GOVERNMENT OF INDIA BILL. [H.L.] (Hansard, 13 July 1915)

LORD MAC DONNELL OF SWINFORD
I My Lords, before you vote upon this Motion I would like with your permission 381 to say a few words, not with the object of impeding the passage of the Bill, but with the object of calling attention to its extreme importance and to the urgency of introducing Amending Bill which the noble Lord promised on the last occasion when the matter was before your Lordships' House. When this Bill is placed upon the Statute Book it will be, I venture to think, the most strange and the most anomalous Act that could be found upon it, for while the enactments embodied is this measure are excellent and such as are required by the circumstances of the time, provisions are made in the Fifth Schedule to the Bill which go to neutralise many of the important provisions incorporated in the Bill. In Sir Courtenay Ilbert's Digest, which, according to the general acceptation, represents what the exact law is, no reference whatever is made to such provisions as are included in that Schedule to this Bill.
Perhaps I may explain by an illustration what I mean. In Clause 16 of the Bill power is most properly taken to require that the Governor-General shall report to the Secretary of State in Council all matters connected with the finances and the state of the country. At the same time the Fifth Schedule calls attention to the fact that it within the power of the Governor-General in Council—in his Legislative Council—to relieve himself of that obligation which the Bill imposes of reporting to the Secretary of State everything that happens in India. There is another most necessary provision of the Bill which imposes restrictions on the power of the Governor-General to wage war in India. This Schedule enables the Governor-General in Legislative Council to relieve himself of the restriction so placed upon him. I could occupy your Lordships' time by pointing out the extraordinary-contradictions between the Bill and the Schedule. My sole object in addressing your Lordships to-night is to urge that the Amending Bill which has been promised by the noble Lord should be pushed forward and carried before the fact of this codification passes out of people's minds. I am very much afraid that if the political classes in India get to know that their Legislative Council is invested with the extreme powers which exist in this Schedule, and it then comes to their knowledge that a Bill is being introduced to 382 deprive them of those powers, they may probably think that an attack is being made upon the privileges and the authority of their Legislative Council. It is only because this law has now been codified and the Statutes of over a century have been carefully looked into that it is found that these contradictions exist. It was not known to any one before the codification was undertaken that the contradictions existed; and my whole object in addressing you now is to urge that no time should be lost while the matter is fresh in public attention of correcting the errors which are introduced into this Bill and pointed out and brought into great prominence by the Schedule attached to it.

§ LORD SYDENHAM
My Lords, I should like to emphasise what has fallen from my noble friend as regards the extreme importance of this matter. Suppose for a moment that in drafting into a Consolidation Act a number of Acts dating back for 145 years it was found that in thirty-nine instances your Lordships' House had the power of over-ruling Acts of Parliament. That is very fairly analogous to the ease of this Bill. In such a case as that, is it likely that the Joint Select Committee which dealt with the Bill would recommend that those powers which had long fallen into disuse should not only be re-affirmed but should be given the utmost publicity in a Schedule? Would the Joint Select Committee in such a case as that think it necessary to give an absolute photograph of the law? Yet that is the view that has been urged strongly upon your Lordships' House, and it is upon that view we are acting to-day. The whole difficulty of this Schedule arises from the Act of 1861, which was badly drafted. In Section 22 that Act abolished all these extraordinary powers which resided in the Governor-General of India, but only as far back as the Act of 1833; therefore behind that Act there lay some of these powers which were not removed by the Act of 1861, and those powers, which as I have said are no less than thirty-nine in number, are now re-affirmed and given the utmost publicity in the Fifth Schedule. A proposal was made to strike out some of the most obviously improper of these provisions, but that Amendment was withdrawn, and these very improper 383 provisions, as I think they are, stand part of the Bill to-day. The Fifth Schedule has many great difficulties and even some dangers in it, to which my noble friend has pointed. I could point out other dangers, but I do not think it would be wise to do so publicly. I believe that the usual course in such cases as this is to amend first and to consolidate afterwards, and it is a pity that that course could not have been followed here. All that can be done is to bring in an Amending Bill as soon as possible. But I fear an Amending Bill must be of a somewhat contentious nature, and I am afraid it cannot be carried probably for some time. The irony of the present situation is this, that the anxiety of the Joint Select Committee for legal purity and for photographic accuracy was such that it induced them to press upon your Lordships' House a Bill which has in some respects the aspects of reckless legislation.

§ THE UNDER-SECRETARY OF STATE FOR INDIA (LORD ISLINGTON)
My Lords, in answer to the two noble Lords who have addressed the House on the Third Reading, I would once more assure them that the importance of this measure is fully realised by the Department which I have the honour to represent, and also the importance of an early Amending Bill being introduced and passed. Lord Sydenham said that the best course would have been to amend first and consolidate after. I think when noble Lords consider the time over which these various Acts are spread and the variety of the matters dealt with they will see that it would have been almost impossible to have attempted amendment prior to consolidation. I think further, that anything in the nature of a combination of consolidation and amendment would also have led to very great difficulty. Directly this Bill becomes a Statute an opportunity will be given to the India Office, in consultation with the Government of India, to deal with and remove the anomalies which necessarily exist as the result of consolidation, anomalies of which I am as well aware as the noble Lords who have spoken; and at as early a date as possible an Amending Bill will be introduced into this House.