. That, I was the reason why my noble friend desired to ad here to this Amendment; and that is really the only question before us—whether an Amendment of this kind can be considered as properly relevant to a Consolidation Bill pure and simple, which it is the desire of us all that this should be.

I do not think, therefore, that a discussion on the merits is, strictly speaking, relevant. But as that question has been raised I should like to say that I do not find it easy to contemplate any practical danger which could arise from the adoption of this Amendment. The case which my noble friend Lord MacDonnell mentioned, that of the possibility of the addition to the Secretary of State's Council of some gentleman who had conducted a successful career, successful at any rate from his own point of view, in a Native State, is of course to the point; but if the case that he had in mind is the same as one which occurs to me—that of a gentleman whose name, at any rate, came before the Courts of this country in very notorious circumstances a good many years ago—it is, I think altogether impossible to suppose that any Secretary of State could have selected that particular gentleman for his Council. But, however that may be, perhaps that side of the question is not altogether worth pursuing.

But in view of what has fallen from Lord MacDonnell and also from Lord Sydenham, whose Indian experience is both important and recent, I agree that it would be wise not to press this Amendment in this particular place. The subject will no doubt recur for consideration, or probably may, on its merits when the Amending Bill is produced; but meantime we are prepared not to insert this particular Amendment in this place. But I understand that my noble friend will move it in the other places in which the same words occur, and in those cases I understand no serious exception is taken to the proposal.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4:

Seat in council disqualification for Parliament. [1858, s. 12.]

4. No member of the Council of India shall be capable of sitting or voting in Parliament.

THE EARL OF CROMER

Your Lordships may remember that on the occasion of the Second Reading of this Bill I alluded to the fact that Clause l either excludes Peers from sitting on the Council of India, or at all events renders it very dubious whether they may sit on that Council. Lord Curzon, who is not in his place now, supported that view, and the noble Marquess who leads the House was by no means unsympathetic, but he pointed out—very reasonably, I think—that it was a point that could not be properly discussed in a consolidation measure. That view was also supported by Lord Loreburn and by Lord Haldane, and that was, of course, quite sufficient to put the matter altogether out of my mind if I had entertained any intention of moving an Amendment. But. the noble Lord now in charge of the Bill has said this afternoon that an Amending Bill will be subsequently introduced. I, of course, do not ask him to give any expression of opinion On the merits of this proposal now. But I hope this particular point will be considered when the Government of India are consulted, so that an opinion may be formed by the Government upon it prior to the Amending Bill being brought before the House.

LORD ISLINGTON

I will certainly take note of what the noble Earl has said, and when the Amending Bill is being dealt with the point that he has raised shall have due consideration.

Clause 4 agreed to.

Clause 5:

Amendments moved—

Page 3, line 28, leave out ("British")

Page 3, line 29, leave out ("British").—(Lord Islington.)

On Question, Amendments agreed to.

Clause 5, as amended, agreed to.

Clauses 6 to 10 agreed to.

Clause 11:

Amendment moved— Page 5, line 6, leave out ("British").—(Lord Islington.)

On Question, Amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

Clause 13:

Amendment moved— Page 6, line 4, leave out ("British").—(Lord Islington.)

On Question, Amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 agreed to.

Clause 15:

Amendments moved—

Page 6, line 20, leave out ("British")

Page 6, line 22, leave out ("British").—(Lord Islington.)

On Question, Amendments agreed to.

Clause 15, as amended, agreed to.

Clause 16:

Amendment moved— Page 6, line 33, leave out ("British").—(Lord Islington.)

On Question, Amendment agreed to.

Clause 16, as amended, agreed to.

Clauses 17 and 18 agreed to.

Clause 19:

Amendment moved— Page 7, line 36, leave out ("British").—(Lord Islington.)

On Question, Amendment agreed to.

Clause 19, as amended, agreed to.

Clauses 20 to 38 agreed to.

Clause 39:

39.—(1) The governor-general's executive council shall assemble at such places in India as the Governor-General in Council appoints.

(2) At any meeting of the council the governor-general or other person presiding and one ordinary member of the council may exercise all the functions of the Governor-General in Council.

LORD MAC DONNELL OF SWINFORD

My Lords, the Joint Select Committee as the noble and learned Earl, Lord Loreburn, has reminded you, profess to have produced the provisions of the existing law as understood and construed by existing constitutional practice. The constitutional practice in India, I believe I may say, since the enactment of the Indian Councils Act of 1861 is represented in Clause 41 of the third edition of Sir Courtenay Ilbert's Digest of the Statute Law relating to the Government of India. That clause runs as follows—

41.—(1) The Governor-General's Council hold ordinary meetings, that is to say, meetings for executive purposes; and legislative meetings, that is to say, meetings for the purpose of making laws.

(2) The ordinary and extraordinary members of the Governor-General's Council are entitled to be present at all meetings thereof.

In the Bill now before your Lordships it is stated that "the Governor-General's Executive Council shall assemble at such places in India as the Governor-General in Council appoints," and that "at any meeting of the Council the Governor-General or other person presiding acid one ordinary member of the Council may exercise all the functions of the Governor-General in Council."

Under this statement of the law it will be possible for the Governor-General to summon one member to his Council and not the rest, and to carry out with all the authority of the Government of India whatever business he pleases to place before himself and his colleague. I only plead that in this most important provision the constitutional practice of more than half a century should he embodied in this Bill; and I venture to say that the constitutional practice a being such as I have read Sir Courtenay Ilbert's well-known book having stated it to be such, it will be considered by many to have been abrogated if this version of the law and practice is promulgated in India. I suppose that in ninety-nine cases out of a hundred the usual practice will be continued of communicating the Viceroy's invitation to the members of his Council when a Council is to be held. Of course, when the Viceroy goes on tour and it is not possible for his Council to go with him, a different procedure is provided in this Bill. It is possible for the Viceroy, when he goes on tour in that way, to act with the entire authority of the Governor-General in Council. But if he is on tour when grave discussions on very intricate and perhaps very exciting matters—matters involving a great deal of controversy, perhaps great opposition in the Viceroy's Councils—come up for discussion, it is only right and proper and in accordance with constitutional practice that the Viceroy should obtain the advice and assistance of the whole of his Council. I do not desire to make any imputations whatever, but in extremely acrimonious matters it is conceivable that the Viceroy, being convinced himself of the propriety of his conduct, might like to carry it over his Council. If he desires to overrule his Council there is a method for doing so—he places upon record his reasons, and the members of the Council place upon record their reasons. But the possibility of the Viceroy carrying out any project with the authority of the Government of India without making a record of his reasons caught to be prevented by the introduction in this place of the Amendment which I have the honour to propose.

Amendment moved—

Page 17, line 15, after ("appoints") insert: (2) The ordinary and extraordinary members of the governor-general's council shall be entitled to be present at all meetings thereof.—(Lord MacDonnell of Swinford.)

LORD SYDENHAM

My Lords, this question is really one of first class importance. Though we who have Amendments on the Paper find ourselves in a difficult position because we are told that in a short time this Bill will be amended, yet we remember that this Bill has been nearly forty years on the legislative anvil, and we do not feel quite sure that another forty years may not elapse before the Amending Bill comes to your Lordships' House, Even a layman like myself can perfectly understand the extreme, difficulties which faced the Joint Select Committee in dealing with this Bill, and I think we must all feel that they hare dealt with it in an exceedingly able manner considering the intricacy and magnitude of their task. I suppose the greatest difficulty with which they had to deal and constantly face was whether they should stand upon the letter of some old law or take a broader view and accept what Sir Courtenay Ilbert has called in his Digest the constitutional practice of long usage.

Some provisions in these old and unrepealed laws may have fallen into disuse, but if they appear in any form in this Consolidation Bill it will have the effect as it seems to me, of reviving them; in other words, it will result in making a new law, which we have been told on the highest authority was never intended in the case of a Consolidation Bill. Surely something of this kind has occurred in the clause to which my noble friend has brought forward an Amendment; and I really must say that I agree with every word he has said upon it. I think the change—for it is a change—in constitutional practice which the clause makes might he dangerous. I suppose in all Councils, even in the high Councils of the Viceroy, there may be and often is some one who would always support the Viceroy without pausing to consider the reasons why. As this clause stands power to do anything will vest in the Viceroy if he only summons one member to an important Council at which a grave matter has to be decided. I need not point out that grave results might follow from that course. It may well be that that would not happen, but I think we ought to guard ourselves against that danger in the meantime before the Amending Bill has been drafted and passed.

It is a well-known and salutary constitutional practice that every member of the Governor-General's Council should be entitled to be present at all meetings. And if this clause as it stands is passed, does it not have the effect of completely nullifying Clause 41 of the same Bill, which nearly follows it. That clause runs— If any difference of opinion arises on any question brought before a meeting of the governor- general's executive council, the Governor-General in Council shall be bound by the opinion and decision of the majority of those present and if they are equally divided the governor-general or other person presiding shall have a second or casting vote. Those words can only mean that bona fide and not hole-and-corner meetings are held. If the Governor-General can select any member who happens to agree with him and hold a Council to deal with anything they agree upon, this salutary provision in Clause 41 becomes utterly worthless and what seems to me to be a considerable constitutional safeguard will disappear. Therefore I strongly support my noble friend's Amendment.

LORD ISLINGTON

My Lords, I fully appreciate the point that has been brought forward by the two noble Lords and the arguments they have advanced in favour of the Amendment. The position of this proposal is that Sir Courtenay Ilbert, in all the three editions of his Digest I believe, has recommended that an addition to the clause should be proposed on these lines. But I would like to point out, on the other hand, that the words in the Amendment are in no existing Act, and therefore the addition of these words to Clause 39 would be a distinct amendment of the law. I do not think we need have the gloomy apprehension of my noble friend that the Amending Bill will take forty years to incubate. I trust it will be here long before that. Whilst admitting that there is a great deal to be said for the addition of the words proposed by the noble Lord, and whilst it would, perhaps, make the clause more complete when it is taken also with Clause 41, I at the same time place myself behind the recommendations of the Joint Select Committee and would ask the House and the noble Lords who have spoken to this Amendment to adhere to the principle on which we started out on this discussion—namely, that no amendments to the law should take place now, but that they should be reserved for an Amending Bill.

LORD MACDONNELL OF SWINFORD

Might I ask the noble Lord to refer to the concluding words of Paragraph 1 of the Committee's Report.

LORD ISLINGTON

Yes, I know what is at the end of Paragraph 1. But it is not suggested in that paragraph that this particular clause does not come under the specific proposals of the Joint Select Committee. We are adhering to the specific proposals of the Select Committee. I hope that noble Lords will be satisfied with this undertaking on my part, speaking on behalf of the India Office, that when the Amending Bill is being drafted and alterations of the law are then specifically proposed, this proposal which they are making now will have very careful consideration. I hope that the noble Lords will be satisfied with that at this juncture, and will allow this Bill to stand as a Consolidation Bill, proposed as such by the Joint Select Committee.

LORD KINNAIRD

My Lords. I trust that you will not think it presumptuous of me to take part in this discussion, but having taken a great interest in India for many years and possessed property there for various charities and other institutions, I hope the noble Lord will press his Amendment to a Division. If necessary I could give details of cases in which certain individuals sometimes ride rough-shod over private rights; and when they get up to the hills and all the other people are away it is very difficult to get careful consideration, especially if several officials in the place happen to want the particular property for cantonments or other purposes which may be considered public purposes. In one case the property was taken away, and it required the intervention of the Viceroy himself to override the decision which was made by an official in a high place. I know of other cases which have come within my own personal experience during the last thirty years when I have been carrying on a certain amount of work there. Therefore I can assure you it is no imaginary danger of a Viceroy getting one member who agrees with him and doing these things. We all know on committees how tempting it is to have a sub-committee and have one or two with you who agree, and with no appeal from your decision. Under this clause as it stands something might be done which was very unfair and thus cause a bad impression of the justice of British rule in India.

VISCOUNT MIDLETON

My Lords, personally I am inclined to agree with what has fallen from my noble friends Lord Sydenham and Lord MacDonnell. But I would point out that if this clause were to be amended at all it would be absolutely necessary to raise the question of the extraordinary anomaly which exists as between the Council of India assembled in and the Governor-General's Council. The Council of India is bound to meet once a week, whereas the Governor-General's Council need never be convened at all, or only at such intervals as may occur to a particular Governor-General. I very much doubt whether the old provision for the Council of India meeting once a week is a necessary one. On the other hand, I am certain that something ought to have been inserted in the Act which would more frequent statutory meetings of the Governor-General's Council, which on certain occasions has not been convened sufficiently often. But on the general understanding that we should not take anything that is contentious, I have not brought up that point. I cannot help however, that it might be well in a small supplementary measure to deal with both points.

EARL LOREBURN

My Lords, the Bill as it stands is unquestionably the Statute Law; it is not the Common Law. But it has been, I understand, the practice for all these gentlemen to be summoned. Can a Consolidation or any other Committee say, when that is the state of things, that the practice has been such that as a matter of constitutional law it has become equivalent to a Statute? When you are consolidating what you have to do is to find what the law is—that is, what the Statute is. This Amendment proposes to incorporate what is usually, and I have no doubt most properly, done; and if we were discussing what the law ought to be instead of what the law is, my own instincts would be very much to agree with the noble Lord behind me (Lord MacDonnell) and the noble Lord on the Cross Benches (Lord Sydenham).

The condition of the law in this country has been a subject of reproach for I do not know how long. We have done a good deal even in a few years, always by consent and always by avoiding every controversial point we can, towards putting the law in order, and we have a number of Consolidation Acts which are admitted to be thorough photographs of the law as it is. We treat amendments of the law as an entirely different thing. It is a very laborious task. It is undertaken for love by members of both Houses. The House of Commons is very particular about any alteration of the law being made in Consolidation Bills; and if we, if I may so call it, take to improving the occasion by amending the law when this modest but most valuable work of consolidation is going on, we shall find that we have broken the unwritten convention between the two Houses of Parliament; and then the members of the House of Commons, who have taken without question every one of our Consolidation Bills for the last six or seven years and passed them even in that busy House without question on the faith that we are loyal to that convention, will say, "You are amending the law; we cannot he expected to give the First, Second, and Third Readings, and to negative Committee, in respect of a Bill which is admittedly altering, in however beneficial a way, the law, and we shall have to end all our valuable work." I should regret it because I have been associated with this work of consolidation from the commencement, and I believe it is most valuable. I think this Amendment might well be postponed, because after all there is nothing in the Bill which prevents the present practice from being continued.

THE MARQUESS OF LANSDOWNE

My Lords, there can be no question that the practice in regard to this matter is as stated by the noble and learned Earl who has just sat down. No one questions that the ordinary and extraordinary members of the Governor-General's Council are by well-established usage entitled to be present at all the meetings of the Council. But when we are asked to add words of this kind to the Bill, we have to remember where we shall find ourselves carried if we attempt Amendments of this kind. This difficulty is the result of our scrupulous adherence to the pledge which has been given that this Bill shall be a Consolidating Bill and not an Amending or even a Revising Bill.

My noble friend Lord Sydenham suggested that we ought to take a broader view, and that where we find that the law has been interpreted in a particular manner we should frame this Consolidating Bill so as to make it accord, not with the Statute Law, but with the well-established practice. That, it seems to me, is a very dangerous suggestion. My noble friend Lord Midleton pointed out that this is by no means the only anomaly that might be dealt with if we once embark on the task of making this Bill a measure of revision. I hope, there- fore, that we shall bear in mind the warning given to us just now by the noble and learned Earl, and that we shall remember how much additional difficulty will be thrown in the way of the work of consolidation if we step a single inch beyond the frontier which divides a measure of consolidation from a measure of revision.

One or two noble Lords have drawn an alarming picture of the kind of scandals which might arise if this Bill is not amended in this sense. It is suggested that the Viceroy might retire to sonic remote fastness in the hills, and that there, accompanied, perhaps, by one or two members of his Council upon whose support he could depend, he would pass measures of the most iniquitous description. My Lords, is that really a very real danger? I do not know whether any noble Lord with experience of India is able to cite cases in support of that suggestion, but I think it worth while to point out that the Governor-General, for his own sake, would be extremely careful not to pass a highly controversial measure in such circumstances. These are clays when there is great publicity in India and elsewhere, and no one would be more likely to suffer from an indiscretion of that kind than the Viceroy himself. I doubt extremely whether any harm will be done at all by leaving the law upon this point and the constitutional practice exactly as they are at this moment. And I venture to suggest to your Lordships that you may be content with the pledge which has been given by my noble friend who represents the India Office, that an Amending Bill will be introduced at the earliest possible date and that this point will be dealt with in that measure.

Loan MACDONNELL OF SWINFORD

In consideration of the pledge to which the noble Marquess has referred, I beg to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Clauses 40 to 51 agreed to.

Clause 52:

The province of Agra.

52. The Secretary of State in Council may, if he thinks fit, direct that the province of Agra be constituted a presidency under a Governor in Council and if that direction is given the presidency shall be constituted on the terms and under the conditions mentioned in section nineteen of the Government of India Act, 1853, and section our of the Government of India Act, 1854.

LORD MAC DONNELL OF SWINFORD

My Lords, the Act of 1833 which is involved in this clause directed the division of the Presidency of Bengal into two distinct parts; one was to be called the Presidency of Fort William and the other the Presidency of Agra. At; the same tine power I was given to the Government to suspend the operation of the Act, and, instead of creating a Presidency, to create a Lieutenant-Governorship. No action was taken upon that Act in regard to Bengal until three years ago, in 1912, when His Majesty the King went to India. Brit action was taken on it in regard to the Presidency of Agra, and a Lieutenant-Governor of Agra was actually appointed in the year 1836, and has remained up to the present day. By the action taken in 1912 the regulation was spent as regards Bengal; by the action taken in 1836 the regulation was superseded so far as the Province of Agra was concerned; and in these circumstances the whole regulation is very properly repealed by the Fourth Schedule attached to this Bill. The Act was 5 & 6 William IV, chapter 52, and the whole of that Act is repealed by the Fourth Schedule. But simultaneously with repealing the whole of the Act and also repealing the Government of India Acts of 1853 and 1851, which are referred to in the clause under notice—Clause 52—it is sought to keep alive by this clause the power of creating a Governor in Council for the Province of Agra. No person would for a moment consider that that was a likely thing to be clone by any school of politicians either in this country or in India, and I therefore think that the proper mode of procedure in this matter would be to omit Clause 52 altogether and rely on the repealing effect of the Fourth Schedule.

Amendment moved— Leave out Clause 52.—(Lord MacDonnell of Swinford.)

LORD SYDENHAM

My Lords, I think the question with regard to this clause differs somewhat from that of the other. Any power to make this provision in respect of Agra must be derived apparently from the Act of 1833, and I think the noble Lord who has just sat down has made it clear that the Act of 1833 has really spent itself and therefore cannot be revived in this form. When your Lordships the other day decided that the provision of an Executive Council for the United Provinces ought to be deferred as a highly contentions measure during the period of the was the idea suggested itself to some legal minds that that was what was called, erroncously as I think, the veto of the House of Lords. The House of Lords did nothing but reaffirm the very strong announcement made by the Viceroy in his Council. These, a people thought that by reviving the Act of 1833 a Presidency Government could be conferred upon the United Provinces. That was a very in, genious idea but it was clearly impracticable for this reason, that Oudh was not annexed until 1858 and therefore could not have been dealt with by any previous Act of 1833 or of 1854. The original Bill as laid before your Lordships' House conferred this power in the case of Agra and Oudh. It was a new power and a new legal provision that would really have had the effect, to my mind, of a new Act of Parliament which we are assured should not be. But now the clause has been altered, and has been made to apply solely to the provision of a Presidency Government for the Province of Agra. I think from what the noble Lord has said that your Lordships will see that this really is in effect, if not technically, the creation of a new law; and as I cannot conceive that the Secretary of State wishes for any power to create a Presidency within Agra, I hope that the Government will accept this Amendment.

LORD ISLINGTON

My Lords, I think the speeches of the two noble Lords who have spoken in support of this Amendment Hurst show to your Lordships the great difficulties that the Joint Select Committee have had in dealing with these old laws which are full of technicalities and of conflicting elements, and one extends a sympathy to the Committee in their attempt at unravelling from this jumble of the past anything in the nature of a coherent clause for a present. day Act. All I can say with regard to the Amendment moved by the noble Lord for the omission of Clause 52 is that I cannot accept it, because the clause is placed in the Bill as part of the statutory law of the past. It is merely a representation of the 1833 Act, an Act which I do not think can really be accurately described as having spent itself. If in the face of modern conditions it does not comply altogether with the present practice, the clause will be susceptible of improvement and alteration in the Amending Bill. The power which was given to create the Governorship in Bengal three years ago, I am given to understand, emanated from the 1851 Act as distinct from the 1833 Act.

I would appeal again to the two noble Lords who have proposed the omission of this clause to forego their desire for the present and to allow the Bill to remain as it has been handed clown to us by the Joint Select Committee. I farther ask them to take account of the appeal which was made by my noble and learned friend Lord Loreburn just now, in the interests not only of this Bill but of all other Consolidation Bills, and adhere as strictly as possible to the law as it has been produced for us by the Joint Select Committee and in no way to attempt to amend it at this stage.

Amendment, by leave, withdrawn.

Clause 52 agreed to.

Clause 53 agreed to.

Clause 54:

Amendment moved— Page 23, leave out lines 14 to 19 inclusive.—(Lord Islington.)

On Question, Amendment agreed to.

Clause 54, as amended, agreed to.

Clauses 55 to 68 agreed to.

Clause 69:

Amendment moved— Page 30, lines 10 and 11, leave out ("or the date on which the disallowance is signified by the governor-general to his council").—(Lord Islington.)

On Question, Amendment agreed to.

Clause 69, as amended, agreed to.

Clauses 70 to 81 agreed to.

Clause 82:

Amendment moved— Page 37, lines 4 and 5, leave out ("or the date on which the disallowance is signified by him to his Council").—(Lord Islington.)

On Question, Amendment agreed to.

Clause 82, as amended, agreed to.

Clauses 83 to 88 agreed to.

Clause 89:

Amendment moved— Page 40, line 9, leave out ("British").—(Lord Islington.)

On Question, Amendment agreed to.

Clause 89, as amended, agreed to.

Clauses 90 to 94 agreed to.

Clause 95:

Amendments moved—

Page 43, line 27, leave out ("British")

Page 43, line 28, leave out ("British")

Page 43, line 32, leave out ("British")

Page 43, line 34, leave out ("British")

Page 43, line 37, leave out ("British").—(Lord Islington.)

On Question, Amendments agreed to.

Clause 95, as amended, agreed to.

Clause 96:

No disabilities in respect of religion, colour, or place of birth.

96. No native of British India, nor any subject of His Majesty resident therein, shall, by reason only of his religion, place of birth, descent, colour, or any of them, be disabled from holding any office under the Crown in India.

LORD SYDENHAM

My Lords, the Amendment standing in my name to this clause is really a very small one, but I ask you to believe that it is one of some importance. Every one who has recently resided in India knows well that educated Indians greatly dislike and resent the use of the term "native." Perhaps for that reason the term "native of India" does not appear in any other clause of the Bill. It seems to me that we ought to especially careful in these times not to do anything that may hurt the susceptibilities of our fellow-Indian subjects. I therefore move to insert the words, "No British subject resident in British India." That only restores the Bill to the form in which it stood when it first came before your Lordships' House. The Joint Select Committee, in giving their reasons for making this change, say that it was made in order that the provision should follow the phraseology of the Act of 1833. But India has changed in the eighty-two years that have passed since that Act was put on the Statute Book, and words which were suitable in 1833 may be inappropriate or even improper at the present day. Therefore I earnestly hope that this small Amendment may be accepted by the Government. I have no doubt that the process of bringing in and passing the Amending Bill will take nothing like the forty years which I suggested as a joke, but we may infer that it will take several years; and meantime I think it is worth while that the words that I wish expunged should not be placed on the Statute Book.

Amendment moved— Page 43, lines 38 and 39, leave out ("No native of British India, nor any subject of His Majesty resident therein") and insert ("No British subject resident in British India").—(Lord Sydenham.)

LORD ISLINGTON

My Lords, as my noble friend truly said, the Amendment which he proposes would restore the wording of the clause as introduced in this House. The words that are now in the Bill have been placed there by the Joint Select Committee because they follow exactly the phraseology of the Act of 1833. I am given to understand that there is little if any difference, from a legal point of view, in the meaning of the words now in the Bill and the words as proposed by my noble friend. But, as he must know full well, section 87 of the Act of 1833, of which this is an exact reproduction, is regarded in India as a charter under which Indians are entitled to hold office under the Crown. Certainly in the two years' experience I had in India on the Royal Commission investigating the Public Services nothing struck me more than the regard that was held for this particular provision, which all Indians looked upon as a sacred privilege that had been handed down to them from the year 1833; and any alteration in the wording of this particular section, however minute and trivial, would, I am sure, be regarded with the deepest suspicion by all Indians, who might read into it some insidious idea for an alteration and a withdrawal of that privilege. As I have already said, the alteration proposed by my noble friend makes no real difference; but it is regarded by those who advise me, apart from what I have said, that the words as proposed in the Bill are preferable. Under the British Nationality Act of 1914 "national born" has been omitted, but with that exception the provision is an exact reproduction of the 1833 Act. I am sorry, therefore, that for the reasons I have given I cannot see lily way to accept my noble friend's Amendment.

THE EARL or CROMER

My Lords, I suppose that view of the arguments advanced by the noble Lord it is impossible to have this Amendment accepted, but I entirely agree with what my noble friend Lord Sydenham said about the use of the word "native" When I was in Egypt one of my principal difficulties in official documents was to avoid the use of that word, and I used to use the word "indigenous" and all sorts of other words to get out of it. But I quite agree with the noble Lord that in view of the fact that we should stick absolutely to the previous wording in dealing with a Consolidation Bill it is impossible to accept the Amendment.

LORD SYDENHAM

I withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 96 agreed to.

Clauses 97 to 108 agreed to.

Clause 109:

Amendments moved—

Page 49, lines 24 and 25, leave out ("or signifies to his council")

Page 49, lines 26 and 27, leave out ("or signification").—(Lord Islington.)

On Question, Amendments agreed to.

Clause 109, as amended, agreed to.

Clauses 110 to 123 agreed to.

Clause 124:

Amendments moved—

Page 54, leave out lines 28 to 37 inclusive.

Page 55, leave out lines 1 to 33 inclusive, and insert: (4) if, being the governor-general, or a governor, lieutenant-governor or chief commissioner, or a member of the executive council of the governor-general or of a governor or lieutenant-governor, or being a person employed or concerned in the collection of revenue or the administration of justice, he is concerned in, or has any dealings or transactions by way of, trade or business in any part of India, for the benefit either of himself or of any other person, otherwise than as a shareholder in any joint stock company or trading corporation; or (5) if he demands, accepts or receives, by himself or another, in the discharge of his office, any gift, gratuity or reward, pecuniary or otherwise, or any promise of the same, except in accordance with such rules as may be made by the Secretary of State as to the receipt of presents, and except in the case of fees paid or payable to barristers, physicians, surgeons and chaplains in the way of their respective professions, he shall be guilty of a misdemeanour; and if he is convicted of having demanded, accepted or received any such gift, gratuity or reward, the same, or the full value thereof, shall be forfeited to the Crown, and the court may order that the gift, gratuity or reward, or any part thereof, he restored to the person who gave it, or be given to the prosecutor or informer, and that the whole or any part of any fine imposed on the offender he paid or given to the prosecutor or informer, as the court may direct.—(Lord Islington.)

On Question, Amendments agreed to.

Clause 124, as amended, agreed to

Remaining clauses agreed to.

First, Second, Third and Fourth Schedules agreed to.

Fifth Schedule:

Amendment moved— Page 67, line 7, column 1, leave out ("124 (5), (7), (8)") and insert ("124 (5)—so far as it relates to persons other than the governor-general, a governor, or a member of the executive council of the governor-general or of a governor").—(Lord Islington.)

On Question, Amendment agreed to.

LORD MACDONNELL OF SWINFORD had an Amendment on the Paper to leave out the Fifth Schedule. The noble Lord said: After the plea which the noble Lord the Under-Secretary has made to me, I do not intend to move this Amendment. But no doubt the noble Lord is aware that the elect of the Bill will be to enable, for instance, the Governor-General in Legislative Council to free himself from all responsibility of giving any information whatever to the Secretary of State with regard to the government of India.

LORD ISLINGTON

I would say, in reply to the noble Lord, that I fully appreciate the anomalies that are produced here. But I am obliged to him for not moving the Amendment, and I can assure him that in drafting the Amending Bill due regard will be had to the various anomalies that exist.

Fifth Schedule, as amended, agreed to.

The Report of Amendments to be received To-morrow, and Bill to be printed as amended. (No. 126.)