HL Deb 23 May 1916 vol 22 cc77-87


Order of the Day for the Second Reading read.


My Lords, this Bill, to which I ask your Lordships to give a Second Reading to-day, is a supplementary Bill to the Government of India Act of last year. It may be in the recollection of your Lordships that the Government of India Act of last year confined itself strictly to the consolidation of the various Acts of Parliament that had been passed in previous years in connection with the administration of India. No Amendment was allowed to be inserted in that Bill which could in any shape or form entail an alteration of the law, the only Amendments that were included being those which may be characterised as clearing away ambiguities and making the existing law clear and intelligible to any one who read it when consolidated in one single Act.

This Bill advances the position a stage further. Its object is to make certain Amendments, most of them of a minor character, but at the same time entailing an alteration of the law and therefore to that extent beyond the scope of any Amendment in last year's Act. I do not feel that it is necessary for me to occupy the time of the House by dwelling at any length upon the various provisions of this Bill. There are one or two clauses in it, however, which I think may be of interest to your Lordships, and which have a not inconsiderable importance in the future administration of India. I will allude to them as briefly as I can.

In the first place there is Clause 2, paragraph (d), which is a proposal of substance, because the several Legislatures in India have long acted on the assumption that they could enact various provisions barring the right to sue the Secretary of State in Council in civil Courts in regard to the rights of Government, particularly in connection with revenue and with land. A recent decision of the Judicial Committee of the Privy Council has denied that they possess these rights under the existing law, and the effect of this decision is that many provisions which bar, or which in effect have the power to bar, suits in civil or revenue Courts against Government are now void; and similar provisions, of course, cannot be enacted in the future. It is essential that the Legislative Councils in India should have power to enact provisions of this kind in suitable cases, and it is proposed to amend the law accordingly.

Then Clause 3 proposes a provision which both His Majesty's Government and the Government of India consider of importance. It gives power under careful restriction to open both civil posts and military commissions to rulers and subjects of Native States and of territory adjacent to India such as Nepal and Afghanistan, and to members of frontier tribes. Under the existing law these persons are debarred from holding any such appointments because, technically speaking, they are not British subjects. On the other hand, the process of naturalisation is not suitable in their case. The time has arrived when it is generally admitted that a procedure should be provided to make these persons eligible, equally with British subjects born in British India, for office under the Crown. Many of these persons are to-day serving, and have on many previous occasions served, in the Army, and have done both loyal and gallant service for the Empire This proposal will, I feel confident, give satisfaction to the rulers of these States and adjacent countries, many of whom, I might point out, freely employ to-day British subjects within their own territories. The native States, although they enjoy a large measure of local autonomy, have always been proud to consider themselves as a component part of the Empire; and I might add that in Nepal and in the other native States, which comprise a third of the Empire of India, there has been for years past furnished to our Forces some of the finest and most reliable of our fighting material. Provision is also made in this Bill to allow selected subjects from these States to compete for appointments in the Indian Civil Service, and to permit both rulers and subjects in those countries to be nominated as members of a Legislative Council. These extensions of the law are significant of Indian development, and are, I feel confident, in full accord with modern Indian sentiment.

One word as regards Clause 4, which is of importance because it authorises restrictions to be placed on the admission to the Civil Service of naturalised aliens or their children. At present any naturalised person is eligible to compete for the Indian Civil Service. This provision affords a wider latitude than that which controls appointments to the Home Civil Service, such as the War Office, the Admiralty, or the Colonial Office, where a man is not ordinarily eligible for appointment unless he is a British subject and the son of a British subject. In regard to appointments to the Foreign Office it is still stricter, because the man must be a natural-born British subject and have been born within the United Kingdom or the self-governing Dominions of parents who have also been born within those territories. It is proposed now—and I think, in view of all that has passed recently under the influences of this war, it is an important provision—to declare that admission to the Indian Civil Service of British subjects who, or whose parents, were not born within His Majesty's Dominions shall be in future subject to such restrictions as the Secretary of State in Council may prescribe. This will insure what, as I have said, is of importance in the light of modern experience—namely, that only those should be eligible in the future for the public administrative service of the Empire whose sympathies are genuinely those of a British subject.

Clause 5 removes a difficulty in that it will afford the opportunity in the future of Executive Councils obtaining, if they so desire, the services of an eminent banker or merchant upon their body. These appointments are only for five years; there is no pension attached to them, and therefore under the present law it would be difficult, if not impossible, to expect any eminent business man to sacrifice his business for so short a period. The experience and advice on these councils of business men may be found of great advantage, and I hope that this opportunity will from time to time be seized in the coming years, when commercial and industrial developments should play in India so important a part.

Clauses 8 and 9 are merely to explain the method of the construction of this Bill, and I will only say one or two words of explanation upon them. The First Schedule of the Bill proposes a series of Amendments of the Act of 1915. These are mostly of a minor character, and we are only carrying out in form a precedent which has frequently been adopted in previous Acts. This series of Amendments is merely placed in this way with a view to convenience of method in the construction of the Bill. The Fifth Schedule, which came under considerable comment when the Consolidation Bill was going through this House last year, enumerates the provisions of the 1915 Act which may be repealed or altered by the Governor-General in Legislative Council. Some noble Lords on that occasion desired that the whole of this Schedule should be repealed, but, as I pointed out at the time, there were certain provisions which it would be inappropriate to omit from the Government of India Act. I think that an examination of the amended Schedule as it stands now, with all the omissions, will satisfy your Lordships that all that is necessary, and only what is necessary, has been left in the Schedule, and that what cannot appropriately be left in the hands of the Governor-General in Legislative Council has now been omitted.

Clauses 1 to 5 and the First Schedule to which I have already alluded are so drawn as to admit of Amendments, the Amendments that are proposed being incorporated automatically into the text of the 1915 Act, so that when this Bill has passed through the Houses of Parliament and is placed upon the Statute Book these clauses and this Schedule will be omitted from this Act and will be attached in proper form to the sections of the Act of last year. The remainder of the Bill will stand upon the Statute Book in its present form or as amended by either House. This is necessary because, in the case of Clause 6, that clause amends the Foreign Jurisdiction Act and is therefore applicable to other countries; and Clause 7 deals with the East India Loans Act, which has not been consolidated. The Bill has been carefully examined by the Advisory Committee, and may be said to be the outcome of their work. In the course of the consideration of the Bill by that Committee, the various Amendments that were moved and discussed last year by noble Lords in this House and by hon. members in another place came under careful consideration. If they have not in the main been admitted to the Bill, I can assure your Lordships that it is only after due consideration in each case; and I shall be glad to explain at a subsequent stage of the Bill the reasons why in any particular case an Amendment has not been introduced. There are, however, some instances where provisions have been inserted which will in the main meet the views submitted last year by noble Lords.

I think, and I hope your Lordships will agree, that it will be to the advantage of a Bill of this character that before it comes under examination in Committee of this House it should be studied by the Joint Select Committee. My noble and learned friend who presides over that Committee has been good enough to assent to the Bill being referred to them, and my noble friend Lord Muir-Mackenzie will move the reference of the Bill to that Select Committee at a subsequent stage. I do not think it is necessary for me at this stage of the Bill to say more in regard to its provisions. It may be said to constitute a definite advance in the political development of India, and it will, I believe, be accepted in that sense by Indian opinion. I commend it now to your Lordships' approval, and I shall be grateful if the House will give it a Second Reading this afternoon.

Moved, That the Bill be now read 2a.—(Lord Islington.)


My Lords, it may be within the recollection of some of your Lordships that when the Consolidation Bill was under discussion last year I raised the question of whether Peers were eligible for appointment to the India Council. It was then held—I think rightly and naturally held—that a discussion of this kind could not properly take place with reference to a Consolidation Bill. The noble Lord who has just spoken promised that the question would be considered, and I raise it again now with the object of inquiring whether the matter has been considered by the India Office, and, if so, with what result.

My reason for raising this question originally was that a case in point had absolutely occurred. When I returned from Egypt nine years ago the noble Viscount who then presided at the India Office, Lord Morley, did me the honour of speaking to me on the subject of being appointed to the India Council. I may say that, independently of the state of the law, I do not think that the negotiation would have come to anything, because for my own part I felt a reluctance, which I think your Lordships will well understand in the circumstances, of appearing in any way to sacrifice my liberty of political action; and although I do not think a member of the India Council would be debarred from expressing his opinions in this House on general subjects, he certainly would to a certain extent be restrained from expressing any opinion on Indian subjects which was at all adverse to the Government. But what gave the coup de grâce to the proposal was the text of the law.

I think there is a great deal of ambiguity as to what the Legislature of 1858 meant, but there is no ambiguity whatever as to what they said. I think I am right in saying that they laid down that no Member of Parliament should be appointed to the India Council. In ordinary colloquial language, when we speak of a Member of Parliament we allude to a member of the House of Commons, but technically, of course, a Peer is quite as much a Member of Parliament, and if the matter ever came before a Court of Law it would unhesitatingly be held that Peers were debarred from being appointed to the India Council by reason of that law. As regards the intentions of Parliament, I do not profess to have looked up all the old debates to see exactly what happened, but I certainly think there is a good deal of ambiguity as to what was meant. Speaking from recollection and also from what I have always heard, Lord Stanley (afterwards Lord Derby) who was then at the India Office and who exercised great influence in the framing of the Act of 1858, had a very strong opinion on this particular point, and it was under his inspiration that this particular clause was introduced. His motives were twofold. One was that he thought that by introducing Members of Parliament to the India Council there might be a considerable risk of political jobbery invading the domain of the administration of India, and the other was that he wished to keep the Government of India wholly free from Party strife and Party contention of all kinds. Those were very laudable motives.

A certain amount of light is thrown upon the intentions of the Government of the time by the fourth volume of Lord Beacons-field's Life which has just been published. In 1858 a correspondence ensued between Lord Beaconsfield and Lord Stanley, then Secretary of State for India. Lord Beacons-field wished to bring political partisans, I think we may say, into the India Council. Lord Stanley was entirely contrary to that view; and the arguments which Lord Beaconsfield introduced were so highly characteristic of that distinguished statesman that I will venture to read to your Lordships an extract from his letter to Lord Stanley. It is dated August 9, 1858. Lord Beaconsfield wrote:— Patronage is the outward and visible sign of an inward and spiritual grace, and that is Power. The feeling of the House of Commons was that the lay appointments should be reserved for public men in our political life. You have crammed the Council with Indians…. I entreat you to think well of this matter. An overscrupulosity in public life often leads to arrangements which are less justifiable than a course of conduct which, at first blush, might seem more coarse and obvious. I think that if Lord Beaconsfield had had his way we should not have had many instances of inward and spiritual grace, but a good many signs of want of grace. But Lord Stanley, with his sturdy common sense, brushed aside these plausible but somewhat specious arguments and held to his guns, with the result that Members of Parliament were excluded.

There is no doubt, I think, that the Legislature aimed more at excluding members of the House of Commons than members of your Lordships' House, and it was very natural that this should be so. It is almost a necessity of the existence of a member of the House of Commons that he should be a political partisan. I do not mean to say that Party feeling does not at times run strong in this House. But there are many individual members of your Lordships' House, especially those who have lived a good deal abroad, who are so independent as to let Party ties lie very lightly upon them. In present circumstances it would require legislation to make the change, and the question is whether that legislation should be undertaken. On the whole, after reflection, I rather share the view which was expressed from the opposite Benches when I brought the question forward before—that the matter had better be left alone. It would, of course, be possible to solve the question by proposing an Amendment that both members of the House of Commons and members of the House of Lords should be eligible for seats on the India Council, but that would be a serious change, and I hardly think it would commend itself to your Lordships' House or to the country in general. Therefore for my own part I am prepared to acquiesce in the view which I believe is held on the Front Ministerial Bench opposite, that the matter should be left alone. I may say that I do so with some reluctance. On the last occasion when the matter was raised the noble Earl, Lord Curzon, expressed a good deal of sympathy with the view that Peers should not be excluded from the India Council; and I think the noble Marquess the Leader of the House, although he fully recognised the practical difficulties of doing anything, said there was something in the proposal. But I do not think it would be worth while to raise a contentious principle of this sort, and therefore perhaps the best thing would be to leave it alone. I merely make these remarks to explain why, as I raised the question before, I do not wish to press it further.

There is one other point in connection with this Bill to which I should like to allude, although it is really a point more for the Committee stage, but I trust it will be referred to by the noble Lord and others when the Bill goes to the Select Committee. I allude to Clause 4 (2A) which lays down that the Secretary of State shall be empowered to make rules placing restrictions on admission to the Indian Civil Service of British subjects who or whose parents were not born within His Majesty's Dominions. The word "parents" makes it look as if the Secretary of State can make regulations only in cases where both parents were born outside His Majesty's Dominions. My own view is that he ought to have full power to make regulations where only one parent was born outside, and I hope that point will be considered when the Committee stage is reached.


My Lords, it was with great pleasure that I heard the noble Marquess the Leader of the House say the other day that this is an important Bill, though I rather think that anybody who read the explanatory Memorandum attached to the Bill might arrive at another conclusion. The Memorandum says that its main object is "to make certain minor Amendments." I think that any one who heard the speech of the noble Lord who introduced the Bill will come to the conclusion that there are more than minor Amendments in the Bill, and that there are some changes of real importance. The special change to which he referred—the opening out of the Public Service to Indians not born in British India in certain conditions—is a great change. I think it is a wise change, and I thoroughly welcome it. But there are two or three other points in the Bill which seem to me to require careful consideration. One point may affect considerably the relations between the Government of India and the Native States of India. There is another which must, I think, affect the position and the powers of the Council of the Secretary of State. Experience shows that what seem small administrative adjustments may in certain circumstances prove of the greatest and most vital importance. The Inquiry which took place after the Crimean War into the losses and sufferings of our troops there came to the conclusion that among the causes, perhaps one of the most important, was the relations between the Treasury and the Supply Departments of the Army. Had those relations been defined in some Bill in your Lordships' House it would probably have been thought that there was nothing whatever in the matter. To take a recent illustration, if the relative functions of the Viceroy and of the Chief Secretary in Ireland had been somewhat differently defined, it may be that some things would not have happened at all or other things would have happened quite differently. Therefore in a Bill of this nature it does seem necessary to scrutinise carefully the possible results that may arise in administration of this kind. I hope, therefore, that the Bill will be carefully considered by the Joint Select Committee before it comes to your Lordships to be finally passed.


My Lords, it is quite clear that this Bill is about to be read a second time. I venture to say that it would be of advantage that a Bill such as this should go to the Joint Committee which your Lordships set up several years ago for dealing with Consolidation Bills. That Committee last year produced an Act of Parliament upon which these Amendments are proposed to be made. Many of these Amendments were mentioned before the Committee, and approval of them was felt; but it was quite clear that they ought not to be included in a Bill which was for pure consolidation, the whole force of such Bills being that they are certified to both Houses of Parliament to represent the law, and nothing but the law, as it is. The Amendments in this Bill are numerous, and many of them are very small. If they were all small, it would be clearly an advantage that they should go to the same Committee, which would dovetail them in and produce a satisfactory Bill. But it has been shown to-night that there are some amendments of the law in this Bill which cannot be looked upon as mere matters of form, or as of a trifling character. For that reason I suggest to the noble Lord who has brought in this Bill that it would be an advantage that there should be associated with the Joint Committee one or two of those members of your Lordships' House who are familiar with India and will know the exact bearings of the Amendments which have been proposed. For instance, there is my noble friend who has just spoken (Lord Sydenham). I would also mention Lord MacDonnell, who would be very useful on that Committee; and, of course, the noble Lord himself who is in charge of the Bill. The objection to such a proposal as a rule would be that under the constitution of Joint Committees you have to have an equal number from the other House, and a further addition would, of course, make a large Committee; but this is an exceptional occasion, and I think that by doing something of this sort a very satisfactory tribunal would be created for dealing with this Bill. At the proper time, if the noble Lord will allow me, I should like to move that the Bill be referred to the Joint Committee; and at the further stage I think it would be well that the three Peers I have named should be added to the Committee.


My Lords, my noble friend has anticipated an observation I was about to make in the same direction. It is right that your Lordships should appreciate what is the nature of the Committee to which this Bill is proposed to be referred. The Committee, I am sure, will very willingly do their best. But this is a Committee selected with a view to consolidating the law as it exists, and not with a view of investigating what laws ought to be passed. The Committee is strong in legal capacity. We had the advantage last year of the presence and advice of a good many distinguished Indian authorities, four or five gentlemen at least, who had large experience of India on the Council and otherwise. It seems to me that if this Bill is sent to this Committee as an exceptional measure the Committee ought to be strongly reinforced. I say "strongly reinforced," and I, for my part, would very willingly give up my place on the Committee, and I think that most of the members of the Committee would say the same. Not that any of us wish to avoid discharging this duty, but we ought to have strong Indian opinion among us to enable us to discharge it properly.

On Question, Bill read 2a.

Then it was moved that the Bill be referred to the Joint Committee on Consolidation Bills (Lord Muir-Mackenzie); agreed to, and ordered accordingly.