HL Deb 07 February 1946 vol 139 cc291-312

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


My Lords, I beg to move that the House resolve itself into Committee and it may be convenient if I make a statement on that Motion. It will cover a number of points which I think noble Lords raised in the discussion on the Second Reading and a very important matter which I had the opportunity of discussing with noble Lords opposite, with the Secretary of State for the Colonies and with legal advisers and others in regard to the question of Orders which are made under the Bill. I have been asked to make the following statement on that matter.

His Majesty's Government have considered this matter—that is, the laying of Orders—very carefully, and have reached a conclusion which it is hoped will be acceptable to Parliament. The question of laying the actual drafts of Orders in Council gives rise to great difficulties. In the first place, the Orders will be made not only under the powers conferred by Clause 1 of this Bill, but also by virtue of the British Settlements Acts which are applied by Clause 2 and, as respects the Malay States, under the Foreign Jurisdiction Act, 1890. To lay the draft of Orders to be made under those Acts would be contrary to established practice, departure from which would involve constitutional issues.

In the second place, there is a practical difficulty. The action to be taken under this Bill is urgent. The Orders to give effect to the policy outlined in the White Paper must be promulgated as soon as possible after the Bill becomes law, in order that civil administration may be resumed without delay when the local situation permits—because it is at present under military jurisdiction. The Orders will be long, and the drafting will take some time to complete.

For these reasons, His Majesty's Government propose to lay before Parliament a statement setting out their proposals, amplifying the information given in the White Paper and constituting in fact a précis of the material provisions to be contained in the draft Orders. They adopt this course as an exceptional measure in view of the special importance of these Constitutions, but they must not be regarded as thereby establishing a precedent for future cases.

They agree that there is a prima facie ground for criticism of the present procedure whereby very few instruments relating to Colonial Constitutions are subjected to Parliamentary examination before coming into operation, but on consideration the question of modification of this position proves to be one which is very complex. There is great variety among these Colonial Constitutions and the legal provisions under which they are framed, and the peoples in the Colonial Empire will have divergent views on the subject to which due weight must, of course, be given. It would therefore be difficult to devise legislation to fit all cases. In these circumstances the Government must ask the House to give them time to look into the matter. As soon as there is an easing of the present pressure on the limited legal staff in the Colonial Office, the position will be thoroughly explored so that His Majesty's Government may be able to consider whether improvements in the present procedure can be effected.

I may say that we are as anxious as noble Lords are to bring this matter, so far as we can, to such a position that there will be adequate Parliamentary opportunity for discussion before action is taken, and in this particular case the précis which it is proposed to submit and lay before the House before such action is taken will afford such an opportunity in regard to this matter.

Moved, That the House do now resolve itself into Committee.—(Viscount Addison.)

4.5 p.m.


My Lords, I think the whole House will be grateful to the noble Lord for the explanation and the proposals he has made and the undertaking he has given. This matter was raised, as your Lordships will remember, on the Second Reading, by the noble Viscount, the Leader of the Opposition, who greatly regrets he is unable to be here to-day. He is, I am sorry to say, ill; I hope he will soon be back. A good deal of discussion, as the noble Viscount has said, has taken place upon it. It obviously would be quite impossible to debate what the Government intend to do with regard to Malaya on this Bill or on the White Paper. The Bill itself is merely an enabling Bill. Indeed, the action which is going to be taken, when it is taken, will as I understand it be taken in part under this Bill and in part under a number of other Acts which are prayed in aid when the Order is made—the Foreign Jurisdiction Act and another Act covering the Straits Settlements. Nor would it be possible to debate the matter effectively under the existing White Paper, which is no more than a skeleton outline of the general lines on which the Government hope and intend to proceed. That, obviously, was an unsatisfactory position, and the House, quite rightly, if I may so, did not wish to commit themselves in any way, by passing this Bill, to action to be taken under it, without a firm assurance that as and when the Government was ready, the House would have the fullest opportunity of considering that plan and debating it before action was taken.

That might have been possible in one of two ways. There are many precedents for laying the drafts of Orders in Council—the Government themselves have just done that under the 'Control of Investments Bill, and we often have done it. In a straightforward Order which he who runs may read, that is very often quite a convenient way of doing the business. But here, as I understand it, the Orders must, by reason of the legal position, be extremely complex in their drafting. They may run to 150 or 200 pages, and would, I think, be almost unintelligible, even to those very familiar both with Colonial adminis tration and with the law, and to the majority of us they would be quite unintelligible.

The alternative is to have a full White Paper when the plan is ready in all its detail, which will set out exactly, in simple language, what it is intended to do under this Bill, and under the other Acts under which the Orders will be made, and what will be the effect of the Orders when they are made. That, I think, is a very convenient way of dealing with the matter. The Leader of the House has given us an assurance that we shall have such a full statement, and that we shall have it in full time to digest and to debate, as we shall certainly want to do, before the Orders in Council are made. If that, as I understand, is the position, I believe it will commend itself to all your Lordships as an extremely convenient way of proceeding.

There is only one other matter I would like to mention. We have been dealing hitherto entirely with Malaya. I gather it could not be an Order under this Bill, but when dealing with Sarawak, I presume it would be done under the Foreign Jurisdiction Act or the appropriate Act, but some Order in Council would be made. I do not wish to introduce a debate on Sarawak at this moment, nor am I sure whether the negotiations which are now taking place with regard to that country will be completed in time to be embodied in the While Paper which will be presented dealing with the Constitution and, the future of Malaya, but I should like to have this assurance from the noble Viscount. He will, I am sure, appreciate the great importance, in dealing with this question of Sarawak, of our duty to the people of that country. In the eyes of the world it should be abundantly clear that anything which is done is not only for the benefit of Sarawak, but is carrying the particular consent of the people of Sarawak and those best able to speak for them. I just want to stake out a claim first of all that Sarawak will be treated in the same way as these other Malayan matters, and that we shall not find ourselves committed in respect of Sarawak while we are not committed in respect of Malaya, and that therefore either any proposals with regard to the territory will find their place in the White Paper, or, if they do not, and if the Malayan side of the business is ready before the Sarawak matters are finally disposed of—disposed of in the sense that His Majesty's Government come to a definite conclusion on them—we should have an opportunity of knowing what has been done and what is proposed before any definite and final action is taken with regard to that territory also.

Subject to that proviso, I should like again to express—and I am sure I speak for all my friends—my sincere gratitude to the noble Viscount for the very fair way in which we have been met over a matter which is of deep concern to many of us and of deep interest to the whole British Empire.

4.11 p.m.


My Lords, the statement we have heard to-day from the Leader of the House is one we greatly welcome. It is, I feel sure, one which will help to lessen the tension which exists to-day in Malaya and the anxieties we hear expressed in so many quarters regarding the actual intentions of the Government. I shall await the reactions to it with the keenest interest, because in view of representations which have been reaching us I am alarmed at the situation which has been created. The assurance given that Orders in Council will be laid on the Table, giving ample time for consideration before any legislation is undertaken, is right and reasonable. I would like to endorse the words of my noble friend Viscount Swinton. The present Bill, as he says, is an enabling Bill and we cannot debate it. Therefore, I shall not trespass upon the time of the House, but I would like to say that I am still hopeful that the Secretary of State for the Colonies will consider it advisable to follow the suggestion I have made in previous debates, that before determining the final shape of this Malayan Union he will consult previous High Commissioners of the Malay States and former civil servants of standing, who whatever their personal bias may be, will, I know, give their country the benefit of their knowledge and experience. Should their views not accord with the views of those who are the present advisers of the Government, surely it is in the interests of all concerned to find out the reason why.

None of us are infallible. Particularly when dealing with matters concerning the Mahomedan religion is it advisable to consult with those who have lived in Moslem countries. The method of modern inquiry proceeds by way of using the specialist, even though the final decision may not rest with him. If this Malayan Union is not to lead to disorder and interracial strife it must be founded on the cordial acceptance of the Malays and their Rulers. For seventy years Malayan loyalty to Great Britain has been staunch; and it remained unshaken even though we were unable to defend their country from Japan. Such loyalty as this is not to be lightly sacrificed to expediency and diverted into channels which might result in a situation of embittered and lasting hostility. It is for that reason I feel sure that the House will welcome the statement made by the noble Viscount, the Leader of the Opposition, that more time must be given before such a vital matter as this is decided. I thank the noble Viscount the Leader of the House for having made the statement he has to-day.

4.16 p.m.


My Lords, in a few words I wish to support what has been said by the noble Viscount, Lord Swinton, and by the noble Viscount, Lord Marchwood. I welcome this statement which has been made to-day. It goes a good way towards meeting the view we expressed in former debates, namely, that this question of the Malayan Constitution was being forced forward rather too quickly. I particularly welcome the fact that we are to have laid before us a précis of the Orders in Council so that we may have an opportunity of debating the many questions connected with this matter before the Orders in Council are actually laid before Parliament. I agree that to-day is not a convenient moment to debate these points, but I do wish to impress upon the noble Viscount that representations are being made on certain points which have come to the knowledge of both my noble friend and myself, one of which particularly refers to the question of the control of religious affairs in Malaya. I. want to urge, as I did on a former occasion, that this is one point that should concern the Secretary of State for the Colonies and the Government, especially in connexion with this new Constitution. If we can get a settlement which will result in leaving the control of those affairs in the hands of the Sultans, it will go a long way towards alleviating any bitterness or feeling there may be about this Constitution at the moment.

I want to support my noble friend Viscount Marchwood in his suggestion 'that the Government should take into consultation the gentlemen here in this country—they will not accept my proposal that they should be sent out to Malaya to inquire locally into these questions—eminent ex-civil servants and others who understand Malaya and who would be, I am sure, only too pleased to place before the Government all the help that they could give in arranging this difficult matter. Those are the two major points with regard to the general situation which I wish to make.

With regard to the constitution of Singapore, I wish to warn the Government once more that the Colony of Singapore contains over 75 per cent. of Chinese population. The Colony is for Great Britain a strategic base of vital value. It is the strategic base on our lifeline in the East and it is a base over which we cannot afford to lose control in any way whatsoever. I feel certain that both Australia and New Zealand take the same view about it. Therefore I do urge that any Constitution which is to be granted to Singapore should not be on a democratic basis and that Singapore must remain a British Colony if we are to retain our strategic control out in the East. I would conclude by saying once more that I welcome what the Government have done in this matter; I believe they are sincere in their desire to obtain the best for Malaya and I feel that if we can get all these points satisfactorily settled they have probably got the best basis for a new Constitution in Malaya which can be found.

4.20 p.m.


My Lords, I have read with very great interest the Bill now before the House, and I think this is the first time that the British Parliament has endeavoured to make a Constitution by Order in Council. I recall debates when matters of this kind were discussed in the House of Commons in the days of Lord John Russell. Difficulties were then arising between the residents of Upper and Lower Canada, and it was not by Order in Council that the Government dealt with the situation, but by legislation after full debate. We are in fact conferring upon the Governor in Council legislative powers and the conferring of such powers has always been looked upon since the War of Independence in 1775 with great suspicion. It has always caused difficulty because the people affected in the area concerned have had no opportunity of being heard. If, as you say, we are looking forward to the day when these Colonies will become self-governing we shall have to keep in mind the fact that Constitution has ever been conferred upon a Dominion by this Parliament that was not created by the residents of the Dominion concerned. For instance, the Canadian Constitution was settled by the Quebec Resolutions. It was sent here and the British North America Act was passed. The same may be said with respect to South Africa, and the discussions which took place in that connexion are matters of record. The Legislatures were consulted and the people framed their own Constitutions. The same may be said also with respect to Australia, and the long discussions which took place indicate how important it is that the people who are to be governed should themselves devise the form of their own Constitution. That, of course, is not possible with respect to new Colonies which have not yet become able to deal with the matter through the creation of representative institutions, which are so important to enable it to be properly done.

I should like to make to your Lordships a practical suggestion namely, that the Order in Council, however much it may be discussed here, should be easily accessible—it might be primed in the next issue of the Statutes of the country as an Order in Council having the effect of law. If that could be done it would be of great assistance to many people, not excluding the legal profession. It should be possible for the Order in Council to be part of the Statutes of the Realm so that it may be available to anyone desiring to see the conditions in which a particular territory is governed.

Furthermore, inasmuch as we are aiming at representative institutions which will determine the character of legislation and the Constitution it might be well to place a limitation upon the duration of that Statute. That has been done and could be done, and in view of the Malayan situation, of which I know so little, it might be desirable for a long period to be laid down or for some expression in indefinite language to the effect that this was of a temporary character.

I am making these observations because I have seen great difficulties arise from an endeavour to deal with constitutional matters by an Order in Council. The conferring of legislative powers on His Majesty's Government is something to be done with the utmost care because it means entrusting to the Executive a power which belongs to Parliament. I am happy that the noble Viscount, Lord Addison, has promised to submit for the consideration of the House a general statement of what the Constitution is to be. But I again remind your Lordships that the important consideration is not what we when we sit at Westminster think—alas, we have learnt too readily and at too great a cost just what that means—but that it should have at least the consideration and if possible the complete approval of the people affected by it. I apologize for trespassing in a debate which affects a country about which I know so little, but the principle involved is of the utmost importance and may affect, as indeed it has in times past, the very life of the Empire itself.

4.27 p.m.


My Lords, before I deal with the particular points which have been raised I should like to say to the noble Viscount who has just sat down that I am afraid he must have misunderstood the position a little. With regard to our Colonies in various forms of development, for a long time past under the Royal Prerogative various Orders have been made—in fact, thousands of them have been made. What we have sought to do is to institute some departure from that practice in this respect and I am glad that the proposal has commended itself to your Lordships. We are proposing to give in this case a précis of the Orders for the House to discuss. As for the constitutional practice, of course, it would be inconceivable that any practice should be adopted such as the noble Viscount deprecated.

With regard to the comments made by the noble Viscount, Lord Swinton, concerning Sarawak, negotiations are proceeding and proposals have been already made by the Rajah to His Majesty's Government. I can assure the House that it will be fully informed as soon as possible, and there is nothing so far as I know in contemplation on which we shall not be glad to give the fullest information to the House.

There was one question I was asked in the Second Reading debate and to which I promised to reply, but which I have hitherto overlooked, namely, as to the right of the Japanese in respect of citizenship. The noble Viscount, Lord March-wood, referred to that and asked if the Japanese would be entitled to citizenship by birth or under the ten years' qualification. The proposal is that the Japanese would be debarred for a long time to come. It is not proposed to extend these opportunities to the Japanese. But Japanese in future will only be able to become Malayan citizens after each case has been exhaustively checked and dealt with by the Malayan authorities. No question affecting them could possibly arise for a long time to come. They will not be admitted, as I have said, either by reason of birth, or ten years' residential qualifications.


Does that ten years include the period of the war?


No, it must be ten years' residence exclusive of the war period.


Does that mean that a Japanese who has been resident there since, say, 1930–1931 would be eligible?


No; that is what I was trying to explain. Such people would not be eligible. A Japanese would not be entitled to that opportunity of acquiring citizenship at all.


Is not the position this—that no Japanese could obtain Malayan citizenship as a right? He would only, at some distant time in the future, become a Malayan citizen by act of naturalization, over which the Government will retain full control.


That is quite right. The noble Viscount has expressed it more clearly than I have done, and I thank him. That is entirely right, and I am sure noble Lords will be in agree- ment with it. May I say in reply to the noble Viscounts Lord Marchwood and Lord Elibank, that we are as solicitous as they are that the rights of rulers with regard to the Mohammedan religion should be fully safeguarded. They ought to be so safeguarded, and I think that the relevant provisions adequately provide for that. As the noble Viscounts are aware, every representation that is being made is being most carefully considered, for we wish loyally to carry out our undertaking. There need be no misgivings at all on that score.

My right honourable friend, the Secretary of State for the Colonies is anxious to consult with and enlist the help of those who are able to assist him with their advice, and he will not hesitate to take every opportunity of securing their co-operation. As to the importance of that, I fully share the views of the noble Lords who have spoken. And let us hope that no disaster that has occurred in the past can ever conceivably be repeated in the future.

On, Question, Motion agreed to.

House in Committee accordingly.

[The LORD STANMORE in the Chair.]

Clause 1:

Division of Straits Settlements.

1.—(1) On such day as His Majesty may by Order in Council appoint (hereinafter referred to as" the appointed day") the' Straits Settlements Act, 1866, shall be hereby repealed, and the Straits 'Settlements (that is to say, the settlements and dependencies mentioned in the Schedule to this Act) shall cease to be a single colony.

(2) On and after the appointed day the said settlements and dependencies shall be divided into such territories as His Majesty may by Order in Council direct, and those territories shall be governed, either singly or in conjunction with such other territories (whether falling within the Schedule to this Act or not) as may be specified in the Order. …

4.32 p.m.

LORD ALTRINCHAM moved, in subsection (2), after the words "other territories," to leave out "whether falling within the Schedule to this Act or not," and to insert "mentioned in the Schedule." The noble Lord said: I beg to move the Amendment which stands in my name, but before doing so may I endorse the expressions of satisfaction which have fallen from the lips of my noble friend Viscount Swinton as to the arrangement which has been described to us in the statement made at the beginning of the proceedings of the House to-day by the noble Viscount, Lord Addison. I-entirely agree with him that what the Government are doing in this case is an improvement on precedent—it is an improvement on many hundreds of precedents. It is, indeed, a great improvement, and certainly not, in any way, a deterioration from precedent. We are grateful to the noble Viscount for giving this House the fullest opportunity for discussing the future Constitution of the Malayan Union, and for ascertaining, and, if necessary, bringing to notice, the views of the Rulers and the peoples of these settlements.

May I add one other point? It is, I think, most important, and I am sure the noble Viscount as Secretary of State for the Dominions will agree, that the Dominions of Australia and New Zealand should be marching with us step by step in all we do in the Malayan Union. They have played a great part in the Pacific War, and they must be deeply interested in the future of Malaya as a whole—not only in the future of Singapore. I am sure that we can rely upon the Government to see not only that they are fully informed of what is being done but that it has their complete approval before we are committed to it.

Now I come to the Amendment. This is not a hostile Amendment in any sense. I have pat it down for the purpose of extracting, as I hope I shall, some information from the Government, and also for the purpose of calling attention to what is, I think, a serious flaw in the drafting of this Bill—a flaw which ought to be brought to your Lordships' notice. If your Lordships will look at the Bill you will note that the title sets out that it is a measure "to repeal the Straits Settlements Act, 1866, and to make further provision for the government of the territories heretofore known as the Straits Settlements." I think that, certainly in the spirit if not in the letter, this Bill is making provision for the government of territories far beyond the existing Straits Settlements. It is making provision for the government of all the States of the future Malayan Union, and the Orders in Council which are made to do that will be made under this Bill. Actually, therefore, the powers the Government are taking seem to me to be going beyond what is covered by the title of the Bill. I do not know whether that is really correct. I am aware that there is an argument to the contrary. It seems to me that inasmuch as Orders in Council that are going to be made under this Bill will apply to territories not yet covered in this way, but which will be covered when these territories come under British sovereignty, then those Orders in Council will be made under this Bill. If that is the position, I think it might be desirable that the title should be amended so as to cover the wider purpose which seems to me to be contained in the Bill.

Apart from that, the powers taken in Clause 1 seem to me to go beyond the powers required for the purpose of the Government in presenting the Bill. After all, this Bill, taking it at its widest, is designed to set up the Malayan Union. If your Lordships will look at Clause 1 (2) you will see that the Orders in Council may deal with territories not included in the Schedule to this Bill, and that the various things that may be done in regard to the future Government of these territories are very wide under paragraphs (a), (b), and (c). So far as I understand, it may be possible under this Bill not merely to constitute the Malayan Union, and to set up a new system of government for it, but to annex the Malayan Union to Burma, to the Indian Empire, or, indeed, to the United Kingdom, supposing the Governments of those places made no objection to the idea. I think the operation of this clause should be limited to the territories with which it is really proposed to deal. I am not criticizing the draftsmen in this respect. They are, at all times, terribly overworked, and I imagine that they are a great deal more overworked at the present time than ever before. I would be the last person to criticize them, but the fact that they are overworked calls for extra vigilance on the part of your Lordships' House. After all, the old system of arranging that when you needed an inch you would make quite sure of taking an ell is not a good thing in drafting Bills of this kind, more especially when it is not an ell which you are dealing with but almost the whole earth. That is what the language of this Bill covers in its present form. I do not propose to press my Amendment because, as is made quite clear in the White Paper, other territories will come into this which would be excluded if my Amendment were passed. I do not propose therefore to press it, but I ask that in some way the Government should find it possible to limit the scope of this Act to the territories it is really intended to cover by some such phrase as "the territories or those bordering on the South China Seas" or in language which restricts these powers in some way. I hope your Lordships will feel that this is a matter really requiring attention. This is a Bill originating in your Lordships' House and I think your Lordships will agree that it should go from the House bearing that hallmark of clear design and scrupulous workmanship which befits your Lordships.

Amendment moved— Page 1, line 15, leave out ("whether falling within the Schedule to this Act or not") and insert ("mentioned in the Schedule.")—(Lord Altrincham.)

4.38 p.m.


I venture to say that my own study of this Bill has led me to somewhat different conclusions from that rather terrifying prospect that the noble Lord, Lord Altrincham, has held out to your Lordships. The Bill refers in terms only to certain territories, territories, that is, which were originally provided for by the Straits Settlements Act of 1866, and the powers which it confers of passing Orders in Council can surely refer only to such territories. If reference is also made in the Bill to other territories it is only because it is desired that the powers of making Orders for these original territories mentioned in the Act of 1866, and repeated in the present Schedule, shall be exercised in conjunction with powers to be exercised elsewhere and under other Orders. In other words, that we shall be able to govern these territories in conjunction with other territories, but the Bill does not therefore confer any powers of passing Orders in Council regarding those other territories. They must come from a different source. I am glad to hear from the noble Lord that he does not intend to press his exact Amendment, because I think it would lead to certain terminological difficulties. If his Amendment passes, the Bill would run as follows: That these territories "shall be governed either singly or in conjunction with such territories as are mentioned in the Schedule," but the territories mentioned in the Schedule are not "other" territories. They are the original territories mentioned in the Act of 1866. Therefore, if you translate this into other terms, it would merely amount to saying that these original territories shall be governed either singly or in conjunction with these original territories.

4.40 p.m.


May I add a word on the construction of this Bill? It is not really to my mind in a very satisfactory form so far as it relates to the points Lord Altrincham and my noble friend have raised. It is rather a complex matter. Your Lordships will know that the White Paper deals with three different classes of territory. The first is the Colony of the Straits Settlements—Singapore, Penang, Malacca and so on—and as these are part of the British Dominions there is, of course, no difficulty in dealing with the matter. We know what we are dealing with. There is a second class, the Federated Malay States of Perak, Selangor, Negri Sembilan and Pahang; and thirdly the unfederated Malay States of Johore, Kedah, Trengganu, Kelantan and Perlis. As has been pointed out in the White Paper, and as I know from an intimate connexion with one of those territories, namely, that of Kelantan, none of he territories mentioned in the second or third classes are part of His Majesty's Dominions at the present time at all. We exercise advisory powers and we have entered into agreements with those States, but the Colonial Office has often, in the clearest possible way, disclaimed any right of sovereignty over them at all.

The position is this. It has been taken—whether rightly or wrongly I do not know, but it has been accepted as a fact in Malaya—that this Bill is intended to deal not only with the Colony of the Straits Settlements, but also with these other two classes, the Federated and unfederated States of Malaya which are mentioned in the White Paper. There has been some indignation expressed in some of those districts or territories in reference to the suggestion that has been made that there should be a cession of them to the British Government and that they should become part of the territories of the Crown. I am very anxious to find what this Bill is really dealing with. I am not satisfied with the view that it is not intended by the words in parenthesis to include the unfederated Malay States and the Federated Malay States, the second and third classes mentioned in the White Paper. We have heard a good cleat about the White Paper and the intention to carry it into effect, and I should be a little surprised, though at the same time I should be rather relieved, if we hear on behalf of the Government that really they are only dealing with the Straits Settlements, namely, part of the Colonial Dominions of the Crown. If that is so, we know where we are and these other territories not yet part of the sovereignty of the Crown can be left to be dealt with at some other time.

I would add this, which might perhaps clear the ground in he minds of some people, that the words referring to other territories beyond those mentioned in the Schedule which are territories which may be specified in the Order whether falling within the Schedule to this Act or not, are taken as a matter of law prima facie to refer only to territories which are part of the sovereignty of the King. It is well settled that unless there are distinctly words to the contrary, a Statute expressed in general words with reference to something to be done with regard to territories has to be interpreted, as far as the language permits, as not to be inconsistent with the comity of nations or the established rules of international law, which of course, includes the rule that you cannot legislate for foreign territories. So prima facie the words—I am speaking as a lawyer—do not extend at the present time to the Federated or the unfederated Malay Stales. What I am really anxious about is that His Majesty's Government should make this Bill clear. It is really a very important measure to people out there, and to a number of people in this country who have interests of great value out there, and so it is very important that there shall be no doubt as to what it really means. It is only a very slight alteration of language which is necessary for that purpose. At present, I repeat quite frankly, I do not know whether it is intended to have any reference to the Federated or the unfederated States of Malaya.

4.50 p.m.


I am sorry to prolong the debate for a moment, but I must ask leave to intervene on the original point raised by Lord Altrineham, to which my noble friend Lord Hailey referred. Naturally, anything which Lord Hailey says with regard to matters of which he has great experience carries much weight with your Lordships. For myself, merely as a matter of construction, I have not the slightest doubt in the world that the words to which, Lord Altrincham referred are words which would cover the case which he put. It may be a very unlikely case. It is quite a separate point from the point made by my noble and learned friend Viscount Maugham. I am separating them. I am anxious to say, for what it may be worth, that my own reading of these words is the reading which Lord Altrincham indicated. With the greatest respect, I do not think the answer given by Lord Hailey is any answer at all.

May I be allowed to state what the words are? As the Bill runs, it provides that the territories referred to shall be governed, either singly or in conjunction with such other territories (whether falling within the Schedule to this Act or not) as may be specified in the Order. Lord Altrincham's illustration is a perfectly good illustration, although it may be unlikely, as he said. He said, let us suppose someone proposed to provide that Singapore should be governed in conjunction with Burma—that was his illustration—can there be any doubt that other territories, whether falling within the Schedule of this Act or not, might not include Burma? Surely it is so, and therefore Lord Altrincham's point was a perfectly good point, although the illustration was improbable. I understood him to be considering this point: Is not this Bill by its form going further than anybody intends, because it does in fact purport to authorize an Order in Council which would couple up together as bed fellows the territory that is dealt with here which is a portion of the old Straits Settlements, which are now going to be broken up and re-formed, and actually says that such territory may be governed in conjunction with any territory.


Under British sovereignty.


I would entirely agree with Viscount Maugham It means territory under British sovereignty, any territory which is under British sovereignty. Nobody intends that. Therefore I humbly submit to the House that the present text of the Bill is rather unfortunately drawn.


It is hardly for me—


May we hear what the Lord Chancellor has to say? He is sitting next to you.


We have discussed it together.

4.5 p.m.


I am aware of the close support that is available for me to receive. I do not, of course, pretend to enter into legal arguments with the gladiators who have contributed to our discussion, but I do think, as a matter of fact, that the animadversions upon the draftsmen and the necessity of these words are not altogether fully warranted. I know that the draftsmen have a lot to do in these days, and what the noble Lord said represents the truth in that respect, but at the same time I cannot see that they have done anything wrong here, because it is proposed, as noble Lords are aware, that some of the territories mentioned in this Schedule, for instance Singapore, will be governed singly, or with certain attachments, and that Malacca and others will become part of the Malayan Union, so that it would be necessary to provide for government either singly or in conjunction with such other territories as may be mentioned in the Schedule. This Act does not cover, as the noble and learned Lord said, the non-federated and Federated Malay States, which are dealt with under the Foreign Jurisdiction Acts now on the Statute Book and which will require Orders under those Acts, and therefore it seems to me to be absolutely necessary that these words should be in.

May I also say with regard to the somewhat imaginative illustration with which the noble Lord has provided us and to which the noble and learned Viscount opposite gave his great support, that it would, I suppose, be conceivable. If it were not for the provisions of this Bill, somebody or other might put something extraordinary into an Order. But I want to point out to your Lordships that it would be specified in the Order and that Order would come before your Lordships, and, so far as doing anything outside the general intention and purpose of this Act is concerned, that clearly would be restrained by the necessity of its being specified in the Order and subject to your Lordships' criticisms. As to the necessity of these words here, it seems to me you must have words of this kind. Otherwise you cannot carry out the readjustment and the consolidation of the boundaries of these territories. That is inseparable from the scheme itself.


I am much obliged to the noble Viscount opposite, but I am afraid I am not in the least convinced by any argument which he adduces. Indeed, his argument seemed to me to defeat itself. As far as I understand, what is actually going to happen is this, that other territories outside the present Straits Settlements, probably most of the Federated and unfederated Malay States, will be brought within British jurisdiction under the Foreign Jurisdiction Act. When that has taken place they can no longer be dealt with under the Foreign Jurisdiction Act and I understand that Orders in Council will then have to be made with regard to those territories under this Bill which is now before your Lordships' House. Is that correct? That is the point we want to be clear upon, because if that is not the case, then I see no necessity whatever for going beyond the Schedule of this Bill. I thought the argument for going beyond the Schedule of this Bill was that you had to deal with territories that cannot at present be put into the Schedule of this Bill, because they have got to be dealt with under another Act. If that is the case, how can it be said it is not under this Bill that you are going to deal with these territories once they come under British jurisdiction? Perhaps the Lord Chancellor could deal with the point.

4.59 p.m.


I will try. May I say in the first place, so far as the draftsmanship is concerned, that that is a very interesting point. I myself have given a great deal of consideration to the drafting of this Bill, and, if anybody is to blame, it is not the draftsman, it is I. This is, I think, almost without precedent. We are doing a very odd thing here. The Straits Settlements, as your Lordships know, were originally part of the possessions of the East India Company and were dealt with by Statute. They were taken away from the East India Company. We cannot possibly deal with the Straits Settlements except by Statute, and equally by this Statute we cannot, and are not purporting to, deal with anything except the Straits Settlements.

Let me go on. We come to the Federated and unfederated Malay States, which are not British Possessions, and the only way we can legislate for them is under the Foreign Jurisdiction Act, 1890. Therefore, when you come to make an Order in Council, the Order in Council will have two parent. One will be this Bill which will apply to the Straits Settlements part of it. The other will be the Foreign Jurisdiction Act, 1890, which will apply to the Federated and unfederated Malay States. But although there will be two parents to the Order in Council, of course it is a fact that that part of the validity of the Order in Council so far as the Straits Settlements are concerned, will be derived from this Bill. The validity of the rest will derive from the Foreign Jurisdiction Act. Now I think the noble Lord has a point, and where I agree with him is this. Burma is not a very happy illustration, because it is now governed by an Act of Parliament. Take some other illustration.


British' North Borneo.


We might have limited these words "whether falling within this Schedule or not" to territories that do, or do not. We have not done that. But I really do not think that is a matter of moment. Nothing that is done under this Bill can ever relate to any territory except the Straits Settlements as defined in the Schedule to this Bill. I hope that is plain. The Federated and unfederated Malay States can never be affected by the Bill; they must be affected by an Order in Council under the Foreign Jurisdiction Act. By making an Order in Council which derives from those sources, we shall be able to deal with these territories.


I apologize for returning to the charge, but the noble and learned Lord, the Lord Chancellor, has made things more difficult. He has told me that it is no intended to issue Orders in Council under this Bill dealing with other than the Straits Settlements. I understood him clearly in that respect. In that case, why, in the language of Clause 1, is it necessary to refer to territories outside the Schedule? Limit this Bill to what you intend to do under it.


It is because you contemplate, in your Order in Council, dealing as one entity with the Straits Settlements and something which is not the Straits Settlements. You contemplate having one union, part of which is to-day the Straits Settlements, and part of which is not even a British possession. Therefore you have to have the two sources. But as you are dealing here with these Straits Settlements, as a matter of legislation, you must indicate in your Order in Council that you may in future deal with the Straits Settlements in conjunction with some other territory.


May I be clear on one point in this connexion? Do I understand you to say that this Act cannot apply to any territory outside the existing Straits Settlements as defined in the Schedule here, which includes, of course, one island off the coast of Borneo? What is to be the position of British North Borneo, which has always been governed from Singapore? The Governor there is British Agent for Borneo. It is now a Chartered Company. If that comes to an end, it was always contemplated that it would be a Straits Settlement. I understand negotiations are practically complete for Sarawak becoming British territory. It has been a Malay State, and not even a protected State. Will that not automatically become a Straits Settlement, or is it this Act which is going to define what is a Straits Settlement—the Schedule of this Act?

We must remember that in history there has been one Governor who called himself Governor of the Straits Settlements, High Commissioner for the Malay States (which included States in Borneo and the Malay Peninsula, some Federated, and some not federated) and British Agent for Borneo. That was his title of appointment. That function, I understand, is to be entrusted to a new Governor-General under whom there are to be two Governors, one for the island of Singapore with possibly some of the other islands in the Schedule, and another Governor of the Malay Union which is to take part of the Straits Settlements. What I want to be very clear about is whether you still have your legis lative set-up complete—namely, that you have power to deal not only with the existing Straits Settlements, as defined in the Schedule to this Bill, and the Federated and unfederated Malay States of the Peninsula, but with the whole of the area which hitherto has been under the jurisdiction of the Governor in Singapore, and possibly the territory of Sarawak which is now, apparently for the first time, to become a British possession.


If I may answer that, I have tried to make it quite plain that under this Bill you will never be able to deal with anything except the Straits Settlements—the existing Straits Settlements as defined in the Schedule—but you will be able to deal with them in conjunction with other territories. Your right to deal with other territories you obtain from the Foreign Jurisdiction Act. Sarawak would obviously be under the Foreign Jurisdiction Act. You must get it from some other source; you cannot get it from this Bill except in regard to the Straits Settlements.


I will not press my Amendment, but it is quite clear that the title of this Bill does not cover the purpose of this Bill, since the purpose of this Bill is not only to make a Constitution for the Straits Settlements but to make it possible to unite the Straits Settlements with other territories in that area. In spite of what the Lord Chancellor has said, with great respect to his learning and his infinitely greater legal knowledge, I still feel unconvinced.


I should like an opportunity of convincing the noble Lord privately after this.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Remaining clauses agreed to.

Schedule agreed to.

Bill reported without Amendment.

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