§ Major Petherick (Penryn and Falmouth)
I beg to move,That this House, admitting the necessity for war purposes of giving abnormal powers to the Executive, is of opinion that Parliament should vigilantly maintain its ancient right and duty of examining legislation, whether delegated or otherwise.Hon. Members may have wondered when they first saw the Motion which is upon the Paper in my name and those of a large number of my hon. Friends, why it was necessary to put down a Motion which appears to be perhaps more suited to a rather genteel debating society than to a practical and virile Parliament, but it is necessary, if we are to maintain our freedom, to be constantly vigilant and to watch with the greatest care the activities of the Executive. Liberty may always be, at any moment, compromised, odd though it may seem, by laissez faire, by lassitude, by laziness or perhaps by overlooking some general tendency which it is the duty of Parliament to observe, and therefore it seems to many of us to be vitally important constantly to reaffirm the ancient principles for which Parliament has, through the ages, fought so strongly and, at times, so bitterly. Furthermore, the Motion has a very definite purpose. As in the case of the bee, the point is in the tail which specifically refers to delegated legislation, that is to say, to the 1594 powers which are granted by Parliament to make Rules, Orders and Regulations under the Statutes which Parliament passes. I am not for one moment suggesting that the Executive should be the weak slave of a powerful House of Commons. On the contrary, I believe that it is necessary to have a strong Government—a strong Government constitutionally and a Government which at any time will stand up for what it Believes to be right, which without fear or favour will maintain the policy which it considers is the right one for the country and which will not, on the one side, be led into oppression of the individual or, on the other side, be led away from its duty by the clamour and noise of irresponsible demagogues. I believe that few things can be more fatal to Parliamentary institutions than an overwhelming and an over-weaning Parliament imposing its will upon a feeble Executive, because this is not only bad in itself, but it has the almost inevitable consequence of causing the Government itself, in course of time, to be composed of weaklings and of nonentities.
§ Major Petherick
I would like to refer for a moment to the immense advantage which we enjoy in this country, and have enjoyed through the ages, of having a Constitution which is largely unwritten. No rigid series of rules such as were laid down by the Medes and Persians and other more modern nations have ever been laid down for us by a body of persons at any given period who thought that their wisdom was eternal and that the circumstances on which they based their code were perennial and would hold good for all time. As a result, we have in our British Constitution a combination of the written and the unwritten, of Statute law and of custom and tradition, together with the ineffable advantage that the King in Parliament can at any given time amend any part of the Constitution.
Thus we have a composite and an ancient edifice which is amorphous though definite, delicate yet powerful, virile yet steadfast—the world's greatest example of a gigantic paradox which works. Evidence of a very merciful lack of rigidity in our Constitution is the overlapping at many points of the judicial, the administrative and the legislative functions, and I fear 1595 that this must be a source of abhorrence to logical and tidy minds. But none the less, it has been found to suit in a peculiar fashion the peoples of this Island; and certainly in anything I say to-day there* is nothing, I hope, that can be taken to advocate any form of extreme rigidity and certainly not of a written Constitution. But these powers which Parliament has granted have to be watched most carefully. There has been an immense growth over the past 50 years. The Government of the day enjoy powers which the Earl of Strafford would have given his head to possess had indeed he not, unfortunately, lost it in a vain attempt to grasp at far less extended authority.
At this point I would like to make it clear that in no case are any of us, I think, advocating the extreme rigidity to which I have referred. But I believe it is most necessary from time to time to take stock, not to introduce undesirable rigidity, in order that some codification and some form of definition of the powers granted may be arrived at.
I would like to make it perfectly clear that this is no case of State control against private enterprise. On the contrary, it may very well work the other way. You may have a laissez faire Government, highly individualist in character, which may very well decide to denationalise some of the industries that are already nationalised. I have asked myself once or twice whether it would be possible to denationalise Woolwich Arsenal by Regulation. Furthermore, you might very well have a Government which decided, as a result of a number of strikes, that the Trades Disputes Act should be strengthened rather than weakened, and, therefore, it seems to me that this is not a case of one party against another; it is a case in which Parliament itself, quite regardless of party, should be interested in the most lively fashion.
Many of the Regulations which are now tabled and some of which we have discussed have nothing whatever to do with trade; indeed, it is a case of Parliamentary government on the very broadest scale. I do not believe that Parliament itself is yet fully alive to the immense growth of this form of delegated legislation. We who are particularly interested in this Motion to-day are not in any way striving to prove a case against delegated legisla- 1596 tion in toto. Indeed, we believe it is absolutely necessary, particularly in wartime, that great and extended powers should be given to the Government of the day for the carrying-on of the war. We have to be very watchful to make sure that powers are not being overstepped or overstrained. Even in peace-time, owing to the growth of the population, its consequent unwieldiness and the extraordinarily variegated numbers and characters of the trades and professions in this country, and, alas, owing to a peculiar affection for interference, which seems to be a sign of modern times over the greater part of the globe, these powers have grown. People have been apt for these last years to huddle together rather like a lot of sheep bleating for a shepherd, in the hope that somebody could be found to lead them into the fold. Occasionally, alas, they follow a crook and are rather disturbed when they find what the fold is like. I hope that those fighting men who are now defending freedom in so many different territories and climes will, when they come back to this country, having known the immense advantages and value of individual initiative, disciplined though it may be, will not lightly surrender to people of their own blood and kith and kin that freedom which they have wrung at the expense of so much blood and tears from foreigners.
May I go back for a moment to history? Legislation by Order was, I do not say started, in the time of Henry VIII but at least became rather a fashion. Henry VIII issued a Statute of Proclamations, but even in the time of that despotic Tudor monarch that Statute did not go by with a swing, although some of its opponents did. One interesting example of an Order of that time was one which stated that the Bishop of Rochester's cook was to be boiled in oil. I have not heard any serious complaints from any incumbent of that See since that time about the way his victuals were prepared, so perhaps the sharp warning which was then given had a salutary effect. Humanitarians, of course, take exception to this sort of thing, and that is rather an extreme - example of a severe Order. In passing, I may say that it has nothing whatever to do with another Order passed by this House just before the war referring to the burning of bracken. The Ministry of Information have informed me that the Order has not yet been carried out.
1597 I would like to point to the immense growth over the period of the last few years alone of the type of legislation to which I have referred. In 1931 there were 800 statutory Rules, Orders and Regulations; in 1938, while we were still at peace, the number was 1,606, more than double; in 1942 there were 1,697, and this year, so far as we have gone, there are over 700. Nearly all these Rules, Orders and Regulations, or at any rate a large proportion of them, carry severe penalties which a subject of the King may have to undergo if, unfortunately, out of ignorance alone he infringes them. I know that ignorance is no excuse, no defence, in an action, but, nevertheless, it is alarming when you consider the possibilities of breaking the law in this huge number of Rules, Orders and Regulations on the Statute Book. I very much doubt whether any right hon. or hon. Gentleman adorning the Front Bench could accurately name 5 per cent, of the Orders which were issued last year, giving the penalties attaching to them and the objects for which they were applied.
There are those who say that this is all the fault of the civil servant, that the Civil Service is an ever-growing self-breeding octopus which is endeavouring to grasp more power for itself in order that it may rule the country over Parliament. I do not think such an accusation is fair; the fault lies here in the House of Commons. The House is not always sufficiently alive to its responsibilities, or sufficiently watchful, in this matter. The Civil Service is a loyal, efficient and industrious machine. But it is a machine, and it has, perhaps, the faults of a machine, namely, that you may have in any given Department a number of officials who know incomparably more than the House of Commons knows on any applied subject, but these officials cannot, and do not, know in the majority of cases what effect what they are doing will have not only on other Departments but on the country as a whole. That the House of Commons does know, from its constitution, knowledge and ever-continuing touch with its constituents all over the country. The civil servant does not see, very often, with all his merits, the whole picture. I admit that some civil servants do grasp for power; it is one of the faults of human nature that the more power you give to a man or institution the 1598 more that man and that institution are apt to ask for it." L'appétit vient en mangeant."Hitler started as a house painter. Therefore, it seems to me that the Civil Service must itself be controlled very carefully by the Government and that the House of Commons, as well as the Government, must see that the Civil Service consists of the civil servants and not the civil masters of the nation. I may here point out how difficult it is when we are striving for reform in all these matters to do so successfully when the terminology employed is so obscure, so indistinct and so confused. The same kind of instrument with the same sort of powers may be called an Order in Council, or a Regulation, or a Rule, or a Warrant, or a Special Order, or an Order. Then, of course, there is the whole secondary series of directions, instructions and sub-orders. There is no method and no sense in all this. It seems to me sometimes that a Member of the Government if he wants an Order, may put his hand into a sort of bran pie and pull an Order or a Regulation or an Order in Council out of the bag. Then, too, it is possible to make Regulations under a Statute and to make Orders under the Regulations—these as it were being the grand-children of the Act of Parliament. On top of that, you may have great-grand-children in the form of directions and instructions made under the Order, which is made under the Regulations, which is made under the Act of Parliament. To make things even worse, some of these Orders or Regulations, or whatever you may call them, need confirmation, some can be annulled by a Prayer in this House, some of them are unchallengable and some do not come before Parliament at all.
Therefore, I would claim that one immediate reform which ought to be brought into being is to have, as far as possible, a complete standardisation of the nomenclature of all these various instruments. I suggest, with great diffidence and respect, because I realise that this is a complicated subject, the following divisions in the terminology—first, that the expression "Orders in Council" should be used for things which are done under the King's Prerogative, that is to say, a declaration of war, or a declaration for instance that His Majesty is in occupation of the Province of Tripolitania. It should be used also for matters of Im- 1599 perial purport and all matters of great and first-rate, indeed of majestic, importance. I suggest that the term "Regulations" should be used for Regulations made under Statutes, and if they are made by Judges, the expression "Rule" should be used. That is for the first line, the actual children of the parent Statute. Thirdly, I would suggest that the instruments made under these Regulations, or the grand-children of the parent Statute, might well be called Ministerial Orders, and if a fourth class is needed at all, that these should be described as "directions." I would commend that suggestion to the consideration of the House.
Now I come to the really important point which we are advocating to-day, that is, the setting-up of a Standing Committee consisting of Members of all parties in the House, to examine delegated legislation and report upon it to the House where necessary. In 1931, a Committee under Lord Donoughmore was set up to examine all this wide sphere of delegated legislation. The irreverent suggested that the Committee might well have been called the "Do-no-more Committee," because no action of any kind has been taken from that day to this. Recently, owing to the active mind—and body—of my hon. Friend the Member for South Croydon (Sir H. Williams) Parliament has to a very large extent been awakened to the dangers which may confront us, and as a result of his activities and those of a number of other hon. Members, the Government have made a few fairly important concessions. For instance, my right hon. Friend the Home Secretary a short time ago announced that Orders would be printed separately if they concerned different subjects; that they would be made more understandable, and that in cases of need, explanatory notes would be issued with them.
That does not go far enough. In the course of this Debate I am sure that other hon. Members will make other valuable suggestions, but one reform is very badly needed, and that is that we should have a strong Standing Committee such as I have suggested to "vet" all the various forms of Orders which are presented to the House. I believe the country is interested in this matter. There have been helpful and valuable comments in the Press and many distinguished writers 1600 have pointed to the danger in which we stand. The Donoughmore Committee advocated, in the main, two things with regard to the proposed Standing Committee. It suggested, first, that the Committee should examine all Bills with lawmaking powers, and, secondly, that it should examine also the Regulations which I have been discussing to-day. I would claim that it is unnecessary for such a Committee to examine Bills at all. Bills are subject to the fiercest scrutiny on the Committee stage, and on the Report stage, not to mention Second and Third Readings in this House, and I suggest that that proposal would be merely cluttering up and making too heavy the work of a Standing Committee such as I suggest. I think they should confine themselves strictly to Orders, Rules and Regulations.
This is a modest request, and I believe that there may be five main reasons why there is an unwillingness to accede to it. First there is, I think, the fear that Ministers and civil servants may be asked in their very valuable and hard-worked time to appear before the Committee to defend their own Orders. We are asking nothing of that kind. We do not believe it would be necessary, and therefore I would say that that argument falls to the ground. Then there is the possibility of delay. I see no reason why there should be any delay if the Ministers and civil servants are not called upon to defend their Orders. Thirdly, it may be said that the task is too great, that there are far too many Rules, Regulations and Orders for a Committee to examine. The answer to that is simple. The remedy is in their own hands. Fourthly, it may be said that the Committee would be obliged to examine the merits of any Order which came before it. That does not seem to be necessary at all. I think all the Committee need do, when it has examined an Order, is to report to the House if, and only if, there is anything to which it thinks the attention of the House should be called. Merit might conceivably enter into the question occasionally, but in general I cannot see that merit need be discussed in any way.
Mr. Maxtor (Glasgow, Bridgeton)
What is to be discussed?
§ Major Petherick
I was trying to suggest to the hon. Member for Bridgeton 1601 (Mr. Maxton) that the Committee would simply see if there was anything in an Order to which they thought any section of the House might reasonably take exception. It is difficult to give a case in point at this moment, but they would draw the attention of the House to any matter to which they thought the attention of the House ought to be drawn. Finally, there is the question of staff. I do not think that that is in any way an argument against my proposal. These Orders and Rules may, and indeed do, affect large numbers of people. Some of them may affect millions, and I do not believe that it would be necessary to have more than two or three additional staff in order that the Committee might do its work effectively and efficiently.
In conclusion, I would say that, even now, while we are in the midst of war, we should carefully and closely watch all this delegated legislation, and when peacetime comes, it behoves us to ask, with a loud and determined voice, the question, "Quo vadis"? We must make sure that the country will not find its last vestiges of liberty being removed or whittled away and that after a long and bloody war our people will not find the shackles forged for them in their own name, so great, so strong, so powerful that they cannot possibly escape from them.
§ Mr. Ralph Etherton (Stretford)
I beg to second the Motion.
I hope the Motion will receive the support of all sections of the House, for this is no party matter. It affects the functions of the House itself.. Our object is to suggest certain safeguards which we believe to be necessary to secure the constitutional principle of the sovereignty of Parliament. I accept without any question at all the necessity of giving abnormal powers to the Executive in war-time, and I accept the consequent ' inevitability of a substantial number of Orders, Regulations and Rules. There have been many thousands already during the present emergency, but I think we have reached a stage in this war when the emergency has become a normality. I think one can, therefore, at this stage properly suggest, and I ask to-day, that there should be a codification of all emergency legislation, of all Orders, Rules and Regulations and all 1602 sub-orders, sub-rules and sub-regulations which may be of an emergency or temporary nature which have come into operation by virtue of the Emergency Powers (Defence) Acts, 1939 and 1940. I know hpw easy it will be to stone-wall that suggestion, but I hope that the Government will give it a really sympathetic and thorough examination. The Defence Regulations themselves are kept up-to-date from time to time. There is, in my submission, no reason why the sub-orders and sub-regulations should not at this stage be codified. Indeed it has already been done unofficially to some extent by certain firms of law publishers.
I want to pass to the broader issues, which I hope the House will consider to-day. This is no new problem. It arose many years ago. But I think it was first noticed during the last Great War. It is a dangerous weed which has grown and multiplied since then. The dangers were seen first, I believe, in 1929, when Lord Donoughmore's Committee was appointed. That was, of course, an all-party Committee. It spent some three years taking evidence and examining all the aspects of this problem. It is extremely hard for any Member to be really well informed on this subject unless he has read that Report, and I hope Members will at some stage study it, for it has become a standard treatise on this subject. I feel that it is no exaggeration to say that the sovereignty of Parliament is threatened. It is rather like ivy, gradually tightening its grip on a tree until, if it is not controlled it will eventually strangle and kill the tree itself. The Donoughmore Committee reported:There is at present no effective machinery for Parliamentary control over the many Regulations of a legislative character which are made every year by Ministers in pursuance of their Statutory powers, and the consequence is that much of the most important legislation is not really considered and approved by Parliament.I should like to add to that there we have since got to the stage where Regulations and Rules, and the children and grandchildren of Regulations and Rules, not only do not have any Parliamentary sanction, but many of them are not laid on the Table of the House. I realise that the time may not be particularly opportune, during the war, to deal as comprehensively with the matter as I hope 1603 will be possible at some later time, but I ask that one recommendation of the Donoughmore Committee may be implemented and adopted now during the emergency. The Committee said:We are convinced that no system of antecedent publicity, however effective, can relieve the two Houses of Parliament of the duty of exercising an effective supervision over delegated legislation themselves. We are equally convinced that at the present time Parliamentary control over delegated legislation is ineffective in two respects.My hon. Friends who are concerned with me in bringing this Motion before the House ask only that one of these defects should receive attention now. It is the one to which the Committee drew attention in these terms:Although many Regulations made in pursuance of those powers are required to be laid before both Houses, and are in fact so laid, there is no automatic machinery for their effective scrutiny on behalf of Parliament as a whole, and their quantity and complexity are such that it is no longer possible to rely for such scrutiny on the vigilance of private Members acting as individuals.If that was the situation in 1932, the position is tenfold worse to-day. Except perhaps for my hon. Friend the Member for South Croydon (Sir H. Williams), I doubt whether anyone could say he had examined 5 per cent, of the Orders that have come out this year. The Donoughmore Committee said:A system dependent on human initiative is liable to break down, and the best security for the effective working of any system is machinery which is automatic in its action. We have, therefore, arrived at the conclusion that the time has come to establish in each House a Standing Committee charged with the duty of scrutinising every Regulation made in the exercise of legislative powers and required to be laid before Parliament as and when it is laid.It is just such a Committee for which we ask to-day. The task of the Committee would not be to act as a censor or as a critic of any proposals which were made. It would merely supply Members with information which they lack to-day. There would be no question of doing the work of Government Departments over again. There would be no question of calling before the Committee any Minister or departmental official. The Committee could have power to send for papers, but it need not take the power to send for persons. I suggest that the Committee should have the assistance of a clerk of 1604 the House. It would not be necessary for him to devote his whole time to the task. When he was not assisting the Committee in its work he would be available for his ordinary duties. I would suggest that the Committee, with the consent of Mr. Speaker, should have the assistance of Mr. Speaker's counsel whenever that was found to be helpful. The Committee would in no way affect or delay the coming into operation of any Order or Regulation. It would merely consider and report on Orders and Regulations made in the exercise of delegated legislative powers while they are lying on the Table of the House.
There have been considerable agitation and correspondence on this matter in the Press and elsewhere. I see it has been suggested that the two principal objections to such a Committee would be that there would be a delay in the passage of urgent war-time legislation and that it might impose more burdens on already overworked Ministers than they could properly carry. I venture to suggest that neither of these objections is a real or substantive objection. There would be no question of delay. The operation of the Orders and Regulations would be exactly the same as it is to-day. There would be no change in the speed with which they would be brought into operation. There would be no additional burden on any Minister or official, because they would not be asked to attend before the Committee. The procedure which I suggest is that recommended by the Donoughmore Committee on page 69 of their Report. The hon. Member for Bridgeton (Mr. Maxton) asked what the Committee would do it they were not to examine merits. I would like to read five of the recommendations which the Donoughmore Committee suggested as the terms of reference for such a Committee:The Committee would not report on the merits of the regulation or rule but would report: (1) whether any matter of principle was involved; (2) whether the regulation or rule imposed a tax; (3) whether the regulation or rule was (a) permanently challengeable or (b) never challengeable, or (c) challengeable for a specified period of time; (4) whether it consisted wholly or partly of consolidation; and (5) whether there was any special feature of the regulation or rule meriting the attention of the House.
§ Mr. Maxton
That is what the Committee would report on, but to arrive at 1605 conclusions on at least three of these things the Committee would have to examine the merits of the Order.
§ Mr. Etherton
The Committee might to some extent have to consider merits, but in doing that it would only consider merits so far as they were germane to making a decision on these specific points. In no case, I suggest, would it be necessary for it to call before it a Minister or an official.
§ Mr. R. J. Taylor (Morpeth)
How could the Committee arrive at a clear conclusion on the merits if it had not the whole of the facts before it, and how could it get the facts if it did not call someone to put the case to it?
§ Mr. Etherton
I do not think that the Committee should arrive at a decision on merits. Our suggestion is that it should not consider merits at all except so far as it was necessary to arrive at a decision on these matters to which I have replied. I can assure the hon. Member that those who are associated with me in this Motion do not consider that it would at any stage be necessary in normal circumstances to consider merits. Indeed, an unofficial committee which has been sitting from time to time upstairs and doing some work of just this nature has, so far as my experience of it goes, hardly ever found it necessary to do other than give a superficial examination to Regulations in order to see whether they are such that Members themselves individually should examine them more closely. I hope that the House will urge the Government to appoint a Standing or Select Committee and that the Government will accede to the request.
§ Colonel Sir Charlies MacAndrew (Ayr and Bute, Northern)
The Government do not appoint Standing Committees.
Mr. Lawsoa (Chester-le-Street)
Is it not necessary to know, in order to arrive at a conclusion, how Rules and Orders are going to operate and affect the people of the country? How could the Committee arrive at any conclusions unless it had evidence on matters of that kind.
§ Mr. Etherton
That surely would be a matter for individual Members. All that the Committee would do would be to say that an Order was of a normal kind to which Members need not pay special atten- 1606 tion, or that an Order was of an abnormal nature coming within one of the five categories mentioned by the Donough-more Committee and that individual Members should look into it closely. All we suggest is that the Committee should direct the attention of hon. Members to those Orders which Members ought themselves to examine in closer detail. I have seen an alternative suggestion made in a letter to "The Times" by the hon. Member for The High Peak (Mr. Molson) that a Standing or Select Committee should be attached to each State Department to make a full examination on merits of Orders. A procedure like that would be equal to or possibly even more effective than the one we suggest, but it might be too cumbersome in war-time. However, if the Government favoured such a procedure it would satisfy me, though perhaps the burden on the House might be greater.
There is a pressing need for an established and clear practice in regard to the naming of Orders and Regulations. My hon. and gallant Friend referred to this matter and suggested certain classifications. Whatever the position in the past, there should be no difficulty for the future in following some clear and denite form of classification. I do not mind what the classification is; all I ask is that it should have some definite recognisable order of precedence. My hon. and gallant Friend suggested that there should be first the Order in Council reserved for the exercise of the King's Prerogative. I would like to associate myself with the whole of the order of precedence that he gave. There may be some other classes for which some provision should be made. All we ask is that there should be some definite, recognisable order of precedence.
There is another change in practice which I should like to see and which I hope the House will urge. I suggest that no Regulation or Order of any kind should be operative until it has appeared in the "Gazette." At present no one has any way of hearing of many of these Orders and Regulations, and there have been some glaring instances of Orders being operative a considerable time before they have even been laid on the Table of the House. Another matter for which I would ask consideration is that the Government should adopt the practice wherever possible of making Orders and Regulations subject to affirmative Reso, 1607 lutions. I have pointed out that many Orders and Regulations do not come before the House at all. They become law without even being laid on the Table, and I ask that whatever may be decided it will be decided to have some curtailment of that practice. I hope that on those occasions when a Prayer is put down against an Order we shall see in the House the Minister himself, when he is a Member of the House, to speak to the Prayer and that we shall not merely have the Under-Secretary or the Parliamentary Secretary. I hope that the House will wish to preserve its ancient rights and the sovereignty of Parliament, and I urge the Government to hearken to our proposals. After all, what is the use of fighting for democracy in Europe only to find that we have-lost it here at home?
§ Mr. Logan (Liverpool, Scotland Division)
On a point of procedure. Reference has been made to the Report of the Donoughmore Committee, but no such Report is available in the Vote Office. Is it possible for arrangements to be made for copies to be in the hands of Members? We are talking about abuses that may be brought about by not knowing what we are doing, but we are now creating the very abuse we are trying to obviate by not. having copies of this Report.
§ Mr. Speaker
I cannot do anything about a Report which is not in the Vote Office. I have no doubt that it is in the Library, and Members can go to the Library and see a copy of it there.
§ Sir Percy Harris (Bethnal Green, South-West)
I shall not speak long, for I regard this largely as a private Members day. It brings us back to the happy days we used to spend on Fridays and Wednesdays discussing Private Members' Bills and Motions. Let me congratulate the hon. and gallant Gentleman the Member for Penryn and Falmouth (Major Petherick) on his eloquent speech in moving the Motion. The only criticism I would make is that the Motion is hardly worthy of his eloquence. I cannot imagine any hon. Member, even a Minister, taking exception to the wording of the Motion. It says:That this House, admitting the necessity for war purposes of giving abnormal powers to the Executive "—1608 We have given these powers ourselves, so we have to bear our own responsibility in this matter—is of opinion that Parliament should vigilantly maintain its ancient right and duty of examining legislation, whether delegated or otherwise.If we are not prepared to examine diligently legislation, whether delegated or otherwise, I do not know for what purpose this House of Commons exists. It is our duty and our responsibility, and if we do not do it, we are very much to blame. One criticism which I would make of hon. Members opposite is that it needed a war to stir up their consciences to a recognition of their responsibilities. We have heard a lot to-day about the Donoughmore Committee, whose Report was issued as long ago as 1932. For seven years its pages were allowed to accumulate dust while hon. Members opposite conveniently forgot its existence.
§ Sir Herbert Williams (Croydon, South)
Not at all. I remember quoting from it at great length upstairs just before the outbreak of the war.
§ Sir P. Harris
I do not want to quarrel with my hon. Friends. I am delighted. I think this is a very useful Motion to bring forward. My only trouble is that I believe it could have been expressed in stronger terms. In its present wording it is almost like a repetition of the rebuke given to this House by my right hon. and learned Friend the present Minister of Aircraft Production when he was leading the House. I do not want to criticise; on the contrary, I think it is a good thing that this Motion has been submitted; all I say is that it needed a war to remind many Members of their responsibilities in this respect. The hon. and gallant Member who moved the Motion was quite right in insisting on the vital importance of our slow, cumbersome procedure in passing Acts of Parliament, its strength being its slowness—the gradualness of the various stages, allowing public opinion time to ventilate itself, and criticism to appear, and preventing hasty legislation which interferes with the rights of the people. The more we adhere to that old-fashioned system the better it is for the Constitution. 1609 But we have to be frank with ourselves. We have been through one of the most trying ordeals which any nation has had to face. How near we were to invasion only history will prove. In 1940, it is common knowledge, we were in serious danger of having to move Parliament from London to some provincial town. We actually went through the procedure of making arrangements to set up emergency courts. It was necessary to invest the Government with large powers of executive action, which was only possible through Orders in Council and Regulations made under them.
I am not going to quarrel with the Government for exercising those powers during these first three years of war. Prompt action was necessary. Sometimes people have said that Parliament is slow and cannot work in war-time. We have proved during the last three and a half years that Parliamentary government can adapt itself to war conditions, is flexible and can meet the emergencies and dangers of war. Therefore, I do not think we should be too severe on the exercise by the Government of the very great powers which we vested in them. I have never forgotten the day on which we passed through, in 24 hours, a whole host of powers, putting the Government into the position, practically of a dictator. We were prepared to do that in the face of a real danger that existed. A National Government came into power, and we dropped our party labels and showed our trust in that Government by investing them with very great powers. I do, however, suggest that, thanks to the Royal Air Force, thanks to the great progress that has been made in the development of the three Services, there is no reason why we should not return to the slow, cumbersome, delaying system of Committee stage, Report stage and all the processes of ordinary legislation. We spent a very happy day yesterday, and a very useful day, examining a Bill. We spent another very useful day on the Catering Wages Bill. Some of those powers might have been carried through by Orders in Council, but when hon. Members had the opportunity to exercise their ingenuity and intelligence by examining the Bill, they ran away from it. I know that my hon. Friend opposite who interrupts me was one of the brilliant exceptions, but the majority of the critics, when they were 1610 allowed to have the time to examine the proposals on the Floor of the House, did not exercise their privileges.
As I have said, I am glad to see this Motion, although it has needed a war to stir up the consciences of the keepers of the Constitution, of the members of a party that claims to be the protector of our Parliamentary system and our Constitutional machinery. I am glad they have been stirred up to action. It took a National Government to achieve that. The other day I was looking up some records of the Parliamentary Debates of the past, and I found my hon. Friend the Member for Dundee (Mr. Foot), who is now clad in all the majesty of a Minister and sits on the Treasury bench without regard to his murky past, moved a Motion on one of those pleasant Fridays to which I have referred, on 27th January, 1937. It said:The power of the Executive has increased, is increasing and ought to be diminished.—not quite such a harmless Motion as the Motion now on the Order Paper, but a Motion which, one would have thought, the whole House would have welcomed. But when my hon. Friend was exercising his eloquence, and marshalling his arguments with his accustomed skill, Members actually filed out of the House, and the Motion was talked out. I do not know where the hon. Member for South Croydon (Sir H. Williams) was on that occasion. I do not know where my hon. and gallant Friend who moved this Motion was. There was no danger of war then, we were in the piping times of peace, the Government had an immense majority, and Members would have been quite safe even if they had exercised a little independence. At any rate, it was quite safe for them to remain to hear the discussion, but they were so alarmed at the arguments of my hon. Friend, so afraid that they might be persuaded to vote against the Government, that they all disappeared, and the House was counted out.
§ Mr. Levy (Elland)
Is not the fact that nothing was done in 1937 all the more reason why it should be done now, in view of the shoals of legislation coming before us?
§ Sir P. Harris
I am all in favour of the Motion. All I am saying is that it needed a war to stir hon. Members opposite into action.
§ Mr. Maxton
My right hon. Friend will forgive me if in answer to one rhetorical question I ask him where, on the occasion to which he refers, were the Liberals? Were there not enough of them?
§ Sir P. Harris
The electors have not sent 40 of us to this House. However clever we may be, however much we may expand ourselves, we cannot expand our numbers from 20 to 40 in order to be able to keep a House. The hon. Member for South Bradford (Mr. Holdsworth), who is a vigorous Liberal, was there, I am sure, to support us, but so many of my hon. Friends were tied up with their bad associations with the policy of some of their Conservative colleagues that they were not present to keep a House. However, I do not want to embarrass hon. Members. I have only mentioned this because my hon. Friend the Member for Bridgeton (Mr. Maxton) raised the question. Of course he was there. We had another opportunity later. A Private Member's day is a Private Member's day, but it is a sad thing to have to say that when Private Members do have an opportunity to discuss a Private Member's Motion they have a habit of fading away, of going off for the week-end and not carrying out their duties.
There was another occasion before the war when a Military Training Bill was introduced. It was a very important Bill, and it contained a Clause—Clause 10 in the Bill, afterwards Section 11 in the Act—which gave the Government tremendous powers. It made provision for the Government, if they thought it was expedient, to modify any enactment relating to matters referred to in the Measure. It was suggested that those powers should be limited to 12 months. We realised that in the light of the danger with which we were threatened, a possible war, it was necessary to give the Government large powers, but these Henry VIII powers, these powers of overriding legislation, should be limited, we thought, to 12 months. There was a Division. I am going to give credit to my right hon. Friend the Home Secretary. He is a great believer in the Constitution, and he voted for the Amendment. But there, again, my hon. Friend the Member for South Croydon, who was not absent on that occasion, voted against this most reasonable restriction limiting the powers of the 1612 Executive to 12 months. I hope that my hon. Friends opposite will not limit their enthusiasm for protecting the Constitutional rights of Parliament against Executive action by Orders and regulation to the time when we have a National Government and when we are at war, but will continue their diligence and enthusiasm when there is a Conservative Government.
We have had excellent speeches in this Debate, and I shall not repeat the argument which has been put forward. There is an overwhelming case for setting up something on the lines of the machinery recommended by the Donoughmore Committee. I think it would be a good idea to have a Committee of this House set up, not by the Executive but by the House of Commons, to examine these Rules and Regulations. It might very well be composed of the Chairmen's Panel. Although, of course, that Panel is set up by the Speaker himself, in this case the Members who form the panel might very well form a Committee to be appointed by the House, because they are selected on account of their special understanding of the machinery of Parliament. They could examine in detail Orders and Regulations to see what the reactions would be.
Another suggestion which I think is very important is that we should limit the Regulations made under Orders to the very minimum. If it is necessary to make an Order, it should be in black and white and should not give powers to make too many Regulations. Thirdly, and here I am pushing an open door, because I understand that the Home Secretary and the Government have already accepted the principle, when it is necessary for the Government to ask for such powers—and it will be necessary so long as the war lasts—there should be a full explanatory memorandum explaining to the House its Reactions, and warning us of what it implies, so that it would not be rushed through without the knowledge of Members of Parliament. The House of Commons must exercise responsibility, and, when it is necessary to give such powers to responsible Ministers, we should do so with open eyes, conscious of what we are doing. These powers should not be sneaked through with confused verbiage which 1613 Members, or at any rate the public outside, can hardly understand. We should make it clear to the Executive Department that they are the servants of the House of Commons, and if they ask for such powers they must make the implications clear to the House of Commons.
§ Colonel Sir A. Lambert Ward (King-ston-upon-Hull, North-West)
I am sure that the right hon. Gentleman who has just spoken will excuse me if I do not accept his challenge and turn this Debate into a full-fledged, old-fashioned, party Debate. If I did, I should venture to remind him that a certain party clamoured for disarmament, and with the very next breath clamoured for war. I congratulate my hon. and gallant Friend the Member for Penryn and Falmouth (Major Petherick) on his able and interesting speech, but I cannot help feeling that the House shared my feeling of unreality that such a Debate should take place in wartime. I am aware that our magnificent victory in Tunisia has rather given the impression to certain people that the worst time of the war is over and that we can now look forward to dealing with matters more or less upon a peace basis. I wish I could agree with them. I feel that those people are looking too far ahead and that we still have far to go before that desirable situation is reached.
My hon. and gallant Friend referred to the danger that we might be forging shackles on our freedom which might be difficult to remove, but he seemed to ignore the elementary fact that war and freedom do not go together. If our enemies adopt total war and total abolition of freedom, we, if we wish to win, must also adopt total war and total abolition of freedom, until that freedom is won. No loss of freedom which the people in this country are suffering can in any way compare with the loss of freedom submitted to by our young men who have been dragged from their home, business, education or profession to fight across the seas in half-a-dozen or more places of the world. Tens of thousands of those young men have already fallen, and I am very much afraid that further tens of thousands will also fall before victory is finally won. No loss of freedom which is imposed upon the people who remain here can in any way compare with the hardship and loss of freedom inflicted upon them.
1614 My hon. and gallant Friend spoke also of the enormous number of Orders which had been promulgated by the Council. I think I am right in saying that they number something like 5,000 or 6,000 already issued. [Interruption.] I understand that the number is more like 15,000. That only emphasises what I am going to say. However delicately one treads, it is very difficult to avoid breaking some of those Regulations. Ignorance of the law or of the Regulations is no excuse for non-observance. I know that that was brought home to me very strongly when I tried to make a small effort in farming and bought two pigs. During their upbringing and education I received much friendly advice and warning from more experienced farmers, and if I had not received it, I very much doubt whether I should be here now taking part in this Debate. At the back of many people's minds lies the fear that it will be difficult to recover after the war this freedom which we have voluntarily given up. It is quite likely to require the biggest fight for freedom which this country has seen since the days of Charles I, before we can recover what we think we have lost. If that takes place, my hon. and gallant Friend can rely upon me as one of his staunchest and most enthusiastic supporters, but only when the war is over.
It is unfortunate that the two cases which have had most publicity deal with the requisitioning or taking over of works, the case of Messrs. Short and that of the Point-of-Ayr Colliery. I have not sufficient technical knowledge to be able to speak authoritatively about what happened at Messrs. Short's, but I am assured by someone whose technical knowledge is second to none that the output from that firm was something like 75 per cent, of what it should have been and that by taking over the firm the output has already been brought up to a much more appropriate figure. The case of Point-of-Ayr was perhaps not so satisfactory to the Government, and it struck me that the Minister of Fuel and Power rather gave way to blackmail. The output at the colliery was, I gather, satisfactory, and it was only a question of a quarrel between two unions. It is unfortunate that those two cases have received so much publicity and that so much less has been said about the case of the young men, and what is much worse of the young women, who have been taken from their 1615 homes in Scotland and sent to work in the Midlands, very often with inadequate billeting and accommodation. In many cases care had not been taken that those young women should be properly looked after and should receive and find reasonable accommodation waiting for them when they arrived.
When we are faced with a war we have to choose between war and freedom, and when we have chosen war, we have to remember that freedom is likely to vanish into thin air. It has been suggested by other speakers that a good many objections might be met by the appointment of a Standing Committee, but the only effect would be to delay decisions which ought to be taken at once when the Orders have been issued.
§ Sir A. Lambert Ward
Delay would occur in having the case brought before the Committee and in calling witnesses. There would be all the delays which take place when a question of any importance is brought before a Committee. I have served on a good many Committees while I have been a Member of this House, and almost invariably they have taken a considerable time to come to any decision. It seems to me that in those circumstances a great many of the Orders would lose their point if they had to be fully debated in a Committee before becoming operative.
§ Mr. Etherton
May I ask my hon. and gallant Friend whether he appreciates that we do not suggest that procedure? We do not suggest that there should be any delay at all in the coming into operation of the Orders.
§ Sir A. Lambert Ward
In that case the discussion in the Committee would have to take place after an Order had come into force, which seems rather like putting the cart before the horse. As long as the war goes on I am afraid we shall have to put up with this loss of freedom and these innumerable Regulations. After the war is over, a totally different situation will arise. For myself, I am sure that many people in this country intend to see to it after the war that the freedom for which we are fighting to-day shall be served 1616 out, at any rate in some small measure, to our humble selves. That can only be done when the war has been won, and the freedom which we are now demanding can only come when it has been finally won and our enemies defeated.
§ Mr. Holdsworth (Bradford, South)
I am sorry that the right hon. Member for South-West Bethnal Green (Sir P. Harris) has gone out, because I wanted to tell him that I was completely at a loss to understand his speech. He first of all complained that the terms of the Motion on the Order Paper were innocuous and that in previous Debates those whose names were attached to the Motions had not given them the support they might have done. Then he went on to say that he did not want to interfere with the powers of the Executive at the present time, when it was essential that they should move quickly. I must confess to being at a loss to understand that speech. When I read the terms of the Motion I felt ashamed that it had not been put down by a Liberal. I make that confession. I can imagine nothing more Liberal in its terms or more in line with Liberal philosophy than the Motion. I agree with all that has been said with regard to a general attitude towards these questions. Later on, I want to come down to present-day problems of the effect on business of the Statutory Rules and Orders which we are precluded from discussing in this House.
I believe that the nation agrees that during war-time abnormal powers must be given to the Executive. I hope the representative of the Home Office will put to the Minister my point of view, so that it may be replied to. A responsible Member of Parliament is in an awful difficulty as to the right attitude to take in war-time. No responsible Member wants to hinder the Executive in the carrying-on of the war, and many times, although one feels that a particular Order is not necessary to carry out some particular function in connection with the carrying-on of the war, yet—I can speak for myself—I say, "Do I know all the facts?," "Am I in receipt of all the information?," "Should I oppose this particular Order even though I think it might be made at the whim of some particular Minister or official?" And one gives the benefit of the doubt the whole time to the Government, because one would not have it said for a moment that one had hindered in 1617 the slightest degree the achievement, at the earliest possible moment, of the victory we all desire.
We are prepared to trust the Executive to a tremendous extent, but because we do that there is laid upon the Executive a tremendous obligation. That is one of the points I want to make. It is the duty of the Executive, if hon. Members are prepared to give them that trust, to see that that trust is not abused, or, in other words, as in all phases of life, that when power is enjoyed it cannot be exercised without regard to responsibility in the exercising of it. I have always been interested in this particular building, the Houses of Parliament. I do not think it is possible for any Member of this House to walk around the corridors of this House without being impressed by the pictures that adorn the walls. And what do they all speak to us about? What is the very foundation of this House? Those pictures tell us of the struggle between the King and the people. Coming along that corridor, I have been struck time and time again by that thought. That particular battle has been won, but it does not mean because that particular part of the battle has been won that liberty is still assured. The rights of Members have still to be safeguarded, and—[Interruption]—I am coming to that jn a moment, if the hon. Member will have patience.
May I illustrate how ignorant we are of our own rights? Last Thursday there was a Question on the Order Paper asking whether the Government would, at the earliest opportunity, restore the rights and Privileges of Members with regard to the private time of Members, and the Deputy Prime Minister replied, "Yes, the Government will be prepared to do that at the earliest possible moment." It is not for the Government to say whether they will or will not do that. It is this House that decides that. The Government can put a Motion on the Paper, but we can decide whether we accept or reject it, and I regretted very much to see that any Member of the House should have such a little knowledge of his rights and his Privileges as to put down a Question like that. I regretted far more that the Deputy Prime Minister should have answered in the way he did, because I must emphasise again that those who sit on that bench derive their power from us, or in other words from the representatives of the people—from the people themselves.
§ Mr. Holdsworth
I am coming to that point. I am not trying to be awkward about this. In my 12 years in this House I have seen the power of the Executive grow day by day, and let us not forget that it is not only in war; it is in peace. I sometimes feel, and I am certain every Member of this House feels, at the end of the day a sort of frustration as to what he has been able to do. Very often he has to sit down and accept the dictates of the Executive. Let me say that the more State interference there is, the more State control, the more inevitable is it that we shall have to delegate the powers of the Executive. I sometimes think— I do not want to get out of Order—that when we are considering certain questions we ought not only to consider the particular point at issue but include in its final form how that is going to affect the liberty of the subject. I believe that Parliament as it is run at present cannot possibly examine in detail every administrative action of the Executive. I agree that Ministers must have certain administrative powers under our present set-up, but in my judgment the present set-up of Parliament is wrong. I believe that more use should be made of the abilities of the private Member. Our machine has not progressed with the needs of the time.
Under the Defence Regulations we give tremendous powers to the Executive. I do not want to dwell upon certain Orders which have been mentioned by the hon. and gallant Gentleman the Member for Penryn and Falmouth (Major Petherick). I want to come to those particular Orders which this House cannot discuss, Rules and Orders made under the protection of Defence of the Realm Regulations. We have no power in this House, so far as I know, to challenge those Rules and Orders—[Interruption]—I do not say not at all; it may be conceivable, but they have statutory effect without our having to say whether we approve of them or not. I hope the hon. Gentleman will take notice of one or two things I am now going to say about how they are affecting business. There is very great concern in the country on this question. I am not going to mince matters. I think we ought to say exactly what we feel about this. People are suspicious that not all Orders 1619 are made to further the prosecution of the war. There is a suspicion that some are made to satisfy the idiosyncracies of Ministers and their advisers. I think that ought to be said.
There is a feeling that Orders are made even without the necessary knowledge of their repercussions. I can say that when the right hon. Gentleman, who, I understand, is to answer in this Debate, was at the Ministry of Supply he was wise enough to consult with people who knew what the effects of certain Orders would be. One cannot expect civil servants to know the technicalities of many of the subjects with which they are having to deal at the present time. I do not say that in a spirit of criticism. They have never been trained to know. I am not going to criticise them, but I suggest that it would be a wise step if every Department, before bringing out an Order, would consult with those in a trade or anything else who could give them sound advice as to how the Orders would affect business and so on. It would save any amount of time and labour. Let me tell the hon. Gentleman—and this is no exaggeration—that business men to-day are harassed to death by the multiplicity of Orders and, moreover, by the constant amending of those Orders. Very often no sooner does one Order come out than it is amended in a few weeks. In the right hon. Gentleman's own Department it would make a volume if we took the number of fire-watching orders which have been issued. I want to ask, Was anybody consulted before those Orders were made? I do not want to be too personal, but I will say quite frankly that I do not want to see Orders drawn up just to suit the whim of a particular Minister in any particular Department. I am awfully suspicious that they get certain ideas in their heads that this sort of thing ought to be done, and having the power under the Defence Regulations, it is the easiest thing in the world to get the legal adviser to draw up the necessary Order and issue it in statutory form. I was talking to some business men only last night on this very subject of the amending of Orders.
Another point I want to make is that many Departments are interested in a particular trade. You may have the Board of Trade, the Ministry of Labour and the Ministry of Supply all interested in that 1620 particular trade. They all make orders affecting that trade. Is there any link between the three Departments? I am very doubtful about it on some of the Orders I have seen. I know of a case only a fortnight ago affecting a certain matter, and when the question was asked of a Department, "What does this mean?", the answer was, "We did not issue that. It was issued by another Department, the Board of Trade." It had to be worked in accordance with another Order made by the Ministry of Supply. Is there any co-ordination between the two? Another thing I want to ask is, What is the procedure in the Department? I know it is physically impossible for any Minister to examine every Order that is made. Who does examine them? Is there anybody in the Department? I am not asking about the Home Office or any specific Department, but I would like to be assured that in each Department of the State there is some responsible member of the Administration who really does give serious consideration before an Order goes out. I know the Minister is responsible in theory, but in practice he cannot possibly know what is going on.
Certain suggestions have been made as to what this House could do in the matter. I believe we should have the means of examining all Rules and Orders which have statutory effect. I do not want to do anything or to suggest anything that would add to the burden of Ministers. I recognise that they have a terrible task to fulfil. But can we help them to avoid the pitfalls inherent in the case? I am not certain you can do this merely with one Standing Committee. It would seem to me quite useless to have a Committee if the Committee had not advice as to what the Orders really did, and so on. I have not had the privilege of reading the letter which was written by the hon. Member for the High Peak Division (Mr. Molson) and published in "The Times," but I would suggest that there ought to be a Committee for each Department, which could be advised as to the reason why a particular Order is drawn up. I am certain that if such a Committee is to be effective there must be some real advice at its disposal.
I ask the Government not to treat this Debate as being in any way critical of them. That is not my purpose. My purpose is to find some means of safeguard- 1621 ing the rights of this House, of enabling us to examine all Orders which have legislative power. I believe that this is one of the most important debates we have had for a long time. This is getting down to fundamentals. It is quite right that this House should spend time on economic and social questions: we all desire that our people should enjoy the biggest measure of comfort, happiness, and prosperity that is possible; but I make bold to say that those are not the supreme questions; they are the means to an end. Give to man every material comfort, make of him an economic automaton, responding without question to every order of the State; and what have you done? If you end there, you have simply created a machine. The great heritage of man is freedom; that is the greatest gift. It is the spark of the divine within him. God, if he wished, could have made an automaton; but it would not have been a man. The fact that we possess free will makes of us men. It is that particular gift which, if I may say so reverently, makes us a little lower than the angels. I beg this House to be careful to fulfil our function, so that it may be said of us, "You have safeguarded the rights of man."
§ Mr. Silverman (Nelson and Colne)
I think that the hon. Member for South Bradford (Mr. Holdsworth), who has just concluded a most interesting speech, has made the most useful contribution so far to the Debate. I say that not so much because he went down to fundamentals—everybody who has spoken has tried to go down to what he thought were fundamentals—but because he dealt with the practical difficulties that this spate of delegated legislation causes in people's minds. I hope a little later to make one or two comments upon that myself. But I think we ought to devote some little time to the fundamentals. Everybody will have been greatly interested in what was said in the concluding part of the hon. Gentleman's speech; but we are living in a very complicated system, and freedom is impossible without government, freedom is impossible without order, and modern government, in modern social conditions—quite apart from war conditions—has taken upon itself, and rightly taken upon itself, so many diverse aspects of human life that to expect every piece of legislation in the 1622 broad sense to be examined on the Floor of the House or upstairs in Committee with the old meticulous care in every detail, is to ask the impossible. Nor does the hon. Member seem to have grasped yet, any more than his party has ever grasped, the fact that this freedom to which he is so passionately and sincerely devoted is an illusion, a mockery, unless the State is able to organise its affairs in such a way as to give people food, clothing, housing, employment, education, and all those things that they must have before other freedoms begin to function at all.
§ Mr. Holdsworth
I quite agree that if a man has not economic freedom to earn his existence, he has no freedom at all. I do not see why the hon. Gentleman should suggest that I have ever believed otherwise.
§ Mr. Silverman
I have never suggested that the hon. Gentleman believed that human freedom could function without certain economic necessities. What I say he has failed to realise is that the organisation of the provision of those necessities demands legislative and administrative action on such a scale and in such detail as to make it impossible always to produce that legislation or talk about it on the Floor of the House. That is what interests me about this Motion and the names that are attached to it. The Motion itself is entirely innocuous. I can think of nobody, as the right hon. baronet said, who would not be in favour of the Motion. In that I include Ministers, too. But I look at the six names attached to it.
There are the hon. and gallant Member for Penryn and Falmouth (Major Petherick), the hon. Member for Stretford (Mr. Etherton), the hon. Member for Cambridge University (Mr. Pickthorn), the hon. and gallant Member for East Leicester (Major Lyons), the hon. and learned Member for Ilford (Mr. Hutchinson), and. the hon. Member for Weston-super-Mare (Mr. Orr-Ewing). I have been a Member of this House for only seven years. I am a little puzzled, because the activities of those Members have not normally been those of people very greatly interested in the kind of liberty that the hon. Member for South Bradford was talking about, or in the necessity of the State providing certain 1623 economic essentials. There is another name which I do not see here, but I suppose it is among those which have not been printed on the Order Paper. I mean the name of the hon. Member for South Croydon (Sir H. Williams). [An HON. MEMBER: "He is an 'also ran.'"] No. he is not an "also ran." I remember that somebody once said that the greatest thing in the world was to have a good deed done by stealth and to have it found out by accident. I hope the hon. Member, having done his good deed by stealth, will not mind having the attention of the House drawn to it, although it is not on the Order Paper. I suggest that these hon. Members are not so much concerned about the particular dangers of the individual in wartime. They are concerned with the future. They are concerned because as one hon. Member put it, they fear that this kind of legislation may go on. It must go on. They do not want it to go on, because they do not want the world to change.
§ Mr. Austin Hopkinson (Mossley)
They do not want it to go on for the reason implied'in the hon. Member's speech up to the present, because you cannot guarantee people all these benefits of Socialist legislation without entirely depriving them of their freedom.
§ Mr. Silverman
I should not have thought, from the personalities of these gentlemen, that they wanted them to have these benefits.
§ Mr. Silverman
I do not know what the hon. Member means by ill will. Is it the kind of benevolence with which he attacks every Member of the House who does not agree with him? There is no ill will about it. I say that all the Members whose names appear over this Motion are Members whose interest in liberty arises only when their interest in property is attacked.
§ Mr. Silverman
If that is wrong, there are 70 names on the Order Paper, and some of the hon. Members will have opportunities of replying in the Debate I say that what 1624 they are afraid of is that the State will do its job after the war, and do it efficiently, in a way which interferes with their liberty to oppress, to monopolise, and to exploit. The House ought not to allow itself to be misled by them. What I would like to do is to point, as the hon. Member did at the beginning of his speech, to particular questions. I think that delegated legislation will have to continue after the war. The job we shall have to do will be just as complicated as the war-time job—perhaps more complicated than the war-time job. The clash of interests may be great. Therefore, in operating delegated legislation of this kind, the Government ought not to present opponents of that legislation with too much specious or plausible propaganda. It is very easy, when you have delegated legislation, for abuses to creep in, for unintended oppressions to creep in, and in the spate of Orders that we are getting in war-time it would be quite easy to pick out a great number of petty tyrannies which present the opponents of the kind of legislation that will be necessary with the opportunity of discrediting Government and reconstruction.
I give one example that I came across. I would direct the right hon. Gentleman's attention to Defence Regulation 47A. That is a Regulation made by the Minister of War Transport, and it deals with merchant seamen. A great many vessels are chartered by His Majesty, and Regulation 47A purports to apply to seamen on ships so chartered and requisitioned. Do not think it is intended to do anything more than that. It is intended to apply the same kind of disciplinary action to sailors on these ships as would normally apply under Regulations, or under the Merchant Shipping Acts to sailors on any ships. But it has been so drawn as to have this effect, that all 'over the country seamen are being persecuted, convicted and penalised more than once for the same offence. It is possible under that Regulation for a seaman to be tried under the Merchant Shipping Act for some trifling disciplinary offence, to be convicted, and to pay his penalty, and then to be tried all over again for exactly the same offence under that Defence Regulation. A decision of a divisional court has the result that the protective measures devised by this House for seamen who may be charged with offences are taken away 1625 from those who are charged under the Defence Regulation.
These are small points, technical points which would require a long speech to explain in detail, but I ask the Government to believe that they are causing a very great deal of disquiet, uneasiness and passionate resentment among masses of men who are doing a heroic job under very difficult conditions. None of our war services imposes greater burdens than those that are imposed on members of the Mercantile Marine. They come back to our ports after long, dangerous and trying voyages. They have been suffering great strain, and occasionally perhaps trifling breaches of discipline have occurred on board or in foreign ports. These are not to be condoned, but the men are not to be condemned either, and where it is left, as the Merchant Shipping Act would have left it, to the discretion of the master, who knows how to deal with it, he does deal with it. He imagines that there is an end of it, and so does the seaman imagine that there is an end of it, and then what happens?
The seaman comes back to a port, and some official, who has been sitting quietly and safely on his office stool, comes down to the ship. He is the official of the Ministry of War Transport. That is his present status, but, of course, he has been employed by shipowners in the past. He goes down to the ship in port and takes up the log book and sees the names of so-and-so and so-and-so, that this man was absent from his ship without leave from such and such a port, and that that man failed to turn up for watch. He says, "I see that under the Articles or under the Merchant Shipping Act they have been fined by the captain. That will not do for us." And the first thing that happens to a man when he sets foot on British soil is that he is seized, taken to jail and tried and sent to prison, very often for an offence, trivial in itself, for which he has already been tried and has already paid the penalty. I am certain that whoever drew up that Regulation had no intention in the world that consequences of that kind should follow. I am certain that the Minister of War Transport and the Joint Parliamentary Secretary in this House not merely did not intend that that should be, but do not know that it is happening. It is clear 1626 that this House has no remedy for it. We are not entitled to discuss it.
§ Mr. Silverman
I think at the time, had we known about it, we could have put down a Prayer, but the time for that has long gone by.
§ Mr. Silverman
I suppose that one could put down a Motion now, but that would only be an expression of opinion. What chance would there be of getting time in the House to deal with it? But that is not quite the point. The only point I want to make about it at this stage is that, here you have, under the Defence Regulations, a thing that is clearly wrong, which was never intended, which goes a great deal further than the action required and that, unless some individual Member of the House happens by accident to come across it, no one ever hears of it at all.
§ Mr. Holdsworth
I agree with every word the hon. Member has said, but I cannot reconcile the argument he has now put with the one he put previously, when he said we would have to accept it. I cannot reconcile the two things.
§ Mr. Silverman
Yes. I daresay I put my points very badly, and, if I have done that, I apologise for my lack of lucidity, but I do not think there is inconsistency between the general argument that I advanced and my appeal to the Government to do anything that lies within their power to see that the very great powers, which I think they ought to have and ought to continue, and which freedom itself requires shall continue, in reconstructing and rebuilding the world after the war, shall not be abused and shall not be presented to those who ought not to have those powers because of the unnecessary injustices created by lack of care or control or of checking. [Interruption.] I do support the Motion.
§ Major Lyons (Leicester, East)
Does the hon. Member say to the House that we can continue the present system of legislation by Order without injustice, 1627 because, if so, perhaps he will tell us how?
§ Mr. Silverman
I am appealing to the Government to try and find some method of avoiding it. [Interruption.] We must face the facts. I agree with what the hon. Gentleman said that, if you have a spate of delegated legislation of this kind, then, inevitably, there will be instances of oppression. I grant that fact absolutely to him. I say also that, in spite of that, it is necessary to have delegated legislation, and it will be necessary to continue it. It is the responsibility of the Government to find some machinery which will either prevent the occurrence of injustices and tyrannies of this kind altogether or which will reduce them to a minimum.
§ Mr. Silverman
I cannot find that the suggestion made in the Motion that is before the House is any more practical or specific than what I am myself suggesting. All the Motion says is:That this House, admitting the necessity for war purposes of giving abnormal powers to the Executive, is of opinion that Parliament should vigilantly maintain its ancient right and duty of examining legislation, whether delegated or otherwise.
§ Mr. Hopkinson
Are we to agree that the motives of the hon. Member are as unworthy as the motives of the Members who put down the Motion?
§ Mr. Silverman
All that I am pointing out—and I hope that I am not too vague or ambiguous about it—is that the Motion suggests no way out. I have heard that people have asked for a Select Committee, but mention of a Select Committee is not made in the Motion. [HON. MEMBERS: "Oh."] It is all right saying "Oh"; I did not draft the Motion. It is plain that the Motion itself does not commit any of those who signed it to a Select Committee, and if the House of Commons 1628 adopt it and the Government accept it, you will still not have a Select Committee. That is what I am pointing out. I do not know whether a Select Committee would be a good idea or a bad one, or a workable machinery or not, but I am convinced that there ought to be some machinery. [Interruption.] The hon. Member who keeps interrupting me is incapable of appreciating the motives of anybody other than himself, and he should not assume that my motives are any less worthy than those of the hon. and gallant Gentleman who put down the Motion.
§ Mr. Deputy-Speaker (Mr. Charles Williams)
I have been listening to this discussion for some time. It is not in Order that either side should impute motives, and I suggest that there should be rather less interruption.
§ Mr. Silverman
If we have less interruption, I think I can perhaps resume my seat in two or three minutes. The point I am making is that there ought to be some machinery and the Government ought, in their own interests and in the interests of this kind of legislation, to devote some attention to devising what they would recommend to the House as good machinery for checking the Orders, Regulations and all the rest as they come along. It is not sufficient, as is sometimes said, to say that every individual Member of the House has a responsibility in the matter. Indeed, we have, but we cannot exercise it. I understand that there are about 15,000 Regulations and Orders of one kind or another which have been published since the war. We cannot possibly read them all or bring our minds to bear upon them, but unless somebody does, things will occur which nobody intended should occur and which ought not to occur. I support the Government in the powers they are exercising; if we had to do all over again what we have done in this respect, I would give them the same powers. I would support any strong Government after the war in tackling boldly, by delegated legislation, too— because that will be necessary—the tasks with which we shall be faced, but I urge them not to do it indiscriminately in the way they are now doing it, but to devise effective machinery of control which will reduce the necessary abuses to a minimum.
§ Colonel Sir Charles MacAndrew (Ayr and Bute, Northern)
I, like most previous speakers, want to support the 1629 Motion on the Order Paper. I think that we all agree that during war-time legislation such as we would not have tolerated in peace-time is essential. There has been some talk about injustices, and I suppose one could say that legally Regulation 18B is unjust. But in my view it is necessary in war-time, and I think we are mostly agreed on matters of that kind. This Motion will, I imagine, be accept able to the Government, because it is quite innocuous, but the mover and seconder of it had something much further behind the words that we see on the Paper. We have heard the Donoughmore Committee's Report advocated, and some of its findings have been praised, but I notice that of a number of our colleagues who were on that Committee none has come to support it to-day. For instance, there are the Lord President of the Council and others who, I am sorry to say, are not in their places. The Donoughmore Committee, as can be seen on page 63 of their Report, seemed to have very little idea of the procedure of this House. The hon. Member for Nelson and Colne (Mr, Silverman) suggested a Select Committee—
§ Mr. Silverman
No, I said I.heard that proposal made in some speeches which preceded mine. I did hot recommend it.
§ Sir C. MacAndrew
I beg the hon. Member's pardon, but I think he was the first one to use the words "Select Committee" in this Debate.
§ Mr. Silverman
I want to make it quite clear that I have not supported the idea of a Select Committee. I said I did not know whether that would be a useful piece of machinery for this purpose or not. If it is a good piece of machinery, I hope the Government will set it up, or if it is not I hope they will set up some machinery that is good.
§ Sir C. MacAndrew
The Mover of the Motion in his speech referred to a Standing Committee. The right hon. Gentleman the Member for South-West Bethnal Green (Sir P. Harris) thought that -the Committee should be composed of Mr. Speaker's panel, and various things of that kind were suggested. A Standing Committee, as we know, is set up by the Committee of Selection. We know how long it takes a Standing Committee upstairs in ordinary times to go through a Bill. What chance would one Committee have of dealing with all these Regulations? 1630 The whole thing is perfectly nonsensical, and what is more absurd still is the statement in the Donoughmore Report that the preliminary work would be done not by ourselves but by the Clerks of the House. Heaven help the Clerks of the House in supplying Private Members with a knowledge they lack at the present time. The present method of putting down a Prayer, although perhaps unsatisfactory, is the-best way of dealing with matters of this kind.
§ Sir C. MacAndrew
The Government are giving time to-day. If the thing is reasonable, the Government will give time. It is a complete fallacy to suppose that there is no chance in this House of debating anything the Executive does. We may not like these Orders, but they are essential in war-time, and I do not think the House is being fair to the Government on this matter. I hope this sort of thing will be very much curtailed in peace-time, but at the present time a sort of prejudice has grown up against these Orders. I remember I was here one day when a Ministry of War Transport Order was debated. I thought the House was most unfair on that occasion to the Parliamentary Secretary. People do not understand these Orders and do not take the trouble to understand them, and then they use that lack of knowledge as a means of criticising the Government. I hope that if the Home Secretary sets up machinery or a Committee it will be more carefully thought out than the suggestion in the Donoughmore Report, which, to my mind, is most unsatisfactory and would not serve the purpose at all.
§ Sir Harold Webbe (Westminster, Abbey)
I am not quite clear exactly what case my hon. and gallant Friend the Member for North Ayr (Sir C. MacAndrew) has been trying to put to the House, but I am very clear about the speech of the hon. Member for Nelson and Colne (Mr. Silverman), and I think that those who are supporting this Motion have reason to be grateful to the hon. Member for putting their case so force- 1631 fully and completely and with such passion and earnestness. The earlier part of his speech was perhaps rather overshadowed by the eloquence of the hon. Member for South Bradford (Mr. Holdsworth), but, nevertheless, the hon. Member for Nelson and Colne did in the end return to the Motion before the House. I want to support this Motion from the angle of one who was for some time an established civil servant and who for many years since has been a member of a local authority. I share fully the concern which has been expressed by so many Members at this growing practice of Parliament of delegating authority and power to make legislation to Ministers and through Ministers in fact, if not in theory, to the permanent officials of Government Departments.
I want to say at once that my anxiety in this matter does not arise from any doubt as to the capacity of members of the Civil Service or any fear as to their intentions. I am very glad that my hon. and gallant Friend the Member for Penryn and Falmouth (Major Petherick), in moving the Motion, paid high tribute to the Civil Service. I want to associate myself completely with that tribute; I believe that in our permanent Civil Service we have many men of great ability and soundness of judgment who are professionally and deeply concerned to carry out loyally and effectively the policy and instructions of their Ministers, whatever their own personal feelings may be. I think many of the critics of the Civil Service are unfair. They do not recognise that there is a profound difference between the technique of public administration and the technique of business management. Civil servants are trained as public administrators in a school in which caution— and what might often be considered excessive caution—is properly regarded as a virtue, a school in which it is thought better to delay a decision, in the public interest, than to give 'a wrong one. It is asking a great deal to expect men trained in that atmosphere to adapt themselves readily to conditions such as obtain in business and war, where speed of decision, even though the decision may not be the best, is of vital importance.
If there is blame to be attached, it should be attached to this House for 1632 putting upon civil servants responsibilities and duties which by temperament and still more by training they cannot properly be expected to carry. One of the most fruitful sources of this creation of round holes for square pegs arises from this practice of delegating authority. It has been said by many speakers that delegated legislation is nothing new and that every member of a local authority, faced with some new piece of legislation which is before the House for consideration, expects to find provisions in the Bill which authorise Ministers to make Orders for giving effect to the Bill and for the creation of the necessary machinery. It would be nice to see a complete picture at the outset, but we must recognise that that is impossible and in much of the legislation with which this House is concerned, and which local authorities will have to put into practice, it is not possible for Parliament to do more than lay down general policies and established principles. They must leave it to Ministers to work out by experience, even sometimes by trial and error, the proper machinery of administration for giving effect to that policy, in exactly the same way as the board of directors of a business company are obliged, to leave the carrying-out of their policy to their managing director.
This particular type of delegated authority has, I think, on the whole worked well, because Ministers have made a practice, in drawing up their Orders and in establishing their administrative machinery, of consulting the local author^ ties who will have to operate the machinery, just as the wise managing director will consult his own staff in preparing his own machinery. But delegated legislation becomes dangerous when it passes beyond the field of administration, and when it confers upon Ministers and upon officers of Government Departments power to make legislation which discriminates between one person and another, or power to make Orders with the force of law which are concerned with matters on which Parliament has not reached any decision on policy and has not laid down any principles. There was an interesting example of the latter case in the original draft of the War Damage Bill, in which it was proposed that authority should be given to the Treasury to give directions, which were not subject in any way to scrutiny by this House, to the War Damage 1633 Commission as to what in their view was the national interest having regard to such matters, among others, as the location of industry. This whole question of whether the State should take an active part in telling industry where it should and should not establish itself has been discussed from time to time, but, so far as I am aware, Parliament has not yet decided the fundamental principle that the Government have the right, or should assume the duty, of directing industry in that way. Therefore I suggested that, as Parliament has not decided this question of policy, it was wrong to propose to hand over to Treasury officials power to decide a question of that kind. The Chancellor of the Exchequer accepted that argument and modified the Clause and substituted new Treasury Regulations.
Two cases have been mentioned. I do not want to enter into any discussion on the merits of those cases, but I submit that in the case of Short Brothers what has been done is that discriminatory action has in fact been taken against an industrial concern—not temporary action for the period of the war but permanent action—along lines which this House has certainly not accepted as proper for the Government to take. That is the kind of delegated legislation against which I think we have to be on our guard. What is the remedy? I do not think anyone would suggest that the wide powers granted to the Executive under the Defence Regulations should be in war-time in any way cut down. On the contrary, I believe everyone considers that in time of crisis the Executive should be armed with the completes possible power so that they may immediately deal with any crisis that may arise. [Interruption.] I should not for myself accept the justice of that interruption. But I cannot believe that it was ever in the contemplation either of the Executive or of this House, when these very wide powers were granted in the Defence Regulations, that the powers might and would be handed over lock, stock and barrel to an individual Minister to apply without any restriction whatever as to where and how he decided.
An example is Statutory Order No. 102, which, being an Order made under a Regulation, is not laid on the Table of the House and can only be dealt with by some Motion being tabled and discussed. Under that Order the President of the Board of Trade has taken unlimited 1634 power to deal with any kind of business undertaking, whether it is engaged on war work or not, and to pry into the private affairs of that business without any kind of restriction, without giving any kind of reason and without any justification except that in his personal view it is in the national interest that he should do it. I put a test question to the right hon. Gentleman. I asked him if he would give an undertaking that he would not use his power under this Order to authorise a member, officer or servant of one industrial concern to enter the premises of a trade rival and demand and extract from him particulars of a secret process. The right hon. Gentleman, of course, at once gave me that undertaking, but what was significant was that he did not, and could not, say he had not the power to take action of that kind. I wanted to put one or two other questions to him about the same Order, but I was advised by those at the Table who keep us straight on these matters that by implication I was asking the Minister to tell me what was the meaning of his own Order, and I was assured that that was going altogether too far. The point I desire to make is that it is not right that these comprehensive powers, rightly and properly given to the Executive as a whole, should be handed to an individual Minister without any restriction whatever on the use he is to make of them. We should not give a Minister a steam hammer in order that he may be able to crack any nut that happens to come his way.
I suggest, therefore, that Orders made under such general powers as Defence Regulations should be specific, that they should always state clearly and specifically the particular problem or difficulty that the Minister seeks to meet and the particular Regulation that he seeks to enforce, and should state equally specifically exactly which powers he desires to take. The second point I want to make is that in the making particularly of Orders which affect people engaged in trade and industry it should be obligatory on the Department in the framing of the Orders to consult the trades which are interested, which are affected, and which in fact understand the difficulties. I am aware that this consultation frequently takes place, and, I am sure Ministers all agree, with very beneficial results, but too often the consultation takes place 1635 at far too late a stage, when the Order is in fact so nearly drafted that it is virtually impossible to alter it. I submit that consultation should take place at every stage, and, when Orders are issued, I hope some effective step can be taken to make them understandable to the ordinary man. An undertaking was given by the Home Secretary some months ago that wherever an Order was not so understandable^—and very few Orders which have passed through the hands of legal advisers are understandable to anyone in the world—some explanatory memorandum would be issued. I happen by accident to have picked up the other Say an Order recently issued by the Ministry of Food for what one would have thought the comparatively simple job of regulating the supply and distribution of tomatoes. The Order ran to no less than nine printed pages of Regulations, followed by eight and a half pages of schedules. I admit that, after considerable study and technical advice from people in the industry, I hope I can say I understood what it was all about, but it is a very tall order to expect the ordinary greengrocer or the ordinary man who is concerned in growing tomatoes, getting them to market and selling them to understand an Order which runs to nine pages and eight and a half pages of schedules. If it is impossible to draft Orders which are legally effective without the tremendous circumlocution, repetition and embroidery which we see in the ordinary Order, at least the Department might' engage some interpreter who would translate them into English.
I submit that far more of these Orders and Regulations should be laid on the Table and be open to consideration and challenge and criticism than is the case at present. It should not be possible for so widespread and far-reaching an Order as No. 102 to become law without the House of Commons having the opportunity at least of knowing that it was happening. That Order became law without any opportunity whatever of the House challenging what are, I submit, fundamental principles vitally affecting the fundamental rights of individual citizens. It is no use laying endless papers on the Table of the House unless some machinery is devised for making sure that the House takes notice of them and is able to deal with them. What is 1636 everybody's business is nobody's business. I am attracted to the machinery which was proposed by the Donoughmore Committee. I think that many of the arguments advanced against the setting-up of a Standing Committee are fallacious. One argument was that if such a Committee considered the merits of an Order —and I agree that it is highly desirable that consideration on merits should whenever possible be excluded—and the Committee considered that an Order should be rejected on its merits,. Ministers and officers of the Department might be called upon to defend the Order twice, once before the Committee and once before the House. I can only say that if a Minister or his officers failed to satisfy a Committee composed of responsible Members of all parties that an Order was reasonable—not that it was perfect but that it had some justification—there is prima facie a sufficient measure of doubt as to the desirability of such an Order to warrant the arguments being heard not only in the Committee but in the House itself. I do not believe that that position need arise or that, indeed, under the detailed suggestions of the Donoughmore Committee, it would arise.
§ Sir C. MacAndrew
My hon. Friend refers to the suggestions of the Donoughmore Committee. Would he be precise and say what sort of Committee he wants? The Donoughmore Committee mentioned a Standing Committee, which must not be fewer than 30 Members.
§ Sir H. Webbe
It seems to me really unnecessary in considering the general question to be too precise and meticulous as to exactly what machinery we propose. I will not claim to be competent to suggest details of machinery, but I maintain the general view that the House should set up some machinery for ensuring that what is the responsibility of all individual Members is not for that very reason the responsibility of none.
§ Sir H. Williams
Would it not be as well to ask the Lord President of the Council, as he was one of the signatories of the Donoughmore Report?
§ Sir H. Webbe
I am afraid that I am not going to accept the suggestion. It is a little unfair to press too far the fact that the Lord President was a member of the Donoughmore Committee, for the 1637 simple reason that the Committee was set up to deal, not with the question which is uppermost in our minds to-day, that is with the effect of the delegation of emergency legislation, but with the general question which arose from a realisation that we cannot operate 20th century legislation with 19th century machinery and that it is necessary to devise in an ordered and considered fashion the changes in our administrative machinery which are called for by the character of legislation. It is not fair, therefore, to quote too much the Lord President of the Council. I merely ask that the House will recognise the need for some machinery of superintendence to enable it to exercise a proper control.
There is one point which I hope will be developed by hon. and learned Members who are more competent to deal with it. I hope that we have done for ever with the type of Clause which used to run like this:"The confirmation of an Order by the Minister shall be taken as conclusive evidence that the provisions of the Statute have been complied with." That is almost like saying that possession is not only nine points of the law but is to be accepted as conclusive proof of ownership. That is only one way in which under delegated legislation Ministers frequently put themselves, or seek to put themselves, outside the control of the courts of law. Comments recently made by a learned Judge in a case will be fresh in the minds of hon. Members. I am certain that from the constitutional point of view that particular aspect of this problem deserves close and careful consideration. This is a matter which I believe to be of great importance. I conclude by admitting that it is our duty in war-time, as much as in peace-time, to consider, in the words of the terms of reference of the Donoughmore Committee:what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law.I believe that the position of Parliament as the sole creator of the law and the position of the Executive as the servants —not the slaves—of Parliament are fundamental to our constitutional liberties. It is because we believe there is a danger of those-liberties and those essentials of the Constitution being adversely affected that we ask the House to consider the Motion.
§ Mr. Ellis Smith (Stoke)
We accept the wording of the Motion. The hon. Member for the Abbey Division of Westminster (Sir H. Webbe) was good enough to remind us of our duties. In our view the House of Commons has done its duty in this war. With courage and in a constitutional way we have brought about the formation of the Win-the-War Coalition. Even in the dark days of the Battle of Britain, during the period of the nightly air raids on London, most hon. Members continued to do their duty. They were regular in their attendance, doing their correspondence in the Library and carrying out what is contained in this Motion. In order to carry out the terms of the Motion a Member must be alert, he must be regular in his attendance. That is impossible where Members are directors of five, 10, 15 or 20 companies^ After nearly four years of war we are bound to admit that this Executive—and I emphasise this Executive—have used their powers with consideration and for the purpose in the main of winning the war.
In the main Britain's war effort, with its great strain upon our people, particularly those resident in industrial areas, has not been carried out by Regulations or Orders, as some people have been inclined to emphasise to-day, or by decrees; it has been carried out upon the basis of the good will of the people. One result of our war effort is that the stock of the British people to-day "throughout the world is higher than ever it was in any period of Britain's history. In the war this Government represents the united determination of our people to bring about the unconditional surrender of the world's Fascist forces. In order to accomplish that and to organise and maximise our national effort, the Government must have ample power to deal with the internal situation and with potential enemies at home as well as our enemies abroad. The necessity for giving the Executive powers in an abnormal period of this kind is acknowledged in the Motion and, in my view, is acknowledged in the country. Where there is a difference between us is in the degree to which the powers have been used. During the Dunkirk period nearly all our people were ready to agree to almost anything in order to save this country. The most patriotic of the big industrialists would have agreed to any proposals in order to save the country. Others lay quiet and accepted the position for the time being. I shall never forget 1639 the mood of this House when the Deputy Prime Minister introduced the Bill which gave the Government complete power in the war situation.
Now that we are doing better in the war, now that we have powerful Allies, now that we are all confident of victory, we are being confronted more and more with Motions of this kind. We ought to remind ourselves in order to continue to do our duty that the war is still to be won and that the Government still require power in order to enable them to carry out their duty. Great powers in an Executive are not necessarily an evil. It depends on how the powers are used. Powers can be beneficial. Let me give one example, in regard to the maintenance of our food supplies. Considering the very difficult situation in which we find ourselves as an island nation, the maintenance of our food supplies has been relatively successful. In my view—and this is too often forgotten— that success is based, first, upon the passing of the Essential Commodities Act before the war; second, on the fact that we have built up an efficient Food Ministry; and, third, on the great executive powers that had been entrusted to the Ministry, as a result of which at least 500 Orders have been issued.
Let me emphasise that this is an example where powers of this character are efficient. At the same time, I recognise that with the tendency in war towards monopoly development of the food supplies in this country it is possible for those powers to be used so as to cripple food supplies and as a result for them to get into a very difficult situation. Therefore, powers that may be necessary in war-time if used in peace-time in order to perpetuate monopoly developments of food supplies will be bad. Therefore, while powers can be good in war-time and may be good in peace-time, providing they are used for the benefit of the country, they can be evil if used in order to get the country and the people by the throat. May I ask those associated with this Motion if they can give one instance of where they have taken action on any Orders or Regulations introduced by the Minister of Labour?
§ Sir H. Williams
I write about ten letters a week to the Minister of Labour protesting against his unreasonable action in directing people unnecessarily from my constituency to some other place to work.
§ Mr. Smith
I know that the hon. Member is as active in carrying out his duties as any Member in this House, and most hon. Members constantly write letters, but the question I asked is this, and I ask it of everyone associated with this Motion: Can they give me one example of where a Motion has been put on the Order Paper dealing with any Order introduced by the Minister of Labour?
§ Sir H. Williams
As the Minister of Labour has not tabled one Order which was discussable in this House since some of us have been active in this matter, quite obviously we could not have a Debate.
§ Sir H. Webbe
As the hon. Gentleman seems to be rather unlucky in getting an answer to his question, will he be good enough to tell the House the purpose of asking it?
§ Mr. Smith
May I ask another question? I want to ask the hon. Members associated with this Motion whether they can give me one instance of where they put a Motion on the Order Paper dealing with any Order or Regulation issued by the Minister of Fuel. Everyone, knows that this is the issue. Here is where we get to the core of what we have been discussing to-day. The Ministry of Labour have introduced all kinds of Orders and Regulations directing our fellow workers in different parts of the country. They have introduced compulsory arbitration, and that has gone a long way towards maintaining internal' stability and maintaining the price level. At the same time those of us who belong to the engineering industry are smarting under a grievance. Nevertheless, we have put patriotism and loyalty to the war effort before the grievances under which the engineers are smarting. Take the Essential Work Order. That in itself has put our people, and especially the trade union movement, in a great difficulty. Under all these Orders bur fellow countrymen have been fined, some have been imprisoned and others dealt with in other ways, because they have been responsible for a certain amount of absenteeism.
§ Mr. Molson (The High Peak)
In that case does not the hon. Member think it is desirable that before restrictions of that kind are enforced upon the workers of this country this House should consider the situation?
§ Mr. Smith
The point I am making is this. We have now been at war for nearly four years. From time to time we have been in a very serious situation. It was during that period that directions and Orders of all kinds were introduced affecting our people, but not a word with regard to them was heard in this House. Now that we are in a much stronger position we find that what is going on now has been taking place more and more.
§ Sir H. Webbe
I am sorry to interrupt the hon. Member a second time. He appears to be very proud of the fact that he and those associated with him have not protested against these particular Orders made by the Minister of Labour. From the silence which greeted his earlier question I gather that hon. Members on this side of the Chamber were in exactly the same position.
§ Mr. Smith
The only time hon. Members associated with the Motion have taken action has been when property or big industrial concerns have been affected. I purposely posed this question because I have engaged in a large amount of research in the Library, and I have found that the only occasion on which hon. Members were responsible for questioning the Orders under the Ministry of Fuel and Power was when a North Wales coalpit was being dealt with. We consider that the Ministry of Production, the Ministry of Supply and the Ministry of Aircraft Production should have used their powers more than they have done up to the present time. We believe that had they used their powers more efficiently and forcefully, in accordance with what Parliament intended, there would have been a still greater speeding-up of production in this country.
§ Mr. Smith
I think the hon. Member will recognise that we are reasoning with one another on this issue, and up to now 1642 all I have dealt with have been the facts. Anyone can verify what has happened in the House. Although Parliament and our movement have trusted the Executive with large powers for this war, we recognise that a great responsibility rests upon Parliament to see that the powers are used in such a way as to safeguard in particular the democratic rights of the people which they have won up to now and to maintain their confidence, consistent with the need to win this war. The Seconder of the Motion referred to the Donoughmore Committee. I understand it dealt with peace-time conditions. An hon. Member who has great experience in Standing Committees upstairs pointed out that it recommended the setting-up of Standing Committees. Those of us who have had experience of Standing Committees, particularly when Members like the hon. Member for South Croydon are present, know how their deliberations can go on, and in a war of this character what the people want is that the Government should govern with speed and decision and have regard to security.
I should like to put a few questions to the Minister according to the instructions which have been given to me. [Interruption.] Yes, I am not speaking for myself in this House, though I agree with what I am saying. That is why I am here. I am speaking for my hon. Friends, who represent a large number of people outside this House who are now working and playing their part in the war effort. It is on behalf of my hon. Friends that I want to ask a few questions. Can more be done to enable this House to maintain its supervision over Regulations and Orders? Can Parliament be given more information on what is behind Orders and Regulations before the Parliamentary time expires during which they lie on the Table? Will the Government take steps to enable us to appreciate the purpose and effect of Orders? A few days ago the Home Secretary said he was considering the publication of notes. Could he go a little further and issue explanatory notes with the Orders and Regulations*when they are issued? These Orders and Regulations have to be read not only by us but by many people outside. Can the Orders be issued in future in more simple and everyday language? Parliament has confidence in this Government; they have earned it in regard to the prosecution of the war. I 1643 suggest that the Government should respond to Parliament more than they have done in questions of home affairs in particular and have regard to my hon. Friends' points of view on questions of home affairs, many of which we have been holding back far too long. Hundreds of Regulations and Orders have been issued during this war.
§ Mr. Smith
Well, thousands. We believe in under-estimating rather than over-estimating. The Government might consider making accessible, in a more convenient form for reference, the Orders that have been issued, and perhaps it would be a good thing to issue them in future under the headings of the different Ministries. The Government might consider consulting Mr. Speaker in order to see whether verbal statements could not be made more frequently when Orders or Regulations are to be issued, especially those which vitally affect large numbers of people. The Government should make a statement in the House, or issue periodically explanatory White Papers in simple language. The suggestion was made by the Mover and the Seconder of the Motion that a Committee should be set up to examine Orders and Regulations before they are issued.
§ Mr. Smith
In general we could not agree to that. In special cases it might be necessary, but in general, especially having regard to the situation in which we are, we could not agree to that. In these matters Parliament delegates its power to the Government, and Parliament's task is to examine and check the Orders that are issued. Let me remind the House that the delegation of legislative powers is not a war-time phenomenon. It was used against the railwaymen when I came home from the last war in 1921, against the miners in 1926 and in other instances, which we could give if necessary. What was the attitude then of hon. Members who are associated with this Motion?
§ Sir H. Williams
Will the hon. Gentleman explain in what way delegated 1644 powers which had not been discussed by the House of Commons were used against the miners in 1926?
§ Sir H. Williams
I remember coming once a month to the House of Commons during 1926 because the Emergency Powers Act under which the Government took certain powers enabled them to make Orders which ran only for a month, and every month we had to meet in Parliament and consent to continuing the Orders. We are now discussing things which the Executive put forward and on which there is no Debate.
§ Mr. Lawson
Is the hon. Member for South Croydon (Sir H. Williams) aware that comparatively few men were arrested during the general strike under the Common Law, the bulk of them being arrested under the Emergency Orders?
§ Mr. Smith
During the terrible days of mass unemployment in this country the Government introduced many hard Regulations. We examined those Regulations day after day, but little interest was shown during that period in certain quarters in those Regulations. We continued to do our duty and tried our best in debate to show how hard those Regulations were. Where were the hon. Members now associated with this Motion during those days, when those Regulations were being introduced? The question whether great executive power is good or bad depends upon how the power is used and upon the type of Government. Great power in the hands of the Nazis or of those of the Fascist mentality is bad, while great executive power used to improve our country and the lives of our people or to prevent further wars is good. No one knows better than we do the dangers of power in the hands of reaction. We cannot forget Tolpuddle, Peterloo or the Salford Docks when I was 10 years of age, and when they brought in the Scots Guards. The impression which those events made upon many of our minds was very deep, and so was the action taken at Featherstone, in Tonypandy, and in 1926.
§ Mr. Smith
We have fought against reactionary power in the past, and it does not matter who was using it. We are 1645 talking about power in the hands of reactionaries, whether they belong to one party or another. To-day we are not concerned with that point. We have fought against reactionary power in the past, and we will, if necessary, fight against it in the future. We cannot forget, for example, that the Trade Union Act, 1927, is still on the Statute Book, or the attitude that is being taken up by certain hon. Members of this House in regard to it.
§ Mr. Holdsworth
May I ask the hon. Member a question? In regard to the Act he has mentioned, the point is that the House has decided it, and there cannot be any challenge about that. We may disagree with it, but does not the fact that the House of Commons has given the Government that power make all the difference?
§ Mr. Smith
I agree with the hon. Member's observation. All I was pointing out was that we have a Motion like this on the Order Paper now that we are in a much improved position in the war. We have got away from the difficulties in which we were three years ago. We cannot forget the attitude taken by certain hon. Members in regard to the Act which I have mentioned.
We accept the Motion. We have organised for war; we want to retain this organisation for peace. We want to join with anyone who will take steps to retain the democratic rights of the people of this country. We want to make this House of Commons a really democratic Assembly, and we shall be prepared to support any action in order that this country can keep right in the forefront of democratic development. Some of us cannot forget that after playing our part in the last war we were promised all sorts of things by certain speakers.
§ Mr. Smith
Some of us thought that those promises would be carried out. We have had 20 years of disillusionment. In no circumstances are those with whom I am associated prepared to be parties to a repetition of that kind of disillusionment after this war has terminated. 1646 Therefore, so far as retaining our democratic rights are concerned and the appeal that has been made to the Government to enable Parliament to do its duty, we associate with any move of that character.
§ The Secretary of State for the Home Department (Mr. Herbert Morrison)
My hon. Friend the Member for Stoke (Mr. Ellis Smith), who has just resumed his seat, has delivered a speech which all sides of the House very much appreciated, even though there has been some hard punching in it which might not be agreeable to hon. Members in certain parts of the House. I would congratulate him upon a competent effort and on the relevancy of his questions which included most of the questions that were put by other hon. Members. In the course of the answer which I am now about to give, on behalf of the Government, I will endeavour to cover all the points that my hon. Friend has mentioned. He is, of course, absolutely right that all of us in a democratic country depend not so much on the legal power of the Regulations, though that is not unimportant, as fundamentally upon the good will, good sense and cooperation of all sections of the community. He is also quite right in saying that there have been a great deal of good sense and a good deal of fine public spirit and co-operation, and the Government certainly cannot complain. We have had an amazing degree of general public acquiescence and support for the various measures, some of them pretty stiff, that we have had to take, and we appreciate it. I can only hope that this spirit of national service and national good will which has been a vital element in the prosecution of the war will be able to manifest itself with equal advantage in the transition period after the peace.
I would congratulate the Mover and Seconder of the Motion on the moderation and the care with which they made their case. The Government have no complaint about the speeches which have been made—and it would not be much good if we had, but we have not. Hon. Members have put their case with reasonableness and forcefulness, and there is no doubt that the Debate has been a useful review of an exceedingly interesting experiment in constitutional government in time of war. The hon. and gallant 1647 Member for Penryn and Falmouth (Major Petherick) said that he did not wish there to be a weak Government, a flabby, nervous creature always being pushed about by the issues and activities of the House of Commons. He agreed that it was desirable, particularly in war, that the Government should manifest strength and self-confidence. In that he is absolutely right, and we all do our best on this Bench to act according to that counsel and advice. He added that nevertheless there was a duty upon Parliament to watch the Government and scrutinise their actions, and particularly, to be watchful in the preservation of proper liberties, even in war-time. With that statement I agree also. He went on to quote from a precedent, I think of the time of that illustrious Monarch Henry VIII, in which he mentioned the unhappy fate of the cook of the Bishop of Rochester who was ordered to be boiled in oil.
§ Mr. Morrison
Well, whichever it was, the result must have been painful. So far as I know, there was no Minister of Fuel and Power in Office at that time. The hon. and gallant Member believed that this action was taken in pursuance of some Defence Regulation passed by King Henry VIII that was without Parliamentary authority. As a matter of fact, it is quoted in the Donoughmore Report. I must say that I am slightly disconcerted to find that the Report was signed by my right hon. Friend the Lord President of the Council, but I will say in his defence that at that time he was Permanent Under-Secretary to the Home Department, under a Labour Government. I also note that my hon. Friend the Parliamentary Secretary to the Ministry of Home Security added to that Report a reservation of prescience and soundness, which fits in with my own thoughts to-day with a remarkable degree of accuracy. If we were agreed about this matter in 1929, how little surprising it is that we agree about so many things in the Ministry of Home Security in 1943. To return to Henry 1648 VIII. That action was not a royal and individual action or an emergency power action of the Monarch or of any Minister. It is recorded in the Donoughmore Report, in a footnote, that 22 Henry VIII, Chap. 9, is a Parliamentary enactment which says:It is accordingly enacted by the authorities of this present Parliament that the said Richard Rose shall therefore be boiled to death without having any advantage of his clergy.The villain of the piece was not some wielder of emergency powers or Defence Regulations, but was Parliament. Parliament prescribed what should happen to the man and that he should not have the advantage of clergy, which I think was very wrong. Not even the present Home Secretary has gone as far as that, nor would I wish to. My hon. and gallant Friend went on to argue the case, which was reaffirmed in certain quarters, for the setting-up of a Standing or Select Committee for the purpose of scrutinising these functions. I will come to the substance of the argument a little later. In the meantime I would reinforce what the hon. Member for Stoke said. What the Donoughmore Report said and the merits of what it said, I would be prepared to argue in time of peace, but, with great respect, I cannot see that they have relevance in time of war. One hon. Member said that, strong as the arguments of the Donoughmore Committee were in time of peace, they were considerably stronger in time of war. With great respect I think the opposite is the case and that they cannot be strong in time of war when speed is the essence of the contract, and the strain on Ministers and officers becomes of still greater importance.
§ Sir H. Williams
The right hon. Gentleman has made references to speed. These Orders are all operative before they are considered either by the House or by anybody else.
§ Mr. Morrison
I know, but I want to give my hon, and gallant Friend the full measure of his case. When you have made one Defence Regulation, the next thing you do is to go ahead and get another one ready, not on the same subject. Therefore, any additional strain or stress on Ministers or civil servants is of great moment in time of war. I know that it is argued that they need not go to the Committee. To that point I will come a 1649 little later on. Honestly, I think that, whatever merit there may have been in the Donoughmore Report, it related to the conditions of peace and is really irrelevant to the strained conditions of war. The Seconder of the Motion, the hon. Member for Stretford (Mr. Etherton), in the course of his interesting speech used a loose phrase which I think he did not mean quite literally, that the emergency has become normality. There is something in it in the sense that the acutely critical times of May and June, 1940, have given place to a better situation in which we have not got that absolute, extreme stress which we had then, but we are really very far from normal. If I may say so, it is psychologically a mistake to talk a lot about normality, because it is the very thing we do not want the population to feel. We must keep the sense of stress and strain up until this great struggle is over. I know the hon. Member only meant it in the sense that conditions to-day are not the same as in the days of Dunkirk.
§ Mr. Etherton
What was intended by that expression was that the emergency is going on all the time and is continuing for ever with us.
§ Mr. Morrison
Very well, Sir. The right hon. Baronet the Member for South-West Bethnal Green (Sir P. Harris) raised some nice debating points which interested me, and I confess that some of them delighted me, but I am told I had better not go into them any further because someone has been reminding me of my part in two of those activities, or one of them, rather. I thought that his observations on those points were very good. The hon. and gallant Member for North-West Hull (Sir A. Lambert Ward), I thought, got to the essence of the matter, and made a speech with which I personally found myself very largely in agreement. He said that as long as the war goes on we shall have to put up with a great deal of interference from Regulations, and that is so. If I may say so, if we have got to put up with interference from Regulations, we had better put up with them with a cheerful heart. It does not do much good to accept that interference but to insist on weeping at every opportunity one conceivably can. It does not do any good. It is only calculated to depress the population generally. If the Constitution is to be debated and our 1650 Parliamentary procedure has to be modified, it may be a serious thing, and let us do it seriously, but having done it let us try to have a cheerful heart if we can.
The hon. Member for South Bradford (Mr. Holdsworth) brought with him the vigorous individualism of the North with which his special type of Liberalism is prominently associated. It is always a great pleasure to me to hear him. There is no humbug about his individualism. He is an individualist and believes in it, and I respect him for it. He says, I think rightly, that there is an obligation—he recognises as others do the need for exceptional powers—on the Executive not to abuse the trust which is placed in them. I fully accept that, and I hope that before I sit down I shall have convinced the House that it is in that spirit that the Government have been considering these various matters. He said that sometimes difficulty arises because consultation does not take place. I think that in most cases where it is practicable and expedient consultation does take place with various people who are affected. There are, of course, certain matters, as he appreciates, where interests are so closely affected that it would be contrary to the public interest to consult them, and you have to act with great precision and immediacy.
I agree that as a general rule the machinery of government works much more smoothly if consultation takes place. I say that with great feeling. I had to move with great speed at the beginning of compulsion for fire prevention. I did consult, but I admit it was not much. I got into great trouble about it in various quarters, including my trade union friends. I had to do it with the danger to the country from fire very urgent and immediate but I confess that if I had had time to consult all the interests affected, life would have been happier for me afterwards. I had a nasty patch for six months afterwards because of those Orders. I do not regret what I did—I had to do it—but it reinforces what the hon. Member said, that when you can consult legitimately it is the best thing to do. There were one or two other speeches. The hon. and gallant Member for Ayr and Bute (Sir C. MacAndrew) speaks with great knowledge and experience of Parliamentary procedure in view 1651 of his connection with our Standing Committees. I agree with him very largely, particularly on his point that if the task which is proposed is to be carried through properly, one Committee could not possibly do it. I do not think that one Committee possibly could. The hon. Member for the Abbey Division (Sir H. Webbe), with whom I am always happy to cross swords in the House, as I was across the water for a number of years, has been interested in these matters, and has raised a point with the Government which has had an effect in connection with Order 102—to which my hon. Friend referred—he will be comforted to know, partly, if not wholly, as a result of his intervention. There was nothing wicked in it on the part of the Ministers; I think it is only fair to the President of the Board of Trade to say that he was dragged in by the heels; if there was a sin, it was committed before he came in as a sort of appendix. The point there was that this was an Order of some substance and importance which ought not to have been, in the judgment of my hon. Friend, a subsidiary Order. The Order has been carefully examined, and is now no longer an Order but a Defence Regulation, made this month, so that if it were wished, it could now be challenged in the House. [An HON. MEMBER: "When will it be published?"] I have a copy; I imagine it is only just published. It was made on 20th May.
§ Mr. Morrison
I am sorry I cannot say. I have only just got it. I rather thought we had modified it. In constitutional doctrine we have improved ourselves. I will cover, I think, in the course of the observations I have to make quite a number of the other points which were made by hon. Members. I know they will forgive me in not going into full detail into every speech made.
§ Mr. Holdsworth
I did make the suggestion that there might not only be consultation between a particular Department and, the trade but between Departments. Sometimes you get Orders issued by different Departments affecting one trade, say the Ministry of Labour, the Board of Trade and the Ministry of Supply. The 1652 Orders made sometimes appear to be contradictory. Is there any method of consultation, or could any method be put into force of consultation between different Departments who are all interested in one trade?
§ Mr. Morrison
That certainly ought to be so. In the case of a major Defence Regulation it would be almost impossible for what the hon. Member refers to to occur, owing to the machinery of Government through which it has to go. I am not so sure about the subordinate Orders, because there is not the same collective machinery for them. There is a large number of these Orders, but normally, in the event of a Department having anything in view of interest to another Department, there is automatically consultation. We may make mistakes. If Members have evidence that we have not had enough inter-departmental consideration, and they would be good enough to let me have the cases, I would be glad to have them looked into. It would be our wish that that should be so. It is quite possible in a matter of this kind to work oneself up to great heat on either side of the barricade, but, after all, it is a matter of what is sensible, right and proper in time of war, taking account of a number of considerations. Sometimes the critics get over-excited. I remember that the late Lord Hewart, who was a very good friend of mine, once wrote a book on "The New Despotism," which had a great vogue, and some effect on public opinion. I personally disagreed with a lot of it, but it did a great deal of good and was quoted, and is still quoted, almost as much as the Donoughmore Report has been quoted in to-day's Debate.
There has been some public interest in this matter as the result of the activities of a committee associated with the hon Member for South Croydon (Sir H. Williams). As a result of a certain amount of publicity which its activities have secured, I find that one supporter of the hon. Member for South Croydon has burst into poetry on the subject, and has sent that poem on the matter to my hon. Friend, who was good enough to send it to the Government. I found it accidentally in the middle of a lot of very dull stuff on the file of a State Department. Here is the poem, which puts the issue at the feet of the House to settle as to what is the-right thing to do in all these matters. It is entitled "Octopus": 1653The Ministerial Octopus—Grows new limbs every day;Three more are quickly sprouted—For each one chopped away.They grapple and they strangle us—Our struggles feebler grow.Until we drop into the maw—Where all its victims go.Our substance—when digested there,New tentacles induce.Whose suckers drain the cream away—From all which we produce;Yet, do we not deserve this fate?We play the silly fool,For the Octopus could be controlled—If the House of Commons—ruled.
§ Mr. Morrison
He is anonymous. I thought it was of sufficient support to hon. Members who have been critical in the matter, and of sufficient merit, to be worth mentioning. It is quite right that the House should review the very exceptional powers they have given to the Government, because those powers are exceptional, and nobody would wish to under-estimate their importance; certainly I do not.
But we must remember that the House did make a delegation. It transferred to the Government over a substantial field full legislative powers. That is what it did, subject to the right of the Houses of Parliament to pull the Government up, to annul what they had done if the Houses wished to do so. But we must also remember that unless we had those emergency powers, these powers of making Defence Regulations, of making Orders, of making, directions, the really remarkable organisation of this country for war, the transformation of the country economically and socially in various ways for total warfare, would have been quite impossible. It was absolutely essential to the successful prosecution of the war that these powers should have been generously granted, as they were generously granted, to the Government of the day, and they must be used by the Government as we go along. Of course, many of these Regulations are stiffer and more extensive than in the last war. It is partly owing to the nature of this war itself, that is to say, it is more of a totalitarian character in any case, and partly, that as a consequence of having had two wars in one lifetime, we are naturally running the second war rather better, very much better, than we did the first. If we have a third war in our lifetime—and 1654 I hope we shall not—we shall run that war with almost complete perfection, in the light of this second experience. [Interruption.] I say that this war is very much better run than the last. I am not complaining about the last one, but the experience we have gained, is such that our mobilisation for war now is much more complete. That mobilisation would not have been possible, unless the Government had possessed these very exceptional powers.
I am not going to dispute the statement that mistakes have been made. There have been mistakes in the handling of these exceptional powers. There have been some mistakes in procedure, some perhaps in policy. I should be foolish if I claimed that mistakes had not been made; but I think I can claim that, on the whole, these powers have been operated with remarkable success, and have been accepted by the community with remarkable good will. I think it is accepted that the Government themselves have not made undue use of these powers. Here and there legitimate faults can be found, but we have handled these powers with circumspection, and when a mistake has been made the House has been here to follow us up. I venture to say that when the history of the war comes to be written, this almost revolutionary action by Parliament—because that is what it is—and the success of its working, will be recorded as redounding not merely to the credit of the Government but to the credit of Parliament for its adaptability to these things, and to the credit of the general public outside for their adaptability.
Probably one of the reasons why British democracy has been so successful, and so permanent, is the fact that British representative institutions are so adaptable in times of crisis and difficulty. It is because temporarily we can voluntarily give up part of our democratic system that our democratic system survives. It leads me to believe that in the running of democratic institutions there is no greater people in the world that the British, for successful enterprise in these matters. [Interruption.] I do not know any country which is better than this; if there is one I am willing to hear about it. We have had, as I have said, a remarkable degree of willing co-operation from the House and from the country outside in the operation of these Orders, which have the object 1655 of co-ordinating the war effort. The magnitude of the whole task has been recognised by Parliament. One of the proofs that the system has worked with a remarkable degree of success is that, although there have been Debates in Parliament about these Defence Regulations, there have not been many. There have been some lately. I say right away that those Debates were not "pernickety" Debates. They were Debates about matters of principle, as Members saw them.
Mr. De la Bére (Evesham)
It does not necessarily follow that the system has been successful.
§ Mr. Morrison
No; but I think it has been successful. Now that we have reached a period when the strain of Dunkirk does not exist, although such a strain might occur from time to time, this is not an inappropriate moment for reviewing the matter, but not of course for relaxing the essentials of these necessary "powers. The question now is first whether the framing and the exercise of these exceptional powers can be improved, and whether the methods of operation and control can be bettered. Secondly, can Parliament exercise a closer supervision beneficially over the Executive without impairing the war effort. Various suggestions have been made, in the course of the Debate and in the public Press outside, which I will now proceed to discuss, and about which I will indicate the views of the Government. It is, I think, right that I should discuss the most difficult of them all, one to which the Government are not able to agree, namely, the suggestion that there should be a Select Committee or a Standing Committee to examine Defence Regulations and, I think, Orders, as they come along. Being an official Committee, it would have the assistance of an official clerk. It would look through the Regulations and Orders and draw the attention of the House to such of them as it thought the House ought to be specially aware of. That is the idea, no more and no less, as far as I understand it. It is important, of course, to get the right background of this question. The House has delegated to the Government complete legislative power over a certain field, subject to certain Parliamentary checks. These Regulations and Orders, which sometimes, I agree, are just as important as an 1656 important Act of Parliament, have no Second Reading, no Committee stage, no Report stage, and no Third Readng.
§ Mr. Morrison
I quite agree. It is necessary that that should be so. But Parliament, having delegated that power, subject to the right, in the case of a Defence Regulation, to step in and pass a Motion of annulment, it would be an error to try to get that delegation half-way back. You delegate, or you do not.
§ Sir H. Williams
The delegation never can be complete, because if an Order is made which is not in fact debatable, it is always open to hon. Members to table a Motion of Censure and to compel a Debate on what is, nominally, a non-debatable Order.
§ Mr. Morrison
I said that the House had delegated, subject to certain Parliamentary checks. Every Government is wise to recognise that that is always a possibility. But do not forget that the legislative power is delegated, and it is important that either the House or the Government shall be clearly responsible. We had better not mix ourselves up in responsibility between the two. In ordinary legislation, the fundamential responsibility is that of Parliament. All the Government can do is to introduce their Bill and to argue for it. Parliament decides; it can alter or reject the Bill. But once Parliament has delegated power to the Government under the Emergency Powers Act, subject to certain Parliamentary checks, the responsibility for that legislation must be the Government's, subject always to the right of Parliament to interfere and upset what the Government have done. But you cannot easily have two people in the process of emergency legislation up to that point. Parliament knew what it was doing, and it was careful to retain certain powers and checks and controls for itself. It is no good trying to put into the middle of this new legislative process a Parliamentary Committee, which would be appropriate in the case of the ordinary Parliamentary Bill but not in the case of Defence Regulations.
§ Sir H. Williams
The right hon. Gentleman has stated that Parliament freely gave these powers. But he knows that 1657 we were summoned by the B.B.C. on 24th August; that we came here and found in the Vote Office the Emergency Powers Bill, and that after a trumpery Debate, in which the only notable part was taken by the hon. Member for the Combined English Universities (Mr. Harvey), the Measure received the Royal Assent on the same day. Parliament did not freely give the powers; the Government snatched them from Parliament.
§ Mr. Morrison
The hon. Member must not go back on his own responsibility. If he was here, he assented.
§ Mr. Morrison
It is no good assenting to things, and going back afterwards. The House has us on a string all the time. Each year I have to come here with a Motion asking for the continuance of the Act; otherwise, it would cease. It is the case that the House each year has assented to the continuance of the Act. The House, as a whole, is, I am sure, quite prepared to take responsibility for what it has done.
§ Mr. Maxton
This is the very crux of the matter. We delegated a lot of powers, but we still retain the Public Accounts Committee, the Estimates Committee, and the Select Committee on National Expenditure. We do delegate powers and still retain something in our own hands as well.
§ Mr. Morrison
My hon. Friend is iruV leading himself. None of those three Committees is in any sense executive. [Interruption.] I am speaking of executive only in the legislative sense, not in the ordinary sense. The functions of these Committees are examination, reporting on expenditure, and so on. They are different functions from those of a Standing Committee, for example, the Standing Committee on Bills, which examines a Bill line by line, and amends it. All I am saying is that you can have the House of Commons responsible for the examination of the draft legislation which is submitted or the House can, as it has done, subject to checks, delegate that power to the Government. You cannot well have a mixture of the two systems. To be fair, this is not claimed; but I say that if the proposal is to work, this is where we get to. That cannot be the position, I think, in the middle of a war. Things have to be done with speed; Ministers and officers are badly pressed. I do not think that this 1658 is what is claimed, on the face of it; but the Government, having emergency powers and the power to make Defence Regulations, cannot share the responsibility with a Committee of Parliament. [Interruption.] I had better go on. I have been perfectly fair; I said that that was not the argument, but I did say that, on the line of discussion on which we have now got, that is the logical end, if this business of a Standing Committee or Select Committee is started.
Let us look at this proposal. It is clearly impracticable to handle every Defence Regulation in the same way as you would handle a Bill, both because of the pressure on the time of Ministers and the need for the Regulations being passed swiftly in order to meet changing war conditions. Nor can we expect that the Committee would be held responsible under this proposal as it is submitted in this Debate. It could not be held responsible for drafting legislation unless it was given the fullest opportunity for examining the instruments of legislation and debating the case. That is recognised, because you cannot mix the two system, but there is another suggestion, namely, that the Committee should report to the House on the legal instruments, Defence Regulations, Orders or what not, which in the opinion of the Committee require the special attention of the House.
The Government are not unsympathetic with regard to what is in the minds of hon. Members, but we suggest to the House that the dilemma in which hon. Members are in making this suggestion is that either the functions of the proposed Committee would be so limited that they would merely duplicate the steps at present taken to give publicity to the more important Regulations, or that the Committee would be bound to form provisional opinions on the merits of the Regulations. And indeed, as one of my hon. Friends behind me was proceeding, there were some points put from the Front Bench opposite as to what was meant by the suggestion that the Committee would not deal with merits but would only bring to the attention of the House Orders or Regulations which they thought to be of particular importance. My hon. Friend behind me did not come well out of the examination. I think it is an impossible position to defend. If you are going to have a Committee to 1659 examine these Defence Regulations and Orders, how is it to decide, even on the narrow issue, to which Orders or Regulations the House should have its attention drawn? How can it decide that irrespective of the merits of the case? It cannot be settled on the number of words in the Defence Regulation or the Order, and the merits are bound to come in.
§ Mr. Etherton
Would the right hon. Gentleman consult his right hon. Friend the Lord President of the Council, who signed the Report making this particular recommendation?
§ Mr. Morrison
With great respect, whatever my right hon. Friend the Lord President signed, it is really most ridiculous and absurd to argue from the Donough-more Report, which was written in time of peace.
§ Mr. Morrison
Of course it has to do with it when it is said that something relating to peace-time legislation is to apply to a totalitarian war in which the country is fighting for its life.
§ Sir H. Williams
Some of us have spent five months doing this job, and we know from our own experience that what the right hon. Gentleman says is just plain nonsense.
§ Mr. Morrison
Right, that is fine. But I must, with great respect, say to my hon. Friends that the Government must examine this proposal on the basis of how we think it will work out.
§ Mr. Morrison
That may be, but I have not been a member of this party committee. I would not be eligible.
§ Mr. Morrison
The dilemma in which my hon. Friends are, and in which, I am sure, the House would be, is that either the functions of the Committee would be so limited that they would merely duplicate the steps at present being taken to give publicity to more important Regulations or the Committee would be left to 1660 form provisional opinions on the merits of the Regulations.
§ Mr. Morrison
That is very clever, but not very courteous. I do not believe that any Select Committee which is merely appointed to go through these Regulations and draw the attention of the House to those it thinks of special importance can or ought to keep away from the merits of the case. It would be giving the Select Committee a farcical job. It would be making fools of hon. Members serving on that Committee. The House would expect guidance from them. If, however, the Committee did the job properly, it would cramp the style of the House if hon. Members wished to debate the matter on a Prayer, and also they could not come to a proper conclusion unless they went through much the same process that Ministers themselves have to go through of taking legal advice, discussion in committee, hearing the Minister or civil servant argue his case, coming to a. conclusion as to what was right or wrong, and then suggesting modifications or alterations in the terms of the Defence. Regulations. I do not think you can do this job unless you go through these processes or have the right to go through these processes.
§ Mr. Morrison
I will come to that. I believe that that is the logical thing to do, and my hon. Friend is good enough to agree with me. The answer to that is that whatever the arguments in times of peace it really would be an intolerable burden on State Departments, Ministers, civil servants, and upon Parliamentary draftsmen if we were to seek to do anything of the kind in the midst of this great war.
§ Mr. Silverman
Would the right hon. Gentleman take the same view of such a Committee if it confined its examination 1661 of Regulations and Orders to those which affected the liberty of the subject?
§ Mr. Morrison
That is very difficult to define. For example, such a Regulation as I8B obviously involves the liberty of the subject.
§ Mr. Silverman
I mean only Regulations that create new offences such as I referred to in my speech.
§ Mr. Morrison
It was the hon. Member for South Croydon or somebody else who said that there are not many of these Orders which did not involve offences or penalties of some sort or another. Ministers and officials of State Departments are terribly hard-pressed. I am not complaining; we can take it and we do the best we can. We are terribly hard-pressed, but if, in addition to discussing these things with different Departments and arguing them with the Cabinet and so on, we had to go through a Select Committee, the strain would be too great and the delay too considerable, and I do not think that we would be able to do the job as well as it is done now. Therefore, our own view is that it is best that the House as a whole should act as guardian of the Executive in these matters and be watchful, as the hon. Member for South Croydon and some of his friends have been watchful. I make no complaint if other hon. Members do the same. Members should keep a watch on the Government, - and if they think that we are doing wrong, they should put down Prayers for the annulment of Regulations. I hope that we can help them in other directions, but I cannot help them in regard to a Select Committee, which the Government think would be a mistake and would not work. The success of the British Constitution to a great extent lies in the fact that the House of Commons and the Executive can work together, and at the same time the Executive on the one hand and Parliament on the other have definite responsibilities. If we got them mixed up in day-to-day matters, I am sure we would get into a muddle.
We have considered various other points which have been put to us by hon. Members in the Debate and on other occasions. It is admitted that there was a necessity for review, and that has been done. There have been certain faults, and in so far as there have been faults they were broadly due to these considerations—the number of Departments con- 1662 cerned, which sometimes leads to lack of proper consultation, and the need for speed and the conditions of great pressure under which we have worked. The result has sometimes been, up to a point, a divergence in practice as between one Department and another, and sometimes a tendency to short-cuts, which has involved us in criticism. Therefore, we admit that, there have been, imperfections, as indeed has been proved from time to time, but, taking it by and large, the system has been pretty successful.
In the course of the Debate it has been urged, as it has been before, that some of these Regulations are unintelligible, not only to the ordinary reader outside, but even to Members of Parliament, who should be skilled in the reading of legislation. I would only say that this criticism is often made about Parliamentary Bills and Acts of Parliament as well as Defence Regulations, and I do not think that the average Defence Regulation or Order is worse than the average Parliamentary Bill or Act of Parliament. It may be argued that it ought to be better, but I do not think that it is worse. The real explanation, as hon. Members know, is that these are statutory provisions; they are laws just as much as any other laws, and they must be set out precisely and exactly with the knowledge that they will have to be interpreted by the courts and be subjected to meticulous examination in contested cases. I am not sure that this is always appreciated. The wording of Bills has to be such that they mean the same thing to a Judge in the High Court who has not seen them in the way the House of Commons did when it passed them. This leads to a form of drafting which would not be employed in the writing of a newspaper or magazine article but is rather involved and more complicated. I do not know that we can do very much more in this respect, but we will do our best.
I would like to pay a tribute to the skill and hard work of the draftsmen, who are driven very hard indeed. They themselves would admit that there have been imperfections, but I think that the House will join with me in expressing appreciation of the services of the hardworking Departmental lawyers and Parliamentary draftsmen who are doing a fine job right out of the public eye, and on the whole have achieved a considerable degree of success.
§ Mr. Ellis Smith
I can understand the explanation with regard to the need of precise language when the Orders and Regulations are being drawn up, and, if my right hon. Friend cannot meet us with regard to that, can he say whether the explanatory memoranda will be issued in plainer language?
§ Mr. Morrison
I think I can give satisfaction to the House about that matter, but as regards the actual textual drafting of the Regulations we have now given instructions to all Departments that further efforts must be made to make the effect of Defence Regulations and subordinate Orders plain on the face of them and to embody so far as is practicable explanatory words about any existing provision to which reference is made.
§ Mr. Morrison
We will do our best with them as well. Some of the early Regulations provided that a certain Section oi a certain Act of Parliament should be eliminated and something else put in its place, and there was reference to a previous Act. But unless one read the previous Act one did not know what it was about. Now, however, we are getting into the habit of saying, "Section so and so of such an Act of Parliament, which does or says so and so," so that the reader of the Regulation can read what is being amended. I hope that will be helpful to hon. Members and to people outside. Moreover, we are introducing other drafting devices which have been recommended to Departments for use in appropriate cases.
That brings me to the explanatory notes, to which reference has already been made. I announced to the House during an earlier Debate that we would, in cases where a Defence Regulation was not clear, append an explanatory note. It is important that the explanatory note should not purport to give a legal interpretation of the legal instrument, that being entirely the business of the courts, nor should it be a defence of the Government's policy. It is merely intended to make it easier for the reader to understand what the Regulation is about. I undertook that that should be done in appropriate cases where it was reasonable that it should be done. Hon. Members have raised the point whether 1664 it policy can be extended to Orders, and I can now give an undertaking that we will apply the same policy to Orders. It will be appreciated, however, that there must be Ministerial discretion as to which Order it applies, and to which it does not, but we will meet the point in principle, in the same way as we have done in the case of Defence Regulations. In some cases particular public notice ought to be drawn to Orders. It may be that many members of the public are concerned, or the matter may be controversial in the Parliamentary sense, and I think that a Minister is wise on such occasions if he makes a statement to the House. That policy will be continued, and the attention of Departments and Ministers has been drawn to it. In exceptional cases where an explanation of policy is needed, we will publish a White Paper, if that should be expedient or necessary.
There are other cases in which a Department may issue explanatory memoranda to the public in order that they can have any technical points explained. We adopted that course in the case of the fire prevention Orders, and it proved very useful to employers and others. It has been suggested that when we do that, we should make copies available to Members, and that we will do, so that they will have an opportunity of seeing the explanatory memorandum as well as the legal instrument itself. There are, however, many Orders and Regulations of which no explanation is necessary, and, as I have said, these notes must not pretend to construe the law.
I think these measures will remove the difficulties which have been experienced by Members of the House and the public outside. They will make it simpler to handle the Orders, and the necessary publicity will be given, I hope, to all Orders and Regulations which are of importance. I hope they will assist Parliament to keep a vigilant watch on the Executive.
Another point which has been raised is this. It has been alleged that things have been done by Order, which are of sufficient importance to have been done by Regulation. The hon. Member for the Abbey Division, of Westminster referred to one such case. Of course, if this kind of law is made by Order instead of Regulation, it is not within the power of Parliament to pray against it, and thereby 1665 annul it, if Parliament carries the Prayer. In the case of an Order, the negative procedureofannulmentisnotapplicable. What we have sought to do with general, but perhaps not complete, success is to ensure that matters of primary importance are dealt with by a Defence Regulation which can be challenged in the House, and that matters of detail are dealt with by a subordinate Order under the Defence Regulation. We cannot turn all Orders into Regulations, because there are far too many, but I agree that we must try to seek the happy mean between too much and too little. In certain instances, in one Department or another, subordinate Orders have sometimes been used when a Defence Regulation would have been the more appropriate instrument. In the crisis of 1940 there was a great deal of excuse for that sort of thing. Orders had to be rushed out. We did our best, and Parliament, to its credit, accepted the position then, although it is more critical now, as it has every right to be. We will try to clear up the position, so that although it may be legally possible for a controversial matter to be dealt with by Order, we will, particularly if it is a new issue, do it by Defence Regulation. The question cannot be determined by the number of words. If, for example, the fire prevention Orders had had to be Regulations, it would have been inconvenient.
The policy laid down by the Government is that, in determining whether fresh requirements should be imposed by a new Defence Regulation or some subordinate instrument in an existing Regulation, it is no longer enough to consider merely whether an existing Regulation is, legally, wide enough to cover the purpose in view. Importance must be attached to the question of whether the proposed change is such that it should be brought specifically to the notice of Parliament. If so, the change should be made by Defence Regulation, so that Parliament may have an opportunity of exercising its statutory right of veto. In this connection, the Government recognise that special care is required where it is desired, for war-time purposes, to make an express amendment of an Act of Parliament of a general character. It has been held against us that in some of these subordinate Orders we have made specific amendments of an Act of Parliament which the major instrument did not speci- 1666 fically authorise. Therefore, we have decided that such express amendments of an Act of Parliament of a public general character should, as a general rule, be made only by Defence Regulation or else in pursuance of a specific power conferred by Defence Regulation and not by a subordinate Order, so that if the House considers that there are grounds for objection to a Defence Regulation making a war-time amendment of some public Act, which may have received' special consideration in peace-time, it may have an opportunity of challenging the Regulation.
The next point is the scope of the sub-ordinate Orders. We have given a promise that the scope of subordinate Orders shall be related to a specific purpose—as specific as is practicable for the purpose in view. We do not want Departments to think that they are given a blank cheque and that they can do what they like with it. Such Orders should be regarded as subordinate legislation and treated accordingly. Nevertheless, certain Orders of the nature of subordinate legislation under a Defence Regulation may deal with matters of importance and controversy, and hon. Members have said that they would like it to be possible to challenge such Orders in the House. Well, as has already been said, the House can challenge anything it likes by a Vote of Censure or a Prayer—
§ Mr. Morrison
I am only saying what is constitutionally possible. A Motion can be put down, if there is sufficient support behind it and the usual channels are approached. But in the case of a subordinate Order a Motion which would be exempted business is not possible; the Order is in another category from a Defence Regulation. Hon. Members have said that those which are of importance and are of a controversial character ought to have Parliamentary ventilation, if it is required, and that, if necessary, there should be a vote of the House. I am authorised to say that there will be sympathetic consideration as regards giving Parliamentary time for a Debate on important subordinate Orders which a substantial number of Members wish to debate. It will be appreciated, I am sure, that we cannot concede the idea that, if one or two 1667 Members put down a Motion, time should be given, but if there is a substantial measure of feeling about it and the issue is one of importance, the Government will not be unsympathetic about giving time for such a Motion. That, again, tends to restore the check of the House where the House has not a check at the present time.
Another point which has been raised is that there have been difficulties about Regulations being printed together in one Order in Council, in such a form that if a Member wished to object to one of them, he had to move the rejection of them all. We think that point well founded. Orders are now being separately printed, with a separate number, so that that point is being fully met. There is some feeling, too, in certain quarters that there is confusion as between Orders and directions, and this confusion being due to the use of different terms. With a view to avoiding unnecessary differentiations of this kind, careful instructions have now been issued to all Departments, and an effort will in future be made to achieve a measure of greater uniformity, subject to the reservation of. avoiding practical difficulties for traders and others who have been accustomed to existing practices. Where' a matter has been dealt with by direction instead of by an Order or by some other instrument, it may be convenient to continue doing it in the same way, because otherwise traders might get confused. New items which form part of an existing series ought to be kept consistent with the rest of the series.
There is one misunderstanding which exists about some of these powers to which I ought to refer. It seems to be thought in some quarters that directions are not as much subject to Ministerial responsibility as Orders. There seems to be an impression that the form of a legislative instrument affects the degree of responsibility resting on the Minister concerned. It has been suggested, I believe, that while for every instrument described as an Order, full responsibility rests on Ministers, if it is described as a direction it may be the work of some subordinate agent for which the Minister has less responsibility. It should be made clear, if it is necessary to do so, that there is no foundation for that idea. With all 1668 this legislation full responsibility rests on the Minister, and that responsibility is in no way affected by the nomenclature of the instrument. The noble Lord the Member for Horsham (Earl Winterton) and the hon. Member for South Croydon both have had Ministerial responsibilities. If they will put their hands on their hearts and say they knew all about everything their officers did, I will try to do the same.
§ Earl Winterton (Horsham and Worthing)
. Circumstances in peace time are different from circumstances in war. The point made is a substantial one. It is that no Order which affects the liberty of the subject, should go out from any Government Department, if it is an important Order, without the Minister having seen it himself.
§ Mr. Morrison
That I fully accept, subject only to the reservation, that some of these directions, even some Orders are petty affairs relating perhaps only to an individual concern. When they are such small matters they should only be done in pursuance of general Ministerial policy, for which the Minister must answer. Civil servants do many things of which the Minister may never hear, but which they know represent the Minister's view and often they have specific authority in an initialled minute. But when it comes to initiation of policy, or to the extension of powers in a new direction, it would be quite wrong for civil, servants to act on their own responsibility. There, they must get Ministerial authority.
I am sorry that I have taken so much time, but I have had to cover a lot of ground. I knew that the arguments about the Standing Committee or a Select Committee would be troublesome, and I felt in my bones that I should have a sticky time, but I think I have treated the House with all proper respect. The Government have their point of view, I have my point of view, and some hon. Members have a different point of view. If I could have met them I would have been delighted to do so, but the Government honestly do not believe that the scheme proposed would work. Apart from that, the Government have tried to tidy up this business. We have heard the criticisms of hon. Members, we have treated their recommendations with the respect due to 1669 them, and I think hon. Members will agree that we have sought to act with friendly co-operation.
§ Sir H. Williams
There is one point which I think my right hon. Friend has missed, that is, the question about the date on which Orders are sent out, the date on. which they come into operation and the date on which they are available to the public. It has been emphasised that a number of Orders have been in operation days before any Member of Parliament, or any member of the public could get copies.
§ Mr. Morrison
Yes, our attention has been drawn to that and we have given instructions that all dates shall be concentrated as far as possible.
§ Mr. Pickthorn (Cambridge University)
The dog which canters down the Derby course after the race has been won is the limit in insignificance, arid does not get even that amount of attention which is given to the dog which holds up the horses after they have gone to the starting point. My position is worse than that. Not only has the race been run, but the last speech ended with expressions of congratulations, confidence and affection to all parties all round. It is difficult to know where one comes in after that. I gather that in the opinion of His Majesty's Principal Secretary of State we are all a lot of jolly good fellows, and all will come right in the end. I gathered also that Ministers are very hard-worked, that they have to carry a very heavy burden, and that they cannot think of anyone else to carry it instead. I could give them some advice, but perhaps this is not exactly the moment for it. I wish to begin in the same agreeable tone in which my right hon. Friend finished and to thank him for the assurances and—I will not say concessions— the promises he made in the last ten minutes. I hope he will forgive me for saying that I cannot be quite certain at this stage how much they amount to, but he did give us something.
Some people seem to think that if we had a Select Committee all would come right and we should get all the advan- 1670 tages and none of the disadvantages of delegated legislation. Without going as far as that, I thought that, on balance, there was a good deal to be said for the appointment of a Committee, and I still think that that is true. We were told in the Minister's speech that we could not delegate, unless we were prepared to de legate absolutely and leave it there for good. I do not know whether that is really what he meant, but that proposition is contrary to the whole notion of human practice or legal principle as far as I can understand. I agree with him on this point, that what really matters most is the climate of opinion—what we can safely assume that the Ministers would think a bit too much to try on, or a civil servant would dismiss as a little bit above the odds. What is the climate of opinion in the circles where these things are done.In that connection I would like to utter a word of warning to my hon. Friend, if I may call him so, the Member for Stoke (Mr. E. Smith). I think he is on rather dangerous ground in assuming that power is necessarily a good thing if you are going to use it for a good purpose. That is the slope that Hitler—
§ Mr. E. Smith
Will my hon. Friend excuse me. Never since Hitler came to power nor since he came into public life in Germany have I given him one word of support, and that is more than some hon. Members can say.
§ Mr. Pickthorn
I do not know at whose withers that shaft is aimed, but certainly mine are unwrung. However, we need not go back into our autobiographies. I do not know what that has to do with the question. The assumption that it is a safe constitutional principle that power is a good thing, as long as it is going to be well used, is a very dangerous assumption. It is the assumption upon which all extremists and most particularly all Fascists have started. I beg hon. Members in all quarters of the House to be careful of it. What I was saying before this digression was that the climate of opinion is what matters—what the Ministers can take for granted and what we can take for granted about them. It could be shown, but the hour is too late now for me to show it, by reference to Hansard of the last six months, that Ministers have got into the habit of using in defence of their action arguments which in earlier times would have been regarded as bitter 1671 attacks, almost leading up to impeachment. We are glad to have the assurances given by the Home Secretary but whether those assurances are sufficient for our purpose can only be apparent in the practice of the next six months.
I thought the right hon. Gentleman was a little unfair in his argument against a Select Committee. He said you really could not get the job done, that the Committee could not do it without going into merits and without cross-examining civil servants and so on. But he, himself, had previously given a testimonial, I am sure an unsolicited testimonial, to-those hon. Gentlemen—I am not one of them—who have been presenting Prayers and asking questions about delegated legislation. He gave them a testimonial for having never done so except on matters of principle which ought to be raised as such. If it is possible for a dozen private Members, who will take the trouble to go through the thing once a week or so, to fasten upon the points which ought to be raised and never, or almost never, to raise things which are merely "pernickety"—I think that was his word—if that can be done by private Members without clerical or professional assistance, there can be no doubt that the same sort of work could be done by a Select Committee.
Then I think my right hon. Friend was rather inclined to bully the House of Commons on its virtues. It is bad to be blackmailed upon one's vices; that is an extremely disagreeable situation to be in, and blackmail has generally been considered one of the worst crimes. But worse than to be blackmailed on one's vices is to be blackmailed on one's virtues, as when you compel a man to give you more than your share because of the virtues you know he has got and on which you know you can work. There is, I think, this to be said about the present House of Commons. I began by saying that I agreed with my right hon. Friend that we are all very fine fellows. There is one respect in which I think we are not always given quite enough credit. That is that the Government have been given a steadiness of support, in face of difficulties, and dangers and even sometimes of catastrophic errors, for which they ought to be infinitely grateful. That being so, it is extremely unfair of the front bench to turn round and, as has been done fre- 1672 quently to-day, use the argument, "You can always bring these things up by putting down a Vote of Censure." That is to blackmail us upon our virtues, our loyalty, and even our submissiveness. That argument ought not to be excessively employed. There may be occasions when it is necessary to use a Vote of Censure for this purpose, but we must all wish that they should be as rare as possible.
§ Mr. H. Morrison
I understand the hon. Member says I have been inciting Members to put down Votes of Censure on the Government. I certainly did not do so. The hon. Member for South Croydon (Sir H. Williams) indicated that there was always the power to put down a Motion of Censure, and I merely referred to it as one of the rights of the House. I was not inciting Members but only pointing out their powers.
§ Mr. Pickthorn
The right hon. Gentleman addressed us at considerable length on a very important topic, and I am endeavouring to reply. I do not ask him to listen to every word I say, though I shall be grateful if he does, but I ask him not to conduct conversations elsewhere and then come and attack me. I said nothing whatever about inciting. I said the argument not infrequently used from the front Bench that this or that procedure is unnecessary because it is always possible to get the matter raised by a Vote of Censure; is an argument which, if used excessively, amounts to blackmail upon the virtues of the supporters of the Government. That may be a bad argument—I think it is a fair one—but there is nothing at all in it about incitement. The first point which I should like to ask him to reconsider is the question of drafting. I do not wish to attack those civil servants, members of the legal sections of Departments in the main, who draft these instruments of subordinate legislation, but I think it is not fair to say, as the right hon. Gentleman did, that the drafting is as well done as the drafting of Bills. There seem to me to be two clear reasons why that could not happen. The Minister of Labour said on Thursday that he had "seen errors in the first drafting of Bills, but, after all, what were Members for—that is us—if not to call attention to errors?" It necessarily happens that before the public knows what is in them we have an opportunity of calling attention to errors. We do not always do 1673 it well. Perhaps that is our fault, but it is also due to the war-time habit of taking all Bills on the floor of the House. That is one reason why orders are not always as well drawn, when they become operative, as Bills are normally by the time they become Statutes.
There is another reason, if I may say it without disrespect to the legal gentlemen in the Board of Trade, for instance, that they are not as a rule persons for this special purpose so highly apt and so profoundly versed as the people in the Parliamentary draftsman's office who draft Bills. That must necessarily be so, and I ask the right hon. Gentleman to consider this suggestion, that there might be consideration whether there can be, if there is not already, some kind of centralised revision. If it is impossible that all these Statutory Rules and Orders can be drafted, or re-drafted, in the Parliamentary draftsman's office, there should be machinery for a sort of centralised revision. I could give instances where it is clear to the veriest layman that the drafting has been, technically speaking, incompetent. I think we might get rid of a good deal of that if the Parliamentary draftsman's office could be used to keep in step with each other, from a legal and technical point of view, the legal departments of the offices.
Then I would ask the right hon. Gentleman whether he would really consider very carefully indeed the point about Ministers taking larger powers than they really need. If I came to almost any hon. Member and said, "I have left my money at Home; could you let me have enough to carry me through the day? A pound will do, thank you very much," that is not unreasonable, but if, taking advantage of that kind of acquaintance and good fellowship, one said, "I should like about £500,000'" I think a Member so approached might say, "This budgeting is too loose." I think more instructions against loose budgeting in that sense might be given to the Departments. I do not want to attack people personally, and I will not say which Ministry it was, but the other day when we had one of these Debates the Minister began by saying how great the powers were that were being taken, but all that it was intended to do under them were two or three tiny things which none of us were much interested in, and 1674 he ended by saying the House would not really have any objection to the things that they really wanted to do. That is precisely the sort of Ministerial defence which a little while ago would have been regarded as a bitter attack on administration for extreme looseness of budgeting, where you only want 2—d. worth of legislation but fake 100 quids' worth to be on the safe side. I hope the right hon. Gentleman and the Lord President of the Council will give instructions that that is to be considered a major vice.
This is a small point, but I think it ought to be put once more. Without any disrespect to Parliamentary Under-Secretaries and minor Ministers, I ask that when questions of delegated legislation are before the House the senior Member responsible should always be present all the time. I think that is the very least that we have a right to ask for. I remember a Rule or Order being piloted, through a year or two ago by an Under-Secretary whose interpretations were not exactly the same as those of other Ministers have since been. That is always apt to happen, but it is much more apt to happen when the Minister cannot really take the responsibility for giving the concessions or making the promises which have been made in piloting something through.
I hope that everything I have said so far has been quite strictly to the Motion. I have two or three other things to say which are not so strictly to the Motion but which I hope are just in Order. I hope that consideration will be given by the Minister to the suggestion that we should have some kind of codification of indirect legislation fairly soon; or if codification is too systematic a word, something in the way of card-indexing and consolidation. We are overdue for that. In that connection I think that my right hon. Friend did rather less than justice to my hon. Friend the Member for Stretford (Mr. Efherton), in his remarks about the phrase he had used with regard to emergency and normality. I took the precaution, although I did not know in hon. Friend was going to use the word, of looking up "emergency" in the dictionary. Quoting from memory, the answer was something like this—"a conjuncture requiring something speedily done about it." In that sense there was an emergency in August, 1939. It is not in that sense that there is 1675 an emergency now. I am not suggesting for a moment that the war is over. I am very far from believing that. I am struck by the optimism of everyone I meet. We are rather like a man who is nearly cracked at the first half-mile of a three-mile race and surmounted that, but yet before the end of the race may still run a greater danger of being forced to crack than he was before. I dare not be sure we shall not have worse trials of endurance to go through than we have experienced so far. But it is not necessarily an emergency in the sense of something having suddenly happened which no amount of imagination could have foreseen in which we have suddenly to wrap something round our shoulders. At the time of Munich a French friend of mine said to me, "Maintenant nous sommes dans la misère; faut s'y installer," which may roughly be translated, "Now we are in the soup; we shall have to doss down in it." Roughly speaking, that is our position now. A nearly continuous catena of emergencies' has become almost our normal existence, and it is likely to be for a considerable time. That being so, arguments that could be drawn from the word "emergency" in the early days of the war or in the crisis of the spring of 1940 are not arguments which should be used any longer.
I would like to ask whether we ought not to begin considering the revision of this legislation, not the sub-legislation, but the major Act itself. There is a danger that if we leave it too -long, Ave may find it impossible. There is no doubt that the climate of opinion has changed in the last six months or so. The Ministerial and bureaucratic attitude to the House in this matter is different now from what it was a year ago. We have that much improvement, but the price of that kind of improvement is eternal vigilance, and unless somebody goes on and on the thing will slip back again. We have had again to-day from my right hon. Friend the principal Secretary of State, promises, assurances, and interpretations for the immediate future. Has not the point come near when we ought to have, at least in draft, a Statute which shall contain all these things, so that they do not repose on the vigilance of private Members, but stay there for good?
1676 Some hon. Members have taken part in this Debate rather as if one of the objects of it was to decide which is the best party, the Tory Party or the Socialist Party, or which income section of the population has made the greatest sacrifice in the war. I beg those hon. Members, if they read the OFFICIAL REPORT, for I fear I have driven them out, to believe that those suspicions and that way of approaching this subject are really mistaken and unworthy of their own purposes and, indeed, will if persisted in quite certainly defeat those purposes. The hon. Gentleman the Member for Nelson and Colne (Mr. Silverman) took a higher line than the Trojans took with the Greeks when they brought gifts. They not so much feared them but loathed and-despised them, however good the gifts. If you are engaged in the enterprise of trying to persuade your countrymen that immense changes are in the interests of everyone, that is not the cleverest line. I am sure it is not the fairest line. He thought me one of those whose names to this Motion ought to make the House expect that there is some horrible motive behind it. That may be true, but ever since I have been a Member of this House I think there has been no extension of delegated legislation which I have not criticised and asked questions about. The occasion has not suddenly arisen because somebody or other wants to defend the property of somebody or other. This kind of argument does not help any of us. I would ask those hon. Members who have used arguments of that kind to consider this. The use of State of Emergency has been the technique of all gangster elements in politics. It has been the technique of Hitler and of every gangster who has tried to seize power for the last 2,000 years. Do not let us think that emergency powers are nice things to have about because we might be in office one day and then "What fun!" The chances of politics are infinite, and none of us knows which party will be in office. One of the things we can be sure of is that the set of men who in this country use war for party or personal advantage, or use emergency powers to clamp their policies upon this country, will very quickly learn to wish that they had kept out of politics.
§ Mr. Hutchinson (Ilford)
This Debate has served a useful purpose inasmuch as 1677 it has disclosed a certain element of agreement among us about matters of great and far-reaching importance.
We shall all agree with the opening observations of the Home Secretary when he said that this system of emergency legislation had been made to work by the good will of the public and by the good sense with which, it had been accepted by the public and the House of Commons.' It is precisely because we desire that that good will shall continue to be forthcoming, that we have put this Motion on the Paper. The hon. Member for Nelson and Colne (Mr. Silverman) drew attention to an occasion when emergency legislation of the type which we have been discussing produced a great injustice, in the case of a particular class of individuals. If emergency legislation produces results of that nature, the good will which the public have extended towards this system in the past will not be forthcoming in the future. It is precisely because there is in the public mind a sense of uneasiness that the House of Commons is losing the control which we ought to exercise and which it is our constitutional duty to exercise over the Executive, that my hon. Friends and myself thought it right to put down this Motion.
There is also a general measure of agreement that the necessity of the time has justified this exceptional—because it is frankly admitted by most of us to be exceptional—delegation of powers to the Executive. My hon. Friends and myself fully appreciate these conditions of necessity which have resulted in this modification of our normal constitutional arrangements. But let me remind the House that necessity may be pressed too far. Necessity is a dangerous plea. "So spake the Fiend, and with necessity, the tyrant's plea, excused his devilish deeds."
The Debate to-day has shown a consensus of opinion on both sides of the House on these matters. But a divergence of view has disclosed itself with regard to the measures which will be necessary if this sense of uneasiness in the public mind, to which I have alluded, is to be allayed. The difference between us appears to be this. The hon. Member for Nelson and Colne said at the conclusion of his speech that it was for the Government to devise some effective machinery to check abuses. That, I think, is the point of divergence 1678 between the two opinions which have manifested themselves in the House. Hon. Members on the other side of the House are content that the Government should devise means to put an end to these abuses. We on this side of the House take the view that it is for this House of Commons to exercise its constitutional right and to take the steps which are needed, of course with the assistance of the Government, to ensure such a degree of control as will check the type of abuse to which the hon. Member for Nelson and Colne referred.
It is for that reason that my hon. Friends and I regret that the right hon. Gentleman was unable to accept the suggestion made by my hon. Friend the Member for Stretford (Mr. Etherton) that a Standing Committee should be appointed to consider Orders which are made under the emergency legislation in the manner suggested by the Donoughmore Committee. My right hon. Friend sought to justify the rejection of that proposal upon the ground that this House had delegated to the Government the right to issue Defence Regulations and the other Orders which are covered by the emergency legislation. That, of course, is perfectly true. But the fallacy in my right hon. Friend's argument seemed to be that, although there has been a full measure of delegation, yet that delegation is not complete, because the House has retained to itself the right to annul an Order made under the Emergency Powers Act. It is because this House has found it difficult to exercise that right of annulment that we are asking that machinery should be established to make it easier for this House to-exercise' this important right of annulment which was reserved to it under the Emergency Powers Act, and to take the necessary constitutional steps to annul any of these Orders which appear to us to go beyond the scope of the authority which it was intended to delegate to the Government.
That is the real crux of this question. It is not a question of restricting the delegation which has been made to the Government. It is a question of setting up suitable machinery which will enable this House to enjoy am adequate opportunity of exercising the power of annulment which was one of the vital and essential features in the Emergency Powers Act. The Donoughmore Committee recommended that this particular difficulty could best be overcome by the appointment of a Standing Committee. 1679 It is, no doubt, the case that a Standing Committee charged with the duty of examining all these multitudinous Orders would find that their task was not an easy one to discharge. It is not suggested that this Standing Committee should do more than examine these Orders as they are made and consider whether they appear to go beyond the scope of the powers which it was intended to delegate to the Executive Government. There are not a great many cases in which it would be found that that was so, but it is important that some body such as a Standing Committee should be charged with the duty of examining this volume of legislation and of thus affording to this House that full opportunity, which it finds it difficult to secure at present, of exercising its power of annulment in suitable cases.
It was said by the hon. and gallant Member for North Ayr (Sir C. Mac-Andrew) that the size of the Committee was one of the reasons why it would be difficult for the Committee to discharge the functions it was suggested it ought to undertake. I should have thought the size of the Committee was in itself rather an advantage. I should have thought that a Committee consisting of 30 members was much better for the discharge of this task of examining this legislation than a Committee of smaller numbers would be. The fact remains that the Home Secretary has not suggested any other machinery to overcome this fundamental difficulty, and to enable the House to exercise it's power of annulment. He has not been able to suggest anything better for this purpose than a Standing Committee.
We are grateful for the other matters with which the right hon. Gentleman dealt. The time of the House has certainly not been wasted. We have at least made some progress in the direction which we desire the House to follow to ensure that adequate opportunity is afforded of bringing to the notice of the House Orders and Regulations which we feel ought not, without the express knowledge and sanction of the House, be made the subject of legislation. We are, therefore, grateful to my right hon. Friend for the concessions which he has made.
§ Flight-lieutenant Challen (Hampstead)
At this hour I feel that one is 1680 rather trying to gild the lily of argument and that the less said the better, because' all the relevant points and arguments have been made. We may have had the final decision of the Government for the time being, but I would like to stress a point which I have not heard, except inferentially in the speech of the hon. Member for Cambridge University (Mr. Pickthorn). The Minister referred to recent cases of Prayers that have been brought before this House, and, with some praise, to the action taken with regard to the Orders in question. I would point out that those Prayers came before the House apart from the merits of the case. The Members who put their names down to those Prayers had no knowledge of the merits of the Orders against which they were praying. In one case the Minister was claiming very wide powers to repeal Acts of Parliament but those who spoke in the Prayer had been ignorant of its merits. It was only when the Minister himself stood up to explain to the House exactly why the Government wanted the Order that we first became aware of those merits, and it was then and not until then that the House, almost with one voice, demanded the withdrawal of the Order. The reasons stated by the Minister were found to be so inadequate that the Prayer was conceded to have been fully justified.
That is the kind of case that we visualise arising and coming before* the proposed Select Committee, where the merits will never be discussed at all and where, on the face of it, there is something suspicious or too wide about the Order. The attention of the House is then drawn to the Order in question, and the Minister can tell us on the Floor of this House what the merits are. There is no necessity, demand or occasion for the merits to be investigated beforehand. That is the position envisaged by the Donoughmore Committee, and after studying that Report one cannot fail to be convinced that the case for some such Committee is absolutely made out. The criticism which has been made against the proposal has largely been on this point of "merits." I suppose we must take it that there is to be no Committee, but we must hope that this is not the last word on the subject and that it will come up again.
§ Mr. Muff (Kingston-upon-Hull, East)
I was shocked and aghast at the remarks of the hon. and learned Member for Ilford 1681 (Mr. Hutchinson) suggesting that there should be a Committee of 30 to consider Orders in Council that might be drafted.
§ Mr. Hutchinson
I did not suggest that number at all. It was a suggestion made by the hon. and gallant Member for North Ayrshire (Sir Charles MacAndrew) that there might be a Committee of 30. I said that if it was to be 30, I saw no objection.
§ Mr. Muff
I differ most emphatically from the hon. and learned Gentleman. When there is a war on we have to put aside many of our prejudices and preconceived notions, and it devolves upon every individual Member of Parliament to be vigilant that the liberties of the subject are not infringed. I am grateful to the hon. and gallant Member for Penryn and Falmouth (Major Petherick), for about the first time in my life, for initiating this Debate. Out of it and previous discussions we have evolved a principle that these Orders in Council shall be framed in such decent English that the average man and woman inside or outside this House shall feel not only that justice is being done but that there is every appearance that it is being done when the Orders in Council are being made.
We have not only to tolerate these Orders in Council—we have not exactly given them a warm welcome—but to accept them and to see that we obey the injunction of our daily prayer by examining these Orders in Council without partial prejudice and without too much bias. I can visualise that immediately upon the close of hostilities, and even for two years later, Orders in Council will have to be made in order to keep on certain things which we do not like, but have to accept, such as controls in certain matters of our daily life. I could expound at some length the reasons why controls may have to be kept on after the war, but I "do not think it would be proper to develop that argument now. It will be a matter for those left in this House after the next General Election—and I hope to be one of the happy ones but, may be, I am wrong in that expectation. I certainly wonder what will happen to the last of the Whigs, the hon. Member for South Bradford (Mr. Holdsworth). Whatever may happen to him, I am sure he will bear it with philosophy and due equanimity. Let us rid our minds of cant. Let us think of that daily prayer of ours about partial pre- 1682 judices and bias and apply our spiritual beliefs when we are discussing a Prayer which comes from the Government Front Bench and which may be evolved by a Labour Minister.
I was certainly rather shocked when the Parliamentary Secretary to the Ministry of War Transport a few weeks ago brought before this House an Order which through no fault of his own was garbed in certain legal jargon. Even the Attorney-General would have been stumped if he had had to get up and give what I should call a North-country English version of what was happening. I was not surprised that the Parliamentary Secretary to the Ministry of War Transport, notwithstanding that he is an Olympic runner and a distinguished graduate of one of our Universities, was unable, on the spur of the moment, to give a satisfactory reply. As a sportsman he said, "I ask for the deferment of the question." I have intervened simply to say that, so far as I am concerned, if I continue to be a Member of this House I shall be prepared to be as vigilant as my colleagues, as vigilant as I possibly can be, to see that the liberty of the subject is not infringed. I trust to the good sense, which is one of the features of this House, whatever may be our political views. [Interruption.] If I changed my politics I should be in danger of hell fire. [HON. MEMBERS: "Order."] I withdraw the phrase "Hell fire."
§ Mr. Deputy-Speaker (Mr. Charles Williams)
I am not sure that I am objecting to that phrase, but I think we are getting rather wide of this Motion, when referring to the future, or the next life, of the hon. Gentleman or anyone else.
§ Mr. Muff
I conclude by saying that the day devoted to this Debate has been well spent. We have brought comfort, not to our enemies, but to the citizens of this country. They can still believe that this is a free Parliamentary institution, and that each one of us, whatever his political colour, is resolved to protect the liberty of the subject. We will continue to do so, I hope even more intelligently if the draftsmen in the various Government Departments allow us to think intelligently by using English—basic English. If they do so I am certain we shall reassure the members of the great British public, that they have nothing to fear from the British House of Commons.
§ Sir Herbert Williams (Croydon, South)
I did not think I should have an opportunity of taking part in this Debate—although I have been actively associated with this subject—because a very substantial number of my hon. Friends intended to speak and, I thought they would have occupied the whole time available. I am glad to have a few minutes before the Attorney-General replies to make one or two comments, if I may, on this subject, in which I have taken a sustained interest, not for the last six months but over a much longer period. I only regret that some of us were not more active in this matter very much earlier on. I remember speaking to the then Chief Whip, my friend Lord Margesson, a few days after the war had started, and saying, "Do you not think we should have a Select Committee to do two things—one, to examine all these laws we passed through with such rapidity, and the other, to examine the Regulations made under them?" Perhaps weakly, I was persuaded out of pressing the matter, but as long ago as September, 1939, I first raised this issue. I am grateful first of all to the hon. Member for East Hull (Mr. Muff) for his robust declaration of faith in liberty and the necessity for preserving it. We are fighting against what in other countries they call Fascism. The whole mechanism of Fascism is Government by decree. That is what we are fighting against.
We realise that in war we have to do certain (things. I am grateful to the Home Secretary for the number of announcements he has made. It is obvious that His Majesty's Government are fully seized of the evils which have arisen in the past, and they are clearly going to tidy the matter up. But it is all very well for Ministers to make announcements. It is necessary that they should follow them up. It is many months since the Home Secretary said in a previous Debate that there were to be explanatory memoranda. Up to now these explanatory memoranda have not been too good. I really do not know what some of these Orders mean. If you look at the Order Paper you will see about 14 Questions, all about Orders which are not intelligible, and three about Orders which were in operation several days before they were published. It is a scandal that law which is not available to His 1684 Majesty's subjects should be enforceable against a completely innocent person. The unintelligibility of some of these documents is quite incredible. Ministers are busy, we are all busy these days, but I cannot understand how some Ministers sanction the unintelligible nonsense issued to the public. They should say: "What does this mean? I am not going to ask the public of this country to accept this gibberish." If anyone wants a supreme example of gibberish let him look at the proviso at the bottom of page 1, Clause 1, of the Pensions and Determination of Needs Bill which we discussed last week. The Minister has only to say to the draftsman: "If you cannot give me something more intelligible, I will not put it in the Bill." We have just been bullied by those people with their jargon, and Ministers ought to stand up against it.
There was an intervention in the Debate by the hon. and gallant Member for Ayr and Bute (Sir C. MacAndrew). I did not hear it; I was told of it, and there was subsequent reference to it. It appears that he said: "How stupid the Donoughmore Report is," and proceeded to interpret this proposal in accordance with the words in that volume. But that was a Joint Committee of both Houses. My friends and I have made it perfectly clear that what we want is a Select Committee, chosen in proportion to the Members of the House, with precise terms of reference, to act as a reading committee. I am quite tired of arguing with Members of the Government. They put up a bogy and proceed to knock it down. It is five months since my friends and I got together to consider this matter, and though I was not the originator I was elected chairman of the group, and we have been doing this job since. We examine from two points of view. We examine the intelligibility of the Orders, and we look at the dates and consider the merits. We have done this for five months. The Members consist of one political party only. I think it is much better that it should be done by Members of all parties, but we have taken on the job meantime. We shall be very glad to abdicate from the part of the job that we are doing. I know perfectly well that any intelligent Member of this House, with the assistance of a clerk, meeting once a week for an hour, and with three or four hours apart from that, could do the job.
1685 It is no good Ministers saying this, that, or the other—that it means time of civil servants, and so on. They are talking of what they do not know. I am talking from experience. If members of the War Cabinet, right hon. Gentlemen, learned Gentlemen, even reverend Gentlemen, come up to me and talk about what they know nothing about, I am not impressed by their arguments. What is nobody's job is not done. Somebody has got to look at these things. The task is perfectly easy. The Government's arguments have no merit, and they are forcing upon themselves a lot of trouble. If you do not have a Select Committee, those who, like myself, want the job done have to use the tools at our disposal. There are at any moment on the Table of this House enough prayable Orders to enable us, if we were maliciously inclined, to keep this House going every night, and to deprive every Member of the right to raise anything on the Adjournment. I could do it unaided if I wished, because no one can deny me the right to pray against an Order. I remember the days when the Prime Minister used to get up and say, "If hon. Members hold these views, let them go into the Lobby in support of them." One day we did. The Prime Minister never used that argument again. That is how we discipline Ministers. Silly newspapers write articles saying that Members, like a lot of slaves, go into the Lobby when the whips crack. My right hon. Friend the Patronage Secretary knows that that is not the way the thing works. We say rude things to him behind the Speaker's Chair, and then he goes back to the Minister and says, "You can't do that there ere." Let nobody run away with the idea that Private Members do not play their part in this House. We are going on doing it.
I have another of these Orders in Council here. It came out to-night. It replaces that Statutory Rule and Order 102, which authorised officials of the Board of Trade to go into any place of business and look into anything they liked. We have now a Defence Regulation. I imagine that somebody will say that we ought to pray against that, not primarily with a view to revoking it, but in order to examine its merits and demerits. I have five more Orders, all worth a little religious devotion. Then, in July, as the Home Secretary has reminded us, the Government have to do a little praying. 1686 They have to ask this House to continue the Emergency Powers Act. It runs only from year to year. I think the Act itself wants looking into. So there is a lot ahead of us. I really think we are all exceedingly grateful to the Government, to the Home Secretary and the Lord President of the Council, for the immense amount of work that has been done in looking into these matters. But for some reason somebody in the Government is frightened of a Select Committee. I think they are more frightened of a Select Committee than they are of Hitler. They are in a pathetic state of fright at the idea that it should be somebody's job to do in an organised way this work which is being done by Private Members. I am sorry that my hon. Friend the Member for Stoke (Mr. Ellis Smith) in part of his speech introduced a partisan element. As far as I am aware, although all of our Members happen to be Conservatives, none of us has ever approached this problem from the point of view of a Conservative.
§ Sir H. Williams
It is a dreadful thing to be born with a suspicious mind. "Everybody is out of step except our Bill"—that is the state of mind of the old friend of mine who has just interrupted. It happens that the right hon. Member who has spoken for the Government in this Debate is a Labour Member of the Government; but we do not pick the Government speakers. On the first occasion, when we were discussing five Orders, the Home Secretary was brought in because he is His Majesty's senior Secretary of State, and does all the dirty work. On the next occasion, we had no idea that the hon. Member for Derby (Mr. Noel-Baker) was to be brought in. That was the occasion when the Government, such was their state of confusion, voted against their own Motion. The Government voted with us, and His Majesty was asked to annul the Order, and did so. The hon. Member for Derby, the Parliamentary Secretary to the Ministry of War Transport, said,"This is a matter of grave urgency." They wanted to run motor cars along the road far too fast, and to allow members of the Allied Forces to break the traffic laws. The Government were in a certain amount of panic. The hon. Member for Derby made 1687 an offer. He said, "We realise that this goes too far. We will produce an amending Order, defining precisely the powers that we want, if you will only give us the Order now; it is so vital." The Order was cancelled four months ago, and we have never seen anything to replace it. We pray against an Order; the Government get into a state of confusion and vote with us, so that we win and they are defeated; they say, "It is frightfully important"; four months go by, and still we are under the speed limit, as we ought to be.
§ Mr. Deputy-Speaker
I thought that the hon. Gentleman was quite frank on a matter which seems to me quite dead now.
§ Sir H. Williams
My hon. Friend is under a complete misapprehension. That Order amended a Defence Regulation. It added a new paragraph, beginning with "(c)" which authorised the amending of existing legislation in respect of the Road Traffic Acts. When the Parliamentary Secretary to the Ministry of War Transport spoke he told us of a number of things which the Government wanted to authorise. Some seemed reasonable, some unreasonable; but in the end the whole thing was cancelled. The Minister has not come back for the limited powers which he then said were necessary. That shows that the whole thing was unnecessary from the beginning. I really think we ought to be much more careful than we have been. I have not the slightest doubt that what my hon. Friends and I have done in recent months has justified itself. The proof of the pudding is that the number of Orders coming out is 40 per cent, less than the number last year, making a rough guess. There was one Order which came out, and which I looked into, and which has since been withdrawn. An official in the Ministry was working at it, he became ill with a dose of influenza, someone else came and issued it, and it had the force of an Act of Parliament. I have every reason to believe, though I cannot prove it, that 1688 in some Departments of State there have been people sitting in little rooms writing out documents without the Minister knowing anything about it, but I believe the scandal has been brought to an end. They are all very nervous, and they are going to continue to be nervous, because some of us are watching. The House will remember that famous by-election in the St. George's Division of, Westminster when the late Lord Rothermere, who was giving active support to the opponent of the present Chancellor of the Duchy of Lancaster, said, "Gandhi has his eye on St. George's." That is not quite the phrase, but I can assure the Lord President of the Council, the Home Secretary, the Attorney-General, the Chief Whip and all other dignitaries who are now ornamenting the Front Bench, including our absent friends, that that institution which hon. Members have described as active back-benchers has its eye on the Government.
§ The Attorney-General (Sir Donald Somervell)
I have not really very much left to do, my right hon. Friend having spoken so recently and so fully, but I must repair one grave deficiency in his speech by informing the House, as he did not do it, that the Government accept the Motion on the Order Paper. Some doubt was expressed by some speakers in the earlier part of the Debate that we might be drifting into a somewhat Fascist atmosphere and that the Executive might be getting out of the control of Parliament. Those who listened to the speech of my hon. Friend the Member for South Croydon (Sir H. Williams) will have been reassured as to the obvious, compelling and ultimate power which this House exercises, as we all know, over the Executive, and if any of them were in doubt exactly how it was done, they would get some hints from him on how to do it.
I am in a somewhat different position from some of my colleagues on this whole question. I am not a competent authority for any purpose of any of the Defence Regulations. I make no Orders, and therefore my work lies in other directions, free, in my official position, from the attacks sometimes made with regard to departmental actions. On the other hand, I am extremely concerned to do everything I can for the simplicity and the clarity of our law. It is a very difficult problem in war-time, and it is a difficult 1689 problem in peace-time, with this vast body of Statute law, where Acts of Parliament or delegated legislation should be, as far as possible, intelligible and arranged in an orderly manner so that people know where to find them. But if we should endeavour to do that as far as possible in war-time, then we should endeavour to do it much more in peace-time than we ever have done. Our Statute Book is not a credit to any country. You find that you have to look at 60 Acts of Parliament to find out the law on some minor and subsidiary matters, and that is, I hope, a matter to which Parliament will really have to devote its attention. It will require the assistance of Parliament. We shall have to be less rigid about pure consolidation if we are really to get the Statute Book in order. I feel that there was a great deal in what my hon. Friend the Member for Cambridge University (Mr. Pickthorn) said in the course of his speech, that this problem really depends very largely, as he put it, on climate of opinion. It is the attitude of the House on this matter that is the determining factor.
I agree very much with those hon. Members who have said that this is not a new question. I take part in perhaps more Committee discussions than most other Ministers, because I am very often not dealing with a whole Bill but a little bit of it. In the last 10 years, since I have been a Law Officer, I have taken part in a great many Committee stages. I have heard over and over again a challenge made, quite properly, on the basis of the principles laid down by the Donoughmore Committee. Why do you need these powers; are you taking greater powers than you need; can the powers be more closely confined; can you put in words which would show that the Order cannot for instance fix the penalty but must work to a maximum and so on? Therefore I think that people who say that the DonoughmoreCommittee'sReport was, as it were, put in the waste-paper basket are really misrepresenting the position. I think that that Report has had a very considerable effect, through Members of this House, on the action of the Government in this matter; on the form in which the power to make delegated legislation is taken and on the discussions which we have had from time to time on this sort of questions in Committee. In making a better climate of opinion, I think every- 1690 body agrees, in fact on these Benches, that this Debate has served a very useful purpose. I will not repeat but merely endorse what the right hon. Gentleman said of his gratitude to those who put down this Motion and those who have spoken from all sides of the House. The main matter of controversy which still remains is the question as to whether a Committee such as was recommended by the Donoughmore Committee is a good idea or not and is a suitable instrument for this purpose. I do not want to say anything to exacerbate feelings which may now be harmonious, but I would like to say a word or two on that point.
To-day I took out a volume of Statutory Rules and Orders, which contains, as it conveniently does now, what are called War Orders, Vol. 2, and I compared it with a second volume or other volume in a pre-war year. In the prewar years, as hon. Members know, this delegated legislation was for the most part in a non-controversial area. I found for example pages of National Health Regulations, probably agreed with the approved societies, Rules of Court, which go before a Special Committee and so on, and it would be unlikely that you would find in that bulk of stuff— you would occasionally—something that anybody would want to debate or Pray against in this House if they were laid on the Table or had to have an affirmative Resolution. It was that type of legislation that the Donoughmore Committee must have had in mind when they suggested the Committee which would report to the House whether any matter of principle was involved. That is the leading recommendation. If you shut that volume and open the war volume of Emergency Orders, of course, you get a very different picture. I turned over pages more or less at random, and I wrote down half-a-dozen items —I do not say they were absolutely consecutive, but between 20 and 30 pages. One dealt with agricultural wages. That obviously involves a question of principle. I do not know how important it is to those concerned or not, but there is another which compels people who make coke to make benzole at the same time. That is a great interference with industry, and I should say clearly raises a matter of principle. Then I came to the restriction of building alterations, clearly a matter of principle, and then to an Order 1691 dealing with the supply and distribution of coal, in which my right hon. and gallant Friend can tell collieries where to send coal and tell coal merchants how much they can use when they have got it. All those raise a question of principle. But the fact is that in running and organising a country through the Government, as everybody agrees you have to do for a war of this kind, practically every Order involves a question of principle in that it is doing something which in ordinary times would not be done except after discussion in this House. If it could be done by Order, there would be an ad hoc Clause in the Bill saying that an Order could be made for the particular purpose.
§ Mr. Pickthorn
The argument now apparently is that in peace-time almost none of these Orders contained matters of great significance or principle, whereas in war-time almost all of them do. If the war goes on it seems to me an argument that we should sit for an extra day each week doing nothing but vetting these Orders.
§ Sir H. Williams
My right hon. and learned Friend has referred to a principle, but there is no reference to that word either in our advocacy or in the Report.
§ The Attorney-General
I was looking at page 69 of the Report, which states:The Committee would not report on the Regulation or Rule but would report whether any matter of principle was involved.
§ Mr. Levy
If, as my right hon. and learned Friend says, the majority of prewar Regulations were innocuous and in spite of that the Donoughmore Report recommended that a Committee should be set up, and if he is right that present legislation is controversial and contains matters of great principle, is it arguable to say that although the recommendation was right pre-war, the recommendation we are asking for now is all wrong?
§ The Attorney-General
It will save time if my hon. Friend will allow me to develop my argument. It seems to me that the Committee envisaged by the Donoughmore Report would have to say with regard to nearly every Defence Order or Regulation that it raised a point of principle. But the truth is that in order to conduct a war like this efficiently you have to give the Executive power to issue these Orders and control every aspect of 1692 national life in a way we should not tolerate in peace-time. Every case of whether it is a good or a bad Order must take you to the merits. The Donoughmore criterion, whether a question of principle was involved, was the criterion which you might have been able to apply to what I would call the peace-time layout of Orders in Council. In war-time practically every one of these Orders interferes in a way which we would not tolerate in peace-time.
§ The Attorney-General
If my hon. Friend will allow me, I will. We all want to co-operate. I suggest that the question whether an Order is a proper one to bring before the House cannot be answered by the Donoughmore criterion as to whether it raises a question of principle but whether on the merits, when you know the fact, it is a proper and sensible Order or whether it seems to go beyond what is necessary.
§ The Attorney-General
Perhaps I may be allowed to put my case. I am sure this point is well worth considering. If hon. Members will look through the list, they will find that it is not so much a question of, Does this raise a question of principle? but, on the needs of the war situation, Is this what the Department have to do, or does it go beyond what is necessary? You cannot make up your mind without knowing the facts. I think a Committee of the kind suggested would find itself having to report that practically every piece of legislation was raising a question of principle or would have to go into the merits if it was to do its work properly. My hon. Friend the Member for South Croydon says that his committee are doing it, and, that being so, why cannot it be done by another committee? I would like to pay my tribute to the useful work his committee have done in giving the Government and Departments a bit of a jolt on this matter, but, with all respect, they have not been doing what a Select Committee of Members appointed by this House would be doing. They have been taking these Orders with some of which they have considerable knowledge, and they have been deciding which they want to make a row 1693 about. [Interruption.] Well, let me use the proper term—which Order they think it proper to pray against.
§ The Attorney-General
Then let me say, which Order they should pray against or about which they should put down a Question.
§ The Attorney-General
I think my hon. Friend the Member for South Croydon is a little sensitive. I will endeavour to avoid hurting his feelings.
§ The Attorney-General
My hon. Friend and his committee are performing a different task from that which would be performed by a Standing Committee or a Select Committee. If the terms of reference were as suggested by the Donough-more Committee, they would find themselves powerless to perform any useful function.
My hon. Friend the Member for Cambridge University asked me one or two specific questions. There is great difficulty about setting up a central drafting control. It is very difficult for two people to draft a document. We entirely agree on the importance of having uniformity on these matters and are taking such steps as are practicable to improve the drafting of Orders and make the general procedure and lay-out as uniform as possible. I entirely agree on the importance of not asking for £500,000 when all you need is 6s. 8d. With regard to codification of Orders, a certain amount of that has been done. Obviously I cannot give any general undertaking, but if there is any group of Orders which an hon. Member thinks should be codified, he should take it up with the Department. I like codification. It has great advantages from a lawyer's point of view, but, on the other hand, it is sometimes rather a nuisance from the point of view of people who have got used to the Orders as they came out, if instead of saying that is the Order of the 12th January in some year they suddenly find it is paragraph 15 of a year and a half later. I 1694 think that is a point which ought to be borne in mind, but there are Departments which are codifying Orders, and I think my right hon. Friend has codified fire-watching Orders.
There was a general recognition, I think, throughout the Debate, certainly in the speech of the hon. and gallant Member for Penryn and Falmouth (Major Petherick), of the need for a strong Government, at any rate in war-time, a Government which has confidence and is ready to act and is not looking over its shoulder too much at the hon. Member for South Croydon. But we do want to do what is practicable in these difficult times to avoid greater interference than is necessary. I think perhaps there was some exaggeration of the view that democracy in this country was in danger. I do not believe it is in danger. The basis of democracy in this country is this House of Commons and the power it exercises, and of course it does not only exercise power in those matters against which it can pray. Nobody who sits on these benches is going to minimise the power of this House, although there is Jio formal right of Prayer. No hon. Member can present a Prayer against the way in which ration cards are being issued, but it is obvious that this House is making it's wishes felt in that matter. I can only repeat on behalf of my right hon. Friend that although we do not see eye to eye with all the suggestions made, we are anxious to do what is possible, and we appreciate the temper in which from all sides of the House this matter has been brought forward and the appreciation expressed of the Government's difficulties in these times.
§ Question put, and agreed to.
That this House, admitting the necessity for war purposes of giving abnormal powers to the Executive, is of opinion that Parliament should vigilantly maintain its ancient right and duty of examining legislation, whether delegated or otherwise.