HL Deb 04 May 1915 vol 18 cc893-905

[SECOND READING.]

Order of the Day for the Second Reading read.

THE LORD PRIVY SEAL AND SECRETARY OF STATE FOR INDIA (THE MARQUESS OF CREWE)

My Lords, the Motion for the Second Reading of this Bill is really a sequel to that which the noble and learned Viscount on the Woolsack has just moved and to which the House has agreed, because this Bill, in spite of its highly imposing and almost alarming title, is in reality simply a Consolidation Bill. It has been thought desirable that all the various enactments relating to the government of India as distinct from the administration of India should be, if possible, brought within the compass of a single Statute. That has been no light or easy matter. The Acts of Parliament concerned go back as far as the year 1770—three years after Lord Clive ceased to be Governor of Bengal and two years before Warren Hastings assumed that office, four years prior to his becoming the first Governor-General of India. The House will understand that the ground covered is therefore enormously large.

It is proposed, as will be seen by an examination of the Bill, to repeal no less than forty-two of the Acts of Parliament which have been passed in the long interval of nearly 150 years, and to repeal some of the provisions of six others. It is clear, of course, that the result is to bring into the form of a Bill—which, though long, as Bills go, is not a colossally large measure as compared with some which we have seen of late years—the general effect of all these Statutes. The greatest care has been taken in the extremely laborious task of co-ordinating and arranging the different sections. The different departments in the India Office have been hard at work for a year or more. We had the advantages of the assistance of an Advisory Committee, including Sir Courtenay Ilbert, whose knowledge of these subjects, as we all know, is unequalled. The present legal adviser to the Office, Sir Stephen Sale, and a former legal adviser also formed part of this Committee, with the two Under-Secretaries of State; and I may mention that by a fortunate accident the Parliamentary Under-Secretary of State, my friend Mr. Charles Roberts, has had a peculiar experience in these matters, having sat on the Consolidation Committee in another place for some years.

Last year the Bill was introduced in another place in order to give an opportunity to those interested of seeing what its general form and scope would be. It was then sent out to India for the observations of the Government of India, and various changes were made in it. But we have not made in this present Bill all the changes that it would have been, and in the ultimate result will be, desirable to make in the law. When you have to combine in a single measure a number of 18th century Statutes with Statutes reaching down almost to the present day, it is hardly possible by simple consolidation to frame your new Act in a perfectly coherent form not containing any anomalies and contradictions. It will be found, therefore, by those who examine this Bill that there are certain changes which in due course ought to be made. In an ordinary session I should have proposed to follow up the bringing in of this Bill by the introduction of another measure containing various amendments designed for the purpose I have indicated, but it is hardly possible to do so without raising certain subjects which, although they might not give rise to acute controversy, yet might be thought disputable; and in this present session it is wise, I think, to abstain from any attempt of the kind. It is desirable, therefore, that this Bill should go to the Joint Consolidation Committee as it is. It will, I hope, then become law; and the necessary amendments will come up for discussion at a future time when the agreement against discussion of all kinds of a controversial sort no longer exists.

I may say, in passing, that so far as the general consideration of this measure is concerned the time is, I think, extremely appropriate. I am given to understand that in another place those gentlemen who are in the habit of considering these consolidation measures, in the absence of the more exciting work of an ordinary session, will be glad to undertake the laborious and unexciting task of examining this measure line by line; and I have no doubt that those members of your Lordships' House who sit on the Joint Committee, under the presidency of my noble and learned friend Lord Loreburn, who has done so much valuable work on this Committee in former sessions, will take a similar view to that taken by their colleagues in another place.

There are certain points which, as I have said, at some future time will have to be dealt with. As an instance, there are certain matters in Clause 127 of the Bill, concerned with the question of trading by officials or of the receiving of presents by officials, which are left in a somewhat confused, incoherent, and even contradictory form. Those, as I have stated, can be dealt with in due course. It is hoped and believed that no kind of controversial matter and no shade of change of the existing law has crept within this Bill. The utmost care has been taken, and I desire to express my sense of gratitude to those both at the India Office and elsewhere who have given a vast amount of labour to the discussion of this very intricate series of Statutes. We believe that the result is that this measure represents in a concentrated form the law exactly as it stands, and I therefore with great confidence ask your Lordships to read the Bill a second time with a view to its being remitted to the consideration of a Joint Committee of both Houses.

Moved, That the Bill be now read 2a.—(The Marquess of Crewe.)

THE MARQUESS OF LANSDOWNE

My Lords, the noble Marquess who leads the House was good enough a few days ago to place himself in communication with me in regard to this Bill and to explain the circumstances in which it was introduced and the intentions of His Majesty's Government in regard to it. I took upon myself to tell the noble Marquess that so far as those who sit upon this side of the House are concerned I did not anticipate that the Bill would encounter any opposition if he was able to tell me categorically that it was a Consolidation Bill and only a Consolidation Bill. That question the noble Marquess was able to answer entirely to my satisfaction; and he has told the House to-night that any changes which the Bill contains are not due to a desire on the part of His Majesty's Government to alter the law, but are merely to adapt the wording of the measure in such a manner as to make it fit in with the re-arrangement which has taken place. We understand from the noble Marquess that, in effect, the Bill will leave the law as it stands at present.

THE MARQUESS OF CREWE

Hear, hear.

THE MARQUESS OF LANSDOWNE

That being so, we certainly shall not offer any opposition to the Bill, nor shall we offer any objection to the course which the noble Marquess proposes to adopt—namely, that the Bill should be referred to the Joint Consolidation Committee as just moved by the noble and learned Viscount on the Woolsack.

LORD MACDONNELL OF SWINFORD

With your Lordships' permission, I desire to say a few words on this very important measure. I should like to be permitted, in the first place, to congratulate the noble Marquess on reaching the present stage in a very protracted business. This Consolidation Bill took shape in the year 1873. A Bill was then sent to the Government of India by the Secretary of State which it was commonly understood had been prepared in the India Office under the auspices of Sir Henry Maine, whose name is highly honoured by all who are acquainted with the course of Indian legislation. It was carefully considered in India during the years that elapsed between 1873 and 1876, the Legal Member of the Viceroy's Legislative Council at that time being also a distinguished jurist—the late Lord Hobhouse. The Bill was then sent home, and for a long series of years nothing was heard of it.

But Sir Courtenay Ilbert—a distinguished member of the Viceroy's Council in the year 1886, when I first knew him—on his return from India took up the matter, revised the draft Bill, and produced a Digest of the law upon the subject. I believe that his Digest was submitted to the then Secretary of State, but it was not considered at the time to be desirable to proceed with the matter. At the same time a suggestion was made to Sir Courtenay Ilbert that the object he had at heart would be furthered if he would publish his Digest in the form of a book for public criticism. Sir Courtenay Ilbert did so, and we have the basis upon which this Bill is founded in Sir Courtenay Ilbert's book, "The Government of India," which is known probably to many of your Lordships. Sir Courtenay Ilbert's Digest may be taken as an accurate reproduction of the law as it at present exists in the many Statutes to which the noble Marquess referred which have come down from Warren Hasting's time; and upon points where there is no statutory provision but a common acceptance, a common-law as it were, the effect of that common law is reproduced.

Having taken an interest for a long time in this matter, I have been at the pains of carefully comparing the Bill now before your Lordships with the Digest published by Sir Courtenay Ilbert, and, if the noble Marquess will permit me to say so, there are certain parts of the Bill which are not in accordance with the Digest, which omit certain portions of the Digest, and which present a new reading of the established law. I do not propose on this occasion to call your Lordships' attention to all these matters, but as an illustration of what I say I may, perhaps, refer to one or two points. Part II of the Bill deals with the revenues of India, and provides that these revenues shall be "applied for the purposes of the government of India." Those of your Lordships who have had experience of Indian administration know that the term "India" differs in meaning from "British India." The term "India" includes the Native States, whereas the term "British India" is restricted to British possessions; so that, if the Bill were passed as it stands, on that particular point you might be committed to the expenditure on Native States of moneys which, in the present state of the law, can only be expended on the British area.

There are other points which have attracted my attention. One has reference to the Civil Service. The Civil Service, as your Lordships know, is now recruited separately for each of the Presidencies and Provinces. Under the terms of this Bill the Civil Service is to be recruited for the whole of India without any specification regarding a particular Presidency or Province. One of the greatest difficulties of our administration in India is the wailing acquaintance of our officers with the vernaculars of the country. It is perfectly certain, to my mind, that if an officer recruited for general service in India is sent in the first place to the Province of Madras, with the liability as an ordinary incident of his service of being transferred to Upper India, his knowledge of the vernacular will be so diluted that he will acquire no competent knowledge of the language of a particular Province. By all means take for the Government of India the power, on the occurrence of emergencies, of transferring officers from one part of the country to another, but the lesson of experience should be followed in this matter, and the recruitment should be for a particular Province and not for the whole country. These few instances illustrate the discrepancies which I think I have detected between the Bill as it stands and the Digest, which I presume is a correct representation of the existing law. Therefore while I 'raise no objection whatever to the Second Reading of this Bill, and while I congratulate the noble Marquess on approaching the completion of a great work, I think the utmost care should be exercised in seeing that the Bill does not become to any extent a measure of legislation but remains essentially a measure of consolidation.

THE EARL OF CROMER

My Lords, I fully appreciate the force of the remarks made by the noble Marquess who leads the House, that on a Consolidation Bill it is extremely undesirable to raise any question of principle or any question likely to give rise to acute controversy. But I do not suppose that that is any reason why a suggestion should not be made to render quite clear any clause in the Bill which at present may be ambiguous. Such a case occurs in Clause 4. The text of that clause is as follows— A member of the Council of India shall not be capable of sitting or voting in Parliament. What, in connection with this particular Act, does the word "Parliament" mean? Does it mean both Houses, or only the House of Commons? In other words, are Peers excluded or not? The reason why I draw attention to this point is that a case actually arose a few years ago. When I came back from Egypt in 1907 the noble Viscount, Lord Morley, who was then presiding at the India Office, did me the honour to suggest that I should join the Council of India. We had some discussion on the matter and eventually the proposal fell through, one of the reasons for its falling through being the ambiguity of this clause. I think the noble Viscount consulted the legal advisers at the Home Office on the point, and although I did not see their opinions I believe I am right in saying that they spoke with a rather uncertain voice on the matter. At any rate, the uncertainty was sufficiently great to be of itself a reason for allowing the matter to drop. I think the opportunity ought now to be taken to put the matter right and to declare what the law is. I do not desire to enter fully into the merits of the case. I cannot say that I have looked up the discussions which took place in 1858, but I dare say the point was neglected because nobody thought that a Peer would be proposed as a member of the Council of India. But things have changed a good deal since that time. Many Peers have been created who have Indian experience, and I can imagine cases in which it might be to the public interest that a Peer should be a member of the India Council. I am old enough to recollect a little of the discussions of 1858, and I do not think the Legislature ever intended to exclude Peers. I base that opinion on the history of the old East India Company and on the discussions with which the name of the elder Mill is associated. I do not wish, however, to express any strong opinion as to whether Peers ought or ought not to be members of the India Council. All I say is that as we are consolidating the law the position ought to be made clear. I hope the matter will be considered by the Committee, and possibly by the noble Marquess.

EARL CURZON OF KEDLESTON

My Lords, I should like to say a word in support of the plea of the noble Earl who has just spoken, that in the consideration of this Bill by the Joint Committee to whom it is to be referred, this question should be examined, and this ambiguity, if possible, removed. That there is an ambiguity is clear, not only from the experience of the noble Earl himself, but from an entry which occurs in Sir Courtenay Ilbert's book about the Government of India. I have not in my possession at the moment the latest edition of that book and it is conceivable that there may have been some alteration in the foot-note on this point, but in my edition the clause in the Digest which refers to the provision that we are now considering has appended to it the words— It is, perhaps, open to question whether under this enactment a seat in the Council is incompatible with a seat in the House of Lords. As regards the merits of the case, I am inclined to agree with the view suggested by the noble Earl. Personally I believe that when the provision was inserted in the original Act it was intended to apply only to the House of Commons. But circumstances may arise—I am not certain that they have not already arisen—which might render it very desirable in the public interest that a Peer should be a member for a time of the India Council.

Let me suggest such a contingency to the House. It might very well be, on the one hand, that a Civil Servant who had shown exceptional ability in the discharge of his duties as a Lieutenant-Governor in India should, on his return to this country, be made a Peer—as Lord MacDonnell was, although at rather a later date. It would be very hard that the India Council should be deprived of the services of such a man by the fact of his career having been sufficiently distinguished to be rewarded by a seat in this House. Let me take another case. It might happen in the future that some English statesman who had gone out to India and filled the post of Governor in one of the great Presidency Governorships would be in a position to render very substantial service to the Government of India on his return. It seems extremely hard that such a man, being a Peer, should be excluded. Finally you may have a case like that of Lord Cromer. Although he had left India for some time, yet when he came back from Egypt and was for the moment freed from public cares he was considered by the Secretary of State for India an eminently desirable authority to place upon his Council. I need not argue the case with regard to the House of Commons. The reasons for prohibiting a member of the India Council from having a seat there are obvious. But I think when the matter comes up we ought to consider not merely the wording of the law but the policy of this matter.

There is one other point about which I should like to ask a question. The noble Marquess was very emphatic in assuring us that in this Bill no change—I think he even used the words "no shadow of a change"—was contemplated in the existing law. Lord MacDonnell seemed to throw some little doubt upon the justice of that statement. My question is addressed to the Fifth Schedule, which is thus described— Provisions of this Act which may be repealed or altered by the Governor-General in Legislative Council. Then a long list of these subjects is given, and to a large number of them—in fact, to almost all—the remark is added "The omission of this entry is suggested." In another place the words are, "The alteration of this entry is suggested"; and, again, "The omission or alteration of this entry is suggested." I have not been able clearly to ascertain to what this refers. The question I desire to ask is whether any alteration in the law is contemplated, or whether this particular schedule is covered by the assurance as regards consolidation which the noble Marquess gave us.

THE MARQUESS OF CREWE

My Lord, I am very much obliged, both to the noble Marquess who leads the Opposition and to those other noble Lords who have taken part in the debate, for the general reception which they have given to this measure, and I hope I may assume that it will now proceed peacefully on its way to the Joint Consolidation Committee. So far as any criticism has been directed at the Bill, that criticism has taken two different forms. My noble friend Lord MacDonnell called attention to more than one instance in which he conceived that the attempt to leave the law precisely as it is and to treat this as a consolidation measure not involving any amendment had not been successful, showing, as he endeavoured to do, that as a matter of fact if this Bill passes in its present state certain changes in the law will actually be enacted. That particular criticism I consider to be in the first place a matter for the eagle eye of my noble and learned friend Lord Loreburn, who, presiding over the Joint Consolidation Committee, will pursue his usual practice of regarding with the utmost sternness any provision in a Consolidation Bill which affects the law as it stands. Unless I am greatly mistaken, in dealing with past Consolidation Bills the Joint Committee has been infinitely scrupulous in refusing to admit any changes of the law. Therefore we must, I think, await the result of their examination of the Bill and its return to the House before we can know whether the strictures of my noble friend Lord MacDonnell are, as a matter of fact, justified.

But the observations of my noble friend on the Cross Benches (Lord Cromer) and of the noble Earl opposite were of a somewhat different character. They suggest not leaving the law precisely as it stands, but the re-enactment of the Statutes in a form which, if it does not alter the existing law, will at any rate remove doubts. You can only remove doubts by taking a step which ex hypothesi some people will consider to involve a change in the law. Those who believe that the exclusion from Parliament of a member of the Council of India covers both Houses will believe, if the House of Commons is mentioned simply, that a change in the law has been made for the benefit of members of your Lordships' House. Those, on the other hand, who believe that the term "Parliament," or at any rate the intention of those who framed the Act, was to include members of this House and only to exclude members of the House of Commons will be proportionately gratified. But I do not think it can be disputed that to deal with this matter in the present Bill might be trenching on somewhat dangerous ground, and might lead to the introduction of other amendments of substance which in turn might become matters of controversy. I should certainly have supposed that it would have been wiser to leave this question, among others, to be settled whenever the Amending Bill—which, as I have pointed out, I should have brought in pari passu in ordinary times—can be dealt with; and I hope that on reconsideration noble Lords opposite will agree that that is the wiser course to pursue.

I do not desire to enter into the question whether or not it is desirable that members of this House should be able to sit on the Council of India. Personally, I should be very glad if they could. The noble Earl on the Cross Benches mentioned the case in which he may have appeared to be debarred—I am sure it was a great misfortune to the Council of India if he was—from sitting upon it owing to the fact of his being a Peer. I remember a later case—that of my noble friend who was for some time a Member of Council, Sir James Mackay as he then was, afterwards Lord Inchcape. We all assumed that when my noble friend became a member of this House he was thereby debarred from remaining on the Council. But, as I say, I should be very sorry to prejudge the question, as it is one which I think is well worthy of being considered when the time comes for making certain changes which undoubtedly will have to be made in the law.

The noble Earl, Lord Curzon, referred to the Fifth Schedule and to those matters which are within the competence of the Viceroy's Legislative Council to deal with. In reply to his question, I take it that the rule which holds good here will also be held to hold good in India—that is to say, that no possible change which falls within the competence of the Viceroy's Council to make, if it should involve any change of the existing law or practice, will be made so long as the war lasts.

EARL CURZON OF KEDLESTON

There is a further question I should like to ask, arising out of the wording of Clause 4. The noble Marquess has just told us of the case of a member of his Council who became a Peer and was thereby considered disqualified from retaining his seat on the Council of India. The words of Clause 4 are— A member of the Council of India shall not be capable of sitting or voting in Parliament. I wonder whether we may draw from that the conclusion that it is possible for a Peer to be a member of the India Council, but that if he accepts that office he would not be at liberty to sit or speak or record a vote here? What is the existing interpretation of the law on that point? There is only one other point, to which I had meant to refer before. I do not think any of us ought to discuss this matter without registering our hearty vote of thanks to Sir Courtenay Ilbert for his services in connection therewith. As the noble Lord opposite pointed out, Sir Courtenay Ilbert's book is the whole foundation of this Bill. That book was on the table of every one of us while we were in India, and there was hardly a week in our lives when we did not have to consult it. I believe that has been the case, too, at the India Office. I believe, further, that Sir Courtenay Ilbert's assistance and labours in the drawing up of this Bill have been quite invaluable.

THE MARQUESS OF CREWE

My Lords, the noble Earl has raised an interesting legal point which I confess had not occurred to me—namely, whether the exclusion of a Peer from the India Council and of a member of the India Council from Parliament was reciprocal, or whether it was only one-sided; that is to say, whether a member of Council might become a Peer and, so long as he refrained from taking his seat, might remain a member of the India Council. On the face of it I should have thought that the wording of the clause would admit that possibility, but I should like to be fortified by some legal opinion before expressing a definite judgment on that point. As a matter of fact it is, of course, not likely, if one comes to think of it, that a member of the Council who became a Peer would agree to abstain altogether from attending this House; and therefore the case is probably not one which is very likely to arise.

THE LORD CHANCELLOR (VISCOUNT HALDANE)

My Lords, before putting the Question there is one observation which I would like to make. I have noticed with relief that the general sense of your Lordships has been to desire that in this Consolidation Bill no alteration should be made in the law, even though confined to settling points of doubt. The importance of that is that this Bill is going before the Joint Consolidation Committee. The convention between the two Houses on which the Joint Committee was founded was that no alterations of the law should be made by that Committee, except where very definite instructions had been agreed upon. If we depart from that, even with regard to matters which may seem not to be of high importance, the result will be that difficulties will be placed in the way of the easy passage of Bills which go to that Committee. Usually the most convenient course is to amend the law first and then pass your Consolidation Bill. But you cannot always do that, and the next best thing is to do what we are doing here—put the law into a consolidated form, so that the points can be seen on which amendment is desired. I urge upon your Lordships the importance of conserving the convention on which the Joint Committee was founded, the essence of the matter being that unless that convention is strictly observed Bills will not go through as smoothly as they have done in the past.

EARL LOREBURN

My Lords, I think I ought to say a few words on the point to which the noble and learned Viscount has just referred. I am glad that this Bill is to be referred to the Joint Consolidation Committee. I have sat upon that Committee since it was set up seven or eight years ago, and I am anxious that it should continue to be useful. It was started for the purpose of consolidating—not amending—the Criminal Law of this country. It was then found convenient to send divers Departmental Bills to the Committee, and we did our best with them. But the terms on which we have always dealt with both Houses of Parliament are these, that we strictly confine the Bills before us to the law as it is. The result of that unwritten ordinance has been that we have never had a division on the Committee nor has Parliament ever failed, when the Bills have come up, to pass verbatim et literatim the fruit of our labours. The Departments, very naturally, have been making use of this Joint Committee, and I have observed a tendency to use it for the purpose of recommending and promoting alterations in the law. But it would be fatal sooner or later—sooner rather than later—to its whole purpose if the Joint Committee ceased to be a Committee for the purpose of casting into a useful frame the law as it stands. I do not say for a moment, in this exceptional time and as this is an exceptional Bill, that we shall not be able to try and do something in the sense desired by the Government. But if any alteration of the existing law is found in the four-corners of this Bill we ought to state that it is an alteration, so that Parliament shall know exactly what they are doing when they are passing the Bill; and if any further amendments of the law are to be proposed then we ought to follow the example that we have always set ourselves of showing in the Schedule the exact meaning of the departure from the existing law. I hope the House will recognise the truth of what has been said—that the very existence and usefulness of this Committee depends upon its not embarking upon controversial questions at all, and upon its affecting to do nothing in the way of new legislation except by general assent and that in a very meagre degree, our primary function being to lay down what the law is and not to presume to say what the law ought to be.

On Question, Bill read 2a.