HC Deb 27 January 1943 vol 386 cc575-84
Commander Bower (Cleveland)

I beg to move, That an humble Address be presented to His Majesty, praying that the Order in Council dated 14th October, 1942, made under the Emergency Powers (Defence) Acts, 1939 and 1940, amending Regulations 18, 47A, 53, 60 and 78 of the Defence (General) Regulations, 1939, a copy of which was presented to this House on 24th November, be annulled. The Order to which my Motion refers is one of those which cover various Defence Regulations. Last week we had a very useful Debate, and the Home Secretary made certain concessions, which I and those hon. Members associated with me think are, as far as they go, very valuable. To-day there are only two Regulations to which I wish to draw attention. The first reads as follows: After paragraph (2A) of Regulation eighteen of the Defence (General) Regulations, 1939, there shall be inserted the following paragraph:— '(2AA) The Secretary of State may make provision by order for prohibiting persons from residing in Northern Ireland without permission granted under the Order unless they were resident there before the first day of January, nineteen hundred and forty, and any such Order may— (a) require any person to whom such permission has been granted to comply with such restrictions or obligations with respect to the length of his stay in Northern Ireland, his occupation or employment therein, or the registration or notification of particulars about himself, as may be imposed on him by means of conditions attached to the grant of permission.' That last paragraph which I have read is one which I and my hon. Friends think is somewhat objectionable. The whole question of delegated legislation is very complicated and I shall refer to that later, but it will be seen that in this Order the Home Secretary, having had certain powers delegated to him by Parliament, then proceeds to make an Order delegating to himself or his representative other powers, as he may see fit, which are entirely beyond the control of Parliament. Doubtless the Under-Secretary will say that these powers to which I refer have already been granted in respect of people in Great Britain in an Order already passed by Parliament. That is very unfortunate, but we see no reason why an unfortunate, unnecessary and undesirable Order which has been passed in respect of Great Britain should be extended to apply to Northern Ireland. What we object to in this Order is the fact that delegated legislation is used still further to delegate powers to the Minister himself or to some representative of the Minister, such as the one to whom Mr. Justice Humphreys referred in rather scathing terms only a week ago. We think that that is very objectionable.

Turning over the page we find another Order—No. 2—which says: For paragraph (6) of Regulation forty-seven A of the said Regulations there shall be substituted the following paragraph:— This appears to belong to the Minister for War Transport, who, I am glad to see, is represented on the Front Bench: (6) No person lawfully engaged to serve on board any ship to which this Regulation applies shall—

  1. (a) join his ship, or be whilst on board his ship, in a state of drunkenness so that the performance of his duties or the navigation of the ship is thereby impeded;
  2. (b) continuedly and wilfully disobey lawful commands or continuedly and wilfully neglect his dunty;
  3. (c) assault the master or any mate or certified engineer of his ship; or
  4. (d) wilfully damage his ship or embezzle or wilfully damage any of her stores or cargo."
That, again, is a condition of an Order already in operation. The facilities afforded to Members of Parliament for examining these Regulations are, as the Home Secretary pointed out last week, quite good, but I have assiduously gone into this matter and I cannot see that this new Regulation does anything which the Merchant Shipping Act had not done years before.

The Under-Secretary of State for the Home Department (Mr. Peake)

It increases the penalties.

Commander Bower

The penalties, I am sorry to say, are not mentioned in this Order. At any rate, as regards the ordinary Member of Parliament going into the Library and making use of the services of our very courteous and efficient librarians, it is impossible to distinguish why this Order should be necessary. Those are the only two points I, personally, wish to raise to-day.

Last week the Home Secretary was inclined to suggest that the present facilities for examining and dealing with these Orders were adequate, that Members of Parliament in the ordinary exercise of their duties could find out which of them were objectionable and take the necessary action. That is exactly what my hon. Friends and I are doing. We are taking action. We have been through IOO or more of these Statutory Rules and Orders and we have found that not more than 30 per cent. of them are in any way objectionable. By a simple process of arithmetic it will be seen that by raising these points every day—it is of course exempted Business—one ought to be able, with good will on both sides, from both the Minister and ourselves, to give the House a day off from exempted Business perhaps once a month. We feel that these Orders have lain on the Table of the House far too long unwept, unhonoured and unsung, or at any rate unexamined by the ordinary Member of Parliament, and we have taken upon ourselves the duty of examining them. It is an arduous duty particularly having regard to the fact that we are expected to carry out our researches in the Library in perpetual twilight these days. I want to make it clear that we shall never bring up any Order just for the sake of being nuisances. We are not trying to create a nuisance value. We are trying to retain the supremacy of Parliament over Ministers.

In the course of my research I found very valuable reports of a Committee in 1932 which was presided over by Lord Donoughmore. It was called the Committee on Ministers' Powers and it has a great deal to say on these various Rules and Orders. It appears to me, having read it carefully, to be a very valuable report.

Mr. Speaker

The hon. and gallant Member is now referring to the Orders in general and not to this particular Order. We have done that already in one Debate and we cannot have it over again.

Commander Bower

Is it your Ruling, Mr. Speaker, that I am not allowed to refer to the Donoughmore Report, because it has a very pertinent bearing on this particular case; or can I refer to certain aspects of it?

Mr. Speaker

Only in so far as it affects this particular Order.

Commander Bower

I think I can do that all right. The Donoughmore Report deals with delegated legislation in some detail and if I cut out any generalities, which, I gather, would not be in Order, I can, I think, within the Rules of Order deal with the question of drafting, which in the case of this Order and many other Orders is extremely obscure. I hope that I may be able to read what this very excellent report says about the question of drafting. It says: There is one aspect of the unsystematised character of our constitutional procedure for delegated legislation to which we wish to draw special attention. Whereas the drafting of Government Bills is done in the Office of the Parliamentary counsel by barristers selected for that office and, by long training, acquiring a high skill as draughtsmen, the drafting of Regulations is only in certain cases, for example, Regulations which are made by the Treasury, done by or under the supervision of Parliamentary counsel. In other cases it is done by the authorised department, usually though not invariably by their legal branches. The work is there largely in the hands of persons, who, hew-ever able and experienced in their own work, do not possess the very special drafting experience of Parliamentary counsel. We do not attach so much importance to the fact that occasionally the draftsmen are not lawyers. A man may be either a solicitor or counsel and yet not have had the training essential to make a good draughtsman, for good draughtsmanship is one which calls for special qualifications and long experience. I submit that in these Orders to which I have referred, and in other Orders, the draftsmen have often been at fault. However, I merely wish to draw the attention of the Government to it and—

Mr. Speaker

That does not affect this Order in particular. It affects all Orders. I want the hon. and gallant Member to confine his argument to something which affects this Order in particular and not other Orders.

Commander Bower

Should I be in Order, Sir, in referring to the recommendations of this Committee?

Mr. Speaker

If the recommendations of this Committee affected this Order alone the hon. and gallant Member would be entitled to refer to them, but he cannot refer to them as they generally affect Orders of this kind.

Commander Bower

Then it seems to me that I shall have to seek another occasion. Last week a Debate was held on a Motion similar to that which I have put down to-day and that Debate ranged rather widely.

Mr. Speaker

Perhaps it was my fault that I allowed a much wider Debate than I should have done on that occasion. I did it because I thought it would cover all these Motions.

Commander Bower

I find myself in a difficult position. I took the precaution, Mr. Speaker, of consulting your Secretary to-day and I was given to understand that I would be in Order in referring to this Report. Of course, I accept your Ruling without any question whatever. All I can do is to continue my speech and if you, Sir, find that I am out of Order I shall sit down and my hon. Friends and I will have to seek another occasion when we can make our points within the Rules of Order.

Now, with respect to the two Orders I have read, the question of delegation is, naturally, very complicated and all we are trying to do is to suggest to the Government that the setting up of a Committee to deal with these and other Orders would be of value. I do not propose to go further into the Donoughmore Report because I should almost certainly be out of Order if I did so, but I want to make it clear that my hon. Friends and I are not unaware of the intricacies of Parliamentary procedure and if on this occasion we have failed to bring forward what we wished to do, all that can happen is that the procedure which I am seeking to carry out to-day will have to be carried out day after day in the future. That will not worry us very much. We and the Ministers will be able to get to know each other very much better than at present and I hope a good time will be had by all What we want is a Standing or Select Committee on the lines recommended in the Donoughmore Report, which I am sorry to say is out of print. I would like to suggest to the Government that it ought to be printed again. That is all we want.

Lieut.-Commander Gurney Braithwaite (Holderness)

I realise that the range of debate on this matter must necessarily be extremely narrow, but this is one of the opportunities which private Members have of discussing the machinery under which we are operating in time of war and of which this Order is typical. First, may I say that the House is under some disadvantage in debating Orders of this kind owing to the extraordinarily diffuse and complicated wording which we have to study? I suggest that Government draftsmen and officials when we are legislating by this method should put their intentions into plain language which can be readily understood by hon. Members. [An HON. MEMBER: "That has been promised."] But promise and performance differ sometimes. Of course, it is necessary to expedite legislative action, but these Orders are in themselves complete Bills. In happier times they would be complete Bills.

Mr. Speaker

The hon. and gallant Member is now doing what the hon. and gallant Member for Cleveland (Commander Bower) was doing when I called him to Order. I must remind him that he is now dealing with all these Orders and not this particular Order.

Lieut.-Commander Braithwaite

I feel that this Order is open to the same objection as others in that particular respect.

Mr. Speaker

We discussed all that when last an Order of this kind was challenged. I rather find fault with myself for having then allowed a wider discussion than I should have allowed. Had I known it was to be repeated to-day I should not have done so. I ought to have kept the discussion within its proper bounds on that occasion.

Lieut.-Commander Braithwaite

I am sorry if I have been guilty of repetition, Mr. Speaker, but I thought it relevant to point out that this Order, like others, is the outcome of wide powers given by the House to the executive on 3rd September, 1939. I agree with my hon. and gallant Friend the Member for Cleveland (Commander Bower) in suggesting that a Select Committee would be of great value to the House in "vetting" these particular proposals before they come to us. I think the real point is this: There is danger under this war-time procedure, and under this Order in particular, of the House delegating wider powers to officials than hitherto. I do feel that the time has now come, after three and a half years' experience of this kind of operation, for Parliament to devote some time in the near future to a consideration of a Consolidation Bill, when a wider Debate could take place and when we could make quite sure that the House of Commons would retain its powers.

Mr. Peake

My hon. and gallant Friend the Member for Cleveland (Commander Bower), who moved this Prayer, com- plained, as I understood it, of only two things in the Order-in-Council. So far as the new paragraph 2AA of Regulation 18 is concerned—which is a Regulation which deals with prohibiting residence in Northern Ireland of certain persons—the position is as follows: My right hon. Friend the Home Secretary gave a very full explanation of the purpose of this new Regulation in answer to a Parliamentary Question by my right hon. Friend the Member for Antrim (Sir H. O'Neill) on 8th October last, and no doubt my hon. and gallant Friend has studied that reply, even if he did not hear it given. Six days later the Order-in-Council was duly made and laid on the Table of the House on the second Sitting Day following the date when it was made. This was on 20th October. My hon. and gallant Friend, as I understand it, objects to that Order itself delegating certain further powers in regard to residence in Northern Ireland. The words of the paragraph are: The Secretary of State may make provision by Order for prohibiting persons from residing in Northern Ireland without permission granted under the Order unless they were there before the first day of January, 1940. The Regulation then proceeds to state what such further Order may contain. This Regulation states perfectly plainly, in language which anybody can understand, what is its purpose. It is to prevent certain persons from residing in Northern Ireland.

Commander Bower

The thing to which we object in this Order is contained in the last words of paragraph (a), which states: as may be imposed on him by means of conditions attached to the grant of permission. The Home Secretary is delegating to himself or his representative power to vary the conditions in respect of different individuals who may go to Northern Ireland.

Mr. Peake

My right hon. Friend made it clear that this was not intended to apply, and did not apply, to temporary visitors to Northern Ireland. I think a period of six weeks as the minimum length of stay to which the Order applies is laid down either in the Regulation or in the Order made under it; but obviously it must be right, when you are taking a power to prohibit residence altogether, to be able to modify the stringency of that provision and say that residence may be permitted subject to certain conditions. For example, there may be a man from Southern Ireland coming in to undertake a particular job, such as the construction of an aerodrome. Unless there is this power of attaching conditions, my right hon. Friend would either have to give unconditional permission to them to reside in Northern Ireland or to exclude them altogether. It may well be that what is, in fact, required is to put a term upon their possible stay there, a month, three months, or six months. That is the only reason the power is taken to impose conditions upon the granting of permission.

My hon. and gallant Friend referred also to that part of the Order in Council which amends Regulation 47A, which deals with merchant shipping. He said quite frankly that the offences set out in this new Amendment to Regulation 47A appeared to him to be already offences under the Merchant Shipping Acts, and therefore, he had not been able to make out the purpose of the new Regulation. I quite appreciate his difficulty. The main purpose, if not the only purpose, of the Amendment, is to make these offences offences under the Defence Regulations and to bring them within the scope of Defence Regulation 92, which is the general penalty Clause where no penalty is contained in the terms of the individual Regulation.

Commander Bower

May I say that I think this is a very good example of a case where simplicity might have been achieved if there had been some explanatory memorandum, as has been promised, which would have mentioned Defence Regulation 92. I failed to get to it.

Mr. Peake

That was exactly what I was about to say. Here is a case where a short statement would have made the whole purpose perfectly clear to hon. Members, and this is the sort of case which my right hon. Friend the Home Secretary had in mind when he said that in future explanatory statements would be made where they appeared to be necessary and would always be made if they were asked for.

Lieut.-Commander Braithwaite

And laid prior to the Order being brought before the House?

Mr. Peake

Obviously, I cannot go beyond what the Home Secretary stated on this matter last week. I have dealt with the specific points raised in opposition to the Order in Council, and I think that under the Ruling you have given, Mr. Speaker, I should be going too far if I tried to deal with the general situation.

Mr. Rhys Davies (Westhoughton)

I do not join in support of the Prayer; I just want to put one or two questions to the Under-Secretary of State. His remarks brought to my mind that I have had correspondence from Northern Ireland asking me if I could do anything in connection with this very problem, about which the hon. Gentleman has been speaking. I have replied to the effect that we in this Parliament have nothing to do with the Government of Northern Ireland. Will the hon. Gentleman tell me whether I was wrong? How far do the Government in this country intervene in the movements of individuals in Northern Ireland? The case I have in mind is one of two workmen in Belfast who have been arrested. I understood that actions of that sort rested exclusively with the Government of Northern Ireland. From the hon. Gentleman's speech it seems that I am not right in my assumption. The other point to which I want to refer is the punishment for misdeeds on board ship. I understand that there is provi- sion in one Regulation for punishing a sailor who may be found drunk on board ship. Is there any punishment for dealing with the person who supplies the sailor with the drink to make him drunk?

Mr. Speaker

That does not arise out of the Order in Council.

Mr. Peake

With regard to the first point raised by the hon. Member, questions of immigration into and emigration from Northern Ireland are what are called reserved subjects under the Government of Ireland Act, 1920, to which I would refer the hon. Member if he wants to gain a precise knowledge of the powers which are reserved to the Imperial Parliament and those which are granted to the Parliament of Northern Ireland.

Commander Bower

In view of the Under-Secretary's statement, I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.

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