CLAUSE 35.—(Regulations to be Laid Before Parliament.) (Hansard, 31 January 1918)

§ Sir G. CAVE
I beg to move, "That this House doth disagree with the Lords in the said Amendment."
This Amendment and the next go together. The effect of the Amendment is that the rules are to be laid, and that unless and until" an Address is presented to His Majesty by either House asking for annulment, they shall have effect as if enacted in the Act. The difference, as the House will at once see, is considerable. Under the Clause as passed by this House, if either House passes an Address against the rules and regulations, His Majesty may annul them. Under the Amendment either House may, by having pre-presented the Address, ipso facto annul 1918 the regulations. In other words, either this House or the other House will have absolute power to annul any regulations passed under this Act. I do not for a moment suggest that either House will misuse that power. But I think it is undesirable to give so great a power to either House. If the House accepts this Amendment it will be a precedent for other Bills.

§ Lord HUGH CECIL
I hope the House will not accept this Motion. This is a very remarkable instance of how the Government as an executive body is intruding on the right of Parliament. These regulations are merely entrusted to the Order in Council for convenience sake, and not, as superseding the rights of Parliament, because it is more convenient that the elaborated details should be left to be decided by an Order in Council. It has never been the intention of Parliament that the Executive, by an arbitrary Order, should supersede the Houses of Parliament and impose whatever it thinks proper. The Home Secretary is mistaken in supposing that the universal precedent is in favour of this form of words. This particular form of words has only been used on the present occasion, and involves the supreme power of Parliament, and it was always held that the Order may be annulled if Parliament so desires. For the first time distinguished lawyers advised the House of Lords that that was not so, and an Amendment was introduced to give Parliament the control which Parliament was supposed to exercise, and which has never been abused. On what conceivable ground is it conceivable that the Executive should override both Houses of Parliament in a matter of this kind? These regulations are issued by the authority of Parliament, and it is most important that this House should insist that its authority should prevail over the authority of the Government where they disagree. It is the most presumptuous claim I ever heard of that when this House disagrees with the Executive Government they are to be put on one side, and the authority of Parliament is to be subordinated to a bureaucratic Government. I hope this House will assert the authority of Parliament. These regulations are in place of an Act, and have the force of an Act. On what conceivable ground is a regulation to be adopted which has not the full authority of Parliament behind it? By what right is a regulation to operate if one House of 1919 Parliament disagrees with it? The consent of both Houses is necessary to give the force of law to an Act, and the consent of both should be necessary to give authority to any regulation made in place of an Act of Parliament. I hope the House will not accept the proposal of the Home Secretary.

Mr. SAMUEL
I entirely dissent from the views expressed by the Noble Lord, who has not properly conceived the constitutional bearing or effect of this particular Amendment. This is a novelty introduced by the House of Lords, and it departs from the usual course.

§ Lord H. CECIL
That is not so.

Mr. SAMUEL
This raises a very grave constitutional question. It is not the case of an Executive intruding its power upon Parliament, but the case of one House seeking to arrogate to itself power which ought properly to rest in the two Houses together. The Amendment inserted by the House of Lords has this effect. Regulations are made of carrying out this very important Act of Parliament, regulations which are essential to the working of the Act, and the House of Commons debates and endorses them. If the House of Lords disagrees with them, and presents an Address against them, then ipso facto they become null and void. It is not a question of the Executive overruling Parliament, but of single-chamber government.

§ Lord H. CECIL
The Executive can overrule both Houses.

Mr. SAMUEL
No; because Parliament has plenty of effective means of bringing the Executive of the day to book.

§ Lord H. CECIL
No.

Mr. SAMUEL
if this House passed an Address declaring that a certain Order in Council was in its opinion improper, and if the Government of the day, after that vote, maintained that Order in Council, and refused to alter it, can you imagine that the House of Commons would not take steps in order to enforce its will? Such a thing is inconceivable. If, on the other hand, the House of Commons bold one view and the House of Lords another, why should we put it in the Statute that the mere will of the House of Commons should overrule the opinion 1920 expressed here? The Noble Lord said: "The assent of both Houses is necessary for an Act of Parliament. Why should not the assent of both Houses be necessary for a. regulation?" I say "why should not the assent of both Houses be necessary for the Amendment or the repeal of a regulation?" He assumes that one House is to have the sole right of its own Motion to annul any Order in Council intended to carry out the legislation of Parliament. The matter was debated at very considerable length in the other House, and, as a result, the Amendment moved by Lord Salisbury was rejected.

§ Lord H. CECIL
The right hon. Gentleman is mistaken. It was a different Amendment.

Mr. SAMUEL
An Amendment different in form.

§ Lord H. CECIL
It was accepted by the Government.

Mr. SAMUEL
But precisely the same in effect.

§ Lord H. CECIL
Not precisely the same.

Mr. SAMUEL
The -whole purpose of the Amendment was to secure that if either House of Parliament passed an Address, then the Order in Council or regulation should ipso facto become null and void. The House debated it at great length, and another Amendment was ingeniously put forward by another Noble Lord, and, after a short Debate, was accepted. The Noble Lord says that it was accepted by the Government. It was given a very qualified acceptance. The Lord Chancellor said I think it might have been better to have adhered to the Clause as it stands in the Bill, which undoubtedly has been used with great benefit. I cannot tell my Noble Friend the precise number, but. I am informed by the best authorities that it has been used in a great many eases, and it has been the most usual form of Clause for a great many years past. Again, he said I do not think there would be anything improper in not taking a Division on the point if that is the general sense of the House. At the same time, I cannot say that we can undertake to make this a Government Amendment. I do not know what the other House may say to this. All I can say is that I am not prepared to oppose it if the general sense of your Lordships House is in favour of the adoption of this Amendment. I understand that the Government cannot undertake to carry it through Parliament, hut I should not be prepared to divide the House against the Amendment. For the reasons I gave the other night, I think it is better to adhere to the usual form of Clause. 1921 That is what the Noble Lord calls acceptance. It was a very unenthusiastic acceptance. The Lord Chancellor, with his long acquaintance of this House, probably foresaw the view that would inevitably be taken here. I cannot for a moment think that this House would agree to the claim that either House should have the right to annul a regulation which may be essential to the effective working of an Act of Parliament.
Lords Amendment disagreed with.
Lords Amendments:
Leave out the words "His Majesty in Council may annul the rule, regulation or provision, and it shall thenceforth be void, but without prejudice to the validity of anything done there under," and insert instead thereof the words "the rule, regulation or provision shall have effect as if enacted in this Act."—Disagreed with.
At the end of the Clause, add as a new Sub-section, "(2) Any Order in Council under this Act may be revoked or varied as occasion requires by any subsequent Order in Council."—Agreed to.