HL Deb 04 December 1935 vol 99 cc53-60

My Lords, my next duty is to move certain Amendments to the Standing Orders of your Lordships' House. In moving these Amendments, which are in regard to Special Orders laid before your Lordships' House, I think some words of explanation are necessary from me. Your Lordships have seen that the first proposal is to amend Standing Order No. 212. To this Standing Order is added a further exemption of certain Orders and instruments to those which exist at the present time. The Amendment deals with draft Orders and other instruments laid before the House under the Government of India Act, 1935, and I imagine there will have to be a further amendment to the Standing Order when the Bill which the noble Marquess is going to bring up tomorrow is passed. The only instruments requiring affirmative Resolutions under that Act—that is, the present Act—are, firstly, Orders under Sections 399 and 475, and, secondly, Instruments of Instructions. These latter are sometimes referred to simply as "Instructions," and I have gone thoroughly into that matter. I think it is only a drafting difference, and I am advised that both these expressions mean the same thing.

If your Lordships will turn to the next Amendment, you will see that a committee is to be set up to consider the drafts of Orders, but only of Orders, not of Instruments. The Instruments of Instructions will not go before any Committee at all before being submitted to your Lordships' House for approval. I must say that when this was first proposed I had some misgiving in supporting the proposal, but I am persuaded now that there are good reasons why these particular Instruments of Instructions should not be referred to Committee before they are laid before your Lordships. Your Lordships will see, if you study the Order, that at present the exemptions from the Standing Order relative to Special Orders are, firstly, Church Measures; secondly, Rules under the Government of India Act, the old Act; Regulations under the Emergency Powers Act; and Orders under the Sunday Entertainments Act. Church Measures go to the Ecclesiastical Committee before they are submitted to your Lordships. There is no object in submitting them to any other Committee. Rules made under the Government of India Act have now passed away. The Act is repealed by the Government of India Act, 1935, and the repeal takes effect in due course. Regulations under the Emergency Powers Act have to be put into action speedily, and therefore there is no time or reason for their being submitted to any Committee. Orders under the Sunday Entertainments Act are probably slightly different. They are Orders which permit cinemas to open on Sundays, and, as your Lordships know, it is left to each locality to determine whether or not these shows should be permitted by a simple vote, "Yea" or "Nay"; so it is merely to confirm a plebiscite, and there would be nothing for a Committee to do if these Orders were submitted to it.

These Instruments of Instructions, or Instructions, whichever they are called, are of very great importance. There would really be no object in asking a Committee to report whether they raise important questions of policy because, of course, they do raise such questions; nor would there be any object in saying how far they were founded on precedent, or represented a matter to which the special attention of your Lordships' House should be called, because all these matters will naturally be considered by the House when the Instructions are discussed by your Lordships, and that has to be done in the case of every one of these Instructions under a special clause of the Act. Therefore I do not think your Lordships' House, if I may humbly say so, need see any objection to accepting the proposals; but I must emphasise one thing, and that is that this exemption is entirely an exception to the usual procedure of your Lordships' House, and I very much hope I shall not be thought to be creating any precedent for any future measure of the sort by asking your Lordships' House to accept this Amendment to the Standing Order. I think that if the principle is accepted by your Lordships that no precedent is created, there would be no difficulty in your Lordships accepting the Amendment.

Now I come to the next Amendment to the Standing Order, which creates a new Committee to take the place of the Special Orders Committee for this particular purpose. Your Lordships will see that the terms of reference to the two Committees are exactly the same—there is not even a verbal difference between them—and the functions of the new Committee will be exactly the same as the functions of the Special Orders Committee are in regard to Special Orders at the present time. The Special Orders Committee sits, as has been described, as a sort of grand jury to answer the various questions put to it in its terms of reference. Your Lordships might ask, What is the use then of having a new Committee? Why will not the Special Orders Committee do? The answer is that there are a large number of members of your Lordships' House who are good enough to serve on the Special Orders Committee. It often happens that a batch of Special Orders comes up on one day and are heard by a number of members, who do not come to the next meeting of the Committee when the business is heard by a different membership altogether, by different noble Lords. Obviously to have differences in considering Orders under this particular Act would be very inconvenient, and therefore it is suggested that the best way would be to set up a Special Committee of noble Lords, a small number—seven has been mentioned—who will give their time and sit upon these Orders which, I gather, will be pretty frequent, at any rate during the next year. It is only to get a smaller and more regular number that it is proposed to set up this Committee. Your Lordships will see that the constitution of the Committee in this form is purely a matter of convenience, and as the terms of reference are the same, the two Committees will differ only in regard to personnel I beg to move.

Moved, That the Standing Order relative to Special Orders be amended as follows:—

Standing Order 212, page 78, in line 12 of paragraph (1) leave out ("and") and at the end of paragraph (1) insert:— ("and (e) Draft Orders and other instruments laid before the House under the Government of India Act, 1935.")

After Standing Order 212 insert the following new Standing Order:—

("(1) At the Commencement of every Session a Committee of seven Lords shall be appointed to which the drafts of Orders laid before Parliament under Sections 309 and 475 of the Government of India Act, 1935, shall stand referred. The Committee shall be called the Indian Orders Committee and every such Order shall stand referred to the Committee as soon as it has been laid upon the Table of the House. The Lord in charge of any such Order referred to the Committee shall be a member of the Committee during the consideration of such Order.

(2) The Indian Orders Committee shall take into consideration every Order so referred and, in considering it, shall have regard to—

  1. (i) whether the provisions raise important questions of policy or principle;
  2. (ii) how far the Order is founded on precedent;
  3. (iii) whether, having regard to the answers to the two preceding questions and to any other relevant circumstances, the Order can be passed by the House without special attention, or whether there ought to be any further inquiry before the House proceeds to a decision upon the resolution, and if so what form the inquiry should take,
and shall report to the House accordingly.

(3) In the case of every Order, where the Committee have any doubt whether an Order is intra vires they shall report to the House accordingly.

(4) No Motion in pursuance of the provisions of Sections 309 or 475 of the Government of India Act, 1935, shall be placed upon the Notice Paper of the House in connection with any Order until after the Indian Orders Committee has reported thereon; and, in the event of Parliament being prorogued or dissolved before such report has been made, such Order shall not again stand referred to the Indian Orders Committee until it has been laid again on the Table of the House.")—(The Earl of Onslow.)


My Lords, I had hoped that the Secretary of State would have intervened at this point in order to explain to your Lordships the great importance of the Motion which has been submitted by the Lord Chairman. Of course I do not rise in any way to question the propriety of the Motion. It appears to me to be a very well-advised Motion in the circumstances, and the exception which the Lord Chairman has explained very lucidly, under which the Instruments of Instructions are removed from the cognisance of the Committee, seems to me to be quite justified. These Instruments of Instructions are so important—not perhaps more important than some of the Orders in Council as I shall show in a moment, but so important that they must come under the notice of your Lordships' House anyhow. No Committee would be so unwise as to suggest that an Instrument of Instructions was a matter of routine which might be slipped through without notice in the House itself, and therefore to exempt them is justified, I think, in the circumstances.

But although I do not in any way rise to oppose this Motion, I do think it right to place on record its great importance. I have taken advice on this matter, and also given myself a little trouble in respect of it, and I find that there are over one hundred categories of Orders under the Government of India. Act. "Categories" means the usual divisions in any of which there may be many Orders in Council, all of which will have to come before your Lordships' House for an affirmative Resolution, because the policy of the Government of India Act was, very naturally in the circumstances, to lighten as far as possible the actual provisions of the Act by hanging over enormous sections of policy to be afterwards dealt with by Orders in Council, a very unusual proceeding and, as your Lordships know, a very surprising procedure in the minds of many. But I do not want to go into the old polemic controversy again. I merely wish to point out to your Lordships what the scope of the matter is.

Some of the Orders in Council will deal with relatively small matters—matters of importance but still comparatively small—such things as the actual delimitation of Berar and Coorg, and the date when Aden is to be handed over to the new state of things. Those are relatively small things perhaps. The future purposes of Crown property is also a relatively small matter, and so are the adjustments when the power of the Secretary of State supersedes the power of the Secretary of State in Council. Those matters may be looked upon as more or less simple, though they would form the subject in most cases of very detailed Bills before your Lordships. When you look at the bigger ones the matter assumes a different aspect. May I give a few instances just to remind your Lordships? The whole adjustment of relations between mercantile companies in Great Britain and in India, the distribution of Income Tax as between the Centre and the Provinces, the whole monetary system of India and Burma, the status of the Courts of Justice, the conditions of the service of the Commander-in-Chief upon which the whole control of order and of the safety of the Indian Empire depend, the vesting of the pension funds, which are looked to as being of great importance by Indian civil servants, the alteration of the boundaries of Provinces, a large part of the franchise provisions, including all the details which govern the establishment of the Council of State. Your Lordships will remember that in the last stages of the India Bill the whole of that was handed over to Orders in Council, because the Government were obliged to change the fundamental method under which the Council of State should be appointed. Lastly, there is the adaptation of Imperial Acts—that is to say, the modifications of the Act which you yourselves have passed as they apply to India will be the subject of Orders in Council.

I have not given anything like an exhaustive list. These are only some of the more notable categories of the Orders in Council which will be called for under the provisions of the Government of India Act. Those are matters of very great importance. I am very glad that the Secretary of State and the Lord Chairman think it right that there should be a Committee intervening between these matters and the consideration of your Lordships, because it would be quite impossible for the House itself to go through these Orders in Council unless they had been to some extent sifted by a competent body beforehand. I think the Committee will have a little difficulty at first in applying the terms of reference, because there is hardly any of the matters I have read out which could be stated to be unimportant as matters of policy or of principle, and of course none of them is founded upon precedent. Those two divisions of the reference would seem to be at first sight as if they were of universal application, and there will be no means of saving when you come to apply them to these vast subjects. I apprehend that the Committee will be guided in this matter by a sense of the necessities of the case, and that they will apply a much bigger standard as to what is important or unimportant in the case of the India Act than they would in the case of any other Act of Parliament, because things will be agreed to by your Lordships necessarily without that consideration which, in any other question, would be the subject of very careful and prolonged deliberation and discussion.

Afterwards, when the India Act has become established and the Orders in Council are passed, the modification of those Orders in Council must take place continually for many years to come as the Act is gradually adapted in its working. No doubt many of these Orders in Council will fall into these various divisions, and some will be placed in the division which does not require careful consideration, as being merely following precedent or only dealing with relatively unimportant detail. The whole matter will, of course, require careful attention, because the adjustment of these vast subjects may always transgress the limits of precedent and become in themselves very important. But that will be the responsibility of the Standing Committee. I hope your Lordships will pardon me for having just marked in a very few words what the importance of the subject is which your Lordships are asked to deal with now. I have no desire to delay the House in any way, but I hope it will be realised how difficult is the course which we have entered upon, and how much it is to be hoped that at any rate the instinct of government which characterises our people will be able to find its way through all this without disaster.


My Lords, may I say that I am grateful to the noble Marquess for the words which he has uttered with regard to the pro posed amendment of the Standing Orders. I am certainly fully conscious of the immense importance of the matters which will come before the Committee which it is proposed to set up. It is quite true, as the noble Marquess said, that a great many questions of the utmost importance have been left by the Government of India Act to be decided by Orders in Council, and it was, indeed, in response to the representations which were made very strongly to me in your Lordships' House by the noble Marquess himself and by the noble Lord, Lord Rankeillour, that the Government agreed that every Order in Council which it was proposed to issue under the provisions of the Government of India Act should come before your Lordships' House and should require the agreement of your Lordships.

With regard to the particular proposal, it is designed, of course, entirely for the convenience of your Lordships. As has been pointed out already, the Special Orders Committee—a body consisting, I think, of some twenty-five members—would not be the most convenient body for dealing with Orders of this special character, and for that reason therefore it is proposed to set up a small Committee of members of your Lordships' House conversant for the most part with the provisions of the Government of India Act, to undertake the first consideration of any Orders which it is proposed to issue before your Lordships as a whole are asked to give your consideration to them. That is the sole object of the amendment to the Standing Orders which is now proposed, and I hope, therefore, that it will meet with the general agreement of your Lordships.


My Lords, before the question is put I should like to be permitted to draw attention to a misprint in the Orders of the Day. As printed the Amendment reads "Page 60, line 11, after Standing Order 213 insert the following new Standing Order." The number "213" ought to be "212."

On Question, Motion agreed to. The Standing Order amended accordingly: the said Amendments to be printed.