HC Deb 13 July 1933 vol 280 cc1366-76

Lords Amendment: In page 6, line 13, after the word "approved" insert: then subject to the provisions of this Part of this Act relating to the making of Orders.

10.13 p.m.

The ATTORNEY-GENERAL (Sir Thomas Inskip)

I beg to move, "That this House doth disagree with the Lords in the said Amendment."

It will be remembered that the question of the form of this Clause was raised by the right hon. Gentleman the Member for Darwen (Sir H. Samuel) and some observations were made by the Solicitor-General pointing out that the objection taken by the right hon. Gentleman to this Clause, on the strength of some recommendations by the Donoughmore Committee, were not well founded. I shall endeavour to inform the House of the nature of the objection without too much reference to technicalities. The main objection was to Sub-section (3) of this Clause and to another Clause later in the Bill, which provided that when the Minister had made an Order, in pur- suance of this Clause, approving of a scheme the Order should be conclusive evidence that the requirements of the Act had been complied with. The provision is one which in various forms has appeared in various Acts of Parliament. The Donoughmore Committee recommended that there should always be an opportunity of challenging orders of this sort, at any rate for a period of three months but preferably for a, period of six months. The objection taken to the provision in other Acts of Parliament was largely directed to cases in which there was no provision for an affirmative Resolution of the two Houses of Parliament. What the hon. and learned Gentleman the Solicitor-General said to the House was that in this case no Order could be made by the Minister until there had been an affirmative Resolution of the Houses of Parliament, and that that to a great extent got rid of the mischief to which the Donoughmore Committee had directed its attention.

However, the matter has been raised in another place, and it was there decided—and the Government have no desire at all to go back upon what was there decided—that in addition to the full opportunity given by the Bill before it had left this House to challenge the scheme up till the time that the Order was made by the Minister, there should be a further period of 28 days after an Order was made by the Minister when anybody who thought the Order or the scheme was ultra vires could challenge the Order. Inasmuch as from the time that the scheme is published to the time that it is laid on the Tables of the Houses of Parliament for the purpose of obtaining an affirmative Resolution in its favour there must be at least a period of 14 weeks, and probably more, it will be seen that if we add 28 days further opportunity after the Order by the Minister has been made, there will be at least a period of four and a-half months, and in most cases probably very nearly a period of five months or even six months, during the whole of which time it will be open, by one method or another, to any person to challenge in the courts the validity of the Order. When it is realised that, together with the opportunity of challenging the scheme in Parliament, there will be this opportunity of challenging it in the courts, I think it will be seen that the recom- mendations of the Donoughmore Committee have in substance been met.

The only reason for moving that this House should disagree with the Lords in the said Amendment is this: Some Amendments were inserted in another place inadvertently before Amendments which were moved by Lord Reading were reached. The Amendments inserted on the Motion of the Noble Lord did not fit in with the Amendments which had been moved before his Amendments were reached, and, therefore, the first of those Amendments, with which I am now dealing, must obviously disappear as being inconsistent with the Amendments that were subsequently introduced. I am also going to ask the House to disagree with the two Amendments introduced on the Motion of the noble Lord, for the reason that it is necessary to alter the form of the matter, though not the substance. The Amendments as made in another place provided that Sub-section (3) would read as> follows: If the making of an Order in pursuance of this Section is not contested within 28 days from the date of the making of the Order, it shall be conclusive evidence that the requirements of this Act have been complied with. But there was nothing to say what would happen if the Order was contested within 28 days, and for the purpose of providing for both events, I shall propose in due course to the House to leave out the whole of Sub-section (3) and the last few words of Sub-section (9), and to insert later in the Bill a new Clause which will effect precisely the same purpose as that decided upon in another place, but in words which will effect the object of all concerned.

10.20 p.m.

Sir STAFFORD CRIPPS

We agree in disagreeing with the Lords in this Amendment, but, as I understand that we are discussing the whole question which is raised by these Amendments and also by the new Clause to be proposed by the right hon. and learned Gentleman, I want to say a. word or two about the whole question. We understood that when this Bill was before the House at an earlier date the Minister of Agriculture had screwed up his courage to take a very sensible course, which he justified fully before the House and in which we supported him. [HON. MEMBERS: "Hear, hear!"] Certainly, we supported him and we supported him against the Liberals, but now apparently he has become so frightened of the Liberals that he has given way. We are very sorry that he has been frightened. We did not think he was a Minister who was likely to be frightened, even by the great array below the Gangway. He is now apparently going to accept the position which is put upon this House by another place, the position which, according to the proposal of the Attorney-General, is, I think, without precedent in this country.

It is proposed now to give the court the power by means of an interim order to hold up an Order which has been duly made in accordance with the provisions of the law as laid down in this House. That power has never before been given to the courts. It is not a question of the courts having power to say that an Order made is wrong and is therefore of no force or affect, but it is a power to the courts to make an interim order directing that the Order in question shall not come into operation before the final determination of the proceedings. That is to say, that this House may affirm that Order by a positive resolution and may desire it to come into force at once and be of full effect, and the court can say, "No." Although the House of Commons passes that Order specifically, the courts can say that it shall not come into force. That is a thing which, I venture to say, has never been done in this country before, and it is the first challenge to the sovereignty of the Houses of Parliament that has ever been proposed.

I should be surprised if the Attorney-General is able to produce any precedent for that type of procedure, because, as I read this, it is wholly immaterial whether this House desires or expressly says the Order is to come into force. It may be a, matter of great urgency; it may be that the Minister of Agriculture may decide that in a particular branch of agriculture it is extremely urgent that something of this sort should be done, yet, if some disgruntled individual goes to the courts, he has not to make out a case against it; he has to do nothing except enter a complaint against it, and the moment he enters his complaint, justified or unjustified, the courts are entitled to make an interim order saying that that which this House desires to come into force and which the House has passed shall not come into force until the proceedings are terminated. That may be, with the right to go to the Court of Appeal, a matter of some months. In the end it may turn out that there was no justification whatever for any opposition to the Order, that it was quite well in order, and should have come into force.

The ordinary procedure is that if an Order is challenged in the courts it remains in force until such time as the courts decide that it is invalid. If the courts decide it is invalid, there is, I think nearly always, if not always, a provision by which anything done under the Order up to date when it is held to be invalid stands, nor can it be upset nor form the basis of any breach of contract made in accordance with it or action for damages for anything done by the Government in accordance with it. Apart from whether it is wise that the courts should be able to interfere with Orders of this sort, as to which we have already expressed our view, the question whether an interim order of the court should be allowed to upset an Order debated and specifically confirmed in this House raises an extremely serious point and one which ought not to be passed over lightly. It is something which, I suggest, we have not done before and which it is extremely unwise to do now, whatever view the House may take as regards the advisability of the courts being able to declare Orders invalid, which is another point altogether. The point I am on, and I beg the House to take the most serious notice of it, is the introduction of this Subsection (2) in the proposed new Clause.

10.25 p.m.

Sir A. SINCLAIR

Far be it from me to rush on to the technical ground where my right hon. Friend the Attorney-General and the hon. and learned Member for East Bristol (Sir S. Cripps) tread so fearlessly and with such confidence, but a number of us on these benches, and I think in other parts of the House, have for some time been alarmed at the growing powers of Departments to legislate on their own. I quite agree that many of us have been convinced from time to time by the admirable and cogent arguments which are always produced when a Measure is under discussion that it is advisable to give such power, but we have grown in- creasingly uncomfortable about it, and eventually a Committee was set up, known as the Donoughmore Committee, on which there served ladies and gentlemen representing every section of political thought in this country, including some eminent Members of the Labour party, for which the lion. and learned Member has just spoken. To my uninstructed mind the conclusions of that Committee seem sound, and I cannot believe that future Governments will depart from them. Whether we have found the right form of words is a matter which I daresay is open to discussion and to which I would not commit myself but we have found a form of words which safeguards what I feel at the present moment is the main principle, that of refusing to give these legislative powers to the heads of Government Departments without control by the Courts of Law.

I feel grateful, first of all, to my right hon. Friend the Member for Darwen (Sir H. Samuel), who came down to the House vigilantly during the dinner hour and first raised this question. I feel grateful, also, to my noble Friend Lord Reading, who, in another place, successfully raised this issue, and induced the Government to make these concessions; and I feel grateful to the hon. and learned Member for East Bristol, who is always vigilantly in his place on the Opposition Front Bench, and addresses the House with such candour, and who warned us on the last occasion when this matter was being discussed that this was a development which was absolutely necessary if we were to carry through the fundamental changes which the Minister of Agriculture de sired to convert this country into a condition of State capitalism, and further said that this was an excellent precedent which would be followed widely in the future. The hon. and learned Gentleman rendered a great service, perhaps even more to the country than to his own party. He exhibited a red light, the fear of which rather than fear of the party to which I belong may in part—I think it would be ungracious to say entirely—have influenced the decision of the Government. We feel grateful also to the learned Attorney-General and to the Minister of Agriculture, who have so gracefully conceded what it was the manifest intention of Parliament to de- mand. I am glad that this Amendment has been proposed, and we shall certainly support it.

10.30 p.m.

Sir REGINALD BANKS

I have enjoyed the speech which has just been made by the right hon. and gallant Gentleman the Member for Caithness (Sir A. Sinclair), and the quotation which he has given from the hon. and learned Member for East Bristol (Sir S. Cripps) in this House on this question. It may be known to some of us that those remarks are more than amplified in the publication which bears his name. He warns us all that in future the House of Commons itself will be subjected to a drastic species of tyranny, and that we shall not waste time with Debates any more. All that has got to be done away with, and then the entire change in the economic, social and moral order in this country is to be effected by ministerial order. As the hon. and learned Gentleman's experience gives him some apprehension that the law courts under his own régime, as under the régime of previous tyrants, may well become the guardian of English liberties, he warns us frankly in his pamphlet that their right to interfere with ministerial orders will be instantly curtailed. This discussion has given to my hon. and gallant Fiend the Member for Caithness and to myself an opportunity to direct the attention of all hon. Members of the House to that pamphlet. Let them read it, and say grace for what they are about to receive.

I should like the learned Attorney-General to make one little difficulty clear to me, and that is how this Amendment which he has introduced will alter, if at all, the course which an apprehensive subject sometimes has to take, and did-take, in the case in which my hon. and learned Friend and myself were both engaged, when he thinks the Minister will make an Order which will be ultra vires, and when he fears that it will be too late to wait until an Order has been made, because of these Clauses which say, once the Minister has made the Order, that that is conclusive evidence that everything is intra vires. The subject has to go to the High Court to ask for a prohibition in a somewhat hypothetical way. He has to say to the Court: "I do not quite know what the Minister is going to do, but we must stop him now, because it will be too late when he does it." This procedure, as the learned Attorney-General knows, has been resorted to more than once, and the Court has prohibited the Minister from making an Order. I do not know whether the Amendment will alter this, or will make the procedure more convenient to the subject.

10.34 p.m.

The ATTORNEY-GENERAL

I rise to answer the question which the hon. and learned Member for Swindon (Sir R. Banks) has asked. The procedure as to prohibition, to use the technical phrase, will be open to anybody who wishes to prevent the Minister from making the apprehended Order, and that power will exist right up to the making of the Order. The power which this gives to the aggrieved person is to move for what is called a writ of certiorari, after the Order which it will be said that the Minister has made without proper jurisdiction. There is a full right given to an aggrieved person. If I may add to the answer this observation, I would say that I am not at all reluctant to offer to this House this new Clause, with the additional proposal to which the hon. and learned Member for East Bristol (Sir S. Cripps) has referred, and I am more gratified than I expected to be to find that the hon. and learned Gentleman resents its introduction.

Sir S. CRIPPS

Would the Attorney-General answer the question whether there is any precedent in the history of this country for giving the courts such power?

The ATTORNEY-GENERAL

There are a great many precedents in this history of this country for affording the courts power to see that subjects have their proper opportunity of getting their rights litigated—in other words, to prevent the mere lapse of time from depriving a subject of his right to seek protection of the courts. This particular Clause was contained in the Housing Act of 1930, but in that case there was no provision for an affirmative resolution of Parliament to precede the Minister's Order. In this case there is such a provision. The only effect of the Clause is to enable the courts to prolong the time of 28 days, in order to secure a. proper opportunity of having the point raised argued in the courts. I am astonished that anyone should object to a proposal of that sort, when it is remembered that the Law Officers of the Crown, and the Attorney-General in particular, are always in a position to obtain a hearing from the court. on any day for which application may be made to the High Court of Justice. There is no substance at all in the suggestion that this is an attempt to arm the courts with powers greater than Parliament possesses; it is merely procedure to enable the courts to prevent a subject from being cheated of his rights by the mere lapse of time.

10.37 p.m.

Mr. T. WILLIAMS

May I ask the Attorney-General a question which I think will be of interest to the agricultural Members of the House? During the past few weeks, we have heard from the Minister of Agriculture time and again that all the powers and opportunities of individual Members to attack any schemes that may be produced are over and over again given during the preparation of the scheme, long before it reaches the House of Commons, and that even then Members will have an opportunity of attacking any scheme. We have also been told time and again that, unless the scheme for milk is prepared and carried through during the present summer, it will mean utter disaster for the dairy farmers. Presumably such a scheme, upon which dairy farmers depend for their future economic existence, can be prepared, after all the inquiries and all the attacks from all sections of the producing community and the users of the milk, and finally can be brought here, having passed through all those inquiries, and receive an affirmative Resolution of this House and another affirmative resolution of the other House; and, after that, any person in the country—either an ordinary consumer of liquid milk or a user of milk—can delay the operation of the scheme. Will the Attorney-General tell us whether there is a similar precedent in existence, and, if so, will he tell the House exactly what is the cause of the extraordinary revolution which the Minister of Agriculture has made since the Bill left this House and went to another place? He has swallowed almost every sentence that he uttered, relating to inquiries and so forth, on the Second Reading, in Committee, and on Report, by accepting the Amendment which is now before us. I would ask this very simple question: If any scheme, either for milk, beef, bacon, or any other product, has passed through the gamut of inquiry, how long does the Attorney-General estimate that any opponent of such a scheme could hold up the scheme from becoming operative by the simple process of applying to the Courts

Captain PETER MACDONALD

May I ask the late Attorney-General a question? As he is such a stickler for precedent, will he tell the House what precedent he considered before he issued a pamphlet proposing to set up a virtual dictatorship and to do away with this House altogether?

Major ELLIOT

The hon. Member opposite asked me a question. This will have nothing to do with holding up the milk scheme in any way. It applies only to development schemes. The milk scheme is not a development scheme and the fears which the hon. Member expressed, and his taunts about me swallowing my own words, do not apply.

Mr. T. WILLIAMS

Surely there will be a dairy scheme, which will be a development scheme? One obviously involves the other, because, if there is no scheme for the production of cheese and butter, it is doubtful whether the milk scheme will be a success.

Major ELLIOT

The hon. Gentleman was speaking of the milk scheme and asked me the simple question whether it will be held up by this. It will not be held up for a single hour.

10.43 p.m.

Mr. LANSBURY

I am not a lawyer either, but I have got up to protest against the virtuous indignation of the Attorney-General at the delinquencies of my hon. and learned Friend, and the impudence of hon. and right hon. Gentlemen talking in this fashion when during this Parliament they have revolutionised the whole taxation system of the country. They have set up outside the House a body of three men who can tax the imports into the country and the only power that the House of Commons has over them is that they have to accept scores of orders holus bolus after Eleven o'clock at night and cannot amend them in any sort of way.

Question, "That this House doth disagree with the Lords in the said Amendment," put, and agreed to.

Lords Amendment, in page 6, line 19, at the beginning, insert "if," disagreed to.

Lords Amendment, in page 6, line 20, after the word "section," insert: is not contested within twenty-eight days from the date of the making of the order, it,

disagreed to.