STATUTORY POWERS (LEGAL PROCEEDINGS). (Hansard, 28 February 1934)

§ Mr. DINGLE FOOT

I beg to move, That leave be given to bring in a Bill to amend the law with regard to legal proceedings arising out of orders, rules, and regulations made in pursuance of any Act of Parliament. This is a Bill which should commend itself to all sections of the House, with the possible exception of some Members of the official Opposition, because it provides that when a Minister makes any order, rule or regulation in pursuance of an Act of Parliament, such order, rule or regulation shall always be open to challenge in the courts for a period of 28 days, notwithstanding any provision to the contrary in previous legislation. That is a very modest proposal, but it embodies a principle of first-class importance because it is an attempt to clip the wings of bureaucracy, and to stem the advance of what the Lord Chief Justice has described as "the new despotism." In the ordinary way, as the House knows, when a Minister makes an order, in pursuance of any Act of Parliament, any person aggrieved by that order can go to the courts and can apply for a writ of certiorari, and, if the courts find upon inquiry that the Minister has exceeded the powers given to him by the Act, they will quash the order. In recent years there has grown up in some of our legislation the tendency to insert a provision of which the effect is, or may very well be, to oust the jurisdiction of the courts in these matters. That Clause generally runs like this: 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. 1109 The Donoughmore Committee—that is the Committee on Ministers' Powers on which Members of all three major political parties were represented—strongly condemned this Clause. They say on page 41 of their report: The Clause is objectionable, and we doubt whether it is ever justified", and on page 65 they recommend that there should be a period of challenge in all cases of at least three months, and preferably six months. In this Bill, I am only asking for a period of challenge of 28 days. The House will recollect that this issue was raised on the Agricultural Marketing Bill of last year, and that a Clause of this kind was at first contained in that Bill, but, thanks to the vigilance of my right hon. Friend the Member for Darwen (Sir H. Samuel) in this House, and of Lord Reading in the other place, an alteration was eventually made to substitute a period of challenge of 28 days such as I now suggest. On 16th July, that was confirmed by a great majority in this House. I am now asking the House to extend to other legislation the principle which was accepted by a large majority last July. To take only one example: The very words that were struck out of the Agricultural Marketing Act, 1933, still remain in the Agricultural Marketing Act, 1931. This issue has been given a good deal of prominence by the activities of the hon. and learned Member for East Bristol (Sir S. Cripps). In his book, "The problems of a Socialist Government," he uses these words: In the extended use of Ministerial orders for giving legislative effect to the general principles laid down by Parliament, one great change must be effected. At the present time it is left to the courts to decide whether these orders are within the powers given by Parliament. It is always possible for them to be challenged in the courts and to be declared invalid. This power must be taken from the courts, and the sole right to challenge such orders must rest with Parliament. When in their constituencies, many hon. Members spend a good deal of time in denouncing the hon. and learned Member for East Bristol (Sir S. Cripps). It is no use hon. Members attacking him as long as they permit to remain in existence legislation the very principle of which the hon. and learned Member is so strenuous an advocate. The issue in this matter is perfectly clear. On one side are those who believe that the rights 1110 and liberties of British subjects are of far more importance than the mere administrative convenience of Whitehall; on the other side are those, to whatever party they may belong, who sympathise with the methods and aims of the hon. and learned Member for East Bristol. The hon. and learned Gentleman thinks that after the next General Election he will be able to say, in the words of Falstaff: The laws of England are at my commandment … and woe unto my Lord Chief Justice! The Bill does not involve any threat to administrative efficiency. It only means that Ministers shall not be allowed to do something that is ultra vires and which is outside the powers that Parliament intended to confer upon them. With the increasing volume and complexity of the business that has to be done and carried through by Parliament, it is inevitable that we should constantly fall back on the device of delegated legislation, that is to say, Ministerial orders, rules and regulations, but I submit that the greater the powers that we confer upon the various Departments the more necessary does it become jealously to preserve those safeguards which prevent such powers being exceeded or abused.