GROWING POWER OF EXECUTIVE. (Hansard, 27 January 1937)

§ Mr. Dingle Foot

I beg to move, That, in the opinion of this House, the power of the Executive has increased, is increasing, and ought to be diminished. It is very nearly 157 years since a Motion in these terms was last moved in this House. On 6th April, 1780, Mr. Dunning moved a Motion couched in similar terms with regard to the powers of the Crown. The dangers which we believe exist to-day are not dissimilar from those which existed then, but they come not from the Crown, but from the servants of the Crown. My hon. Friends and I feel that this Motion is no less necessary now than it was a century and a half ago. We were confirmed in that view when we listened to the course of the Debate and the speeches that were made on that side of the House only yesterday. There are two aspects of this subject to which I want to call the attention of the House. The first is the continuous encroachment of the Executive at the expense of the House of Commons, with the result that this House becomes more and more subservient to the Government of the day. The second is the attempt that has been deliberately made in Statute after Statute in recent years to invest Government Departments with completely arbitrary powers. Hon Members will not be surprised if I have occasion to quote the words of the Lord Chief Justice, and I should like to remind hon. Members of one passage which he wrote in his book published eight years ago: The old despotism, which was defeated, offered Parliament a challenge. The new despotism, which is not yet defeated, gives Parliament an anaesthetic. The strategy is different, but the goal is the same. It is to subordinate Parliament, to evade the courts, and to render the will or caprice of the Executive unfettered and supreme. I have sat in this House for only five years, but even during that time I do not think that anyone who has followed our proceedings can have failed to observe the increasing control of the Government of the day over the business of the House of Commons. By various expedients in quite recent times it has been made more and more difficult to criticise or to offer 1027 anything in the nature of informed opposition to the Measures which are brought forward by the Executive. I know that it is inevitable in these days that we in Parliament should delegate a good deal of authority to bodies outside, and I know that we have to give Government Departments considerable power to issue Orders, Rules and Regulations; but the feature of almost all Regulations, even when they come under the review of this House and require affirmative Resolutions, is that they cannot be amended. We cannot do more than either accept or reject them as a whole.

The first point I want to make is that when the Government insist on dealing with vital matters, matters of great moment, not by Statute, but by Regulations and by Orders, it is a real loss to the authority of this House. There are two examples which will at once come to the minds of hon. Members. The first is the Unemployment Regulations under the Unemployment Act, 1932, and the second is the schemes brought forward under the Agricultural Marketing 9cts. I do not need to labour this theme, because every hon. Member who represents an industrial constituency is well aware that the Unemployment Regulations were the most important proposals that have come before the House. They affect our constituents more intimately, and probably affect more of them than the great majority of the Acts of Parliament that we are required to pass through all their stages in both Houses. We can all recollect the Debates that we had on the last set of Regulations a few months ago, when, with great eloquence from all sides of the House, and with great heat, we carried on the discussion for three days and one night. Yet, in spite of the intense interest which was roused both inside and outside the House, in spite of all the criticism which was focussed on these Regulations from different sides, we were not able to alter a single line or a single word.

Take the example of the marketing schemes. This rather applies to hon. Members on the other side. We all know that these schemes are of great complexity and some of them have as many as 80 or 90 Clauses. They, too, affect intimately the livelihood of a large number of people, not only of the people who 1028 are represented on the marketing boards, but a great many people who are not. Again and again, when these schemes came up to be approved by this House, I have heard hon. Members from that side of the House make the most severe criticism of this or that feature of the scheme, but they are always in the dilemma that they are unable to give effect to their criticisms in the Division Lobby unless they are prepared to reject the schemes as a whole. That may be a very convenient arrangement from the point of view of the Government Whips, but it is an arrangement which detracts in a very real sense from the dignity and authority of the House.

Another aspect of this matter to which I would refer is the growing practice—or so it seems to me—of introducing important measures which we are required to approve such a short time before they are due to be discussed that it is difficult for the great majority of Members to become thoroughly seized of the issues involved. Again, I will give the example of the Unemployment Regulations. When the first set of Regulations was introduced—the abortive Regulations which had to be withdrawn so hurriedly after they have been put into effect—they had taken the Unemployment Board and the Minister of Labour between them no less than 5. months to prepare, but the boo Members of this House were expected to know all about them in six days, because that was all the time that was given between issuing the Regulations and the date when we had to debate them. When we had the new Regulations in the summer of last year, although it had taken the Minister of Labour and the Unemployment Board something like 18 months to come to any conclusion as to the form and effect of those Regulations, this House was allowed the space of 12 days.

Again, the milk scheme was made available to Members only on a Friday with all its 90 Clauses and all its complexities, and we were expected to pass it into law on the following Thursday evening. That kind of thing makes it exceedingly difficult for the ordinary Member of the House to offer any kind of intelligent or informed criticism, or to appreciate the issues which he is called upon to decide. The fact that in so many cases now these orders, regulations 1029 and schemes of one kind and another are presented such a short time before does reveal the attitude that we may expect from the Front Bench, namely, that it does not matter particularly if the House of Commons does not understand what comes before it, because it is not our business to understand but simply to pass the Measures presented to us.

I would also remind hon. Members of the difficulties we have had recently over the form of Money Resolutions. There have been in the last year or two most vigorous protests from hon. Members on all sides of the House against the practice of drafting Money Resolutions in such detail that it is impossible for hon. Members to move any substantial amendments to the Bills which follow. Those who were in the last House will recall the storm there was over the Special Areas Bill, when a Money Resolution was presented in which there were set out the names of all the Special Areas, so that afterwards, when the Bill came up for discussion, it was out of order for any Member to propose the addition of any new area. On that occasion you, Sir, were asked a question as to the rules of procedure and as to that particular Resolution, and you then replied: If I were asked for my opinion on the subject, I should say that not only has the limit been reached, but that it has been rather exceeded in the amount of detail which is put into a Money Resolution. A little later you said: The powers given under the Rules of Procedure have really reached their limit"—[OFFICIAL REPORT, 3rd December, 1934; cols. 1236–7, Vol. 295.] We were told at the time that Mr. Speaker's observations would be borne in mind by the Government. Last year, however, we had the Tithe Bill, in which the Government came to the House with a Money Resolution which occupies three columns of the OFFICIAL REPORT. If I may, I will quote from another source, not one of my colleagues in this part of the House, but a very old member, the noble lord the Member for Horsham (Earl Winterton) who, speaking on a Money Resolution to the Tithe Bill on 19th May last year said that the gravamen of the charge was that the way in which Financial Resolutions were now framed made it impossible for the House to exercise its authority. More and more the draftsman was framing Financial 1030 Resolutions in such a way as to give the Chair no option but to rule the Amendments out of order. He added: There has been a suggestion in some quarters that it is the object of every Government to instruct the draftsmen so to draft Financial resolutions as to make it almost impossible to amend them, and the cheers that greet my remark show that that view is generally held in all quarters of the House." —[OFFICIAL REPORT, 19th May, 1936; col. 1144, Vol. 312.] I think, at any rate, that my hon. and learned Friend who will reply will agree that if these Resolutions are too tightly drawn, it is not the fault of the draftsmen, and we have to look for the responsibility rather higher up. I do not want to labour this side of the subject. I have given a number of examples which will be fresh in the recollection of almost all hon. Members. I do not say that any one of them is by itself of vital importance, but I do submit that they all exhibit the same tendency, and that their cumulative effect is to curtail the opportunity for effective debate to diminish Parliamentary control over legislation and over those other orders and measures which go out from time to time from this House, and finally to transform this House into a machine for registering the decrees of an omnipotent Executive.

I want to turn to the other aspect of the subject. In recent years a great many people have remarked on the enormous extent of the law-making powers which we now confer on Government Departments. It often happens that at the end of the year the bulk of the Statutory Rules and Orders which have come into effect greatly exceeds the bulk of the Statute Book itself, and the mere index of all the Statutory Rules and Orders which are now in force, all of them affecting somebody, occupies rather over 1,000 pages. I know that a great deal of this is unavoidable. I am not suggesting that it would be possible or desirable for the House to scrutinise every Traffic Regulation or other Order or direction which a Government Department wanted to give. The submission I want to make is that is the most complete folly that at a time when we confer these greater and greater powers upon Government Departments we should weaken and destroy the only safeguards which prevent those powers being exceeded or abused. That, in 1031 my submission, is what has been happening in recent years.

The only effective safeguard we have managed to invent so far is the control of the courts of law. When a Minister makes a Regulation in pursuance of an Act of Parliament, if anyone is aggrieved or adversely affected by it he can go to the courts, and if the courts find that the Minister has exceeded the powers which Parliament intended to give him they will quash the Order. That is an essential feature of what we know in this country as the rule of law. In this country we have never had, and I hope we never shall have, any system of droit administratif. We have always laid it down that every man, whatever his rank or condition, is subject to the ordinary law of the land, administered in the ordinary courts, and a Minister or official who exceeds his authority must answer in the ordinary courts precisely like anybody else. It is common knowledge that in a number of recent Statutes there have been inserted Clauses which have been deliberately designed to give Ministers and their Departments arbitrary powers, and to prevent the courts from inquiring into the legality of any Orders or Regulations they may make. I am not going into more detail than I can help. There is, in the first place, the Henry the VIII Clause, as it is commonly called, which gives a Minister power to dispense with or to modify the provisions of Acts of Parliament. An example of that occurs in the Rating and Valuation Act, 1925, where it is laid down in Section 67 that if any difficulty arises in bringing into operation any of the provisions of that Act: The Minister may by Order remove the difficulty, and any such Order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the Order into effect. It has frequently been observed that that, stripped of its technical verbiage, is simply the old dispensing power which this House refused to grant to Tudor and Stuart Kings. Secondly, there are the Clauses which occur in some Statutes empowering the Minister to make such Regulations as he thinks may be necessary or desirable. We had a recent example in the last Session, when we were dealing with the Sugar Reorganisation Bill. In that Bill, as originally introduced, there occurred these words: 1032 The Minister may, with the consent of the Treasury, make rules for any Order with respect to which rules are required by the provisions of this Act, And went on: or are in his opinion necessary for the purposes of this Act. In other words, the only criterion as to whether the Regulation was necessary or even, I submit, valid, was to be the personal opinion of the Minister. It is true that when representations were made, from this side of the House, those words were dropped from the Bill, but it is rather suspicious that it should be necessary to move Amendments of that kind. Why is it that we have provisions of this kind put in one Bill after another? Most objectionable of all, in my view, is the familiar Clause which 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. The only defence of that which has been put forward is that it is necessary for reasons of administrative convenience. It has been urged by various people on different sides of the House, on different occasions, that it would be very awkward that schemes which had been made, it may be after a long inquiry and much preparation, should be opposed by an application to the courts, but I ask hon. Members to think what exactly this Clause means. It means that the Minister may do something which is ultra vires, something which may be illegal, and yet nobody who is aggrieved or concerned has any remedy whatsoever. I should like to quote one passage which will convey to Members the view which His Majesty's Judges take of this sort of legislation. This passage occurred during the conduct, a year or two ago, of a case in which a Clause of that kind, though I do not say with those actual words, was under consideration, and the right hon. Gentleman who is now Minister for the Co-ordination of Defence was arguing on behalf of the Government. This is how the interchange, if I may so describe it, ran: The LORD CHIEF JUSTICE: IS your argument, then, that any Order of the Minister, however far it may depart from the Act, has effect as though enacted in the Act, if it purports to he made under the Act? The ATTORNEY-GENERAL: That is so, my Lord. Of course, it does not sound very 1033 pretty in that form—(Laughter)—and I would prefer to say that the court may not inquire whether it is made under the Act. The LORD CHIEF JUSTICE: Do you say that if under the name of an, improvement scheme under this Act the Minister sanctioned anything whatever it would have statutory effect? The ATTORNEY-GENERAL: I think that is so. Mr. JUSTICE TALBOT: Suppose Parliament had intended to say what the Attorney-General says they have said, how could they have expressed it better than they have done? The LORD CHIEF JUSTICE: They might have said 'After the passing of the Act the Minister may do what he likes.' Mr. JUSTICE SWIFT: That is what they have said. There is no comment which I could make to add to that. I only want to submit that when we give to a Government Department or to a Minister power to make Regulations and to deprive the courts of the right to inquire into the authority or the legality of those Regulations we are within measureable distance of government by decree, and government by decree, after all, is the hallmark of dictatorships everywhere.

As everyone knows, it is not only legislative powers that we confer upon Government Departments. We also give them very considerable judicial and quasi-judicial powers. If it has to be decided whether anyone comes within the Health Insurance Acts, and, I think I am right in saying, the Unemployment Insurance Acts it has to be decided by the Minister or someone appointed on his behalf. If a doctor is charged with any professional malpractice and there is some question of striking him off the panel, that, again, has to be decided by the Minister of Health or people responsible to him. Those are not administrative questions at all. It is obvious that they are purely judicial questions in the sense that the tribunal—whatever it is, the person—making the decision has to find out the facts, apply the law to them and come to his decision purely on the merits of the case. Only yesterday we were discussing a form of tribunal set up to consider the dismissal of five employés in the dockyards, and there were hon. Members opposite who put forward the argument that that had to be because of the urgency of the case, because the safety of the State was involved, but not a single hon. Member in any part of the House suggested that such a tribunal in itself was either preferable to or as good as 1034 one of the ordinary judicial tribunals of this country.

It must be obvious that a Minister, or an official for that matter, is not the right person in any circumstances to undertake a purely judicial inquiry, because the very fact that he is a good administrator may result in making him a bad judge. I have referred to the Ministerial jurisdiction as regards striking doctors off the panel, and should like to give an example to show that very often justice is not administered before Ministerial tribunals in the same way as it is in the ordinary courts. In the year 1925 charges of negligence were preferred against two doctors, whom I will call Dr. X and Dr. Y. A tribunal appointed by the Minister and responsible to him heard the charges, and both doctors were acquitted. In the case of Dr. X the report was that there might have been an error of judgment, and in the case of Dr. Y those who heard the evidence were of opinion that the charge ought never to have been brought. The official decision rested with the Minister, and he proceeded to fine one doctor £10 and the other acting, apparently, on the lines of the humorous verdict, "Not guilty, but do not do it again." I do not know whether all hon. Members are familiar with the legend about the origin of the Clock Tower at Westminster and perhaps I may be pardoned for repeating it. It is said that many centuries ago, when the judges sat in Westminster Hall, a certain chief justice was guilty of altering a court record. He did it in order to reduce the amount of a fine which a poor man would otherwise have had to pay. This came to the ears of the King, and he forthwith fined the chief justice the sum of 800 marks, and when the fine was paid he decreed that the money should be used for the building of a clock tower just outside Westminster Hall, so that when the sound of the clock striking the hours and the quarters was heard in Westminster Hall His Majesty's judges should always be reminded indifferently to administer justice. In these days the judges have moved out of earshot of the Clock Tower, but when so many judicial functions are transferred to Government Departments we may hope that the sound of the clock striking the hours and the quarters is still audible in Whitehall.

1035 I am not going to delay the House by enumerating all the many occasions on which we have conferred quasi-judicial functions upon Ministers and their Departments. There are any number of occasions when a Minister is directed to come to a certain decision, probably administrative, but is directed to follow a certain procedure and to hold a public inquiry at which the parties interested may be heard.

1036 I am quite ready to agree that there must be many questions which can properly be decided by that method, but I want to submit that the procedure which has been adopted up to now—