HC Deb 22 July 1943 vol 391 cc1186-8
Mr. Hogg

On a point of Order. There is an Amendment in my name on this Clause.

The Chairman

Perhaps the hon. Member would touch upon it on the Motion "That the Clause stand part."

Motion made, and Question proposed, "That the Clause stand part of the Bill."

Mr. Hogg

The point which I desire to raise is that under the Clause as drafted His Majesty may, by Order in Council, make certain modifications in the Act such as appear to him to be necessary for the purpose of extending rights of appeal in the event of changes in the Royal Warrant. In the view of my hon. Friends and myself it is not enough to give that power, and the object of the Amendment standing in our names was to make it mandatory, to state in the Act that the Minister must give the power to appeal in suitable cases where the Warrant is altered. As the Clause is drafted at the moment, it is a matter for the discretion of the Minister whether he advises His Majesty to issue an Order in Council giving this power. We thought it would be better to lay down definitely in the Act that he must always do so. I should be grateful to the Government for an explanation of why this view is wrong.

The Attorney-General

My hon. Friend would no doubt agree that under the procedure in Orders in Council "may" is the word which this House has always used, though I think many cases could be found in the Statute Book where it was plainly not only the intention of this House but it was necessary that Orders in Council dealing with or tidying up or providing for certain matters should be issued, and the thing might break down if you did not issue them. I agree with my hon. Friend that in the realm of logic he is right. If there are alterations, this appeal must be made, but the proper procedure is that we have first of all to proceed by way of amending the appeal, because that is the right way to do it, and there would be the formal document altering the form of this appeal should it become necessary to do so. Suppose there were some further alterations to the provisions we have discussed so much in Clause 1 and the words of the Royal Warrant were altered. There should be some form of instrument not merely saying that a man could appeal under the Royal Warrant as altered but amending this Bill so as to make the two things fit. The proper instrument for amending the Bill is an Order in Council, and one cannot use the word "shall" with regard to His Majesty's Order in Council, so therefore I hope my hon. Friend will accept the position. If there are extended rights of appeal then alterations must be made and the Act made to apply. But there are precedents for this type of procedure. There would be a first-class row in the House if an Order in Council was not issued making a provision when the time came.

Mr. Baxter

Is the word "may" permissive on the part of the House of Commons or is it just a prognostication? What is the difference between the words "may" and "shall"?

The Attorney-General

"Shall" has never been applied to an Order in Council. We have never said that His Majesty "shall" issue an Order in Council.

Mr. Baxter

What is the meaning of the word "may"?

The Attorney-General

The word "may" gives power. In many cases, as a matter of strict law, although the House of Commons has used the word "may," where it is coupled with a duty it has been construed as "shall."

Mr. Tinker

Is it not an act of courtesy to His Majesty not to say to him that he "must" do certain things? Behind it all is the power of Parliament but His Majesty has never gone against it.

The Attorney-General

It has some constitutional importance.

Mr. Baxter

My only point was that "may" seems a little condescending.

Mr. Hogg

If that were the only difficulty, it would be easy to adopt a form of words such as that on the Order Paper which does not refer to "His Majesty by Order in Council" at all.

Dr. Morgan

Apart from the majestic reference, is there not a consensus of legal opinion which in courts interprets "may" as "shall" in regard to such matters as this?

The Attorney-General

I would not go so far as that.

Question, "That the Clause stand part of the Bill," put, and agreed to.