CLAUSE 101.—(Regulations to be laid before Parliament.) (Hansard, 4 April 1944)

§ Sir Arnold Gridley (Stockport)
I beg to move, in page 7o, line 33, to leave out from "and" to "period," in line 34, and to insert: any such regulation shall cease to have effect on the expiration of a. I take it, Mr. Williams, that you will agree that the Amendment further down on the Order Paper: in page 70, line 35, to leave out from "it," to without," in line 37, and insert "unless at some time before the expiration of that period they have been approved with or without amendment, by resolution of both Houses of Parliament, should be taken with this Amendment. The purpose of these two Amendments is very simple. It is to secure that the Minister shall obtain affirmative Resolutions as when, for example, Orders for establishing a joint education authority are contemplated under paragraph r, Part I, of the First Schedule. I do not think it is necessary for me to say anything more in support of the Amendment. The principle has been discussed on many previous occasions, and I know the Minister himself wishes to finish the Committee stage of this Bill.

§ Mr. Pickthorn
There has been debate on earlier occasions about whether this is a matter of principle to be settled once and for all or whether it ought to be considered on each particular Bill. I will take great care not to get out of Order in discussing it, but I think it appropriate to say, to begin with, that in my view that question is really an unfair one: it is really the business of private Members to challenge the authorisation to legislate indirectly every time it is put up, and always to put the onus of proof on the Government, especially of proof that the negative check is sufficient. I think that in the Bill before us, although that onus may be more easily discharged than in some other Bills we have had, it is perhaps rather more obvious than it has been on some previous occasions for this reason: the normal Ministerial defence of delegated legislation is to say, "On this matter which concerns my Bill the only really possible way, in view of the complications of all the interests, is that the House should lay down general principles and I should be left, by sub-legislation, to apply particular rules to special cases." But, under this Bill, the Ministerial outlook has been almost the converse of that.
1933 We have been told on three or four occasions, particularly on the earlier Clauses, that really they were matters of principle, that when you came to education, which is so evanescent and so immaterial, these were matters of principle which you could not get into draftsman's language, and that we must trust to Ministerial probity and general Parliamentary control, and that the matter must be left to the administrative machine which the Bill provides. That is the argument which my right hon. Friend has presented to the Committee on several occasions. Therefore, we are the more bound to ask him now to make out a case why he should have this power, with merely the negative check, and not, as we would prefer, the positive check. And, secondly, I do not know what hon. Members would dare to stand an examination to-day the subject of which would be: "What, when this Bill becomes an Act, can the Minister do by regulation?" This is a long Bill, the discussions have been long, and in many ways—without disrespect to the Committee—scrappy and interrupted. We have all had other prepossessions, much more urgent and, in a way, much more important; and I venture to say that the Committee is not very clear in its corporate mind at the present time what the Minister can do under Clause 101, and what he cannot. It would be proper for him to remind us what he can do under this Clause before he asks us to allow him to have the power with a merely negative check.

§ Sir J. Mellor
I support this Amendment because I think that the powers given to the Minister to legislate by regulation and by order under this Bill are greater than the powers given under any other Bill that I can remember.

§ Mr. Butler
This issue is one which the Government have examined very carefully, in the light of the Amendment on the Order Paper. I have had an opportunity of discussing it with various hon. Members in the Committee. The position is that, under the existing education law, Section 118 (5) of the Act of 1921 provided simply that any regulations made by the Board for payment of grants should be laid before Parliament when they are made. We fully realised the anxiety of hon. Members, and, therefore, we drafted our Bill in a rather more definite way. Clause sot goes further 1934 than the 1921 Act by requiring that all regulations made under the Act shall be laid before Parliament for the specified period, with the further provision that Parliament may resolve that the regulations may be annulled. I should say that that was quite sufficient power for the House over the vast range of the regulations made by the Board. To ask for an affirmative Resolution for every one of our regulations would not only, I think, render the work of Parliament too heavy to be carried out, but would also cause the work of the Board to become extremely clogged.
I am quite prepared to explain, for the benefit of hon. Members supporting the Amendment and that of other hon. Members, the type of regulation which the Minister is empowered to make. We do not want to get out of any unpleasant duty but wherever the word "prescribed" occurs, it would mean that this procedure would have to be followed. In Clause 9, Sub-section (7), for example, there is the question of the prescribed standards for the premises of maintained schools. Again, under Clause 35, there is the question of the form of school attendance order. There is, under Clause 65, the conduct of medical examinations, medical inspections, and matters pertaining thereto. I could give a good many examples of cases where the word "prescribed" is used. I am prepared to discuss the question with hon. Members interested in these Amendments, in order that before we reach the next stage we may have an understanding on the type of regulations which should require an affirmative Resolution.
In order to show that we have taken an interest in this matter, I would point out that there is one type of order in respect of which I think it would be legitimate to require a positive Resolution. That is the order for the establishment of a joint education board, made under Part I of the First Schedule. That would very much affect the local government of an area, and would be an example of a new authority being set up under the Bill. In the case of such an order, we think that we might usefully require a positive Resolution of the House. If hon. Members cared to examine the lists of the prescribed conditions which I can give them, and to consider whether there were any others of similar calibre, I would be ready to discuss the matter; but I must not be 1935 taken as adopting too easy a line on this. An affirmative Resolution is very difficult to fit in with Parliamentary business, especially as I want to get this Measure implemented, and the time between the passing of the Act and the making of the regulations is not going to be very long. It would then be possible for affirmative Resolutions to be made where necessary, while the remainder could be left on the Table of the House, so that any wide-awake Member would be able to move to annul them. We have considerably improved on the procedure of the existing Act. To suggest that all the regulations should be subject to an affirmative Resolution would be going too far; but I am ready, if the Amendment is not pressed, to discuss the matter with the hon. Member and with anybody else who is interested before the next stage.

§ Sir P. Harris
I would very much like to support the sensible offer of the right hon. Gentleman. There is obviously a very clear line between regulations dealing with mere administration and regulations giving additional powers to the Board. The example given by the right hon. Gentleman is a very important one, dealing with the question of joint authorities. That may seriously affect the independence or the rights of local authorities.

§ Mr. Pickthorn
If there is a very clear line between these two kinds of regulations, why does not the right hon. Gentleman suggest that one set be made by the Bill the subject of affirmative Resolution, and the other left to be the subject of the negative procedure?

§ Sir P. Harris
I understand that the right hon. Gentleman is prepared to do that. That is why I welcome his attitude, which is a great improvement on the attitude of most Ministers. I think that when we get a Minister prepared to be so reasonable, we ought to back him. I think that when this conference is held —and I should like to be included in the conference—we should have an opportunity to discuss the difference between the two kinds of regulations.

§ Mr. Manningham-Buller (Daventry)
While I welcome what the Minister has said in regard to the two categories of regulations, I think we should be careful to distinguish which kind of regulation 1936 falls within each category. That should be clearly defined in the Bill. I was sorry to hear the Minister saying that he would give an example of regulations that would not require an affirmative Resolution of the House. The regulations provide the standard of school to which schools have to conform. I think that is a most important matter, because the standard, as fixed, will probably determine whether a school will come within the aided category or have to become a controlled school. I ask the Minister to consider whether that type of regulation should not also be subject to an affirmative Resolution.

§ Mr. Price (Forest of Dean)
I would like to say from these benches, that I think that the Minister has met those who moved this Amendment in a very reasonable spirit. There is no doubt that there is a great danger that the House might, in the conduct of legislation which comes before us, find it very difficult, if not impossible, to carry out its duty in watching over the Regulations which Ministers are empowered to draw up. On the other hand, if we tie Ministers down to affirmative Resolutions, it makes the function of the Executive impossible. Therefore, I think there must be a compromise on this matter. In any matter which is clearly of public importance there should be an affirmative Resolution. Concerning other regulations, there may be other methods and other ways of dealing with them.

§ Sir A. Gridley
I think the Minister has made a very fair and proper suggestion, like so many others in the course of these Debates. As the Minister has been good enough to give those of us who put down this Amendment an undertaking that there will be a conference to go into this question further, between now and the Report stage, I beg leave to withdraw the Amendment.