§ Sir JOHN MARRIOTT
I feel very strongly tempted to question some of the statements which have been made by the right hon. Gentleman the Member for Preston (Mr. Shaw), because I have some knowledge of the Belgian and German railways to which he has referred. I refrain from doing so, because I want to call attention to a totally different matter. I am only too conscious that this 2506 is not a particularly convenient occasion for raising the point involved in a reply given to me about a fortnight ago by the Prime Minister in this House. I very much regret that the Prime Minister is not able to be here for reasons which we all appreciate. About a fortnight ago, I asked the Prime Minister:Whether he has considered the suggestion for the setting up of a Sessional Joint Committee to scrutinise all Statutory Rules and Orders issued by His Majesty's Privy Council or by Public Departments.The right hon. Gentleman gave me a long and considered reply to that question. The case which I am going to put before the House this afternoon rests almost entirely on the Prime Minister's reply. I will, therefore, quote a sentence or two from that reply. The Prime Minister said:Some idea of the annual number of Statutory Rules and Orders issued may be gained from a comparison with the number of Acts actually placed on the Statute Book. Taking the last three years, which were quite ordinary years in both respects, the average number of Acts passed was 50.6, the average number of pages in the official volumes being 539.0, but the average number of Statutory Rules and Orders issued was 1,408.6, the average number of pages in the official volumes (which are more closely printed than the Statute volumes) being 1,844.0."—[OFFICIAL REPORT, 4th March, 1929; cols. 24–25, Vol. 226.]That reply really constitutes the basis of the case which I want to submit to the House this afternoon. Before putting my case, I should like to acknowledge publicly and very cordially the exceedingly valuable help which has been rendered to those who take an interest in this matter by the "Times" newspaper, and indeed by the Press of all parties in all parts of the country. Hon. Members who perhaps have not given any special attention to this subject would be astonished if they could see the volume of correspondence, both public and private, which has reached me and others in the last few weeks. Almost all the public comments in the Press recognise the gravity of this question and the unsatisfactory position in which, for the moment, it has been left by the reply of the Prime Minister. Probably no one would be more amazed than the Prime Minister himself if he could appreciate what has been said and written on this subject within the last few weeks. I doubt whether the Prime Minister has 2507 really appreciated the intrinsic importance of this question or the strength of the public feeling which is behind it. It is only fair to say, and I say it in the most explicit way, that of course I recognise that, when the Prime Minister replied to me the other day, he was only concerned for the moment to rebut a suggestion for the appointment of a Sessional Joint Committee to scrutinise all these Statutory Orders and Rules.
I am not presuming this afternoon for a moment to suggest any specific method for dealing with an evil which I believe to be great and growing. All I want to do is to call the attention of the House of Commons to the gravity of this evil, and then I am afraid we must leave it to the next Parliament to find a remedy. Briefly and broadly, I submit that the position in which we find ourselves amounts to nothing less than an abdication on the part of Parliament of its supreme legislative function. I do not think the Attorney-General, who, I believe, is going to reply, would deny for an instant—I do not think he can deny—that there has been, of late years, a marked and a very significant change in the form of English legislation. In former days, and not so very long ago, Englishmen were said to be distinguished, and honourably distinguished, from their countrymen and neighbours, by an instinctive scepticism about bureaucratic wisdom. I am going to quote a short passage from one who will be immediately recognised as a great authority in this House—I mean the late Clerk of the House of Commons—Sir Courtenay Ilbert. No one will deny that he spoke, at any rate on the form of legislation, as an authority second to none. Here is what Sir Courtenay Ilbert said in his classic book on this subject:Rightly or wrongly, Englishmen have an instinctive distrust of official discretion, an instinctive scepticism about bureaucratic wisdom, and they have carried this feeling with them into the United States and the British Colonies. They are ready enough, they are often embarrassingly eager to confer new powers on the executive authority, central or local. But they like to determine for themselves how those powers are to be exercised. They like to see in black and white the rules by which their liberty of action is restrained, and to have an effective share in the making of those rules. And they insist on the meaning of those rules being determined, not by administrative 2508 authorities, nor by any special tribunal but by the ordinary law courts of the country. This is the peculiarity which constitutes the most marked distinction between British and American legislation on the cue hand and Continental legislation on the other and which makes the framework and arrangement of an English statute such an incomprehensible puzzle to the ordinary Continental student of laws.3.0 p.m.
I think the House will acknowledge that that is a very authoritative description of the form of our legislation up till about 20 years ago. In a word, one may say that, in those days at any rate, Parliament, in making laws, attempted to provide beforehand by precise statutory enactment for every contingency which could reasonably be expected to arise. I am not for the moment discussing whether that is wise or unwise, but am merely saying that it was the traditional method of English legislation to provide by Statute, as far as possible, beforehand for every contingency which could be expected to arise. As a result of this, the form of English Statutes was exceptionally detailed and elaborate.
No one who has followed closely the proceedings of Parliament during the last 20 years will, I think, be tempted to deny that the tradition of which I am now speaking has of late years been very largely abandoned by Parliament. We have moved and are moving more and more rapidly in two directions towards Continental methods. Many of our modern Statutes are mere skeletons of legislation. They afford really no adequate idea of their ultimate scope. They lay down a few general rules, and then they leave it to the appropriate Government Department to give substance to the legislative skeleton by the issue of administrative Orders. This growing tendency has been noted by all the more responsible commentators on English law and English constitutional procedure. In particular, it was noted some years ago by President Lowell, a very competent observer of English institutions, who, after referring to the growing practice of delegating legislative power, added these very significant words:We hear much talk about the need for the devolution of the power of Parliament to subordinate representative bodies, but the tendency is not merely in that direction; the real delegation has been in favour of the administrative Departments of the Government.2509 I could quote only not from distinguished constitutional jurists; I could quote at length from the obiter dicta of members of our own judicial bench. As was pointed out not long ago by the "Times," the danger we have to face at present is in reality two-fold, and it is to this two-fold danger that I want very seriously to direct the attention of the House. The first danger is the wholesale delegation to the administrative Departments of legislative, or quasi legislative powers, which ought to be exercised only in Parliament itself or, to put it at the lowest, under the closest scrutiny and supervision of Parliament. That is the curse of delegated legislation. A distinguished Cambridge jurist not long ago published a very illuminated little book to which he gave the title of "Delegated Legislation." He points out that in a single year, I think 1919, out of 102 public Acts placed upon the Statute Book no fewer than 60 delegated legislative power to some subordinate authority. You have one of the most conspicuous illustrations of that delegation in the Aliens Restriction (Amendment) Act, which was passed in the year to which I am referring. Under the powers conferred by that Act, an Order in Council was subsequently made which, in form, in length, and in elaboration is not distinguishable from an. Act of Parliament. Such delegation constitutes an abdication by Parliament of its proper functions. That is the legislative danger, the danger of a rapidly accumulating mass of statutory Rules and Orders of which Parliament has really only a formal cognisance.
There is another danger, not only the danger of delegation of legislation, but the danger of the delegation to these administrative Departments of judicial functions. That is to say, to the danger of administrative law you add the grievance and the danger of administrative tribunals. We have within the last few days passed an Act which is a most remarkable illustration, the Factory and Workshops (Amendment) Act, and to-day I find in the Vote Office a White Paper which is about to be laid, if it has not been already laid, on the Table. The Act itself consists of two operative Clauses which are contained on half a sheet of paper. Before the ink on that Act is dry, we have issued, or about to be issued, by the Secretary of State six 2510 closely printed pages of Statutory Rules and Orders which will lie on the Table, and I predict that no one will ever see them until they have been actually put into operation. This is a very grave danger, and I think I need make no apology for bringing it to the attention of the House, because, as was said only a day or two ago—again I quote from a leader in the "Times":The public are unaware of the extent and the drastic nature of the powers which the Departments have secured within recent years by Clauses deftly slipped into long Bills, and never explained to the House. The judges and the lawyers know, and from time to time raise their voices against the insidious and progressive danger which the acquiescence of Parliament in these Clauses involves. Is it conceivable that, if Parliament had known what it was being asked to do, it would have refused a defendant in proceedings by a Department even the right to be heard by the official who determines the case or to see the report of the inspector on which it is supposed the decision is to be made? This the House of Lords has held to be the effect of one of those Clauses. Would Parliament have knowingly empowered the bureaucratic tribunals set up under Clauses of this kind to decide cases without an oral hearing, or after a hearing from which the public are excluded—an exclusion expressly sanctioned by a Statutory Rule as to one class of these tribunals—or to decide on written statements without examination and cross-examination of the writers? Did it ever contemplate, and did Ministers ever invite it to contemplate, the creation of tribunals in which, it seems, the official discharging judicious duties need not have had any professional training in law?… The multiplication and the extension of these powers undoubtedly violate the rights and privileges of Parliament and of the subject.Those are the dangers as I conceive them to be and to which I want to draw the very serious attention of the House of Commons even at this inconvenient moment. What are the safeguards upon which the Prime Minister advises Parliament to rely? What are the safeguards which, as it would appear, the Prime Minister deems adequate and sufficient? The safeguards enumerated by the Prime Minister were two: First, the power of the Courts to declare an Order, if ultra vires, null and void. I submit, with great respect, that that is an utterly inadequate and illusory safeguard, and for one or two reasons. First of all, because the aggrieved subject has set the Courts in motion. The Courts in this country do not act proprio motu. They do not 2511 pronounce, unless they are applied to, on the validity of Statutes. I say that Parliament has no moral right by its own lack of vigilance to impose this costly and tiresome duty upon the subject. Secondly, if Parliament is careless in the matter of the form of legislation, the Courts of law are impotent. They can only interpret the Statutes. The root of the evil, therefore, is much more deep-seated than the Prime Minister appears to appreciate, and it calls, I submit, for a very different sort of remedy. But the Prime Minister had a second safeguard which he mentioned to the House in the reply to which I am referring, and it was the alertness of Members of the House of Commons. All Rules and Orders, he pointed out, must lie upon that Table. One does not require to be a very old Member of this House to know the value of that safeguard. I suggest, with deep respect, that the Prime Minister is placing the common sense of the House a little too high when he suggests that that is an adequate safeguard. I agree that if, following the suggestion made by the Hon. Member for Aberdeen, North (Mr. Benn), an affirmative Resolution were required, the danger would be, I do not say removed but substantially diminished. Even so, I think it would not suffice. May I very respectfully submit to the House that, if we are to preserve that which has always been regarded as one of the most precious heritages of the English people, their personal liberty, if we are to resist a grave and growing danger; a danger on the one hand towards administrative law and a danger on the other hand towards administrative tribunals; if we are to resist growing, grave and dangerous tendencies, we must not only have increased vigilance and alertness in our own legislative work but we must devise some new form of procedure which will give reality to what is at present in the form of a farce invalidating Rules and Orders which lie unnoticed and un-regarded on the Table of this House.
§ The ATTORNEY-GENERAL (Sir Thomas Inskip)
My hon. Friend has drawn attention to a subject which has been commented upon in the public Press on many occasions in the last few years. There is, undoubtedly, a good deal of 2512 dissatisfaction with anything which is supposed to emanate from a public department without having run the gauntlet of Parliamentary discussion. It is perhaps not for me to inquire on this occasion what is the cause of that irritation. If I were to inquire, I should suggest that it partly springs from the irritation to which all of us are exposed from time to time, on being compelled to pay very high taxes at the behest of one particular Government Department. It is the same sort of irritation that leads members of the public, when they meet with a little inefficiency, for instance, in the telephone service owing, possibly, to the illness or temporary incapacity of an operator, to abuse all Government Departments, of which that for the moment is supposed to be typical. Whether the irritation that we feel is due to these causes which are very often experienced, there is, undoubtedly, a much more wholesome objection, and that is to departmental action which many people think is proper only to Parliament. It is the traditional British objection to official government. The British mind, undoubtedly, prefers that Parliament shall govern this country rather than that officials should govern it. In so far as my hon. Friend has expressed that feeling, I suppose every Member of this House would sympathise with him. I did hope that he would have been able to suggest some solution for the difficulties which confront not merely the nation but Parliament.
§ Sir J. MARRIOTT
The reason why I did not do so, was that I did not want to violate the Rules of Order.
§ The ATTORNEY-GENERAL
I was about to say that, quite possibly, that was the reason why my hon. Frend refrained from suggesting any specific cure for the ills to which he referred. I was going on to say that if that was the reason it indicates both his difficulty and my difficulty in dealing with the subject, because I suppose that neither I nor the hon. Member nor any other hon. Member may discuss whatever legislative proposals are necessary to cure the mischief. I see the hon. Member for Aberdeen North (Mr. Benn) shaking his head with annoyance, but really it is the Rules of the House, I understand, and not any 2513 desire on my part to burk discussion. Although my hon. Friend has refrained from any discussion of the steps that should be taken to remove this evil, perhaps I may consider for a moment whether the evil is as great as he supposes. He has said that nobody could deny that there has been a departure from the practice of the past in maintaining the control of Parliament. I doubt whether that is correct. I should be inclined to say that if you admit the complexity of modem life and the elaboration of control by the State of many subjects Parliament, on the whole, exercises to-day a more continuous control over the nation than at any time in the history of Parliamentary government.
§ The ATTORNEY-GENERAL
Yes, direct control, and I will tell the House why I think that is correct, although hon. Members may not agree with me. If you look at the records of Parliamentary discussions 40 or 50 years ago you will find an almost complete absence of the Committee stage as we know it in the discussion of Bills. If you look up any of the Acts of Parliament on the Statute Book until comparatively modern times, you will find most elaborate and detailed provisions contained and printed in Sections of those Acts of Parliament which are almost unintelligible for their length, complexity and elaboration. These Acts of Parliament were passed through this House practically without a Committee stage to which we are accustomed. If points were raised in Committee they were points of substance, Second Reading points rather than a variety of discussions or small points which make the Committee stage in these days so prolonged. On the whole the Acts of Parliament which we find on the Statute Book up to 30 or 40 years ago went through this House at the behest of the Ministry of the day without any discussion at all except upon what I may call Second Reading points.
There is another species of Parliamentary control to-day which is increasingly exercised over Ministers in the form of questions. Let anybody look again in the records of Parliament and they will find that up to 20 years ago the number of questions asked was more often in single figures than in double 2514 figures. Question Time now is a very effective form of bringing Ministers to their bearings, ventilating public grievances, and, generally, in directing Ministers in the way they should go. Therefore, I believe that Parliament does exercise daily control over the Government. Let me give one other reason for thinking that this is increasingly the case. I suggest that the plan elaborated and improved when the Coalition Government was formed in the days of the great arrears due to the War, that is, the system of Grand Committees sitting upstairs and discussing Bills, has given hon. Members greater opportunities of improving Bills which are submitted to Parliament. For these and other reasons I think Parliament is exercising much greater control than at one time it exercised over legislation. One could easily deceive oneself as to the extent to which Acts of Parliament are the work of this House or the work of Government Departments. But, broadly speaking, except in the case of very simple Measures, Acts of Parliament are bound to be the product of Government Departments. A private Member has not the knowledge or the sources from which to derive the knowledge to enable him to prepare an elaborate Act of Parliament. It requires a great deal of skill and knowledge, and a great deal of research even to prepare them. When my hon. Friend refers to the Factory and Workshop (Cotton Cloth Factories) Bill, does he not think his illustration shows how difficult it is to increase the amount of control which Parliament exercises? He complains of the statutory Order which has resulted from the passing of that Bill. I find that in the Bill it is provided that before Regulations are made under the Act, a draft shall be laid before each House of Parliament for a period of 30 days.
§ The ATTORNEY-GENERAL
My hon. Friend says, "Of course." I am pointing out that it is not enough to show that it is very difficult to exercise Parliamentary control over legislation. My hon. Friend really must go a step further and show how Parliamentary control is to be exercised if he would be as helpful as I am sure he desires to be. At the moment I am at a loss to know how Parliament can 2515 exercise any better control over the detailed, technical and minor matters which almost every Act of Parliament deals with, than by saying that the Orders are to toe laid on the Table of the House and rejected or accepted as Parliament thinks fit. This particular Order which my hon. Friend has given as an illustration has not merely been laid on the Table, but it has been recorded in a White Paper which is issued to the House, and the White Paper is notified to hon. Members in the Pink Paper circulated to them, and every facility is given which the limits of 24 hours in the day and five days in a week give to hon. Members to discuss these matters.
But I want to go a step further and say that we must all recognise that there are two broad classes into which these statutory Orders can be divided. I dare say there are minor classes, but, broadly speaking, statutory Orders can be divided, first, into the class of Orders which take from the courts those powers of decision between the Crown and the subject which we would prefer to see left to the courts; and secondly, the class of statutory Orders which deal with the infinity of details and technical matters which no Parliament could be expected to deal with, having regard either to its knowledge or the time at its disposal. I take down a volume of statutory Orders at random, and I find pages literally taken up with Orders under the Fisheries Act (England and Wales) dealing with such matters as these: Inspectors' Fees for marking cran measures, as to the construction of barrels for the packing in them of white herrings. I find also whole pages of Orders which the Secretary of State may make under the Factory and Workshops Act, for securing the welfare of workers in certain factories and workshops—Orders which are necessary because conditions vary from day to day.
Unless Acts are to be left unfulfilled the Secretary of State must have power to make these Orders. I rather suspect that no hon. Member would object to the second class of Statutory Orders, subject to the retention of the power of Parliament to reject the Orders after having them laid on the Table. The first class of Orders which arrogate—if I may use the word—to an official, a 2516 power to decide something which ought to be left to the Courts, I think are in a different category, and I quite recognise that there has been, perhaps, too free use of that expedient. It is not a departure for which this Government is responsible; it was a departure which was taken in the days of the Coalition Government. I think some of us remember the first uses of the much criticised section of an Act of Parliament of which there was a sample in the Local Government Bill a few days ago. It may be that the time has come when it would be desirable to set on foot some inquiry to see how far the mischief, if it be a mischief, has extended, and what steps can be taken to prevent a too frequent use of the power.
I do not pledge the Government that such an inquiry will be set up. In the last days of the Session, in a dying Parliament I think it would be useless and improper to do so. I merely indicate, and put on record, as far as my own opinion is concerned, the fact that I think it very likely that the time may soon come when it will be desirable that some such inquiry should be set on foot for the purpose of examining into what I may call the first class of the orders to which I have referred. I should like to say one further word. My hon. Friend referred to strictures sometimes made from the Judicial bench as to the use which Government servants have made of their powers. I think we do no great service to the State or the people if we use excessively hard criticisms of public servants. We have a Civil Service of which I was going to say that its danger perhaps is its very efficiency. It is infinitely more efficient than the Civil Service of 50 years ago, and it is, perhaps, more efficient than any other Civil Service in the world.
§ Sir J. MARRIOTT
Of course I entirely agree, but the strictures which fell from the judicial bench were directed much more against the carelessness of Parliament than against the activities of the Civil Service.
§ The ATTORNEY-GENERAL
I quite recognise that. I was not suggesting that the strictures to which my hon. Friend referred were in all cases directed against the Civil Service, but undoubtedly some 2517 of them of late years have been directed against persons who are permanently or temporarily occupying posts in the Civil Service. These strictures have not always been agreed with, as I know from personal knowledge, in the ultimate court of appeal. Sometimes the learned Lords in the final court of appeal have expressed disagreement with criticisms of the use of departmental powers in particular cases. I only say so, because I do not think it is right that one side of the case should be presented. I am not criticising my hon. Friend for any want of fairness to the persons who have been criticised by the judicial bench, but it is right that the other side should be presented.
It is obviously difficult on an occasion like this to give such a detailed or considered reply as one would like to make if the whole matter were subjected to an exhaustive examination in the House. Indeed, I was not quite sure of the line which my hon. Friend would take, except that I knew he was going to direct the attention of the House to the disfavour with which the excessive use of the power of making Statutory Rules is regarded. I was ignorant of any expedient which he might propose. The Prime Minister dealt in his answer with the proposal to set up a sessional committee, and it is unnecessary for me to repeat what the Prime Minister said. The Prime Minister referred, in short, to the difficulty of a committee sitting from day to day examining into all these orders, and also the difficulty of securing people at all times to conduct the necessary work while Parliament is not sitting. These are practical difficulties. All I say is that the ventilation of the subject in the Press and in the House, even at this stage in the Session, will, I think my hon. Friend may be assured, keep the mind of the public alert to what might possibly become a greater evil than it is. What I have said this afternoon may quite possibly, at some future stage, lead to a more authoritative suggestion that a commission or inquiry may be set up to see what expedient is possible, having regard to the limitation of time in this House, to prevent any abuse of the powers which Ministers undoubtedly have under modern Parliamentary conditions.