HL Deb 20 May 1924 vol 57 cc527-38

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

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

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMOKE in the Chair.]

Clause 1:

Amendment of ss. 86 and 87 of the Government of India Act.

1.—(1) For Sections eighty-six and eighty-seven of the Government of India Act there shall be substituted the following sections:

Power to grant leave of absence to Governor-General, etc.

86.—(1) Subject to such conditions and limitations as may be prescribed by rules made under Section ninety-four of this Act, the Secretary of State in Council may grant to the Governor-General, and on the application of the Governor-General in Council may grant to the Commander-in-Chief and a Governor, leave of absence for such period, not exceeding the period allowed by such rules, as be may think fit.

(2) Subject as aforesaid, the Governor-General in Council may grant to any members of his executive council, other than the Commander-in-Chief, and a Governor in Council and a Lieutenant-Governor in Council may grant to any member of his executive council, leave of absence for such period, not exceeding the period allowed by such rules, as he may think fit.

(3) Where the Governor-General, or the Commander-in-Chief, or a governor or a member of an executive council obtains leave of absence in pursuance of this section, he shall retain his office during his absence, but if his absence exceeds the period for which leave is granted his office shall become vacant.

Acting appointments during the absence of the Governor-General, etc., on leave.

87.—(l) Where leave is granted in pursuance of the foregoing section to the Governor-General, or to the Commander-in-Chief, or to a Governor, a person shall be appointed in his place during his absence, and the appointment shall be made by His Majesty by warrant under the Royal Sign Manual. The person so appointed during the absence of the Commander-in-Chief may, if the Commander-in-Chief was a member of the Executive Council of the Governor-General, be also appointed by the Governor-General in Council to be a temporary member of that Council.

(2) The person so appointed shall, until the return to duty of the permanent holder of the office, or, if he does not return, until a successor arrives, hold and execute the office to which he has been appointed and shall have and may exercise all the rights and powers thereof and shall be entitled to receive the emoluments and advantages appertaining to the office, forgoing the emoluments and advantages (if any) to which he was entitled at the time of his being appointed to that office.

THE SECRETARY OF STATE FOR INDIA (LORD OLIVIER) had on the Paper an Amendment, to omit from subsection (1) the substituted Section 86 and to insert:

Power to grant leave of absence to Governor-General, etc.

"86.—(1) The Secretary of State in Council may grant to the Governor-General and, on the recommendation of the Governor-General in Council, to the Commander-in-Chief, leave of absence for urgent reasons of public interest, or of health or of private affairs.

(2) The Secretary of State in Council may, on the recommendation of the Governor-General in Council, grant to a Governor, and the Governor-General in Council, or a Governor in Council or a Lieutenant-Governor in Council, as the case may be, may grant to any member of his Executive Council (other than the Commander-in-Chief) leave of absence for urgent reasons of health or of private affairs.

(3) Leave of absence shall not be granted to any person in pursuance of this section for any period exceeding four months nor more than once during his tenure of office:

Provided that the Secretary of State in Council may if he thinks fit extend any period of leave so granted beyond four months, but shall in every case publish his reasons for so doing.

(4) Where leave of absence is granted to any person in pursuance of this section ho shall retain his office during the period of leave as originally granted, or, if that period is extended by the Secretary of State in Council, during the period as so extended, but if his absence exceeds that period his office shall be deemed to have become vacant as from the commencement of his absence.

(5) Where a person obtains leave of absence in pursuance of this section he shall be entitled to receive during his absence such leave-allowances as may be prescribed by rules made by the Secretary of State in Council, but, if he does not resume his duties upon the termination of the period of the leave, he shall repay, in such manner as may be so prescribed as aforesaid, any leave-allowance received tinder this subsection.

(6) If the Governor-General or the Commander-in-Chief is granted leave for urgent reasons of public interest, the Secretary of State in Council may, in addition to the leave-allowances to which he is entitled under this section, grant to him such further allowances in respect of travelling expenses as the Secretary of State in Council may think fit.

(7) Rules made under this section shall be laid before both Houses of Parliament as soon as may be after they are made."

The noble Lord said: My Lords, when this Bill was under discussion on the Second Reading a difference of opinion arose between my noble friends on the other side and myself as to the precise form in which the provisions, the purpose and substance of which were generally approved, should be put into the Bill. We proposed to legislate giving power for Rules to be made for leave of absence and for pay. It was contended by noble Lords opposite that it was preferable that all the provisions regulating leave of absence and emolument should be embodied in the Bill. Having been an officer in His Majesty's Service, I rather took exception to the principle of the objection. I think there is a distinction that should be borne in mind.

The noble Marquess and other noble Lords supporting him justly observed that we had got into a very bad habit of enabling Orders in Council to be made for all sorts of matters for which legislation might properly be passed. Orders in Council and Executive Orders dealing with the liberties of the subject are one thing; but Orders and Rules dealing with His Majesty's servants who are servants of the King by title are somewhat different, and, as I pointed out, it has been the habit for the Rides of the public service, whether in the Colonies or in this country, to be made by means of Orders in Council or by Rules of the Secretary of State or the Lords Commissioners of the. Treasury, and if Parliament disapproves of them it shows that disapproval in certain well known ways. But it has not been usual to insert in Acts of Parliament minute provisions and Rules for the leave of absence and pay of those engaged in the public service.

I admit that the position of the Government of India may, perhaps, be regarded as somewhat different. As a matter of fact, the powers of the Governor-General to take leave are at present absolutely directed by law and leave cannot be granted except by law. Similarly, there are other provisions affecting the substance of this Bill which are at present governed by the Government of India Act. In consultation with the noble Marquess, Lord Curzon, and with my noble predecessor, Lord Peel, I have gone through the provisions of the Act and have redrafted them in the fresh form for Clause 1 which I understand meets the views of the noble Marquess and the noble Viscount. We propose now to substitute an entirely new clause for Clause 1 of the Bill.

The first subsection of the proposed clause provides that the Secretary of State in Council may grant to the Governor-General and, on the recommendation of the Governor-General in Council, to the Commander-in-Chief, leave of absence for urgent reasons of public interest, or of health or of private affairs. Those are the three categories suggested by the noble Marquess and which, I entirely agree with him, are the three categories under which leave of absence would probably be granted. We want to put this provision into the Bill and not into Rules.

The second subsection provides that— The Secretary of State in Council may, on the recommendation of the Governor-General in Council, grant to a Governor, and the Governor-General in Council, or a Governor in Council or a Lieutenant-Governor in Council, as the case may be "— there are, at present, no Lieutenant-Governors, but the Act provides for their appointment in certain circumstances and we have to take the necessary powers— may grant to any member of his Executive Council (other than the Commander-in-Chief) leave of absence for urgent reasons of health or of private affairs, That is to say, we do not allow these subordinate Governors and Executive Councillors to be granted leave for the purpose of consultation with the Secretary of State. That privilege is only to be granted to the Governor-General and the Commander-in-Chief.

Then, in subsection (3), we limit the period during which leave of absence shall be granted to that suggested by the noble Marquess. The subsection provides that leave of absence shall not be granted to any person in pursuance of the section for any period exceeding four months nor more than once during his tenure of office. Upon that I want to make one observation. At the present time Governors may grant to Executive Councillors leave of absence on medical certificate for a period not exceeding six months. Therefore, by limiting the grant of leave of absence that may be given to all these officers to four months, one might appear to be encroaching upon the privilege which is now granted to Executive Councillors. That I do not think is an objection of substance, because the privilege they enjoy is one subject to the control of the Governor and Secretary of State, and I think it may be clearly understood that the Secretary of State would, if any Executive Councillor came on leave of absence on the ground of ill-health for four months, reasonably take into consideration all the circumstances, and, if his health required it, would giant him that further extension of two months which might originally have been granted under the discretion of the Governor before he left India. Therefore we are not really encroaching upon any privilege which Executive Councillors at present enjoy with regard to their health.

I wish slightly to vary the next sentence that is printed on the Amendment Paper so that it will read as follows: Provided that the Secretary of State in Council may, if he thinks fit, extend any period of leave so granted, but in any such case the reasons for the extension shall be set forth in a Minute signed by the Secretary of State and laid before both. Houses of Parliament. Publication was also asked for, and as a form is already provided in another section of the Government of India Act, we thought it would he reasonable to follow the particular form of publication already embodied in that Act. Therefore we have adopted that form rather than the more general word "published."

On the other subsections of the clause I do not think I need make any observations. They have been sot out in the Amendments, and, subject to the alteration which I have handed to the Lord Chairman, I beg leave to move the new clause.

Amendment moved— Clause 1, page 1, line 8, leave out from the end of line 8 to the end of line 7 on page 2 and insert:—

Power to grant leave of absence to Governor-General, etc.

(" 86.—(1) The Secretary of State in Council may grant to the Governor-General and, on the recommendation of the Governor-General in Council, to the Commander-in-Chief, leave of absence for urgent reasons of public interest, or of health or of private affairs.

(2) The Secretary of State in Council may, on the recommendation of the Governor-General in Council, grant to a Governor, and the Governor-General in Council, or a Governor in Council or a Lieutenant-Governor in Councl, as the case may be, may grant to any member of his Executive Council (other than the Commander-in-Chief) leave of absence for urgent reasons of health or of private affairs.

(3) Leave of absence shall not be granted to any person in pursuance of this section for any period exceeding four months nor more than once during his tenure of office:

Provided that the Secretary of State in Council may if he thinks fit extend any period of leave so granted, but in any such case the reasons for the extension shall be set forth in a. Minute signed by the Secretary of State and laid before both Houses of Parliament.

(4) Where leave of absence is granted to any person in pursuance of this section he shall retain his office during the period of leave as originally granted, or, if that period is extended by the Secretary of State in Council, during the period as so extended, but if his absence exceeds that period his office shall be deemed to have become vacant as from the commencement of his absence.

(5) Where a person obtains leave of absence in pursuance of this section he shall be entitled to receive during his absence such leave-allowances as may be prescribed by rules made by the Secretary of State in Council, but, if he does not resume his duties upon the termination of the period of the leave, he shall repay, in such manner as may be so prescribed as aforesaid, any leave-allowances received under this subsection.

(6) If the Governor-General or the Commander-in-Chief is granted leave for urgent reasons of public interest, the Secretary of State in Council may, in addition to the leave-allowances to which he is entitled under this section, grant to him such further allowances in respect of travelling expenses as the Secretary of State in Council may think fit.

(7) Rules made under this section shall be laid before both Houses of Parliament as soon as may be? after they are made.")(Lord Oliver.)

THE MARQUESS CURZON OF KEDLES-TON

My Lords, those of your Lordships who were present when we discussed this question on Second Reading will remember that several of us on this side of the House, and some noble Lords of the Liberal Party, directed certain criticisms at the Rill in the form in which it had been introduced by the noble Lord, the Secretary of State for India. We have been ourselves, on this side of the House, in general agreement in those criticisms, and at the close of our proceedings, feeling it most desirable that the House should act as far as possible with unanimity in the matter, and that there should be no conflict of opinion between the two sides of the House, I suggested to the noble Lord that he might allow me, as representing those who sit here, to enter into private consultation with him as to the form which Amendments to the Rill as originally proposed might properly take. He was good enough to accede to that wish. As he told your Lordships just now, we have had more than one meeting since, with the result that this rather considerable change in the Bill is now proposed, with full Government responsibility, by him.

I think it is really a little more than he was inclined just now to suggest. He seemed almost to imply that the change was only one of form, and that he would have preferred to deal with the matter in one way, while we, on the other hand, on this side, were more anxious that it should be dealt with in another way. I think it is a little more than that, because now under this Amendment you do get clearly stated in the Bill exactly what you propose to do in each case, the reasons for which you act in each case, the conditions under which leave may be given, and the restrictions under which it ought to be given. That surely is a very much better plan than trusting to those Rules for which the noble Lord has just expressed a sort of academic preference. I am much obliged to him for the courtesy and consideration he has shown in the matter. I think the Amendments which he has just explained and defended really meet every point that we raised two or three weeks ago. I need only, therefore, comment upon one or two.

The first subsection of the new clause which he has read gives, as we urged on the previous occasion, leave of absence, subject to the discretion of the Secretary of State in Council, both to the Governor-General and to the Commander-in-Chief. I think that is right, because I can conceive conditions (indeed I indicated some the other day) in which both of those high officials might—not of course at the same time, but independently—in the course of their term of office be required to come home in order to consult with the Secretary of State here. Let me add now, what I did not say then, that I can well conceive a case in support of my general proposition in which the Governor-General, reluctant himself to take his hand from the plough even for a period of three or four months, might at the same time think it desirable to depute his most important councillor—namely, the Commander-in-Chief —to represent views on his behalf, which no one could do with so much authority, to the Secretary of State at home. That, I think, apart from the justification which I indicated the other day, is a reason for giving this privilege to the Commander-in-Chief as well as to the Viceroy.

The noble Lord has been good enough to accept the suggestion which was made from this side the other day, that leave of absence granted under the new provisions should be limited to four months, but he mentioned one reservation, and I think rightly mentioned it. He pointed out that under the existing law members of the Executive Councils in India can, upon the production of a medical certificate, obtain leave of absence during their tenure of office to this country for a period not of four months, but of six months, and he said that we are extending an advantage to those persons which they have never hitherto enjoyed—because we are going in future to let them come home for urgent reasons of private affairs as well as of health, a prerogative they have not hitherto possessed. Therefore, he said we are not only not doing them any injury, but, on the contrary, we are conferring upon them an advantage. At the same time he said we do not want to take away from anybody the statutory privilege which he at present enjoys.

I think there is force in that, but what he did not make quite clear was this—and I ask him if my interpretation is correct. This privilege, which he says depends upon an understanding, will I gather under the new Act apply to those persons who at present enjoy it—that is to say the members of Executive Councils—in the future. But they are far more numerous than they were in my day, when there were only three Governments, the Governments of India, Bombay and Madras. The members of all these Executive; Councils in future are not, as I understand it, going to be put in the exceptional position of having their six months while everybody else has four months. All the noble Lord means is that those who already under the existing law can take advantage of the six months' privilege will not be deprived of it. Perhaps before we conclude he will tell me if I am right in my interpretation of what he has just said.

Then he has introduced in the second part of subsection (3) a condition which, I think, is justified. He proposes that the power of extending the period of leave beyond three months shall be vested in the Secretary of State in Council. I think that is reasonable, not because I anticipate extension will be asked for or given in cases of urgent private affairs, or even in cases of consultation with the Government, but because a case might very well arise in which a man came over under the terms of this Act for reasons of health and the cure which he was going to take in this country might not have been accomplished at the end of four months. It would be only reasonable in such a case to give a certain power of extension to the Secretary of State in Council. That power the noble Lord proposes to take, and in the statement he has just made he proposes to vary the Amendment as it is on the Paper and to substitute for the words "shall in every case publish his reasons for so doing," a formula which he says is much more common and regular—namely, that he shall lay upon the Table of the House a statement of the reasons which have decided him in Council in giving the extension suggested. I have no objection to offer to that proposal, and indeed when I asked for publicity the other day I contemplated something of the sort. The Secretary of State in Council is not the least likely to abuse the privilege which he enjoys under the proposed legislation, but it is only right that Parliament and the public should have an opportunity of knowing the reasons for which on this or that occasion it may be departed from.

Those are the only points to which I need call attention in the substituted section which the noble Lord has proposed, and subject to anything which may be said in any other quarter of the House, I think your Lordships may accept the Amendment in the conviction that the Bill is a better one than in the form in which it was originally introduced.

LORD OLIVIER

My Lords, the noble Marquess has raised one point on which he thinks I should make a further explanation. It is with reference to the power of granting six months' leave to Executive Councillors. As I pointed out this is not a legal right on the part of Executive Councillors, but the Governor-General may grant them six months' leave on a medical certificate. I thought it would be sufficient for us to limit the grant by the Governor to four months and to state publicly that their rights were not impaired because the Secretary of State still has the power to grant them a further extension which is not limited to six months. It may exceed six months.

THE MARQUESS CURZON OF KEDLES-TON

The noble Lord has not quite answered my question. Here is a privilege which has hitherto been enjoyed by certain persons and the noble Lord says, in effect, and not improperly: "I do not want to take away from these people the advantage which they at present enjoy, although we are giving them something in addition." My question was: Will the people who enjoy this privilege in the future be only those who have enjoyed it in the past, or will it be enjoyed by all members of Executive Councils at all times in the future? That is giving them an additional privilege. It is not only giving them the privilege of coming home for six months or four months on urgent private affairs, but an opportunity which no one else is to enjoy of coming home on a medical certificate for six months instead of four.

LORD OLIVIER

I do not think we need make any discrimination, because all that the Governor-General can grant Executive Councillors is four months' leave of absence.

THE MARQUESS CURZON OF KEDLES-TON

That is clear, then?

LORD OLIVIER

That is perfectly clear. All they can get from the Governor-General is four months' leave of absence. If Executive Councillors come home they will have a presumptive claim for special compassion from the Secretary of State because they can say: "If you had not passed this law I should have got six months."

LORD RAGLAN

The Commander-in-Chief in India is a Regular Officer and it is difficult to see, why, when he is on leave, he should be treated as regards his pay differently from any other Regular Officer

LORD OLIVIER

I am afraid that is a conundrum which we shall have to thrash out with the War Office. We can make Rules with regard to his pay, but we have not yet made those Rules.

On Question, Amendment agreed to.

LORD OLIVIER

The Amendment in substituted Section 87 (1), after the first" appointed 'to insert "to act," is consequential.

Amendment moved— Clause 1, page 2, line 11, after (" appointed ") insert ("to act").—(Lord Olivier.) On Question, Amendment agreed to.

LORD OLIVIER

The last Amendment to Clause 1 is also consequential.

Amendment moved—

Clause 1, page 2, line 30, at end insert: ("(3) When during the absence on leave of the Governor-General a Governor is appointed to act in his place, the provisions of this section relating to the appointment of a person to act in the place of a Governor to whom leave of absence has been granted in pursuance of the foregoing section shall apply in the same manner as if leave of absence had been so granted to the Governor.")—(Lord Olivier.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2.

Amendment of s.92 of Government of India Act.

2. For subsection (4) of Section ninety-two of the Government of India Act there shall be substituted the following subsections:—

(4) Until the return to duty of the member so incapable or absent, the person temporarily appointed shall hold and execute the office to which he has been appointed, and shall have and may exercise all the rights and powers thereof, and shall be entitled to receive the emoluments and advantages appertaining to the office, forgoing the emoluments and advantages (if any) to which he was entitled at the time of his being appointed to that office.

(4A) When a member of an Executive Council is by infirmity or otherwise rendered incapable of acting or attending to act as such and a temporary member of council is appointed in his place, the absent member shall on resumption of his duty be entitled to receive half his salary for the period of his absence.

LORD OLIVIER

The Amendment to

Clause 2 is purely drafting.

Amendment moved—

Clause 2, page 3, line 5, leave out ("on resumption of his duty").—(Lord Olivier.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Remaining Clauses agreed to.