Lords Sitting of 15 November 1927

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR on the Woolsack.

GOVERNMENT OF INDIA (STATUTORY COMMISSION) BILL. [H.L.]
Order of the Day for the Second Reading read.
THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD): My Lords, I made it plain on an earlier occasion in the Session, and I think with the agreement of all your Lordships, that the very elaborate debate which evidently must take place upon the subject of the proposed Indian Commission could most conveniently be taken when the assent of Parliament was asked to the personnel of that Commission. It would, therefore, be improper far me to-night to attempt in any way to anticipate a discussion which must from the nature of the case be of the highest importance. To-night, in moving the Second Reading of this Bill, I have only to remind your Lordships that it was originally contemplated in the Government of India Act that at a period of ten years there should be appointed a Commission to examine the progress which had been made and generally to report to Parliament upon the existing situation. It is hardly necessary to point out that there was no special magic in the period of ten years. One may assume that it was adopted as a convenient period affording sufficient time for the instruction of those whose duty it might be to re-examine the whole situation.
Since my accession three years ago to the office which I now hold I have been greatly pressed in many quarters to accelerate the appointment of the Commission. It did not seem to me and to my responsible advisers in India that the atmosphere of the moment when these appeals, or I should perhaps say these demands, were put forward, was such as to afford much encouragement to those who were invited to make a change in this regard; and accordingly up to the
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present no change had been proposed. There was never on principle any strong view that a period so fixed must necessarily receive pedantic adherence. I do not wish to exaggerate such encouraging tendencies as have manifested themselves in India in the course of the last two or three years; but such tendencies there have been. There has been a growing realisation in my judgment that the policy of non-co-operation was not in itself very happily conceived, nor likely to create in this country a general impression that those who were unwilling to co-operate in working the existing Constitution had fully established their case for an acceleration of the moment at which the terms of that Constitution were to be re-examined.
There has been unquestionably in the last two or three years a change of tone and temper in India, and the changes which it has been my duty closely to study—I exclude the communal issue, which is a separate issue from the generalisation which I attempt—have nearly all been in the direction of an improved relationship. I need hardly say that I am not discussing this afternoon the manifestations of opinion in India with which we have become familiar in the columns of the newspapers in the last few days. It will be my duty very carefully and without any heat or resentment, but equally without any exaggeration, to examine closely the opinion which is entertained in India in relation to the present proposals of the Government and to appraise its value and its importance. To-day I have merely to justify, if it needs justification, the view which has been taken by the Government and long pressed upon them by others that the moment has arrived at which the appointment of this Commission might suitably and without danger to the public interest be accelerated. I do not hold it necessary to attempt any argumentative justification of this proposal because, so far as I am aware, whatever differences of opinion may exist in the three Parties of the State upon other points, all are agreed that the moment has arrived when we may usefully approach the greatest constitutional problem which has faced the statesmen of this country for many generations. If, contrary to my expectations, any apprehension or objection should be entertained in any quarter in your Lordships, House, I will of course

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to the best of my ability endeavour to give such explanations as may occur to me or seem to be required.
I have one other observation to make at this stage. It is obviously very desirable, if only to clear the air, that at the earliest possible moment the discussion should take place in both Houses upon the main and very grave principles which are involved in this matter. I confess I think it is so important that the explanations should be publicly given at an early moment of the grounds which have led the Government to make the particular proposals which will soon require discussion, that I was at one moment greatly tempted to attempt such exposition and justification as I was capable of outside Parliament—Parliamentary opportunity there was obviously none—but I could not reconcile it with my duty to your Lordships' House that a statement of this constitutional importance, involving issues and contingencies so grave, should be made elsewhere than in Parliament. Having omitted to take such an opportunity, may I mast earnestly impress upon your Lordships the extreme importance of holding this debate at the earliest possible moment of which our Parliamentary arrangements will allow. With that object I have spoken privately to my noble friends Lord Haldane and Lord Beauchamp, and I would ask the indulgence of the House (and I think I shall not ask in vain) in order that in the course of the present week we may take the two remaining stages of the Bill, if your Lordships give it a Second Reading to-day, upon successive days. I am encouraged to believe that, subject to the paramount Parliamentary obligations imposed upon another place, every facility will be given to the rapid progress of this Bill in another place, and I hope it may be possible within not very many days to place the whole matter before your Lordships with the elaboration which it undoubtedly requires. I beg to move.
Moved, That the Bill be now read 2a—(The Earl of Birkenhead.)
LORD OLIVIER: My Lords, we who are upon this Bench unreservedly support this Bill; unreservedly, that is, in so far as its own content is concerned, and with full reservation, as the noble and learned Earl perfectly understands,
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with regard to any comments we may make upon the policy of the Committee or its proceedings as adumbrated. I think the noble Earl was not quite so happy as he might have been in giving your Lordships some reason why he thought the time had come when we should support this Bill, beyond indicating that he thought Indian affairs had shown an improved complexion and that greater co-operation was being given. I do not think either that those are the reasons which should justify or the absence of those reasons should negative the necessity for taking the earliest possible opportunity to appoint this Commission. As the noble Earl has said, it has been pressed upon the Secretary of State for India for quite a number of years now—since, I think, 1923—that the time had come when the Statutory Commission should be appointed. The view has been taken—it was taken by the late Mr. Montagu—by that there was nothing which prevented the appointment even of the Statutory Commission before 1929, but certainly His Majesty's Government would have been at liberty at any time to appoint a Royal Commission. Anyhow, as His Majesty's Government are advised that the alteration of the Statute is necessary, we entirely fall in with their view that it should be altered.
There are two reasons for this. First of all, there is the desire of all Indian politicians that the question should be reconsidered at an early date and the principle of that desire has been pressed upon us repeatedly. The second reason is that notwithstanding the former debate in this House, in which the Secretary of State and the noble Marquess, Lord Reading, expressed their opinions upon the diarchical system, it has been the opinion of the great majority of Indian people, and of myself and the Party, that the diarchical system had ceased to perform any useful functions and that the sooner it was superseded the better, because it was doing no good and was creating an atmosphere of misunderstanding and unrest. Unquestionably had the Government of which I was a member been still in office after the Committee had reported we should probably have taken precisely the same line as His Majesty's Government are now taking and suggested the appointment of the Statutory Commis-

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sion to reconsider the whole question of Indian government. On those grounds we cordially support the Motion.
There might be, there has been expressed some cavil against the action of His Majesty's Government on what I might call the ground that they might be regarded as manœuvring for position, that being in power they desire to appoint their own Commission. I pay not the slightest attention to any suggestion of that sort and I think it unfortunate that such a suggestion should have been made. I take the view that whatever Government were in power it was in the public interest and in the interest of India to appoint the Statutory Commission, and it is absurd to suggest that His Majesty's Government really gain any special advantage for such views as their Party may hold by appointing the Commission at the present time. The conception and gestation of the Committee will occupy a matter of two or three years and it is quite possible that by that time the complexion of His Majesty's Government may have changed. In any event, I do not think His Majesty's Government could have been expected to postpone the appointment of the Commission. It would have been their duty in any event to appoint it some time before 1929. I do not believe that they expect they will be out of office by 1929, but it has been urged by Indians that the matter should be postponed, that there will be 500 Liberal members in the next Parliament and that they will get a better show with a Parliament containing 500 Liberals than they will get in the present circumstances. I think, however, that His Majesty's Government would have failed in their duty if they had not appointed this Commission now. I think they have shown public spirit in doing so and a sincere desire to meet the wishes of India. On these grounds I beg leave to support the Bill.
THE MARQUESS OF READING: My Lords, I only intervene for a moment to state first, on behalf of the Party with which I am associated, that we support the Bill. I do not intend to discuss the reasons why the time should have been shortened. A debate on that subject will come opportunely at a later stage when we are discussing the whole question. I shall not even be tempted by the observations of my noble friend Lord Olivier to enter at this time into
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considerations of the variation of the diarchical principle, but I do wish to emphasise that in my view the Government have acted wisely and have shown a real desire to consult the views of Indian politicians and to give effect to the views of India generally by appointing this Commission at an earlier date than the statutory period. I was conscious during the whole period of my office of the desire to have this Commission accelerated. I certainly shall not discuss all the various representations that were made to me, nor the debates that took place in the various Legislatures on the subject. It is, I believe, solely in the public interest of India that the Government, have determined to curtail the time and appoint the Commission at this early date. We shall give every support to the Bill.
I regret very much that it has been found necessary to postpone the debate. I cannot but think that everything seems to have conspired to make the reception of the appointment of this Commission unfavourable in India. The news leaked out in some way before the official announcement was made. Even the names of the members of the Commission were known and discussed in India before we knew them here. Now we have to postpone the debate. I do not know at this moment when it is convenient that it should take place, but I appeal to my noble friend the Secretary of State for India to do everything possible, as I am sure he will—he has told us he will—to accelerate the debate, for every day opinion in India is crystallising and hardening against the measure, largely because nothing is being said over here that would help to allay many of the apprehensions that are now held by people in India. My own view is that when they fully understand the intentions of the Government and the opportunities that will be given to them at the various stages for putting their views before the Commission their fears will be removed, and there will be much less disposition to take an adverse view of the appointment of the Commission.
I hope that it will not be many days before there will be an opportunity of debate both here and in another place, so that India will have a real chance of being convinced that the sole desire

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has been to fall in with her views, because India has wished that the appointment of the Commission should be accelerated. Such a debate would convince her, I think, that in appointing the Commission the Government really had only one object in mind, and that was to carry out the policy which was formulated in the Act of Parliament of 1919 and to enable any persons who hold an opinion in India, even those persons who wish to have an Indian-made Constitution, to express their views before the Commission.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

SUPERANNUATION AND OTHER TRUST FUNDS (VALIDATION) BILL. [H.L.]
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR (VISCOUNT CAVE): My Lords, this Bill has two objects, of which the first is this. Your Lordships know that in connection with many industrial concerns superannuation funds have been set up for the purpose of providing pensions for the employees on their retirement, whether for reasons of ill-health or old age, and sometimes also for providing pensions for their widows and children. Those funds are very valuable as a provision for those who have grown old in the service of a firm or a company and also as an incentive to steady work. But a few years ago the trusts of some of these funds were taken objection to as infringing what is known as the rule against perpetuities. Your Lordships may know that it is part of the policy of our law that property or money shall not be tied up indefinitely and gradually the rule was evolved that it should not be tied up by any trust for more than a life in being and twenty-one years after, except in the case of a charitable trust.
It was held by Mr. Justice Russell that trusts of this kind, or rather a particular trust of this character was invalid as an infringement of that rule. It was thought desirable that these trusts should go on as long as the business itself goes on and therefore a Commission was appointed over which Sir Claud Schuster presided. That Committee recommended the simple
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step of providing by legislation that the rule in question should not apply to these things. That is one purpose of this Bill. We make certain conditions. We require the fund to be registered with the Registrar of Friendly Societies, who will, of course, see that the fund is a genuine superannuation fund, and we propose that the accounts shall be made up annually and be audited by an auditor and that there shall be a quinquennial valuation of the fund to make sure that it is adequate for the demands that may be made upon it by the members of the fund. Subject to these and similar conditions set out in the provisions of the Bill it is proposed to exempt these funds from the technical rule of law.
That is one purpose of the Bill. The other may be more shortly stated. Certain public-spirited persons have expressed a desire to give considerable sums to be held in trust to accumulate the income during a long period after which the fund and the accumulations are to be applied to the reduction of the National Debt. That, of course, is a very laudable purpose, but unfortunately there again a rule of law steps in and prevents indefinite accumulations of income. We want to facilitate the execution of the purpose of these public-spirited individuals, and therefore by Clause 9 of the Bill we propose to make a trust of that nature valid notwithstanding the rule to which I have referred. Those are the reasons why I ask your Lordships to agree to the Second Reading of this Bill.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
VISCOUNT HALDANE: My Lords, the difficulty out of which the necessity for this Bill arises is the difficulty of defining what is a charity. Mr. Thellusson by his famous will tried to tie up his property for the benefit of his family. That was thought to be wrong, the Thellusson Act was passed, and now it is found that while it is quite right that there should be restriction on the time of tieing up so far as a man's family or private persons are concerned, it is otherwise when you come to charitable objects, and as my noble and learned friend on the Woolsack knows well, there has been a series of decisions in the Courts in which it is has been held that trusts for very laudable purposes—the

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upkeep of libraries and other provisions for the public—are invalid because they do not come within the technical definition of charity. "Charity" is a very technical word in law. It extends to much less than is popularly supposed, and because of the technical meaning attached to it various trusts for public purposes have been set aside as infringing this rule restricting the right to tie up.
This Bill deals with two specific classes of case—one which I may call the industrial class, and the other the case of money to be accumulated to go in discharge of the National Debt. I should have thought that really the better way was to say that for the purposes at any rate of a measure, like this "charity" should have a meaning more in accordance with what the public understand by the word. That has not been done, and my fear is lest it be found when this Bill becomes an Act and is in operation that there are a number of other laudable things in the public interest which are still struck at by the old and technical rule restricting the meaning of the word "charity." However, no doubt the Bill as it is will do good. The Government have taken advice on the subject, and if the Bill goes forward in this form it will do good. My complaint, is that it will not do all the good it might have done. In the circumstances I raise no objection to the passing of this Bill.
LORD DANESFORT: My Lords, I should like to ask the noble and learned Viscount on the Woolsack if he could explain a little more in detail the nature of Clause 9. As I read Clause 9 it makes it possible for a person by his will to set aside a fund which might be accumulated for some hundreds of years—because the time is not limited—with a view to reducing or wiping off a great portion of the National Debt. That in itself is a most laudable purpose, but if the time within which this accumulation could take place is left absolutely unlimited, as I think it is by Clause 9, it is possible that it might have a serious disturbing effect upon the market. I think a calculation has been made—I forget the exact amount—that if a sum of £100, or perhaps it was £l,000, had been left in trust two hundred or three hundred years ago to be accumulated at
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compound interest, that fund now would absorb the whole wealth of the country. Perhaps I am not quoting the figures accurately, but I would suggest that it might be desirable to insert in Clause 9 some restriction on the number of years during which money might accumulate, however desirable the ultimate purpose might be.
THE LORD CHANCELLOR: My Lords, if any Amendment is brought forward in the Committee stage we will consider it, but I would remind the noble Lord that the clause does give power to the Treasury to disclaim the interest of the National Debt Commissioners. If the deplorable consequences which my noble friend anticipates seemed likely to occur that power would no doubt be exercised.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

NOTTING HILL MANHOLE ACCIDENT.
EARL RUSSELL EARL RUSSELL rose to call attention to the fatal accident in an inspection chamber of the Notting Hill Electric Light Company on 7th October, by which three men lost their lives, and to ask what steps the Ministry of Transport is taking to prevent such accidents. The noble Earl said: My Lords, I desire to call attention to a fatal accident of a deplorable character, and when I have stated the facts I want to ask your Lordships' agreement to some criticism that I have to make. If I make any mistake in stating the facts the noble Viscount opposite no doubt will put me right. I shall be glad to be interrupted. As I understand, what happened was this. On October 7 two workmen who were in the employ of the Notting Hill Electric Light Company were sent to inspect or do some work at one of those manholes of considerable size underneath the street which are used for electric light mains. When they opened the manhole and descended into it they were overcome by lethal fumes. Whether there was an escape from a gas pipe or whether there was some other kind of gas I am not sure, but there is no doubt they were overcome by lethal fumes. A Metropolitan police constable who was there, with that gallantry and courage and disregard of

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personal safety which I think always marks the police, went to their assistance and attempted to rescue them. The result was that he also was overcome, and these three innocent people lost their lives.
I think I am right in saying that it was stated in the Press that this manhole had not been opened for a period exceeding twenty years. I think it said twenty-three years. If those are the facts that seems to me to be an accident which can very properly be called preventible, and not only one which was preventible but one which ought to have been prevented. If a manhole in a London street has not been opened for over twenty years it is a fair presumption that there will be an accumulation there of some kind of deleterious gas, though not, perhaps, always so rapidly lethal as in this case. Methods ought to be provided by those who are responsible for sending men to work there either to test the gas in some way or to have some sort of blowing apparatus for carrying gas away before the men descend. As I understand this accident, it was of that class, and no apparatus was provided, no precautions were taken and no tests were made. As a result two innocent workmen and a constable, who had nothing whatever to do with the matter, lost their lives.
I felt so strongly in this matter that I wrote at once to the Ministry of Transport and asked them if they would not think it proper to be represented at the coroner's inquest, which must necessarily be held, and there to put questions as to the responsibility of the person or persons who had sent these men down on this operation without taking any precautions. To that letter I have received no reply and no acknowledgment to this day, and when the inquest was held I did not discover from the report that any representative of the Ministry was present or that any questions were put elucidating or tending to fix the responsibility for this accident. The coroner's jury appear, quite easily and without any criticism or question, to have returned a verdict of "Accidental death." Technically, no doubt, this was accidental death, but it seems to me to have been a death which might so well have been contemplated and so easily prevented that responsibility for it ought to have been fixed somewhere and there should have been some reprimand of the person upon whom responsibility
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rested. More than that, I suggested to the Ministry that, they having, I believe, power to make regulations applying to electric light companies, some regulation might very well be made in regard to the inspection of manholes which have not been opened for whatever period of years it was thought fit to fix, providing for some kind of test or safety apparatus before they are opened. I wrote again after the inquest, and of that letter I have received an acknowledgment from the Electricity Commissioners. I do not know whether I ought to have written to them in the first place or not, but no doubt the noble Viscount will tell me when he replies. Beyond a bare acknowledgment I have heard nothing from them.
I bring this matter to your Lordships' notice to-day because I am sure that all your Lordships will feel, as I felt, that if men's lives can be preserved by taking the simplest precautions, and if all precautions have been neglected and men's lives have been lost because of the absence of those precautions, the Government Department concerned ought to take such steps as it can to prevent the recurrence of such accidents. It is merely in the hope of preventing the recurrence of any accidents which can so easily be prevented with a minimum of foresight that I have put this Question down, and I Shall be glad to hear what the noble Viscount has to say.
THE FIRST COMMISSIONER OF WORKS (VISCOUNT PEEL): My Lords, I do not, I think, altogether differ from the noble Earl opposite as to the version of the facts that he has given to your Lordships. It is, of course, a most unfortunate event that three men, as he stated, lost their lives in the way that he has described. He is also, I think, correct in stating that this shaft—there is some doubt as to what this place should be called—had not been opened for something like twenty years.
EARL RUSSELL: More, I think.
VISCOUNT PEEL: I am informed that it was built in 1903, I think by the London County Council, but I have not been able to ascertain for what purpose the shaft was constructed. At any rate the shaft had been closed down. Then I understand that this company—and naturally I cannot take any responsi-

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bility as representing the Ministry for the action of the company—thought that this shaft would form a means of access to some of their cables. The top of it was taken off, and then I must refer, I think, for the facts to the inquiry before the coroner, where the details came out most clearly. It appears that the assistant engineer employed by the Notting Hill Electric Light Co. warned this man that it was unsafe, when the top of the shaft had been taken out, to descend by the iron steps that I understand were there. The man did descend, though he was again warned that it would be dangerous to do so. It is not, of course, my business to suggest that the assistant engineer ought to have more forcibly brought before this man the danger of what he was doing in descending a shaft that had not been open for twenty years.
As the noble Earl has very justly stated it is almost common knowledge that in London and elsewhere some very disagreeable gases—in this case I believe it was carbon dioxide—accumulate in a shaft of that kind. The coroner's jury, as has been said, brought in a verdict of "Accidental death," and it is not my business to criticise or interfere in any way with that verdict. The view of the Ministry of Transport is that the cause of the accident was perfectly clear and that accordingly there is nothing to be gained by an inquiry, the facts having been fully set out at the coroner's inquest. The noble Earl also alluded to the responsible Department. I am not clear that there is any Department that is responsible in this kind of case. It is true, I believe, that the Electricity Commissioners make regulations about inspection chambers, but this can hardly be called an inspection chamber, because it was some disused shaft which the company for their own purposes thought might be made use of for examining these cables.
EARL RUSSELL: I do not wish to interrupt the noble Viscount, but surety if it is a chamber for inspection it is an inspection chamber.
VISCOUNT PEEL: No, that is just what I am trying to point out. It is neither a
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chamber for inspection nor an inspection chamber. There is a technical definition of what an inspection chamber is, and I presume that, if some company or person chooses to use for the purpose of inspection a chamber or shaft that is not an inspection chamber, no Government Department can be censured merely because they have laid down rules about inspection chambers. I do not want to make any fine distinctions in this case, but I understand that the general view of the Ministry of Transport is that they have no responsibility in this affair, and that the facts of the case are very clearly known. If, of course, there is any matter that the noble Earl or any of your Lordships would like me to represent to the Electricity Commissioners, I should be very glad to do so. This was a very unfortunate accident—one of those accidents which, I suppose, must be extremely unusual, because it occurred through the discovery and use of an ancient shaft that had not been opened for some time. Indeed, as I have said, the accident might never have occurred if the assistant engineer had more forcibly laid his commands upon the man who descended.
EARL RUSSELL: I should like to ask the noble Viscount if I am not right in thinking that some body—either the Ministry of Transport or the Electricity Commissioners—has powers to make regulations for the safety of the public and for other purposes—namely, the powers under which these regulations about inspection chambers are made. Whether this was an inspection chamber or a disused shaft, it is surely possible for them to make regulations about any hole in the ground used for electric light purposes, and accordingly I would urge that they should make some regulation providing for the safety of those who use these places.
VISCOUNT PEEL: I should be very glad to convey that suggestion to the Electricity Commissioners.
EARL RUSSELL: I am obliged to the noble Viscount.
House adjourned at five o'clock.