HC Deb 18 December 1919 vol 123 cc793-807

9.0 P.M.

Captain W. BENN

I rise to call attention to the decision given yesterday by Mr. Justice Sankey in the Courts. It was that the action of the Board of Trade in restricting imports under Section 43 of the Customs Consolidation Act, 1876, was illegal. If he should seek to say the question cannot be discussed because it is sub judice, the law of the land at present is that imports can be freely made, and it would surely be a very strange inversion of the proprieties of the case if the fact that the right hon. Gentleman had been committing illegal acts and been brought to book in the Courts should prove some reason why he should not defend his action in the Rouse of Commons. That can hardly be suggested WS a defence. What are these restrictions'? Section 43 of the Act was passed for the purpose of prohibiting absolutely the imports of arms, ammunition and other articles. The right hon. Gentleman taking advantage of the words "and other articles" has been issuing proclamations forbidding the traders of this country to import various articles. At one time the list was very extensive. The right hon. Gentleman went further and absolutely prohibited the importation of certain goods. For other goods he gave a limited licence. He went further than that and gave a licence to one man and declined to give one to another man on grounds which were more or less clear. He cannot plead that his attention was not drawn to this matter before. It was, said months ago that the action of the Board of Trade was absolutely illegal. When we pointed that out the Government's reply was always that they were-acting on the advice of the Law Officers. We pressed them time after time. I myself have asked many questions, and the right lion. Gentleman has always-sheltered himself behind the opinion of the Law Officers and has persisted in his determined course of conduct. Now it has been left to some injured trader to-bring a case in the Courts and the Court has decided that the whole of the conduct of the right hon. Gentleman in issuing. these proclamations and in directing the Customs officers not to admit certain goods is illegal. 'That is to say, we are-back as far as this part of the administration is concerned as in some other parts, to the days of Ship Money and the Star Chamber, acts of the Executive done-absolutely in defiance of the Statute law as determined by Parliament.

The right hon. Gentleman is to be cornplimented on a very brilliant Parliamentary coup at Question Time to-day. With a spontaneity which some of us rather suspected, an hon. and learned Gentleman asked who were the Law Officers who had advised the right hon. Gentleman in the course which he had been pursuing, and the right hon. Gentleman, I do not say with his eyes on any events which have taken place in the North of England, replied that the opinions on which they have acted were those of Sir John Simon and Lord Buck-master, whereupon there was a very hearty cheer, in the volume of which it was impossible any further to continue the controversy. Perhaps the right hon. Gentleman is going to produce those opinions. We shall press him to do so. It is very strange if he is right, because the curious thing is that it was due to the action of Sir John Simon that a whole bevy of the right hon. Gentleman's proclamations took to flight. Tie had a very long and most varied list of things which were not permitted to be imported, and when Sir John Simon announced that he was going to import these in defiance of the right hon. Gentleman, as soon as that announcement was made public, the decision was hurriedly arrived at to withdraw the proclamations, so that if there was anything in the point all alt, I should have said the disappearance of this most objectionable system of restriction of imports was more due to Sir John Simon than to any other man. However, if he says it was on Sir John Simon's opinion that he has been acting, then no doubt he can produce the opinion. If so, everybody will be satisfied, and, of course, I will withdraw any remarks I have made on the point. But I would point out that Sir John Simon, much to the regret of many of us, is not a Member of this House at present, and he is not a Law Officer of the Crown. Nor is Lord Buckmaster a Law Officer of the Crown. The right hon. Gentleman has the advice of the present Law Officers of the Crown. Whatever the point may be worth it is not a point of substance that he could possibly rely in the action he takes as head of a great Department on the opinions expressed by Gentlemen who have not been Law Officers, at any rate, during the last three years, and it must be taken that he is relying upon the opinion of the present Law Officers of the Crown.

As the Courts have determined that the action of the right hon. Gentleman is illegal and that the traders of this country have a perfect right to import whatever they please, unless it has been forbidden by a Statute of this House—which, of course, is the proper way to do it—is it right that the right hon. Gentleman should hold over their heads the threat of pursuing the matter to appeal? What can be the purpose of appealing to a higher Court when it is the opinion of all legal authorities outside the Law Officers of the Crown —I can say this without fear of contradiction—that the right hon. Gentleman has no power under Section 43 to prohibit imports? It is safe to say that the whole Bar is against him, and he has nobody but his two Law Officers to rely upon. In these circumstances, is it justifiable for him, let me put it only on the ground of expense, to put the public to the expense of an appeal to a higher Court, and perhaps, again, to a still higher Court? I do not know what the right hon. Gentleman's intentions may be when he is defeated in the next Court, about an appeal to the House of Lords. I argue the matter not only on the ground of expense, but on the ground of hindrance to trade. The great objection to all these restrictions has not been only that in themselves they are a very great nuisance to people who want to carry on their business. One of the main objections to these restrictions has been that they introduce into business transactions that element of uncertainty which is the main enemy of the man who has to place contracts for a long time ahead. People have been unable to arrange to deliver goods at some future date because they did not know whether the Board of Trade was going to give them a permit or not.

With great courage and at great expense certain traders have carried their actions to the Court and have secured a decision against the Board of Trade, and the right hon. Gentleman instead of accepting the decision and saying, "Yes, we were wrong in the course we have taken, and you can have free imports," says, with a bounty which is not as generous as it seems, "We cannot prevent you importing; you can import what you like, but if you do import it, and if I can only secure a decision against you I shall make it retroactive and penalise you in that way." Why should the right hon. Gentleman put hindrances in the way of trade? My suggestion is that he should abandon the proposal to appeal against a decision which is patently right, and in any case if he does appeal, or if legislation is subsequently passed in the sense the Government desire, at any rate he should not make it retroactive. The trading community should have perfect liberty now to carry on their business without interference, being willing, as, of course, they are, to submit at any future date to any decision to which this House may come. That seems to be a perfect businesslike way to deal with the matter.

This is not a question of Free Trade or Protection. Protectionists are just as much opposed to this method 9.0 P. m. of interfering with the ordinary course of trade as the free trader. I put this purely on business grounds May I go a step further in regard to these orders? This is only one case in which the Government are straining the powers that were only given to them for use in the face of a foreign enemy. I refer to the administration under the Defence of the Realm Act. The Defence of the Realm Act, in its first Section, refers to the "continuance of the present War," and there is not the. least doubt that the powers that were entrusted to the Government were only entrusted to the Executive for the purpose of meeting the foreign foe during the continuance of the War, We find, however, not only in the Board of Trade, but in other Departments of State, a determination to use these powers to the utmost, even though the sanction with which they were accompanied has itself entirely disappeared. I do not know whether I am right legally or not, but I say that any new order made under the Defence of the Realm Act since the date of the Armistice has no moral, and I very much doubt whether it has any legal, value whatever. There may be learned Gentlemen present, but I am expressing an opinion which is not without support among eminent legal authorities, and that is that the Defence of the Realm Act is governed by Section 1, which says "during the continuance of the present War." If those powers are used after the War has come to an end, the orders have no moral weight, and T doubt whether they have a legal value. We find the President of the Board of Trade and other Ministers are using these war powers to the full, and, as has been shown in the case to which I have referred; they have been using them illegally. Customs officers round our ports have been exercising an illegal power in restraint of trade at the instigation of the right hon. Gentleman, though he was repeatedly warned that his act was an illegal act.

I wonder how many others of these irksome restrictions which the right hon. Gentleman is placing on Britsh commerce are illegal Everybody who is in business knows quite well that business is suffocated with masses of licences, restrictions, permits, and forms inflicted upon British industry by the Board of Trade and its various departments. This is not only the case under the Defence of the Realm Act; it happens under other Statutes. This morning there was a most unintelligible rigmarole published about the export of coal. I do not know if anybody except a lawyer could possibly interpret what it meant, or how you were to go to work if you were so fortunate or so unfortunate as to secure an order for the export of coal. The trading community, after a struggle in the Courts, has discovered that one of the most objectionable activities of the Board of Trade is absolutely illegal, and it is very reasonable of them to ask themselves whether some of the other fetters which have been placed upon them are not also placed upon them in defiance of the law. I suggest to the right hon. Gentleman that he should make a return to the House of the various restrictions which he is placing on the commerce and industry of the country, and in the second column of the Return should be placed the Section of the Statute on whose powers he relies for that executive Act. That is not an unreasonable request. Then the trading community of this country, which is not unimportant, and on whose activities the returning propsperity of the country must largely depend, will have some material from which to discover whether the illegalities of the Board of Trade are really confined to the exercise of the powers under this Section.

Sir A. GEDDES

I listened with steadily deepening amazement to some of the statements of the hon. Gentleman opposite. He seems to have been singularly unfortunate in what he heard at Question Time to-day. I can only ask him to look at the OFFICIAL REPORT to-morrow to see what was the main answer that I gave. He talks about threats of retroactivity. Perhaps he will look for them tomorrow in the OFFICIAL REPORT. In connection with the supplementary question which was asked, I do not think that he can have heard either the question or the answer.

Captain BENN

I did.

Sir A. GEDDES

It is very unfortunate, if he did, that he should have misunderstood it, or if he did not misunderstand it, it is something more puzzling still. The question asked by the hon. Member (Mr. Macquisten) was "Who were the Law Officers of the Crown at the time the first of these restrictions was imposed under Section 43?"

Captain BENN

The right hon. Gentleman has not finished the question.

Sir A. GEDDES

Yes.

Captain BENN

No; I hope that my memory is fresher than his. It was "Who were the Law Officers of the Crown responsible for getting us into this dreadful mess?"

Sir A. GEDDES

"Who were the Law Officers of the Crown at the time who were responsible?"

Mr. KILEY

Who took this action

Sir A. GEDDES

"Responsible for advising the Government on a matter of law at the time this action was taken?" The answer I gave—I carefully guarded myself, not having prepared an answer to that particular question—was that I thought they were Lord Buckmaster and Sir John Simon. Since then I have had the records examined, and I find that my recollection was absolutely correct.

Captain BENN

Will the right hon. Gentleman be able to lay before the House the opinion of Lord Buckmaster or Sir John Simon, justifying the action which has just been declared by the Courts to be illegal?

Sir A. GEDDES

Fortunately, I had no responsibility for the action of the Government in power at that time. Whether the Government consulted its Law Officers or not I do not know. Whether it proceeded according to the ordinary procedure, to get their legal opinion before taking such action, I do not know.

Captain BENN

Then the right hon. Gentleman does not know whether Lord Buckmaster or Sir John Simon ever authorised anything of the kind. That is the very reverse of what he said to-day.

Sir A. GEDDES

Of course, the Law Officers of the Government are responsible for the legal interpretations taken by the Government.

Captain BENN

The point is this: Has the right hon. Gentleman any evidence whatever to show that Lord Buckmaster or Sir John Simon advised action at all under Section 43; and, in the second place, will he lay the opinion of Lord Buckmaster or Sir John Simon justifying the course which has now been declared to be illegal?

Sir A. GEDDES

My hon. Friend knows perfectly well that there were no Minutes of Cabinet meetings kept in those days, that the Cabinet as a whole was responsible, as it is now, and that the Law Officers of the Crown were responsible for the advice which they tendered.

Captain BENN

And the Prime Minister.

Sir A. GEDDES

And the Prime Minister, and Mr. Walter Runciman, and Mr. Herbert Samuel, and a large number of others, all of whom were responsible.

Dr. MURRAY

It was because of the tonnage.

Sir A. GEDDES

It is, indeed, a strange doctrine to expect me to produce the records of a Cabinet which was in power long before I had anything to do with the Board of Trade.

Captain BENN

The right hon. Gentleman has gone rather off the point which. was put at Question Time, which was, Was. the legal authority on which this action was based the opinion of Lord Buckmaster and Sir John Simon? And now he says-that all the members of the Government were equally responsible for the decisions of the Government. We all know that. The point is this: Has he got anything to show that the Law Officers of the Crown of that day, Lord Buckmaster and Sir John Simon, were consulted, and, if so, will he lay the opinion of the Law Officers? The opinion of the Law Officers was given in writing, as he knows perfectly well.

Sir A. GEDDES

No; the opinion of the Law Officers given to the Cabinet was not given in writing. The decisions of the Cabinet in those days were never recorded at all, and the answer remains which I gave in response to the supplementary question this afternoon, that the Law Officers responsible for advising the Government at the time were these two learned Gentlemen. I am quite prepared to believe that they gave their opinion in good faith.

Captain BENN

Gave their opinion?

Sir A. GEDDES

Expressed their opinion. I can only regret that there should have been such dislocation as to suggest that the suspicions of some of us—that in those days the Government was hopelessly disorganised—were correct.

Captain BENN

That is making a political point.

Sir A. GEDDES

Yes, because a purely political point was taken. The fact remains perfectly clear that the Law Officers of the Government which took this action were these two Gentlemen. That was the point with which I started because the point had been raised, but not by me. The point has been raised just now by my hon. Friend, otherwise I would not have referred to it when I rose. He then proceeded to say one other thing—that because a large number of restrictions were imposed, and because Sir John Simon challenged those restrictions, they were removed. If he will look back to the records of this House, he will see that about March last it was announced that these restrictions which were being continued, not being imposed, would be continued up to the let September. If he will look back to the OFFICIAL REPORT for last March he will find that statement there, and he will he able to trace in the Debates which took place on that occasion all the statements that were made about the continuance of these restrictions until the 1st day of September. That announcement was made in this House—I think he will find—on that occasion. I may be wrong, as I have not had an opportunity of looking up the Debate, but he will find it difficult to discover any expression by any Member at that time to the effect that these restrictions were illegal. Later on the point was raised.

Captain BENN

It was raised by me long before.

Sir A. GEDDES

My recollection may be quite wrong. I do not remember it on that occasion, but the hon. Member will realise that the restrictions which were in force up till yesterday referred only to the product of key industries, cocaine, opium, and a few things of that sort. These restrictions were maintained in pursuance of a definite policy which was announced in this House many months ago, and has been announced in speeches, not only by the present Prime Minister but by the former Prime Minister, about the need for maintaining essential industries which are called key industries. Reference has been made to the great restraint that the Board of Trade is imposing upon trade. The action of the Board of Trade for many months past, even before I had the honour to be at that office, has been entirely in the direction of getting rid of all restrictions that could be got rid of with safety to the. country. Those restrictions which fall now as the result of a legal decision, are restrictions which were imposed purely in the interest of the safety of the country.

Mr. KILEY

Lamp glasses?

Captain BENN

Babies' bottles?

Sir A. GEDDES

All the products of an industry may not be essential in waging war, but it is essential to have the skill and the plant which can turn out bottles required for war when war comes, and which can very usefully turn out other bottles during peace. It is essential to have such an industry in the country. Exactly the same thing can be said of every one of these key industries. When the occasion comes, as I hope it will early next Session, the Government will be able to lay before the House a mass of evidence, which I believe the House will find conclusive, as to the vital nature of the industries whose products have been scheduled. I can assure the House that if the industries which produce these articles are allowed to go, as they would go without some artificial care for some time, if we have the misfortune to find ourselves once again drawn into a great war, we would find, as we did in 1914–15, that not to have these industries in the country would be a serious defect. One of these industries is the organic chemical industry, which produces all the aniline dyes. Anyone who has studied the matter at all must appreciate the fact that war is becoming more and more chemical in its mature, and that for waging chemical warfare a great, strong organic chemical industry is essential. Without that the country would be helpless in the new conditions that are arising.

It has been said that the Board of Trade regards itself as existing to control and regulate trade. If it had been said that there were irksome restrictions placed on trade during the War, if the hon. Member had recognised that the vast majority, almost the complete totality, of these irksome restrictions have been removed, and that there are still a few which have not been removed, I think he would have made a fairer criticism. I would ask the hon. Member, does he really imagine that at this time it is possible to remove all restrictions from the export of coal, and to throw the British coal market open to the world? If that were done, the price-of coal would rise to a level which it would be impossible for the ordinary wage earner to pay, even on his present basis of wages, high as that is in terms of money compared with his pre-war wage. If we had the coal required for industry in this country rising to the level at which world prices would stand, every one of our industries would be crippled and our exports would be hampered, and I do not think it would be going too far to say that it would bring ruin on the country. I do not believe that any person who has examined the question will take the responsibility for saying that at the present moment all restrictions should be removed from the export of coal. I have never met anyone who has studied the question who thought it possible, not even men vitally interested in the export trade in coal. I have found in all of them a ready appreciation of the importance now of maintaining such a restriction. The hon. Gentleman speaks of placing irksome restrictions on trade. That. is hardly a fair way of expressing what the action is. We are in certain cases making exceptions to our general policy of removing all restrictions at once, and in those exceptional instances we are merely delaying the removal until such time as it is safe from the point of view of the trade of the country to take the restriction off. When the day comes to remove all these restrictions, there will be no one more pleased than the Board of Trade and the officials of that Department.

That day has not yet come; I am sure that no one will seriously argue that the day has come. I am also sure that no one seriously will argue that at this time, with the world in the state in which it is, with the League of Nations not yet a going concern, we can afford to allow industries upon which a war effort must be based, to be destroyed. It is only in connection with such considerations and such industries that there are any restrictions maintained, or that there is any desire on the part of the Government to retain any restrictions. I exclude for the moment from that generalisation, such restrictions as we desire to maintain on the importation of cocaine and opium. There different considerations arise, but none the less weighty. The hon. Member complained very much of the position the Government had taken up in regard to the decision of the Courts. By three successive Governments it was thought that this provision really gave the power which we have been exercising. From now on until some date in the future when there is new legislation, or if the appeal goes the other way, the restricted articles will come in. If there be any reason for restricting the importation of particular substances, surely it would be a very extraordinary thing for the Government to say, "You may make for the next few weeks, perhaps, contracts for forward deliveries of those articles, which may run for years."

Captain BENN

Supposing, as is almost certainly the case, that the Courts decide it is illegal, then does the right hon. Gentleman say that the legislation which the Government propose will impose penalties on people who made contracts before legislation was introduced?

Sir A. GEDDES

I am not speaking of imposing penalties. Unreasonable arrangements to defeat the interests of the country cannot be recognised. I am sure my hon. Friend will realise that it is only to safeguard the position and to protect the country against such contracts being entered into with the deliberate intention of making any legislation which might be passed inoperative for a long period, that I felt it to be my duty to utter the warning which I gave to-day. With regard to the point raised by the St. Pancras Chamber of Commerce, it may seem very small to some Members of the House, but I have never thought it so, and I regard it as a very important one. involving a great question of principle. It is a question of principle which affects not only the development of chambers of commerce within the British Islands and the British Empire, but in all countries over the whole world. T really was rather sorry, not from a personal point of view, but from other reasons, for sonic of the remarks which fell from my hon. Friend. They are not helpful and cannot be helpful. It is no good saying that action of this sort is isolated. It is one act in a very long chain. It is no good saying that this sort of thing is a pure caprice. It is part of a policy which may be right or wrong, but it is a policy which is being followed consistently. That policy is this, that we all want to see the greatest possible development of British Chambers of Commerce throughout the whole world, and we all want to see those Chambers of Commerce related one to the other, so that they may form a kind of official structure, not a Government structure, created by the commercial people of the country, which will enable commercial opinion to be focussed finally in the Board of Trade. I would like to tell the House some of the difficulties of the Board of Trade in connection with this matter. We have some Chambers of Commerce in the country from which we get one opinion, and others from which we get directly opposite opinions, and we are left with a perfect chaos of opinions, and you cannot get the real business opinion of the country focussed. What we have asked the commercial community to try to do in their own interests, because there is no other interest in our eyes, is to so organise the Chambers of Commerce that they will provide a machine for focussing the business opinions, so that we may get the considered opinion of traders and a manufacturers as a whole. Here in this isolated instance we come up against a case of this sort. We have the great London Chamber of Commerce. That is a body upon whose judgment and advice the Board of Trade has enormously to rely, and there are frequent consultations and intercommunications between the London Chamber of Commerce and the Board of Trade. We get within the area which is covered by the London Chamber of Commerce a new chamber wishing to start. That is all to the good in the first instance if it is linked to the London Chamber of Commerce in such a way that the opinion of the St. Pancras Chamber can be connected through the London Chamber, so that it comes to the Board of Trade in that way. All we ask the Chambers of Commerce to do in their own interests, and not in any interests of the Board of Trade, is to so organise themselves that where there is a. big chamber like the London Chamber, the chambers forming themselves within the geographical area covered by that chamber, should form themselves as local habitations, you might say, of that chamber, and should link themselves with the greater chamber.

Major BARNETT

Will the right hon. Gentleman assent to the taking out of the word "limited," in case they are affiliated. That is a short question.

Sir A. GEDDES

A short answer would give a very wrong impression. We have had exactly the same question arising in Brazil. I would urge chambers of commerce here in London to arrange themselves so that when the commercial opinion of London is consulted or wants to impress something on the Government it comes to the Government through one channel for the whole of London. The alternative to that is this, that we should have, perhaps, twenty chambers in London.

Major BARNETT

Why not?

Sir A. GEDDES

There is no reason why not, as long as they are linked together in their own interests. If we have all these chambers in London unlinked and they all come to us with different expressions of opinion, far from getting the decisions made less bureaucratic, you will get decisions made more bureaucratic, because you will get different opinions expressed by the different chambers, and the Government Department will have to pick the information which it wants. I 'do not believe that that is sound. If I believed in having bureaucratic decisions on these matters, which I do not, then surely it is obvious that I would welcome the greatest possible multiplication of chambers all independent of one another, because the bigger the number of chambers you have to consult the greater certainty there is that you would get one chamber playing itself off against the other, and in the end you would be able to do precisely what the Department wanted in the first place to do. I do not think that is sound, and I would urge my hon. Friend and the people of St. Pancras who are interested in this matter once again to consider this and to see whether they cannot bring themselves to realise that there is a rational point of view, and certainly not one that has got any inspiration from a desire to establish bureaucratic control over the British Chambers of Commerce, a point of view which suggests this, that the St. Pancras Chamber should see if it cannot work itself into relationship with the London Chamber, so that when other borough chambers are formed in London they can all have the same organisation, so that when it comes to expressing an opinion to the Government, as often happens, it may be expressed through one channel instead of through many.

Major BARNETT

Does he realise that this chamber of commerce will never be registered if he insists in the word "Limited" being in the title

Sir A. GEDDES

If it can be made a part of the London Chamber of Commerce, that is what we should like to see, for the reasons I have stated. There is a point in this that is of great importance to the commercial community. If this Chamber will form itself as part of the London Chamber, I am certain that along those lines we will get a better organisation of the British Chambers of Commerce of the world. The question arises in Brazil and in every one of the South American countries, where we have little British Chambers of Commerce forming themselves in all the towns, and we are giving them all this same advice. It is not any desire to interfere with the development of chambers of commerce, because I would repeat that we want to see the greatest possible development of this private official machinery of the commercial community, and I would appeal to my hon. Friend to consult with the St. Pancras traders and manufacturers to see whether they cannot find some way of falling into this line of policy, or at least of considering it to see whether it does not appeal to them as a wise line.