TITLE AND PREAMBLE. (Hansard, 31 May 1927)

§ LORD OLIVIER
, who had given Notice to move in the Preamble to leave out "by the Indian Church Measure 1927, provision is made," and to insert "there has been presented to Parliament by command of His Majesty the Draft of a Measure entitled 'The Indian Church Measure' (Cmd. 2860) intended to make provision," said: Would it be convenient for the noble and learned Earl in charge of the Bill to indicate to me whether he sees any difficulty in accepting the Amendment I have put down to the Preamble because on that Amendment there are two consequential Amendments to later clauses.

§ THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD)
My Lords, I have very carefully considered the Amendment of the noble Lord and the difficulty which has occurred to his mind and upon which his Amendment has been founded, and I have reached the conclusion, after very carefully considering the advice which I have received from Parliamentary Counsel of great experience, that the objection is not really one of substance. I am advised—and it appears to me to be a sound opinion—that the wording of the Preamble as it stands is correct and the reason for the opinion which is given to me may be expressed somewhat in this way.
It has always been the practice, I believe, to draft a Bill so that its language is correct at the moment when the Royal Assent is given to it or when the Measure with which we are concerned has been similarly assented to. I am informed—and there are abundant precedents upon this point—that it has never been the view of the draftsman that you should make the language correct in the contemporary sense at the moment when the Bill is still before Parliament, and, indeed, a moment's reflection will show that this is almost a necessary course to adopt. When you draft a Bill the whole conception of that which you are doing is that inasmuch as you are legislating you naturally use language which only 646 becomes effective when that which you are attempting has in fact developed by fruition into legislation; in other words, you must project your mind into the period when the Bill reaches the Royal Assent, and when it has so obtained the Royal Assent what is important and of substance is that your language should be technically correct then, and not that your language should be technically correct at the moment when that which you are proposing is, from the very nature of the case, inoperative, because it is making a legislative proposal and cannot therefore become operative until the legislation has followed.
I am most anxious, in dealing with a measure upon which so many earnest men both in this country and in India have concentrated so much thought, that no step should be taken which could even excite a technical opposition; and if the noble Lord, who has every right to speak with authority upon this point—after all, he held the position which I occupy to-day—feels, or if any substantial body of opinion in this House feels, that there is any real ground of complaint—because we are not upon a technicality, we are upon a point of substance—that this House should be asked to pass a Bill when the counterpart, the Measure, is in an inchoate form, that is a point of view which certainly I do not wish to treat with disrespect. The noble Lord, Lord Muir Mackenzie, who has not put down an Amendment, has been kind enough to write to me a reasoned argument upon an analogous though not an identical matter and I believe that the Amendments put down in the name of the noble Lord, Lord Parmoor, proceed from similar apprehension. I am not without the hope that in the spirit of reasonableness and accommodation upon which a measure of this kind must necessarily depend I shall allay the apprehensions of all noble Lords if I say at this early point in limine of the whole discussion that I shall not ask your Lordships to take the Third Reading of the Bill until the Measure has passed the Assembly in the beginning of July. I greatly hope that that will satisfy all noble Lords.

§ LORD OLIVIER
I am very much obliged to the noble Earl for the very careful consideration he has given and, having regard to the fact that he has taken the advice he has and that he speaks as a constitutional lawyer on this 647 point, I think I should be bound not to stand further in the way of the Preamble and shall act accordingly.

§ LORD PARMOOR,
who had given Notice to move, in the definition of "date of severance," to leave out "the said Measure" and insert "this Act," said: I think it will pave the way for a quiet settlement of the questions raised in connection with this Bill to follow what has been said by the noble and learned Earl. On the Second Reading I stated two matters. First, I said that so far as I knew (and I think I said I was present at most or nearly all of the discussions before the Enabling Act was passed) I thought that the question of the extension of that Act outside England, for instance to India, had not been discussed. The noble Earl, Lord Selborne, undoubtedly has a larger knowledge than I have—I think he is the only person who has—of all those discussions, and he has drawn my attention to this, that when this Bill was in the House of Commons before the Standing Committee, this matter was raised and discussed by Lord Wolmer. Therefore I wish to withdraw the general statement I made that it had never been discussed, and I accept at once what the noble Earl has told me.
On the other question which arises, I think also, after what the noble Earl has said, that I should like the Third Reading of the Bill postponed in the hope that a quiet settlement may be arrived at. I cannot myself interpret the words "the Church of England" as other than the Church of England as comprised within the two Provinces of Canterbury and York, and particularly in the matter dealt with in the Enabling Act which, I think, was thus expressed by Lord Robert Cecil in very admirable language when he said:— The object is to facilitate legislation affecting the Church of England by allowing it to pass through Parliament without all the forms of Parliament now insisted on. 648 I think that very ably and fully expresses the purport of the Enabling Act, but what you had to deal with in the Enabling Act were the powers of Convocation and the powers of the House of Laity, which appear to me to be the powers that are inapplicable to places where the representative principle of the Act does not apply at all.
Take, for instance, the House of Laity. It seems to me an extraordinary proposition that they should have any authority given them as a representative body in this country over matters which affect the laity in India or in any outside country, but I do not want to discuss that further. I am told that the Law Officers have given an opinion in another direction. I have looked through all the cases I could find and I do not find any case in which the Church of England has the larger meaning which is now to be attached to it. But if the Third Reading of the Bill is not to be taken—I understand that to be what the noble Earl has said—until after the Measure has gone through the National Assembly (which, I assume, it will do) and has been discussed in this House, I certainly do not desire to promote any further discussion at the present moment. Opportunity will arise at a later date and, on that understanding, I shall be prepared to withdraw my Amendment.

§ THE EARL OF BIRKENHEAD
May I say this? The Amendment which the noble and learned Lord has not moved would not, I think, be an agreeable or relevant subject of discussion but, inasmuch as these matters will arise elsewhere, I might perhaps be permitted to say that I did reinforce myself in this matter by the opinion of the Law Officers. There was a time when I had to apply my own mind, adequately or inadequately, to legal matters and I have been at special pains never to do so since any emolument for such mental activities ceased. I now fortify myself either by the opinion of the Law Officers or by the advice of my noble and learned friend the Lord Chancellor. Such advice in this particular matter I am bound to accept and it was certainly given in a sense contrary to and destructive of the apprehensions of the noble and learned Lord. As to the assurance I gave in relation to the Third Reading I am anxious that there should be no misunderstanding. I 649 do not think there is any misunderstanding. The statement that I made and which satisfied the noble Lord, Lord Olivier—and I am sure satisfied Lord Parmoor—was this. I will make it again plainly. The Third Reading of this Bill will not be taken until the Measure has passed the Assembly in the beginning of July. I unders and that to be satisfactory to the noble and learned Lord.

§ LORD PARMOOR
I thought the noble Earl had gone a little further. I thought what he said included until the Measure had gone before the Legislative Assembly.

§ THE EARL OF BIRKENHEAD
I did not in fact say so and let me put that plainly. If it does not involve any risk to the fortunes during the present parliamentary year of the Bill, that is a matter which might receive consideration, but it would, of course, be asking too much—and more than I am sure the noble and learned Lord would himself desire—to risk the fortunes for the year of the Bill if some delay was involved.

§ LORD PARMOOR
I do not want that.

§ THE EARL OF BIRKENHEAD
I am sure of that. If the noble Lord will leave it in my hands, I will attend to it as far as I can.

THE LORD CHAIRMAN
As Lord Olivier does not move his Amendment to Clause 2, I suggest that in the interest of your Lordships' time I might put the Question that Clauses 2 to 12 stand part of the Bill.