CLAUSE 1. — (Defence Regulations.) (Hansard, 24 August 1939)

§ Mr. E. Harvey
I beg to move, in page 2, line 2, to leave out "Secretary of State," and to insert "satisfaction of a Judge of the High Court." I am grateful to the Home Secretary for having stated, in reference to the point which I raised earlier, that he intends to provide some machinery for the protection of persons who may be detained under Sub-section (2) of this Clause. But in order that I might have this made a little clearer, I move this Amendment, although I do not intend to press it. It is regret table that in the text of this Bill there should not be provision for an appeal to a legal authority or provision that the final decision affecting the liberty of the person concerned should rest with a judicial authority and not with the administrative head of a great public office. I recognise that the machinery that has been indicated briefly by the Home Secretary will help, but I hope that he will give an assurance that in every case of a person detained under an Order-in-Council made under this Clause, there will be an opportunity of an appeal to a judicial authority in the final instance on the part of the person detained, if that person claims that he is unfairly or unjustly detained under the Order-in-Council. There may be many cases where detention is necessary, and in many cases the person detained will recognise that the Home Secretary is acting reasonably, but there may be cases where the person detained feels that serious in justice has been done, and unless there is an assurance of this kind, I think that we in the House of Commons will be failing in our duty to the person whose liberty is menaced if we do not make a most earnest effort to secure from the Home Secretary a promise for a safeguard of this character.

§ Sir S. Hoare
The actual wording of the Amendment I cannot accept. This must be an Executive act, but I do agree, as I said just now, that there ought to be some check upon the Executive. In the last War it was done by a series of advisory committees. At the present moment we are considering whether that is the best procedure, in view of the experience of those four years, but we definitely intend to have a check, and we shall set out that check in the regulations that we issue. We still have some further time for the consideration of the point. As I told the House just now, we do not intend to introduce the regulations dealing with the liberty of the subject until we have reached, as I hope we shall not reach, a further stage of the emergency. I very much hope that with that assurance the hon. Member will not press his Amendment.

§ Mr. E. Harvey
I am grateful to the Home Secretary for that assurance, and I beg to ask leave to withdraw the Amendment.

§ Mr. E. Harvey
I beg to move, in page 2, line 12, to leave out from "premises," to the end of line 16.
This is a proposal to leave out paragraph (d),which reads: provide for amending any enactment, for suspending the operation of any enactment, and for applying ay enactment with or with out modification. It is evident that we ought to have from the Home Secretary some explanation of the immense powers that are conferred by this paragraph. It would give him power to suspend the operation of the Habeas Corpus Act and every other Measure that we regard as the foundation of our liberties. Although it is no doubt necessary that he should have very special powers in a time of national emergency, and I am the last to suggest that we should not give them, I think these powers ought not to be given to any one Department, and that we should ask for the most careful explanation from the right hon. Gentleman why they are in such a sweeping form. I hope the Committee will agree that we ought to press the Government for a fuller explanation of the reason for these immense powers for which they are asking.

§ The Solicitor-General (Sir Terence O'Connor)
I agree with the hon. Member for the English Universities (Mr. Harvey) that, on the face of it, this is a very drastic provision but again it is one of the provisions which can only be justified if it is exercised with due discretion. Without some such provision, the making of regulations becomes a practical impossibility. It became necessary to have a provision of this kind in the course of the war legislation. We are, in all the ordinary activities of life in this country, so much enmeshed in provisions of law, that when you come to make a regulation you find, in hosts and hosts of cases, that it is impossible to make that regulation unless there is power by which the regulation can itself supersede or amend the Act of Parliament. I could give many examples but I will content myself with one, a regulation, which was adopted during the last War, dealing with the establishment of a new explosives factory. It was found that that was impossible to be brought into effect because in fact it would over ride the provisions of various Acts of Parliament. That is just one of the in stances, and they could be increased beyond number, in which the House would have to accept the assurance that the Executive was not going to do a stupid thing like superseding or amending the Bill of Rights or Magna Charta, but that the regulations were restricted to the only purpose for which they could be justified, namely, to securing the public safety and the defence of the realm.

§ Mr. Benn
Have the Government power, under this Sub-section, to amend this Act when it becomes an Act?

§ The Solicitor-General
Not this Act, but any other Act.

§ Mr. Benn
Do I understand the hon. and learned Gentleman to say that he could not amend the Act itself under paragraph (d), because it reads: provide for amending any enactment. It does not exclude this enactment.

§ The Solicitor-General
My recollection is that there are cases of a notorious kind of Section in which provision is made for amending the enactment itself by a regulation made under the powers of the Act. 93 That obnoxious Section, which was subject to a good deal of criticism by the Donoughmore Committee, is in a different form from this, and I think I can give the right hon. Gentleman the assurance that it would not enable this Act itself to be amended by any regulation made under the Act.

§ Mr. E. Harvey
I beg to move, in page 2, line 25, to leave out Sub section (4). This Sub-section seems to have been devised in order to make it quite convenient for any member of a Government Department who makes a slip or an error in drafting an Order to avoid the consequences. Whatever he does will be all right. It does not matter whether it is inconsistent with any enactment or with an instrument coming into effect by virtue of any enactment, the by-law or rule or order can be made and will be valid. Surely it is most unsatisfactory to encourage in this way carelessness in a Government Department. The arguments used with regard to the other Sub-section surely do not apply in this case. That ought to be clear. No doubt there may be slips, but it will be possible in the case of an error to correct it by a consequent rule or regulation or amended Order in Council, and it ought not to be necessary to give in advance a blank cheque to members of Government Departments allowing them to make any slips or mistakes they like and feel quite satisfied that it will make no difference.

Mr. Dingle Foots
I hope that the Government will seriously consider the purpose of this Amendment, even if they cannot accept the Amendment itself, because it refers not only to Defence Regulations but to any order, rule or bye-law duly made in pursuance of such a regulation. The hon. Member who moved the Amendment referred to possible careless ness on the part of a Government Department, but we do not even know all these by-laws will be made by Government Departments. These are by-laws which may be made by all sorts of other authorities or other persons, it may be persons in very subordinate positions 94 who are authorised to make by-laws by one of these regulations, so that we not only give this dispensation to those in Departments in Whitehall but, possibly, to somebody who will be very much less skilled and less careful of the public interests. It seems unnecessary to have this additional provision applying to orders, rules and by-laws made in pursuance of a regulation as long as we have it for the regulations themselves. I hope the right hon. Gentleman will consider that aspect of the matter before the Bill reaches its final form.

§ The Solicitor-General
The warning which the hon. Member for Dundee (Mr. Foot) has thrown out is one of which serious account will be taken when it is contemplated that by-laws or rules should be made by virtue of any regulations. I can certainly give him an assurance that careful attention will be paid to that point of view. The Sub-section is really a variant in a simpler form of paragraph (2, d) which we were discussing a moment ago. It is inserted for the purpose of ensuring that where there is an apparent repugnance between a regulation and an antecedent Act of Parliament the regulation should prevail rather than the Act of Parliament. The circumstances in which these regulations will be made will be circumstances, in some cases, of great urgency, and again the House must, I am afraid, accept the assurance that they will be introduced with every pre caution and with every care to see that they are within the limits of the emergency that is upon us. In the circum stances it would be a considerable weakening of the regulation-making power if we were to run the risk of enabling them to be invalidated because by some oversight they conflicted with some antecedent Act of Parliament.

§ Mr. Benn
I should like to ask the learned Solicitor-General one or two questions. Suppose a regulation were made limiting the type of speech which it is wise to make, and suppose a speech infringing that regulation is made in this House and a prosecution is instituted. As I understand it, it will be no defence under this Sub-section for the Member to say that under the Act of the Bill of Rights freedom of speech in this House is not to be questioned in any court. I 95 would point out that the Sub-section says that the regulation shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. Is that right?

§ The Solicitor-General
I am afraid that I completely fail to see how there is any thing in this Bill which touches the question of the privilege of any Member of Parliament. The only conceivable possibility that I can envisage is that some Government should avail itself of paragraph (2, d) to introduce a Bill to amend the Bill of Rights or a specific enactment to deprive Members of Parliament of the undoubted privileges which they at pre sent possess, and I cannot conceive of any Government introducing any such Measure. Short of anything of that kind being done, the right hon. Gentleman can take an assurance from me that it would not be possible under this. Sub-section to do anything of the kind he suggests which would truncate the privileges of Members of Parliament.

§ Mr. Naylor
If a by-law is made under a regulation by a local authority would it have to be submitted to the Department before effect was given to it?
The Solicitor-General: I am afraid that I cannot give an answer offhand to that question, but I imagine that any by-law which was to be made under a regulation would come under the close supervision of the Minister responsible for making the regulation.

§ Mr. Foot
I wish briefly to raise one point which was not referred to on Second Reading but seems to me to be a point of substance. It concerns Sub-section (2, a) which refers to making provision for the apprehension, trial and punishment of persons offending against the regulations, and goes on to refer to their detention. I wish to say a word on the reference in that paragraph to apprehension, trial and punishment. I think we ought to have some information as to what kind of tribunal it will be by which these persons 96 are to be tried. I notice that in Clause 6 there is a reference to proceedings before a Court (whether instituted before or after the commencement of this Act)." I do not know whether those words refer to "proceedings" or to the "Court," but I should like to know what kind of tribunal is envisaged. If somebody offends against the regulations is he to be tried summarily, is he to have a right to go for trial by a jury, or does the right hon. Gentleman contemplate setting up some special tribunal under which an offender against the regulations is liable to be deprived of his right to trial by jury? It may be that the Government do not contemplate setting up any special tribunal at all, but I think we ought to have some explanation on the point.

§ Mr. J. Morgan
May I once again draw the attention of the Home Secretary to this Clause, because I cannot satisfy myself that the land purchase laws which exist give him any chance of immediate action—

§ Sir S. Hoare
It might mean another one.

§ Mr. Morgan
I see.

§ Mr. Boothby
I want to raise one point which was mentioned on Second Reading. I heard a great deal of the case that was put forward and I do not think that the Government can complain of the way in which the Bill has been dealt with by the House. They are asking us to give them great powers. Whether war actually breaks out or not I am sure that the Government will require to have even greater powers of a similar kind, power to make laws—that is what it amounts to— by means of regulation. Many of us are concerned about the responsibility and the right of Parliament to maintain some kind of control. I do not want an answer from my right hon. Friend to this point, but I just want to put this thought in his mind. If we have to enter into a long period of crisis, as seems more likely than not, whether or not there is an actual outbreak of hostilities, would it not be possible to devise some form or some system of secret Session, whether by means of a Committee of the Whole House or by a Select Committee of this House, to examine the administration of 97 the Executive, not only military and strategic but in the financial sphere, in order that the ordinary population of the country may feel that they are maintaining some kind of control over the Executive through their representatives?
I feel that this matter is highly important. I was interested to hear the right hon. Member for Carnarvon Boroughs (Mr. Lloyd George) say just now that during the War he held two secret Sessions. Everybody told him beforehand that everything would get out, but although he made a complete revelation of the facts nothing did get out, and when he tried in recent years to find some record of the secret Sessions for the purpose of his own book he was unable to find any record of it at all. I am sure that all Members of this House would rigidly respect any secrecy of that kind. If we are coming into a long period of crisis, tension and possible war, although the whole House wants to give the Executive the powers which it wants, we feel that those powers are tremendous and we want a method by which the public would feel that, without detriment to the public interest, the representatives in this House would have some sort of control over the Executive.

§ Mr. Mander
Another question which was referred to on the Second Reading was in connection with the announcement of the right hon. Gentleman that there would be no censorship of the Press of any kind, except in the case of actual war. I should like to ask whether it would not be possible to include such a provision in the Bill. Perhaps the right hon. Gentleman would be good enough to answer that point. Even though he intends to carry out what he has said, I must point out that we have had similar assurances in the past as to how proposed Acts of Parliament would be used, such as the Official Secrets Acts, and that, years afterwards, some other Minister has come in and has done the very thing which a Minister formerly said never would happen. It would be more satisfactory if the words could be actually included in the Bill.

§ Sir S. Hoare
I think that the hon. Member for East Wolverhampton (Mr. Mander) will see that it is not possible to put into the Bill a specific provision of 98 the kind to which he referred. I can give him my assurance, which is that in conditions prior to the actual outbreak of war there will be no censorship of the home Press. I can conceive that, even in that period, there may have to be some control of foreign agencies. No doubt the hon. Gentleman is interested in public opinion and the freedom of the Press here, and I can give him my assurance quite explicity on that point. The Bill is not framed to include specific details of that kind and is drafted in another way. To put in specific matters of that kind would be to cut across the drafting altogether.
My hon. Friend the Member for East Aberdeen (Mr. Boothby) has raised a very important question. During the War I did attend one secret Session, but I would not be prejudiced for or against such secret Sessions. I think my hon. Friend will see that this must be a question for the Prime Minister to settle, but I will take note of what he said. I can say to my hon. Friend that in a crisis such as war there ought to be the fullest possible co-operation. I can give an answer in a single sentence to the question raised by the hon. Member for Dundee (Mr. Foot): it is not intended to set up any special tribunal. The Bill is meant to deal with existing tribunals and not with any new tribunals.