§ 8.46 p.m.
§ Sir HERBERT SAMUEL
I beg to move, in page 6, line 13, to leave out Subsection (3).
I rise on behalf of my right hon. Friend the Member for North Cornwall (Sir F. Acland) to move the Amendment which stands in his name and that of my hon. Friend the Member for South Bradford (Mr. Holdsworth). I will read the short Sub-section in order to impress upon hon. Members who are present the large scope which it covers:The making of an order in pursuance of this section shall be conclusive evidence that the requirements of this Act have been complied with, and that the order and the scheme approved thereby have been duly-made and approved and are within the powers conferred by this Act.There is a similar provision in Clause 7, Sub-section (2), which my hon. Friends will also move to leave out. It is clear by the mere recital of these words that the power which they propose to convey is an extremely large one, and, indeed, the matter raises a point of serious constitutional importance. I am only sorry that the hour is not propitious and that most hon. Members, very naturally and in accordance with custom are, at this (moment caring more for the needs of their own constitutions than for those of the constitution of the country. This provision goes beyond the scope of this Bill and raises a number of wide considerations. There are three elements in the constitution—the legislative, the executive and the judicial. All three have their proper functions in defence of the interests and the liberties of the citizen, but in this provision two of them connive to oust the third; Parliament and 1646 the Government to oust the jurisdiction of the courts of law.
I know that whoever answers—perhaps the learned Solicitor-General who is present proposes to answer on this Amendment—may point out that there is an exactly similar provision in the Agricultural Marketing, Act, 1931, in Section 1, Sub-section (7), and that that having been endorsed by hon. and right hon. Gentlemen opposite and not challenged in the last Parliament, which passed that Measure, we are precluded from raising the point now. But Since 1931 something has happened. [HON. MEMBERS: "Hear, hear!"] I am not referring to the General Election or to the realignment of political forces. In this particular matter there has been a strong movement in the country, led by important legal personages, of protest against what was called the new despotism, and Lord Hewart, the Lord Chief Justice, and others have impugned legislation of this character. So far as their criticism related to the conferring by Parliament upon Ministers of the powers of making Orders and Regulations, for my own part I think it was exaggerated. Parliament must devolve upon Ministers large powers of making Orders and Regulations. The affairs of the country have become so complicated and the actions of the State so elaborate that it is impossible for the House of Commons to attend to every detail and to embody in its Statutes every small provision to which it is necessary to give legal authority. But this particular proposal stands upon a different footing from that. Here it is not a question of giving a Minister power to make regulations on points of detail to which Parliament cannot give sufficient attention. This provision is of a different order. The provision says that when a Minister has made such regulations they are to be accepted as valid and sacrosanct and no citizen can challenge them on any point of law in any court of law. That is an entirely different matter.
As a consequence of the agitation to which I have referred, the late Government appointed a special committee of inquiry into the powers of Ministers, and that committee was of a very authoritative character. I hold in my hand its report which was signed by these persons: Sir Leslie Scott, who was the chairman: Sir John Anderson, who 1647 was then the permanent head of the Home Office; Lord Bridgeman; Dr. E. Leslie Burgin, who was then a Member of this House, and who was no doubt appointed on account of his legal qualifications; Lord Donoughmore; Sir Warren Fisher, the permanent head of the Treasury; Sir Boger Gregory; Sir William Holdsworth, K.C.; Sir Ellis Hume-Williams, K.C; Professor Harold Laski, whose name will carry weight with hon. Members on the benches opposite; Mr. B. Richards, who was then a Member of Parliament; Sir Claud Schuster; Mr. Gavin Simonds, K.C; Miss Ellen Wilkinson, then a Member of Parliament, and Sir John Withers, then as now, a respected Member of this House. There is a very strong list of signatories, and a report unanimously signed by those persons must command the close attention of this House. The committee went into the very point which I am now bringing before the House. They said, after discussing several forms of legislation of a somewhat analogous character but not quite the same, on page 40 of the report:Some statutes, however, contain a different and more elaborate provision which seems on its face to have been designed with the express purpose of completely and fiNaily excluding all control by the courts. It runs as follows:'The Minister may confirm the order, and the confirmation shall be conclusive evidence that the requirements of this Act have been complied with, and that the order has been duly made and is within the powers of this Act.'This is substantially the same as the words in the Sub-section which are now before us, and they quote as examples of such legislation the Small Holdings and Allotments Act, 1908, and the Housing Act, 1925. They go on to say:But the clause is objectionable, and we doubt whether it is ever justified.They mention that there are some very exceptional cases, to which they refer later, in which it might conceivably be justified, and I will read the later passage in which the matter is gone into more carefully and more thoroughly. They say, in page 61, as follows:We reported in paragraph 8 at page 41 our objection to the use in Acts of Parliament of clauses purporting to enact that the mere making of a regulation by a Minister under the Act should be 'conclusive evidence' that in doing so he had 1648 not exceeded his statutory power. We are of opinion that in delegating legislative functions to a Minister, Parliament should be careful to preserve in all but the very exceptional cases, which we describe below, the jurisdiction of the Courts of Law to decide whether in any purported exercise of those functions the Minister has acted within the limits of his delegated power.That is a very clear expression of this authoritative opinion. They go on to say:The rule of law requires that all regulations should be open to challenge in the Courts except when Parliament deliberately comes to the conclusion that it is essential in the public interest to create an exception and to confer on a Minister the power of legislating with immunity from challenge.Then they give the exceptions to which they refer, which are not in the least analogous to the provisions of this present Bill.We recognise that such exceptions must be created in cases where finality is desirable, e.g., where power is given to a Minister to make law upon the faith of which titles to property may be created or money may be raised, e.g., Stock Regulations, or upon which marriages may be solemnised, e.g., Regulations under the Foreign Marriage Act, 1892. But we are of opinion that when for such reasons the regulation cannot remain indefinitely open to challenge there should be an initial period of challenge of at least three months and preferably six months.They conclude:Apart from emergency legislation, we hardly think there can be any case so exceptional in its nature, as to make it both politic and just to prohibit the possibility of challenge altogether.Therefore, with regard to she cases under this Bill this authoritative committee, whose report was signed by the persons I have named, clearly state that legislation of this kind is open to grave objection, and they very clearly deprecate it.
I know the Minister may say, as Dr. Addison said when the case was discussed in Standing Committee on the Bill of two years ago, that the cases are differentiated by the fact that prior to the making of the Order a Resolution of each House of Parliament has to be obtained, and that that gives the Parliamentary sanction which is specifically required for the particular Order, but I submit that that is not an adequate answer. We all know what the procedure is when Orders come before the House for sanction. When an Order of this kind comes before this House or before the other House for 1649 sanction it is taken as a whole. It is simply laid in the Library, and, with rare exceptions, no Member takes the slightest interest in it. It cannot be challenged on any point of detail. No one can move an Amendment to it. It has to be accepted as a whole. The procedure is absolutely perfunctory and cannot in the least take the place of proceedings in a court of law on a specific point which may be open to challenge. That is why I submit that the answer given by Dr. Addison to the Conservative Members who raised this point in the Standing Committee two years ago is not a justification for ousting the jurisdiction of the court, and does not rebut the recommendations of the Committee to which I have referred which was signed so recently as March, 1932. I therefore move the Amendment and submit that if, after the attention of Parliament has been clearly drawn to the matter by an authoritative committee appointed for this very purpose, among others, the House repudiates the views of that Committee, it cannot fail to be a precedent for future legislation. I would appeal to the Government to accept the legal advice of the Parliamentary Secretary to the Board of Trade in his non-official capacity rather than to follow the precedents, which I admit exist, but which should now be repudiated in view of the authoritative report of a Committee whose names should carry weight in all quarters of the House.
§ 8.59 p.m.
§ The SOLICITOR-GENERAL (Sir Boyd Merriman)
Nobody is going to suggest that the right hon. Gentleman or anybody else is precluded from raising this point on account of the changed circumstances Since 1931 to which he has referred, or even those other circumstances to which he has alluded, but when he says that for the first time, as it were, he has become alive to the fact that a serious constitutional issue of first importance is raised by this Clause, I must remind the House that the Clause is taken from the Act of 1931, and that in the course of its progress through the House in 1931 not one single voice was raised from the Liberal benches in defence of the constitutional doctrine which has been so clearly stated by the right hon. Gentleman to-night, and that in spite of the fact that, although the Donoughmore Com- 1650 mittee had not then reported, the Lord Chief Justice of England had already written his book about "The New Despotism," several years, therefore, I think that we may say that the public were quite alive, as were also Members of this House, to the importance of this particular point.
There is really no substance in the point in this particular instance, because so far from the right hon. Gentleman gaining any support from the Donoughmore Committee in respect of this particular Bill this is precisely one of the cases covered by the passage in the Donoughmore Commission's report to which the right hon. Gentleman has referred. They say, while objecting to the Clause in general, that they:recognise that exceptions must be created in cases where finality is desirable,and they give as one of the instances:where money may be raised on the strength of an Order.That is precisely the case. The moment one of these schemes have been approved it is inherent—I need not go into the whole of the details—in the Bill that money will be raised as soon as the necessary formalities have been complied with. That is precisely the case indicated by the Donoughmore Commission. Where such a. case arises it is true they say that:There should be an initial period of challenge of at least three months and preferably six months.I agree that in form there is no such period in the Bill. That is to say, there is nothing in the Bill which declares that three months or even six months or some given period after the Minister has made an Order the thing shall cease to be challengeable. I agree that there is no such provision, but in practice that period of challenge will exist. Will hon. Members reflect that in the whole of the Bill and the Schedule to it there are many formalities to be gone through before the Minister can make an Order? For example, the marketing boards concerned with the marketing schemes have to publish notices, and it is laid down that a period of not less than six weeks is to elapse before the matter comes up for the Minister's consideration. The Minister may make modifications and he, again, must allow not less than four weeks to elapse when he has made any 1651 modifications and, not least important, he has to be satisfied before approval is given that every one of the people connected with the constituent marketing schemes have held the appropriate poll and consequently opportunities have been given for objections. It is apparent that all these things must take time. I believe, although I have no means of checking it, that the time cannot possibly, in practice, be less than six months. If you have half, only three months, that is the period of challenge to which the Donoughmore Commission referred.
FiNaily, we are dealing here with something which is not just done at the will of the Minister. The Minister cannot make an Order until two sets of things have happened. First, all the formalities to which I have referred must take place, and, secondly, when these formalities have been gone through the proposed Order is not merely to lie on the Table of the House, as the right hon. Member suggested, but there is to be an affirmative Resolution of both Houses of Parliament. It is, therefore, idle to say, if there is any substantial objection to a scheme, that Members of this House are so little alive to their duties, particularly those who are opposed to the scheme, as to allow the matter to pass sub silentio. I agree that it is most necessary to keep a watch on the question of delegated powers, but I suggest that this is not a good instance in which to take the matter up. Historically it is at one with the Act of 1931, and it is inherent in the whole business that a considerable time must elapse before the Minister can make an Order; and he can only make it after an affirmative Resolution of both Houses of Parliament.
§ 9.8 p.m.
§ Sir STAFFORD CRIPPS
It is not often that I agree with the hon. and learned Member opposite, but in this matter I certainly do. It seems to us that if you are going to have legislation by Orders in Council, which is a development absolutely necessary if you are going to carry through the fundamental changes which the Minister of Agriculture desires in crder to convert this country into a condition of State Capttalism, you must have certain means of action which cannot be disputed, which cannot be taken to the courts, and you cannot allow people with 1652 different opinions to play havoc with a properly planned scheme. This is an excellent precedent which will be followed widely in the future, and seems to us in every way to be desired. We shall be delighted when on future occasions we have to draw the attention of hon. Members opposite to the excellence of the precedent.
§ 9.10 p.m.
§ Sir F. ACLAND
The Solicitor-General was making a false point when he referred to the time that must elapse before these scheme can come into operation. The last word on schemes before they come before the House is with the Minister, and he may modify any scheme as he likes. To say, therefore, that the time that has elapsed before that happens should really count in the six months, which the Commitee in their report say should elapse after the Orders are laid before Parliament, is an argument which does not apply. The time should be taken from the time when the scheme has been approved by both Houses of Parliament, and for the Government to ignore entirely the recommendation of the Committee, that there should be a six months delay, is a bad beginning for a Government which wants to carry out the findings of this Commitee.
§ 9.11 p.m.
§ Mr. McKEAG
This is a matter upon which I feel very strongly, more strongly perhaps than my leader the right hon. Member for Darwen (Sir H. Samuel). A pernicious system of legislation by regulation is growing apace, and it should be seriously viewed by hon. Members of this House. It is not merely a delegation of authority, but is fast becoming an absolute abrogation of the authority of this House. If we are to add to the power which is now given to Ministers to make regulations the additional power that their regulations are not to be challenged at all in the courts, then the House must contemplate, and I hope will not contemplate with equanimity, the possibility of its authority being entirely subordinated to Government Departments. It is for these reasons that I support the Amendment, and I ask the House to realise the extreme length to which we are going in the way of giving power to Ministers to make Orders in Council and by way of regulation.
§ 9.13 p.m.
§ Mr. E. EVANS
There are two points of view from which this Amendment can be resisted. One is the point of view taken by the Solicitor-General, but it is not very convincing. The mere fact that the hon. and learned Member can cite precedents for a Clause of this character is no reason why the House should submit to another. Last year we had the privilege of reading the report of an important committee which considered this matter carefully, and made certain recommendations; and we ought not to pass a Clause of this character without realising that we are being asked to pass a Clause which is in definite contradiction to the recommendations of that Committee. The other way of resisting the Amendment is the method adopted by the late Solicitor-General and it is one which I can readily appreciate and understand. This Clause is the very thing for which the Socialist party stands; it is the assumption of power to themselves to do what they wish, irrespective of the authority of Parliament and of the views of the people, which Parliament represents. From the hon. and learned Member's point of view I agree; but this is not by any means the only Socialistic part of this Bill. The manner in which Members of the Conservative party are, with apparent enthusiasm, adopting some
§ of the Socialistic provisions of this Bill, is amazing to me. I do not happen to be a Socialist or a Conservative, and as one who takes another line of political thought, with a Liberal outlook in politics as well as in other things, I enter my emphatic protest against the assumption of these powers by the present Government, and against their giving so convenient a precedent to another Government which many years hence may succeed them.
§ 9.16 p.m.
I have great sympathy with those who have brought this matter forward. I would warn the Government that they ought to have the point properly considered in another place before light-heartedly putting this provision on the Statute Book, this handing over of powers which might easily be created into ownership by the State, without any chance of protest in this House. The proposal does not follow the analogy of the Town Planning Bill or the Land Drainage Bill which were passed recently. If it were on those line3 it would be much sounder and safer legislation than it is.
§ Question put, "That the words proposed to be left out stand part of the Bill
§ The House divided: Ayes, 222; Noes, 23.1655
|Division No. 203.]||AYES.||[9.18 p.m.|
|Acland-Troyte, Lieut.-Colonel||Campbell-Johnston, Malcolm||Fermoy, Lord|
|Adams, Samuel Vyvyan T. (Leads, W.)||Cape, Thomas||Fielden, Edward Brocklehurst|
|Albery, Irving James||Caporn, Arthur Cecil||Fox, Sir Gifford|
|Allan, Lt.-Col. J. Sandeman (B'k'nh'd.)||Castle Stewart, Earl||Fuller, Captain A. G.|
|Anstruther-Gray, W. J.||Cazalet, Thelma (Islington, E.)||Ganzoni, Sir John|
|Applin, Lieut.-Col. Reginald V. K.||Clarry, Reginald George||Glossop, C. W. H.|
|Aske, Sir Robert William||Cochrane, Commander Hon. A. O.||Gluckstein, Louis Halle|
|Attlee, Clement Richard||Cocks, Frederick Seymour||Glyn, Major Raiph G. C.|
|Baillie, Sir Adrian W. M.||Coffox, Major William Philip||Gaff, Sir Park|
|Baldwin, Rt. Hon. Stanley||Cook, Thomas A.||Goldie, Noel B.|
|Balfour, George (Hampstead)||Cooke, Douglas||Goodman, Colonel Albert W.|
|Balfour, Capt. Harold (I. of Thanet)||Craddock, Sir Reginald Henry||Gower, Sir Robert|
|Banfield, John William||Cripps, Sir Stafford||Graham, D. M. (Lanark, Hamilton)|
|Banks, Sir Reginald Mitchell||Crooke, J. Smedley||Grattan-Doyle, Sir Nicholas|
|Barclay-Harvey, C. M.||Croom-Johnson, R. P.||Greene, William P. C.|
|Beauchamp, Sir Brograve Campbell||Cross, R. H.||Granted, David Rees (Glamorgan)|
|Beaumont, M. W. (Bucks., Aylesbury)||Dagger, George||Grenfelt, E. C. (City of London)|
|Beaumont, Hon. R.E.B. (Portsn'th, C.)||Davies, Edward C. (Montgomery)||Grimston, R. V.|
|Sevan, Aneurin (Ebbw Vale)||Davies, Rhys John (Westhoughton)||Gritten, W. G. Howard|
|Bird, Ernest Roy (Yorks., Skipton)||Despencer-Robertson, Major J. A. F.||Groves, Thomas E.|
|Blinded, James||Dobble, William||Grundy, Thomas W.|
|Bossom, A. C.||Drewe, Cedric||Hacking, Rt. Hon. Douglas H.|
|Boulton, W. W.||Duckworth, George A. V.||Hales, Harold K.|
|Bowyer, Capt. Sir George E. W.||Duggan, Hubert John||Hall, George H. (Merthyr Tydvil)|
|Braithwaite, J. G. (Hillsborough)||Dunglass, Lord||Hamilton, Sir George (Ilford)|
|Broadbent, Colonel John||Edwards, Charles||Hanbury, Cecil|
|Brocklebank, C. E. R.||Elliot, Major Rt. Hon. Walter E.||Hanley, Dennis A.|
|Brown, C. W. E. (Notts., Mansfield)||Elmley, Viscount||Harmon, Patrick Joseph Henry|
|Burghley, Lord||Emrys-Evans, P. V.||Harbord, Arthur|
|Burgin, Dr. Edward Leslie||Erskine-Boist, Capt. C. C. (Blackpool)||Harvey, George (Lambeth, Kenningt'n)|
|Campbell, Edward Taswell (Bromley)||Everard, W. Lindsay||Haslam, Henry (Horncastle)|
|Heilgers, Captain F. F. A.||Muirhead, Major A. J.||Smith-Carington, Neville W.|
|Hicks, Ernest George||Munro, Patrick||Somervell, Donald Bradley|
|Hills, Major Rt. Hon. John Waller||Nation, Brigadier-General J. J. H.||Sotheron-Estcourt, Captain T. E.|
|Hirst, George Henry||Newton, Sir Douglas George C.||Southby, Commander Archibald R. J.|
|Hornby, Frank||Nicholson, Godfrey (Morpeth)||Spender-Clay, Rt. Hon, Herbert H.|
|Horsbrugh, Florence||North, Edward T.||Spens, William Patrick|
|Howard, Tom Forrest||Nunn, William||Stanley, Hon. O. F. G. (Westmorland)|
|Howitt, Dr. Alfred B.||O'Neill, Rt. Hon. Sir Hugh||Steel-Maitland, Rt. Hon. Sir Arthur|
|Hudson, Capt. A. U. M. (Hackney, N.)||Parkinson, John Allen||Stones, James|
|Hunter, Capt. M. J. (Brigg)||Pearson, William G.||Storey, Samuel|
|Hurd, Sir Percy||Penny, Sir George||Strauss, Edward A.|
|Jesson, Major Thomas E.||Petherick, M.||Strickland, Captain W. F.|
|John, William||Peto, Geoffrey K. (W'verh'pt'n, Bliston)||Stuart, Lord C. Crichton-|
|Jones, Sir G. W. H. (Stoke New'gton)||Potter, John||Sueter, Rear-Admiral Murray F.|
|Jones, Lewis (Swansea, West)||Price, Gabriel||Sutcliffe, Harold|
|Jones, Morgan (Caerphilly)||Procter, Major Henry Adam||Tate, Mavit Conetanca|
|Lamb, Sir Joseph Quinton||Raikes, Henry V. A. M.||Thomas, James P. L. (Hereford)|
|Lansbury, Rt. Hon. George||Ramsden, Sir Eugene||Thomson, Sir Frederick Charles|
|Lawson, John James||Rankin, Robert||Thone, William James|
|Leech, Dr. J. W.||Ray, Sir William||Thorp, Linton Theodore|
|Leonard, William||Reed, Arthur C. (Exeter)||Tinker, John Joseph|
|Levy, Thomas||Reid, David D. (County Down)||Todd, A. L. S. (Kingswinford)|
|Lewis, Oswald||Held, James S. C. (Stirling)||Touche, Gordon Cosmo|
|Lindsay, Noel Ker||Reid, William Allan (Derby)||Wallace, John (DunferMilne)|
|Logan, David Gilbert||Renter, John R.||Ward, Lt.-Col. Sir A. L. (Hull)|
|Lovat-Fraser, James Alexander||Rentoul, Sir Gervals S.||Ward, Irene Mary Bewick Wallsend)|
|Lunn, William||Roberts, sir Samuel (Ecclesall)||Ward, Sarah Adelaide (Cannock)|
|Macdonald, Gordon (Ince)||Robinson, John Roland||Warrender, Sir Victor A. G.|
|Mac Donald, Malcolm (Bassetlaw)||Ropner, Colonel L.||Wayland, Sir William A.|
|Mc Entee, Valentine L.||Rosbotham, Sir Samuel||Wells, Sydney Richard|
|McEwen, Captain J. H. F.||Ross, Ronald D.||Whyte, Jardine Bell|
|McKie, John Hamilton||Rots Taylor, Walter (Woodbridge)||Williams, Edward John (Ogmore)|
|McLean, Major sir Alan||Runge, Norah Cecil||Williams, Herbert G. (Croydon, S.)|
|Maclean, Nell (Glasgow, Govan)||Rutherford, Sir John Hugo (Liverp'l)||Williams, Thomas (York, Don Valley)|
|Manningham-Buller, Lt.-Col. Sir M.||Salter, Dr. Alfred||Wills, Wilfrid D.|
|Margesson, Capt. Rt. Hon. H. D. R.||Samuel, Samuel (W'dsworth, Putney)||Windsor-Clive, Lieut-Colonel George|
|Marsden, Commander Arthur||Sarideman, Sir A. N. Stewart||Wise, Alfred R.|
|Mayhew, Lieut.-Colonel John||Sanderson, Sir Frank Barnard||Wolmer, Rt. Hon. Viscount|
|Merriman, Sir F. Boyd||Savery, Samuel Servington||Womersley, Walter James|
|Milner, Major James||Scone, Lord||Wragg, Herbert|
|Mitchell, Harold P. (Br'tf'd & Chisw'k)||Shepperson, Sir Ernest W.||Young, Rt. Hon. Sir Hilton (S'v'noaks)|
|Moore, Lt.-Col. Thomas C. R. (Ayr)||Skelton, Archibald Noel|
|Morrison, William Shepherd||Smith, R. W.(Ab'rd'n & Kinc'dine, C.)||TELLERS FOR THE AYES.—|
|Moss, Captain H. J.||Smith, Tom (Normanton)||Major George Davies and Dr.|
|Acland, Rt. Hon. Sir Francis Dyke||Griffith, F. Kingsley (Middlesbro', W.)||Owen, Major Goronwy|
|Buchanan, George||Hamilton, Sir R. W.(Orkney & Zetl'nd)||Roberts, Aled (Wrexham)|
|Evans, David Owen (Cardigan)||Holdsworth, Herbert||Rothschild, James A. de|
|Evans, Capt. Ernest (Welsh Univ.)||Hume, Sir George Hopwood||Samuel, Rt. Hon. Sir H. (Darwen)|
|Evans, R. T. (Carmarthen)||Jonet, Henry Haydn (Merioneth)||Sugden, Sir Wilfrid Hart|
|Foot, Dingle (Dundee)||McKeag, William|
|Foot, Isaac (Cornwall, Bodmin)||Mallalieu, Edward Lancelot||TELLERS FOB THE NOES.—|
|George, Major G. Lloyd (Pembroke)||Maxton, James||Sir Murdoch McKenzie Wood and|
|George, Megan A. Lloyd (Anglesea)||Nathan, Major H. L.||Mr. Walter Rea.|