Lords Sitting of 6 February 1940

Preamble
The House met at half past three of the clock, The LORD CHANCELLOR on the Woolsack.
LONDON COUNTY COUNCIL (GENERAL POWERS) BILL. [H.L.]
Read 2a, and committed.
NORTHALLERTON URBAN DISTRICT COUNCIL BILL. [H.L.]
Read 2a, and committed.

THE "ASAMA MARU" INCIDENT.
3.32 p.m.
LORD SNELL: My Lords, I beg to ask the noble Viscount the Secretary of State for Foreign Affairs if he has any statement to make about the "Asama Maru" incident.
THE SECRETARY OF STATE FOR FOREIGN AFFAIRS (VISCOUNT HALIFAX): My Lords, as your Lordships may be aware, the Japanese Minister for Foreign Affairs made a statement in the Japanese Diet earlier to-day with regard to the negotiations which have been proceeding between His Majesty's Government and the Japanese Government in connection with the removal of certain Germans from the Japanese steamship "Asama Maru" by one of His Majesty's ships. The correspondence which has passed between the two Governments on this matter will be laid before the House to-night. It has been found upon investigation into the training and antecedents of the twenty-one men removed from this Japanese vessel that some of them are relatively unsuitable for military service and, while reserving all their legal rights, His Majesty's Government are accordingly prepared to release nine of these men who will be handed over to the proper Japanese authorities in due course. Meanwhile the Japanese shipping companies have been instructed that they should in future refuse passage to any individual of a belligerent country who is embodied in the armed forces or is
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suspected of being so embodied. While His Majesty's Government have maintained their view of the legal position in this matter, it is anticipated that such incidents as that in connection with the "Asama Maru" will be avoided in future.

MENTAL DEFICIENCY (SCOTLAND) BILL. [H.L.]
Order of the Day for the Second Reading read.
3.33 p.m.
THE SECRETARY OF STATE FOR INDIA AND BURMA (THE MARQUESS OF ZETLAND): My Lords, I can probably best explain the purpose of this Bill if I remind your Lordships in the first instance of the law with regard to this matter as it stands to-day, and then of the circumstances which have rendered some change in the law desirable, and indeed I think necessary, and if, finally, I inform your Lordships of the nature of the change which it is proposed to make. Mental defectives in Scotland may be detained either by a judicial order or at the instance of a parent or guardian or of a local authority with the consent of the parent or guardian as the case may be. Under the law as it stands such an order for detention of a mental defective is operative for one year, and if the General Board of Control, the body appointed by His Majesty for controlling these persons in Scotland, are of opinion that the order should be extended and that the detention consequently should continue, they are under obligation to intimate to the defective and to the parent or guardian or other person concerned their intention of extending the order. In that case there is a right of appeal by the person concerned to the Courts within fourteen days of intimation having been given.
That is the present state of affairs and that was the state of affairs, of course, when a case was taken in the Courts which was known as Innes (or Page) against the General Board of Control. Some of your Lordships who are not aware of the intricacies, and I might almost say the incomprehensibilities, of Scottish law and procedure may wonder why this case was between Innes (or Page) and the General Board of Control. The reason is, I understand, that in the case of a married

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woman it is the practice in the Courts of Scotland to give her maiden name as well as her married name, not I presume with any suggestion that there is any doubt as to the validity of her marriage, but to be doubly sure that the person has been properly identified. The effect of the decision by the Court of Session in this case was this: that if the intimation had been sent but had not reached the person concerned then the original order must be held to have lapsed and the person must be released. In this particular case intimation was given, but it so happened that the person to whom it was given had in the meantime changed her residence and the intimation was returned through the postal authorities to the General Board of Control. The Court of Session held in spite of that that the original order must be held to have lapsed.
In order to get over that difficulty, which quite clearly might frequently arise, it is proposed to amend the existing law in this way. In future, if this amending Bill becomes law, the General Board of Control will be entitled, in the event of their being convinced that a continuation of detention in any particular case is desirable, to extend the order and it will not be necessary under the amended law for intimation of that to have been received. On the other hand as a quid pro quo the person concerned will in those circumstances be given the right of an appeal to the Sheriff at any time—not only within fourteen days of intimation having been given but at any time—against the proposed order, subject only I think to the restriction that appeals shall not be made more frequently than once in two years or something of that kind. That point is dealt with by the earlier clauses of the Bill. But it is also necessary to validate existing orders which in view of the decision in the case of Innes (or Page) against the General Board of Control may in some cases be held to be invalid. Clause 4 therefore validates the existing orders but at the same time provides for an immediate appeal to the Sheriff in any case in which a person concerned considers that the order is unreasonable. I think that that briefly explains the provisions of the Bill and I beg therefore to move that it be now read a second time.
Moved, That the Bill be now read 2a.—(The Marquess of Zetland.)
3.41 p.m.
LORD ALNESS: My Lords, I should like in a word to support the Second Reading of the Bill, which has, if I may say so, been so lucidly explained by the noble Marquess. I cannot be expected to subscribe to his view of the incomprehensibility of the law of Scotland. I think it is entirely comprehensible, and this Bill is one of the examples which one might cite in support of that view. The Bill is designed, as I understand, to get over a difficulty which has been created by a decision in the Court of Session. It does so successfully and in that view I have great pleasure in supporting the Second Reading.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

INDIA: PROCLAMATION OF EMERGENCY.
3.42 p.m.
THE MARQUESS OF ZETLAND THE MARQUESS OF ZETLAND moved, That the Proclamation of Emergency made on September 3, 1939, by the Governor-General of India under Section 102 of the Government of India Act, 1935 (a copy of which was presented to this House on November 30, 1939), be approved. The noble Marquess said: My Lords, I now have to ask your Lordships to give your approval to a Proclamation of the Viceroy and Governor-General of India made at the outbreak of war and presented to the two Houses of Parliament in November last. The Proclamation is in quite simple terms and runs as follows:
"In pursuance of subsection (1) of Section 102 of the Government of India Act, 1935, I, Victor Alexander John, Marquess of Linlithgow, Governor-General of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by war."
It is very desirable that this Proclamation should be approved by the two Houses of Parliament, because the law provides that unless that be done the Proclamation will cease to have effect in six months' time; that is to say, in this case it would cease to be operative early next month. If that were to be the case, grave inconvenience would necessarily be caused, and I will explain to your Lordships why.
It is only by virtue of this Proclamation, which is made, as I have explained,

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in accordance with the provisions of Section 102 of the Government of India Act, 1935, that the Central Government and Legislature can exercise that measure of co-ordination and of control over the activities of the Provincial Governments which is essential at a time when a country is in the midst of a great war. Indeed I think it will not be disputed that all experience shows—and, if I may say so, not least the experience of this country itself—that the efficient prosecution of a war inevitably involves a great deal of central control and co-ordination—as indeed witness the Defence Regulations in this country and the immense volume of special war legislation by which Parliament has, for example, assumed much control itself over those activities which are normally left to local authorities, or, alternatively, has conferred new duties on local authorities to be exercised subject to central control and co-ordination. Very well, my Lords, that also is the position in India; and if it were not for the existence of this Proclamation and the action which can be taken under it, any matter which fell within the Provincial legislative list in the Government of India Act—such, for example, as the control of prices or the requisitioning of buildings and land, or the power to declare particular places to be protected—would have to be left to the eleven separate Provincial Governments and Legislatures to regulate or not as they thought fit, and, if they did regulate it, to do so as little or as much as seemed good to them; and any action taken by the Central Government for war purposes would be liable to challenge in the Courts as ultra vires.
The chief legislative outcome of this procedure has been the Act known as the Defence of India Act, which corresponds very closely to the Emergency Powers Act in this country. It was enacted by Ordinance by the Governor-General in the first instance, but was subsequently re-enacted by the Indian Legislature. A great deal of the action taken under the Defence of India Act—as indeed is the case under the Emergency Powers Act in this country—is provided for by rule, and these rules are expressed in the Indian Act as being—and here I quote the words themselves:
"for securing the defence of British India, the public safety, the maintenance of public order; for the efficient prosecution of the war; or for maintaining supplies and services essential to the life of the community."
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just as in this country, so in India, the rules cover very wide fields. I need not trouble your Lordships with a comprehensive list of the subjects which are covered by the rules. I need only perhaps mention a few of them to give your Lordships an idea of the field covered; the control of signalling, telegraphy, postal communications and so on; restrictions on foreigners; prevention of prejudicial acts and control of information; preparations for defence; control of arms and explosives; control of shipping and aircraft; control of essential supplies and work; control of trading with the enemy and control of enemy firms. Those are examples of the subjects which are covered by the rules made under the Defence of India Act, which gives the Central Government these powers of coordination and control which are so necessary in time of war.
But it is by no means the case that the powers conferred by these rules are conferred only upon the Central Executive. Many of them are conferred upon the Provincial Governments themselves; rules for example, dealing with such things as air raid precautions, the control of lighting, the control of meetings and processions, censorship of the Press, the requisitioning of buildings, and so on. In one particular case, and I think a very important case, that is to say the case of the control of prices, though the power was conferred by the rules upon the Central Government, it was actually delegated by the Central Government to the Provincial Governments, which have made valuable use of their powers and have done much to prevent profiteering and undue rise in prices.
Finally, as regards the general executive control over the actions of the Provincial Governments conferred by the Act as amended by Parliament in September last—a measure which was hotly criticised in India as depriving the Provinces of much of the autonomy which had been granted to them by the main Act—the Government of India have reported to me that in no case has the Governor-General had occasion to use the special powers conferred by the Act to enforce directions from the Centre in pursuance of this provision; and, perhaps most striking of all, in a single case only, to the best of my knowledge and belief has any protest been received from or

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been made by a Provincial Government against the manner in which these powers have been exercised.
In that case, moreover, the protest was a merely formal one. It was made by the late Government of Assam, and it arose in this way. There was considerable trouble in connection with the production of oil in the oil fields at a place known as Digboi. It was realised that with the outbreak of war it was very desirable that this area, since the production of oil immediately became a matter of the highest importance, should be declared to be a protected area; and, if an area is declared to be a protected area, it gives to the authority responsible for its protection certain powers to control access to it. The actual wording of the rule is as follows:
"If the Central Government or the Provincial Government considers it necessary or expedient to regulate the entry of persons into any area that Government may, without prejudice to the provisions of any other rule, by notified order declare the area to be a protected area and thereupon, so long as the order is in force, such area shall be a protected area for the purposes of these rules."
The Provincial Government themselves appreciated the importance of declaring Digboi to be a protected area, but, as I understand it, they preferred that the Central Government, rather than themselves, should accept responsibility for declaring it to be a protected area. The Central Government accordingly acted, and the Provincial Government made their formal protest, and the matter closed. I hope that I have said sufficient to explain the need for the Motion which stands in my name and the essential importance of its being approved before the beginning of next month by both Houses of Parliament. I beg to move.
Moved, That the Proclamation of Emergency made on 3rd September, 1939, by the Governor-General of India under Section 102 of the Government of India Act, 1935 (a copy of which was presented to this House on 30th November, 1939), be approved.—(The Marquess of Zetland).
3.56 p.m.
LORD SNELL: My Lords, I do not propose to discuss the Proclamation the approval of which the noble Marquess has moved; indeed, I desire to say only
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one thing in regard to it. It is possible that this Proclamation was necessary and urgent on September 3 last, when His Excellency the Viceroy issued it. What I am not clear about is why five months have been allowed to elapse before the Proclamation has been brought before Parliament for its approval. We have been dealing with emergency legislation at very great speed, and this matter would have taken only five minutes of your Lordships' time. One might have assumed, therefore, that earlier than five months after it was issued, the ratification of it by Parliament would have been sought. I do not know what would have happened if, happily, peace had come last month, or even last week; in that case, presumably, this Proclamation would never have received the approval of Parliament at all. I utter that word of criticism because, in the present circumstances, my critical faculty is becoming rather blunted from disuse. I can only say that the Proclamation seems to have been highly necessary, and I shall not rally my forces to criticise or defeat His Majesty's Government on this occasion.
3.58 p.m.
THE MARQUESS OF ZETLAND: In reply to what the noble Lord has said, I should like to remark that he is perhaps under some misapprehension. The terms of the Proclamation were laid before Parliament, I think, last November. The reason that I have not asked your Lordships to approve it before now is this, that the approval of Parliament is not necessary to the Proclamation during the first six months of its operation; the approval of Parliament is necessary only to its extension beyond a period of six months. Under the law as it stands, the Governor-General in the circumstances described is fully entitled, without the approval of Parliament, to issue a Proclamation of six months' duration. I say that only to explain to the noble Lord that it has been due to no discourtesy on my part that I have not asked your Lordships to give your approval to its continuance before now.
On Question, Motion agreed to.
House adjourned at four o'clock.