HC Deb 10 June 1937 vol 324 cc2081-6

10.3 p.m.

Mr. Johnston

I beg to move, in page 6, line 31, to leave out "that Department or authority," and to insert: the Minister of the Crown responsible to Parliament for the Department or the local authority, as the case may be". I do not propose to detain the House for many minutes on this Amendment, but it relates to a point which was discussed upstairs and is one of which the Secretary of State is fully cognisant. In raising the point again to-night, I must say that I am most dissatisfied with the light-hearted way in which the Secretary of State has dealt with this matter. I know that I have the sympathy of my hon. Friends behind me, but I would appeal to hon. Members opposite to take an interest in the matter. It may appear to be a trivial point, but in essence it is this. By the Act of 1928 the old boards were transformed into the Departments, and these Departments still maintain something in the nature of a separate identity. They can sue and be sued in the law courts. They may, and in fact do, take decisions without consulting the Secretary of State for Scotland. In the Committee upstairs I mentioned, as an example, a well-known case, that of the Fishery Board for Scotland, which issued regulations for Firth of Forth. The Secretary of State was not favourable to those regulations, and opposed them. A costly inquiry had to be held. I do not know how many hundreds of pounds it cost the State—

Mr. Henderson Stewart

And the fishermen.

Mr. Johnston

—and I should very much like to know. In that case, there was a more or less independent board, or at least a board pretending to be independent. It is quite true, as the Lord Advocate said, that it is under the general direction of the Secretary of State. I put it to the House that it is highly undesirable by Statute even to give the appearance of conferring on a Department powers which may lead that Department to take action without the knowledge, consent or approval of the Secretary of State. The Secretary of State suggests that there is nothing in the point, that for "Department" we must read "Secretary of State" and that it is all one. Then why do his draftsmen deliberately go out of their way to put in the word "Department" in these Scottish Bills when in analogous English Measures it is specifically stated that the Minister has the power. In this case the power is given to the Department to destroy documents which are not considered to be of great historical value. Who is to decide? The Department. True, the Secretary of State is to draft the regulations, under which the Department acts, but no documents are to be destroyed thereafter, without the consent of the Department.

I submit that there is a highly interesting constitutional principle involved here. We have seen what happens on the Continent. This is how the corporate State begins. More and more power is taken away from Parliament and in the end you get something in the nature of Fascism or Nazi-ism. I ask the House of Commons to set its face like flint against any further statutory powers of this kind being given to any Department. As far as my hon. Friends and I can, we shall insist on the Secretary of State for Scotland being designated in every Scottish Measure as having the power. If he chooses to devolve his power to officers or to a Department, well and good, but for this House to say that it is the Department which is to have the power is something to which we are not prepared to assent. Unless we get a more sympathetic answer from the Government on this point than we have received hitherto, we propose to divide the House on this Amendment, and on every occasion when the Parliamentary draftsmen present us with this kind of thing in Scottish Measures—which is not included in English Measures—we shall raise the question, and if we do not get satisfactory answers we shall continue in our opposition.

10.9 p.m.

The Lord Advocate (Mr. T. M. Cooper)

The right hon. Gentleman in the course of his argument linked up this Amendment with a discussion which took place on the Bill to which the House gave a Second Reading a few minutes ago. I would draw attention to the fact that the question raised by this Amendment is a different and a wider question. This is a United Kingdom Bill, as far as the application of this Clause is concerned. It is not a Scottish Bill, and the Government Department referred to in Clause 12, for which the right hon. Gentleman and his friends desire to substitute "the Minister of the Crown responsible to Parliament for the Department" is a United Kingdom Department or any Department, whether English, Scottish or United Kingdom. I have gone carefully into this matter since the Committee stage in order to verify the realities of the proposition which has been submitted.

The difficulty which would be created by this proposal is this: In a United Kingdom Statute we are not approaching this problem as a new problem. The slate is not clean. There is a host of statutory provisions of recent date in which powers, duties and responsibilities are conferred sometimes upon "a Department" or "Departments," sometimes upon "Government Departments," sometimes upon "public Departments," or other phrases of that kind, in a context which makes it abundantly plain that the power or responsibility is conferred, in those words, upon the responsible Minister of that Department. I think the House knows that, except in one or two instances to which I shall come in a moment, the Department has no separate existence. It is not a constitutional entity recognised in law as distinct from the Minister or Ministers responsible for its activities. The difficulty is this: If in this United Kingdom Statute we were to introduce for the first time a variation in the formula which use has sanctioned, nothing is more certain than this—and I speak for the moment as a lawyer—the first opportunity would be seized of suggesting to the courts, and the courts would readily accept the suggestion, that when Parliament varied the form, some distinction was intended to be drawn between the language used in this Act and the language used in other Acts.

The result of giving effect to the Amendment would not merely be to raise doubt as to what is meant in this Measure when it becomes an Act, but to raise doubt as to what is meant in a half-a-score of Acts which have passed in the last few years. That is not an imaginary difficulty. I am sure my professional brethren will bear me out when I say that there is nothing more dangerous than to vary a recognised formula in an Act of Parliament. The courts are fully justified in saying "Parliament does not vary a formula without having a definite intention, and we must discover what it is."

Mr. Garro Jones

Has not the formula already been varied, and are there not a number of cases where the Minister is specified by name? Therefore, we shall not be creating any new precedents by this proposal but only clarifying the matter.

The Lord Advocate

I think that where one particular Government Department is in question, the practice of the Parliamentary draftsman for a great many years past has been to name the Minister, the Secretary of State for Scotland, the,. Minister of Agriculture, or whoever it may be, but where several Departments are concerned it has invariably or practically invariably been the practice within recent years to refer to the Department. I have noted 10 cases within the last 10 or 12 years where the phrases that I gave a few moments ago were used—"the Department," "the Government Department," or "the public Department"—where you are not concerned with the precise functions of a specific Minister who can be named. In this Clause we are dealing generally with the disposal of records relating to any Government Department, not any particular Government Department, and in that context the phrase which use has sanctioned in the drafting of an Act of Parliament is "the Department," meaning thereby not some unknown corporate body or unincorporated body, but the entity which is represented in this House or in another place by a responsible Minister of the Crown. Accordingly I would say that this Amendment is not only unnecessary, but that it would, for the reasons I have indicated, be positively mischievous.

As regards the particular Scottish point, the Act of 1928, the Reorganisation of Offices Act, did crease real legal entities of certain Scottish Departments. That was a stage in the transition from the old Scottish system of boards to the system, which has been common in England for a much longer time, of a Minister with a Department operating under that Minister; and I think the House is aware that a Committee is now sitting on the various problems concerned with the reorganisation of the Scottish Office, as a result of which I have very little doubt that this particular problem will be drawn attention to and an opportunity given, for all I know, of solving it by the appropriate method of a comprehensive revision of the relationship of these various Departments to my right hon. Friend the Secretary of State. I beg the House not to fall into the error, as it seems to me it would be, of attempting to deal with this difficulty, not by that comprehensive method, but by the much more dangerous method of varying the formula and thereby creating difficulties.

Mr. Johnston

Will the right hon. and learned Gentleman mind addressing himself to the point that I made by way of an interruption of the right hon. Member for Caithness (Sir A. Sinclair)? Is it not the case that two years, or it may be a year, ago the Herring Industry Board specifically said that it shall be the Secretary of State for Scotland? This Bill varies that. The Secretary of State for Scotland is specified in one Bill, but you have it in another Bill "the Department." Why?

The Lord Advocate

I am not sure that it is wholly germane to the point, but the answer is that the Herring Industry Board was not answerable to any of the Scottish Departments under any Statute, and, therefore, the only central organisation to which it could be made answerable was the Secretary of State for Scotland. That was the simple drafting explanation of the difference.

Mr. Johnston

But you varied it?

The Lord Advocate

We varied it deliberately because of that fact. I would ask the right hon. Gentleman to remember that the correct method of dealing with the admitted anomaly which at present exists under the Act of 1928 is by an amending Act which will deal with the whole situation and not by, if I may so put it, tinkering with the matter in individual Statutes and creating 10 new difficulties for every one difficulty that you remove.

Sir A. Sinclair

The Lord Advocate has drawn a distinction between the Departments in England and those in Scotland. He has said that those in Scotland are in fact legal entities, but I would remind him—and I am sure I know the answer, but I want him to state it—that in fact none of these Scottish Departments, although they are entities, can do anything or fail, to do anything without engaging the responsibility of the Secretary of State, and that we have the right here to challenge the Secretary of State on any act or any omission of those Scottish Departments.

The Lord Advocate

Yes, the right hon. Gentleman is quite right. The Act of 1928 created the independent entities which, in the words of the Statute should "act under the control and direction of the Secretary of State." There is an infinite variety in the theoretical basis of all our Government Departments. We have the Army Council, the Board of Trade, the First Commissioner of Works, and so on. There are all sorts of minor Departments, but, broadly speaking, the Scottish Departments were recently created as separate legal entities under the control and direction of the Secretary of State. The English Departments are not responsible to one Secretary of State, but each has a Minister responsible for it.

Amendment negatived.