HC Deb 28 November 1938 vol 342 cc191-7

12.5 a.m.

Mr. Edmund Harvey

I beg to move, in page 3, to leave out lines 15 to 18.

I am very sorry to have to detain the Committee at this late hour, especially as it involves the presence of a hardworking Under-Secretary on the eve of an important Debate, but the point I am raising in this Amendment is one of very great importance. The effect of the Amendment, if carried, would be to leave out the Aliens Restriction (Amendment) Act, 1919. That Act prolongs for one year, and for one year only, the operative Clause of a War-time Measure of 1914. The significance of that Measure will be realised, I think, if hon. Members look at the date, which is 5th August, 1914. I cast back my memory to that time, and I can recall that extraordinary sitting of the House within a few hours of this country entering into a state of war with Germany. This Bill was introduced by the then Home Secretary and was read a First time after a speech from him lasting only a few minutes. Immediately afterwards the Bill was taken through all its stages—in manuscript. The House never saw parts of the Bill. Mr. Barnes, who was sitting on the Labour benches, asked the Chairman to read the operative Clause, and Mr. Whitley, from the Chair, read it, but he did not read the whole Bill. The whole Bill was never seen by the House. It went up to the House of Lords the same day and it received the Royal Assent the same day.

The Act of 1919 has prolonged for peace time the operative Clause in this Act passed in that emergency, in that time of excitement, without the Legislature knowing anything of what they were doing. Not only that, but we may see, if we look at the OFFICIAL REPORT, that the Home Secretary of that day was himself not quite aware of what he was doing. He was asked by Sir William Byles, who was called upon to "Sit down" by indignant Members, how long the Measure would continue in operation, and Mr. Ronald McNeill, who also spoke for a moment or two, wished the Bill to include powers for shooting spies, and, I suppose, was disappointed that it did not. He also mentioned the question of the duration of the Bill and the Home Secretary replied that the Orders in Council under the Bill would cease to be operative when the country ceased to be at war or ceased to be in a state of grave emergency. So far from that being the case, these Orders in Council have gone on ever since. Surely now, 25 years afterwards, it is high time for Parliament to consider the Clause that was passed in that hurried way, because it has really never received proper consideration.

I do not want to suggest that there should be no regulation whatever, but what I do say is that the Government should take this opportunity of saying that they are prepared to undertake a properly-thought-out Measure which can be put upon the Statute Book as a part of our permanent legislation. We ought not to go on re-enacting year after year a Measure that was only intended, and definitely stated by the Minister in charge, to be a temporary war time Measure. Anyone who looks at the operative Clause will see that there really is reason for reconsideration. The provisions are immensely wide. They give power by Order in Council to the Ministry of the day to make enactments with regard to aliens; and, so that nothing may be left out, it is provided at the end that Provision may be made by the order for any other matters which appear necessary or expedient with a view to the safety of the realm. Surely it is evident that that might be used—I would not suggest by this Ministry, but by some Ministry at some time—in a way that would be quite out of harmony with the ancient traditions of this country. Therefore I think that, at a moment when, unhappily, a spirit of racial jealousy and persecution is only too prevalent in the world, it is fitting that this House should take the opportunity of reconsidering, in the interests of justice and fair play, for the avoidance of unnecessary red tape, and for the maintenance of the great traditions of British freedom, a Measure of this kind, which in its origin was intended to be temporary, and which I hope the Government to-night may take the opportunity of declaring shall be temporary by promising carefully considered legislation to replace it.

12.12 a.m.

Mr. Wedgwood Bonn

I am very glad that my hon. Friend has raised this point, which is one of real substance. The Act was passed, as he says, on 5th August, 1914, and it went through all its stages in both Houses in one day, showing that a democratic institution, in a moment of emergency, can act effectively and swiftly. In 1919 it was continued. There was a great surge of patriotic emotion, led by Mr. Bottomley, and many suggestions were made for the amendment of the Measure. It has been continued from year to year, and it gives the Minister the power to legislate. The important thing is the Order, and the Order is in fact an Act of Parliament. I have in my hand one that was drafted in 1919. It is for the House to consider whether they wish to make permanent this power in the hands of the Home Office, or whether they think that the matter should come under review in the form of a Statute which would take the place of this ministerial Order.

In 1927 the Government did propose a permanent Measure, but that Measure, although it passed the upper House, got smothered in this House. I make no criticism of the Department on that account, but when my hon. Friend asks that something definite should be done by Parliament, I think his request is a very reasonable one. To make the Home Secretary the sole and unchallenged authority, both as regards the refusal of permission to land and as regards deportation, is to put a cruel burden upon him, and I imagine that he would welcome some kind of machinery by which this House would share the responsibility with him. I think that in Belgium and Holland such machinery exists, and I have noticed with interest, from an official publication issued in 1932, that Mr. Harold Scott, an official of the Home Office, then wrote a paper on this very subject, in which he said that there was a Measure before the Home Office which had been devised in the time of my right hon. Friend the Member for Platting (Mr. Clynes) for constituting some sort of tribunal which would relieve the Home Secretary from this very onerous duty.

12.15 a.m.

Mr. Pritt

The admission of aliens into this country is a matter of constantly increasing importance, because one country after another is treating its own subjects with such abominable cruelty that the desire to come to this country and to others—very largely, to this country—becomes at once more widespread and more terribly urgent. At present, this country vests very considerable—almost autocratic—authority in the Home Secretary. That authority is exercised under Orders in Council, by virtue of the Act, instead of under the Act itself. That must throw a considerable burden on the Home Secretary. Some of us who deal with these painful cases are very glad to have seen recently a considerable degree of understanding and friendliness on the part of the Home Secretary. We are not in any way complaining of the manner in which the powers have been used. But would not the Home Secretary agree that this authority should not be doled out in annual instalments under the Expiring Laws Continuance Act? Surely it would be better to have the substance in an Act of Parliament rather than an Order in Council. If, perhaps, that is a little academic, it would be better to review the whole subject now and put these powers into a Bill which follows some definite principle. I hope that, in view of all those considerations, the hon. Gentleman will promise us something of that kind.

12.18 a.m.

The Under-Secretary of State to the Home Department (Mr. Geoffrey Lloyd)

The question may always he raised in regard to any powers which are extended under this Bill as to whether this is the right form of maintaining the powers or whether they ought not to be embodied in a more permanent form of legislation. I agree that this arises with regard to these particular powers under the Aliens Act. But, of course, the question of an affirmative Order can arise at any time. It could have arisen at any time since 1919. So far as my recollection goes, this point has not been raised before. I would suggest that this really is not the most opportune time for raising it. The most opportune time for considering making a power permanent and putting it into definite form is a time when the problem with which you are faced is in a reasonably static condition, and when you can foresee, apparently for some time ahead, what are the broad conditions of the problem. With regard to the aliens problem, at the present time no one can say that that is the case. The situation is changing all the time. Such arguments as have been used to-night are arguments that can be used both ways, and I would have thought that there was a certain advantage, in such conditions of change as exist now, in providing that the power should come up every year for review, and that the House should have a definite opportunity every year to question the whole position and make representations or to take whatever view it wishes. There is a definite advantage on that side, in the present rapidly changing situation in regard to this problem arising out of the European situation.

A third observation is that we ought to distinguish carefully between the actual power which is in the Section and the system which is actually in operation. The aliens powers, as the right hon. Gentleman has said, are contained in the Order. The Order is laid on the Table of the House and can be invalidated by an Address and made void. The Orders are not, as the right hon. Gentleman supposed, exactliy the same as they were in 1914. They have been varied from time to time. This system does provide a more flexible instrument for aliens' administration, particularly, as the right hon. Gentleman pointed out, since the administration of the Home Office is very susceptible to the opinion of hon. Members of this House. We are only too ready, where necessary, to consider any appropriate alterations that may be necessary. I suggest that, although there are arguments on the side of the case that has been put by hon. Members, there are also powerful arguments on the other side. I cannot go further than to say that if there is any opportunity for aliens' legislation, we will certainly at that time consider the question of making these powers permanent.

12.23 a.m.

Mr. Dingle Foot

I hope that the hon. Member will not withdraw his Amendment, because I do not think that the House can have been satisfied with the explanation which has been given by the Under-Secretary. He has entirely failed to meet what seemed to me to be the principal point made by the hon. Member, who made out the case that this Measure was emergency legislation containing very wide powers—indeed, practically unlimited—given to a Government Department to make decrees having the force of Statute Law. The hon. Member pointed out that the powers given could be justified only by the time at which they were passed. The Under-Secretary said that they gave the Home Office powers of very great flexibility. If we were to pass a general enabling Act to give the Government power to govern by decree, the same argument might be used in precisely the same way. The Act would be an instrument of great flexibility, but most of us would suppose that the objection to it would be overwhelming.

The Under-Secretary appears to have forgotten that since 1919, when this Measure was reintroduced in time of peace, we have had considerable attention directed to this question of rule-making powers conferred upon Government Departments. Although very few Ministers appear to be aware of the fact, these matters were inquired into with very great care a year or two ago by the Committee on Ministers' Powers, on which all parties in this House were represented and which unanimously reported that such a Section as that to which the hon. Member has drawn attention could never in any circumstances be justified. There must, therefore, be an overwhelming case for reviewing this matter of the powers given to the Home Office under this Act. The fact that a new Act could be passed after the matter had been carefully considered, and a better Measure framed, would not mean depriving the Home Office of all measure of discretion. It would mean considering this question more coolly than it could have been considered in 1914. No substantial answer has been given to the case made out by the hon. Member.

Amendment negatived.

Schedule agreed to.

Preamble agreed to.

Bill reported, without Amendment.

Motion made, and Question proposed, "That the Bill be now read the Third time."

12.26 a.m.

Mr. Benn

I think that someone should rise to protest against the continuance of a practice which has sprung up during the last two or three years of embodying in the Expiring Laws Continuance Bill, Bills with Money Resolutions. A Committee was appointed in 1922 and went into the whole question, using very harsh language about the practice of this method. In those days the Schedules were much longer. "Slovenly," "dangerous" and other words of that kind were used by that Committee. Since 1935 the Government have introduced a new technique of putting into the Schedule of the Expiring Laws Continuance Bill, Measures requiring a Money Resolution. That has only, as far as I know, happened during the last two or three years. It is quite clear to what dangers it exposes this House. It might be possible to pass a short Act empowering the Minister to make Orders which had financial implications, and it could be embodied again and again in the Schedule of the Act. Very substantial powers might be conferred upon the Minister and continued year after year on exactly the grounds urged by the Minister in his speech to-night. Of course, we shall not divide to-night, as this is not a party point, but in the interests of the House a word should he said about this encroachment upon the freedom which Members enjoy.