§ 9.27 p.m.
§ Mr. Foot
I beg to move, in page II, line 31, to leave out from "State," to the end of the Clause.
The effect of the Amendment would be that the words at the end of the proviso of Sub-section (3) of Clause 11 namely, "and the confirmation of any such by-laws by the Secretary of State or the Board of Trade shall be sufficient evidence of compliance with the provisions of this Sub-section," would be struck out of the Bill. I am quite at a loss to understand why it should be necessary to put in these particular words. The Lord Advocate and some other hon. Members know the objection to this form of words. A provision of this kind prevents the validity of a by-law or regulation being challenged in the courts after it is made. I know that we have had Clauses of this sort in former legislation. They have been in a slightly different form. On former occasions the wording has been "conclusive evidence"; here the words are, "sufficient evidence." I agree that the word "sufficient" is not as strong as the word "conclusive," but it seems to me that the effect is very much the same. No doubt the Lord Advocate will tell me if I am wrong in that. When you have words like these in an Act of Parliament, it means that the Minister may entirely disregard the statutory instructions given him by Par- 1294 liament. He may do something which is ultra vires or illegal and no one who is affected has any sort of redress.
It will be within the recollection of some hon. Members that Clauses of this sort were considered with great care by the Donoughmore Committee on Ministers' Powers. They were emphatic in their report, which was unanimous and signed by Members of all parties, when they said that a Clause of this kind is never justified. Since that report in 1932 there has been only one occasion when the Government of the day have sought to bring in a Clause of this kind. Strangely enough, it was the same Minister who was responsible then who is in charge of this Bill. That was on the Agricultural Marketing Bill of 1933, when a finality Clause similar to this was proposed to be put into that Bill. On that occasion we protested; we were voted down by a combination of the other parties in the House, but eventually a change was made in another place. I have looked carefully at the words of this Clause and I agree that it does not make much difference here.
This is not a Clause where there is a large number of steps to be taken; the only provision which has to be carried out is consultation between the Secretary of State and the Board of Trade, but I submit to the Lord Advocate that it is an exeedingly unfortunate precedent if we pass these words. The Donoughmore Committee, on which all parties were represented, reported in 1932, and never since that time has a Clause in this form been inserted in any Act of Parliament. It would be unfortunate if we were to make a fresh precedent now. It would not weaken the purpose of this Clause if these words were left out. They are entirely unnecessary here, and I hope that the Lord Advocate will tell us whether it is not possible to leave out these words.
§ 9.30 p.m.
§ The Lord Advocate
The hon. Member has on more than one occasion quite justly voiced his apprehension of finality Clauses and his objection to them on principle. I think that he admitted that there are finality Clauses and finality Clauses, and that this particular one is not really of the type to which his objection in principle takes effect. If the 1295 House will look at the terms of the closing words of Clause 11, they will see that the confirmation of such by-laws by the Secretary of State is sufficient evidence of compliance with the provisions "of this Sub-section." That is all, and all that this Sub-section is concerned with is to provide that in certain circumstances the Board of Trade and not the Secretary of State shall confirm the by-laws. Therefore, the limit of the finality which these words provide for is finality as to the correct department for confirming the bylaws. Accordingly the question for the House to consider is: Is it desirable that the door should be left open for litigation as to whether the Board of Trade or the Secretary of State is the correct Department? Although I am a lawyer, I am public-spirited enough to think that here there should be no door left open for litigation.
§ The Lord Advocate
I think it is not, and for that very reason I am surprised at the Amendment. My submission is that, having regard to the very limited purpose which this Clause is designed to achieve, it is better to leave these words in.
§ Mr. Foot
The Lord Advocate has not answered the principal point which I made. The Donoughmore Committee—we have been told on several occasions to bear its recommendations in mind—reported that a Clause of this kind was never justified. Is it the intention of the Government to ignore their recommendations entirely in this regard?
§ The Lord Advocate
Quite frankly, I do not read the Donoughmore Report as being directed against the limited finality Clause which this is, as contrasted the very different type of finality Clause of which the hon. Member gave an example. I accordingly must resist this Amendment.
§ Amendment negatived.