HC Deb 04 May 1937 vol 323 cc1068-72

7.50 p.m.

Mr. Dingle Foot

I beg to move, in page 40, line 31, to leave out "six weeks," and to insert, "three months."

I do not want to spoil the harmony that has marked the proceedings, but I cannot allow this Clause to pass without a few words of protest. As the Clause stands it says that the Minister may make orders in respect of livestock markets, slaughter-house schemes, and service schemes, and if an order is to be challenged in any legal proceedings it must be done within a period of six weeks from the making of the order. If proceedings are not instituted within that period of six weeks the order cannot be ultra vires. The Minister may have entirely exceeded the powers which Parliament thought fit to give him, but anyone who is aggrieved or affected by what he does will have no redress whatsoever, because apart from that six weeks period of challenge the Minister is to have completely arbitrary powers in regard to these orders. That would not matter so much if the orders he made were small matters affecting only a few people, but no one could possibly suggest that of the three forms of orders which are contemplated in the Clause. They are matters which will affect a large number of people. The number of things which the order may prescribe is very considerable, and then there is the procedure that is laid down for hearing objections and so forth. It would be very easy for an order to be made which would in some respect or other be ultra vires, and no one affected would have any kind of redress.

The reason why I move the Amendment is that this form of Clause, sometimes called the finality Clause, was very carefully considered by the Committee on Ministers' Powers. The main recommendation of that committee dealt precisely with this kind of legislation. They dealt with Clauses which are expressed in words like these, in which there is no period of challenge. They said that Clauses of that kind were never justified and should never be used in any circumstances. They went on to say that even in cases where there was some special reason for achieving finality within a certain period of time, there should always be a period within which it should be possible for Ministerial orders or regulations to be challenged. They said that in their view that period of challenge should be six months, although they qualified that statement a little by stating that at the very minimum it should be three months. That was admittedly a very authoritative report. It was produced by a committee on which three parties in this House were represented. Eminent jurists also were on the committee, and they came to the unanimous conclusion that the minimum period for a purpose of this kind of legislation should be three months. I know that the Government paid very little regard to the recommendations of that committee. They are far too concerned with building up and strengthening bureaucratic powers to have much regard to what that committee recommended, but as far as my hon. Friends and I are concerned we do not intend on any occasion to let Clauses of this kind pass without some protest.

Mr. Kingsley Griffith

I beg to second the Amendment.

7.55 p.m.

Mr. W. S. Morrison

The hon. Member attempted to represent his Amendment as a stand for old custom against some insidious practice of modern times, of which he accuses this Government of being guilty, namely, that of bolstering up bureaucracy. This proposal that there should be a period of limitation within which the validity of a scheme can be contested in the courts is not a new thing. I have recently seen a book on the Parliamentary powers of English government, and the learned author of that work, after examining the Statutes from 1850 to 1931, found that there were during that period over 150 Statutes in which a provision of this kind occurred, and fewer than 50 of those were Statutes passed after 1900. If one wants to see this sort of provision in full power on the Statute Book one has to go to the days of Gladstone and Disraeli.

Mr. Foot

Can the right hon. Gentleman say which particular Statutes he has in mind? Is he referring to complete finality Clauses or Clauses in which there was some period of challenge?

Mr. Morrison

I was referring to Statutes in which in one form or another there was a deliberate limitation by Parliament of the powers of the courts to challenge the validity after a certain period.

Mr. Foot

What was the period?

Mr. Morrison

That is another matter. We will come to that later. This is no new thing, and when one considers the merits of the case it is abundantly justified. The Donoughmore Committee pointed out that this sort of procedure was justified where a scheme was in existence on the face of which persons changed their position, perhaps by buying or selling land, entering into contracts of service, building houses, raising money and becoming liable in a variety of ways for consequences for which they. would not have become liable except on the faith of the scheme. It is right that the court should have the last word as to the validity of any Act of this character, but it is also right that there should be a period of limitation wherein that validity can be challenged. Otherwise, we might have contracts entered into and persons upset by some litigious person perhaps three or four years after the event.

On the actual question of the proper time limit, I shall say something later. This is no vice of the present Government, as the hon. Member seemed to suggest. I have had an examination made of the Statute Book since 1932 and there are only six cases in which this sort of provision has occurred. Where there is a period of limitation during which alone the validity of a scheme can be challenged the time runs from two months to 28 days, so that the period we are suggesting here, namely six weeks, is rather higher than the average. It is quite a moderate figure. I would ask the hon. Member to reflect what we are trying to do in this Bill. We are trying to set up a Commission and devise schemes to improve the industry on all its sides. They are all schemes which may well have a profound effect on the wellbeing of the industry. When he looks at this Bill he will find it is very easy for anyone to hold up the whole operation of a scheme for a very long time indeed, and to do it quite easily simply by issuing a writ. If he looks at Clause 47 (4), he will there see that it is provided: (4) Subject as hereinafter provided, an order confirming a slaughter-house scheme or confirming a service scheme shall come into operation at the end of the period of six weeks from the beginning of the day on which notice of the making of the order is published in accordance with this section: Provided that if proceedings for the purpose of questioning the validity of such an order are duly begun within the period aforesaid, the court before whom proceedings are taken may at any time before the end of the said period direct that the order shall not come into operation before the final determination of the proceedings. That means that at any time within this six weeks anyone who for any reason at all objected to the scheme coming into operation had only got to issue a writ—which can be done very simply—and then he might have the whole thing held up for a very long period. I suggest to the hon. Member that a period of six weeks is ample. Anyone with a genuine point of principle can surely make up his mind within six weeks of the order being published whether or not it is in excess of the Minister's powers.

Mr. Foot

Before the Minister sits down will he deal with the main point I raise which is that all these considerations were no doubt before the Committee on Ministers' powers, and the Committee having considered all these arguments they said that three months should be the minimum period. Are we to understand that the Government do not intend in this case or any other to accept the recommendations of the Committee?

Mr. Morrison

The hon. Member shows a striking reverence for the Committee. The members of a very respected and learned body came to a certain conclusion, but it is one thing to come to a conclusion in the abstract and another thing to fit the particular circumstances to the period under review. He asked me whether the Government would in those circumstances have nothing to do with the report. That would be a travesty of the situation. The Government regard the Report as being extremely useful and interesting, but at the same time I say that for the purpose of the Livestock Industry Bill we think a period of six weeks sufficient and we do not accept the Amendment to increase that to three months.

Amendment negatived.