CLAUSE 2.—(Provisions as to Orders in Council.) (Hansard, 24 October 1944)

§ Mr. Geoffrey Hutchinson
I beg to move, in page 3, line 20, at end, add: Provided that every such Order in Council shall cease to have effect if it is not laid before Parliament within twenty days of the date on which it was made. It will be within the recollection of the Committee that, some months ago, it transpired that a number of Statutory Orders relating to the National Fire Service which, under the terms of the Act of Parliament under which they were made, ought to have been laid before Parliament had, in fact, owing to an omission on the part of the Department, never been laid before Parliament at all. Accordingly, it became necessary, as the Committee will recollect, for the Government to introduce a Bill to relieve the Home Secretary of any responsibilities which might otherwise have descended upon him in consequence of that omission. In the course of the Debates on that Bill, it became evident that opinion was divided as to the legal consequences of a failure to lay a Statutory Order before Parliament in the manner prescribed by the Act under which that Statutory Order was made. If my recollection is right, my right hon. and learned Friend the Attorney-General was inclined to take the view that the 119 effect of failure to lay the Order before Parliament was that the Order lost legal validity: there were other Members, who had studied the question and were qualified to form an opinion, who considered that, notwithstanding that the Order had never been laid before Parliament as it should have been laid, its legal validity remained unaffected. In those circumstances, my hon. Friends and I, who have taken an interest in this matter, thought it right that the matter should be cleared up, and that the Clause, which is commonly inserted in an Act of Parliament, requiring these Statutory Rules and Orders to be laid before Parliament, should be amended in such a manner as to make it clear beyond the possibility of doubt that if, in fact, the Orders never were laid before Parliament, they should cease to have the force of law. The next Bill which came before this House on which this matter arose was this Bill. Accordingly, this Amendment was put down, in order to ensure that the Orders in Council which are to be made under this Bill shall cease to have legal effect if they are not laid before Parliament within a certain prescribed time.
All this happened some months ago. Last week I addressed a Question to my right hon. Friend the Chancellor of the Exchequer, asking what progress had been made with the consideration of this matter. In reply, he informed me that the question of the steps which were to he taken to ensure that Parliament has its opportunity of seeing these Orders, and, what is more important, of taking, the action which is open to Parliament with regard to these Statutory Orders, was under active consideration. It may be too much to hope that that active consideration had resulted in a conclusion between last week and this afternoon. But I hope that my right hon. and learned Friend, or whoever replies, will be able to give an assurance that before very long some proposal will be made to Parliament, to remedy this defect which has appeared in our procedure for dealing with Statutory Orders.
The Committee, of course, will not underestimate the importance of these Orders being laid before Parliament, in accordance with the Act of Parliament. Parliament has certain rights in connection with these Orders. We have in some 120 cases the right to pray that the Order should be annulled! In other cases a different course takes place. The important point is that, unless these Orders are duly laid before Parliament, Parliament is unable to exercise that control which it has always jealously sought to retain over delegated legislation. Therefore, I hope that the Attorney-General, or whoever deals with this Amendment, will be able to give us an assurance that before very long it is proposed to announce what steps are to be taken to make good the defect which the events of last summer disclosed.

§ Mr. Pethick-Lawrence
Surely, the hon. and learned Gentleman is under a complete misapprehension as to the effect of the words in the Clause. The effect is that the House of Commons, equally with another place, has a positive initiative in this matter. The Orders in Council do not arise at all unless this House has previously presented—

§ The Attorney-General
I think my right hon. Friend is mixing up the Order in Council under which the Bill can be renewed with the Orders in Council referred to in the Amendment.

§ Mr. Pethick-Lawrence
If I am incorrect in that, I will not proceed with my argument.

§ Mr. Petherick
I wish to support the Amendment. The object is perfectly clear. At the time of King Charles 11, if my historical memory is correct, we passed an Act of Indemnity and Oblivion. Recently we passed an Act of Indemnity to absolve the Home Secretary from some unfortunate mistakes of the Home Office, but we did not add the words "and of Oblivion"— quite rightly, I think; because we have not forgotten the incident, although I think we let the Home Secretary down very lightly at the time. This may happen again, and it is very important that we should, at the earliest possible moment, insert words into a Bill, during its passage through this House—which we hope may become common form in all such Acts—to make it obligatory, when an Order has to be tabled, that it shall be tabled within a certain time, so that the unhappy incident in which the Home Secretary was involved shall not take place a second time. This is a Government protection Measure, and I hope that the Government will, 121 therefore, in their own interests, see fit to accept it. Some months ago we were given to understand that conversations were proceeding, at a fairly high level, with a view to finding a suitable form of words. I hope that they were really conversations, and not conversaziones—which the Minister of State, with his command of languages, as a representative of the Foreign Office, knows, means something entirely different. I hope that the Attorney-General will be able to tell us that the Government have come to a conclusion, and that they will be able to insert either this form of words or some other form.

§ The Attorney-General
I am grateful to my hon. Friends for having put down the Amendment, but I hope that it will not be pressed, for reasons which I think my hon. and learned Friend anticipated, and which I will endeavour to give. It is quite true that, at the time of the discussions on the Fire Service Orders, the Government undertook to look into this matter in two directions: first of all, with a view to tightening up the administrative machinery so as to ensure that what had happened would not happen again, and, second, with a view to considering whether legislation might be desirable to produce the first result which my hon. and learned Friend has referred to, namely, to secure that if Orders were not laid they should become invalid.
It is a little more complicated than one might think, because the Order may have to be effective as soon as issued; then the Act says it must be laid, and, of course, it ought to be laid. Then the question is, Within what time must it be laid and what happens if it is not laid within that time? I wish I could give a final decision, but I am not in a position to do that. The Prime Minister once used a phrase, when somebody was asking when something would be done: "There will be an interval of time, but there will be no delay." I think my hon. Friends are thinking that, in this case, there may be an interval of time and delay, but I think they will appreciate that there are a number of things to do, though we have not been idle, and I will give my personal assurance that I will see that a conclusion is come to as soon as possible. I think it would be more satisfactory not to start putting into an isolated Bill a form of words which might lead to difficulties of construction 122 arising under it. I hope that, in view of that, my hon. Friend will not press the Amendment.

§ Mr. Petherick
May I point out a difficulty? The Attorney-General said that we cannot put it into an isolated Bill. I do not see how it can possibly be embodied in a general code of law, because there is no general code of law for it to be embodied in, and, as it has to be embodied in something, it could be embodied in the first isolated Bill that comes along? Will the Attorney-General give an assurance that he will consider it, in any Bill about to be presented, and before the Bill comes along?

§ The Attorney-General
If it is understood that nothing I say now can be regarded as any indication of what the Government will decide, I can say this: One of the possible things suggested was that we should merely deal with the future, I have however considered a provision, which would make it clear, where these words occurred in existing Acts, without going back, over Orders made what the position is to be as regards new Orders issued under old Acts and the laying of such Orders. That was what I was referring to when I said we might deal with it generally and not merely in future Bills. I quite agree with my hon. Friend that, if it is merely a question of putting words in some future Bills, we shall have to make a start some day, and I will see if we can make a start as soon as possible.

§ Mr. Hutchinson
I can see the advantage, as the Attorney-General has said, of applying whatever solution may be proposed, not only to those Acts which will be passed in future, but to those Acts which are already on the Statute Book, and, in the hope that the interval of time to which my right hon. and learned Friend has referred will not be unduly prolonged, I beg to ask leave to withdraw.
Amendment, by leave, withdrawn.
Motion made, and Question proposed, "That the Clause stand part of the Bill."

Captain Duncan
I did not intervene in the discussion on the Amendment, because it seemed to me rather a narrow point, but in the Debate on Second Reading I raised the question whether this negative procedure was appropriate to this Bill, and whether it would not be preferable to 123 have the positive procedure in dealing with an important matter like this. Instead of the Order in Council being effective unless somebody in the House of Commons moved a Prayer against it, the Order should not be effective until there was a positive Resolution of the House in favour of it. My right hon. Friend the Minister of State, in replying to me, said that was a Committee point and that he would like to deal with it there. This is the opportunity for the Minister to reply on this point. I do not want to press the matter now, but I understand that conversations on a high level are going on about precedents, not about the narrow point of the Amendment, and I would like my right hon. Friend to say that, if the decision is made, and if this type of Order in Council is of sufficient importance, as I think it is, to warrant the positive procedure, he will, from the Foreign Office point of view, raise no objections to this Bill being included in the positive procedure.

§ Mr. Pethick-Lawrence
When I intervened a little while ago, I had not quite grasped that there were two types of Orders in Council that would, if the Amendment were carried, conflict with Clause 1. As I understand it, Clause 2 will apply both to Orders in Council under the original Bill and also to that particular type of Order in Council under the Amendment we have carried to Clause 1.

§ The Attorney-General
No. The Order in Council extending the Act, if it becomes an Act, requires an affirmative Resolution. The Orders which are subject to a negative Resolution are Orders made under Clause 1 naming the organisations and setting out the immunities.

§ Mr. Pethick-Lawrence
I quite understand that, but do I understand the Attorney-General to say that the provisions in the Clause now under consideration do not apply to an Order in Council carried as an Amendment? It is an important point. If they do not apply, then the result of the Amendment carried just recently, at the invitation of the hon. Member for Colchester (Mr. Lewis), definitely brings Sections 1 and 2 to an end in ten years' time. If, on the other hand, Clause 2 does apply, then the fourth Sub-section of Clause 2 will enable the Government, after every 124 period of five years, to carry the Bill forward, and, therefore, the Bill will not come to an end in ten years' time because modifying Orders for a further period of five years can be made every five years. The point is of considerable importance. I do not see on what grounds the Attorney-General takes the view that those Orders in Council which arise under Sub-section (2, c) of Clause 1 are excluded from the provisions of Clause 2. I am quite aware that an Order in Council under Sub-section (2, c) requires an affirmative antecedent Resolution of both Houses, whereas an Order in Council under Sub-section (1) of Clause 1 does not require any antecedent affirmative Resolution. It does not say, in Clause 2, "an Order in Council made under Subsection (1) of Clause 1"; it says, "in the last foregoing Section," and I should have thought it applied equally to those under Sub-section (2, c) and those under Sub-section (1) of Clause 1. I should be glad if the Attorney-General will give us some information about that.

§ The Attorney-General
I did not make myself clear, perhaps. As I read the Bill, this Clause 2 applies to all Orders in Council under the Bill as originally drafted, including those under Subsection (2). What it does not apply to is a Resolution for extending it, for a further period of five years. If I said anything to suggest that I thought Clause 2 did not apply to the same Orders in Council as Clause 1, I must have used words which I did not intend.

§ Mr. Pethick-Lawrence
I still do not understand the learned Attorney-General's point. Do I understand him now to say that Sub-section (4) of Clause 2 will not apply to the Orders in Council which have been carried in the Amendment relating to Sub-section (2, c) of Clause I.

§ The Attorney-General
It will apply.

§ Mr. Pethick-Lawrence
So that in fact the Bill can be extended for a further period of five years by the introduction of a fresh Order in Council.

§ The Attorney-General
I have done my best to explain.

§ Mr. Pethick-Lawrence
I will try to make it a little clearer. The Bill runs for five years. Before the expiry of five years an Order in Council can be laid in both Houses of Parliament for the provision to be extended.

§ The Attorney-General
Surely, my right hon. Friend is again wrong. The Amendment to Clause 1, introducing Sub-section (6) has nothing to do with Sub-section (2, c) of Clause 1.

§ Mr. Pethick-Lawrence
It is rather complicated, but Clause 2 (4) refers to "any such Order in Council." If these words relate to the new Amendments in Clause 1, Sub-section (2c) that enables the Government to modify or revoke an Order in Council which has been extended for five years by another one. I may be wrong, but perhaps the Attorney-General will look into the matter. It is rather difficult on the spur of the moment to be sure of the effect of the words, but perhaps he will look into the point between now and the Report stage.

§ Viscount Hinchingbrooke (Dorset, Southern)
I do not desire to go into the complications which exist but I would like to support what my hon. Friend has said. Will the right hon. and learned Gentleman make an attempt to reverse the procedure in Clause 2, Sub-section (1), in order that there shall be an affirmative Resolution instead of a negative Resolution. We have carried an Amendment to Clause 1, in the form of a new Sub-section (6), which provides for an affirmative Resolution and it seems to be a pity to have two separate principles in one small Bill.

§ The Attorney-General
I profoundly disagree with what has fallen from my Noble Friend that it is a mistake to have two forms of Resolution in one Bill, even if it is a short, one. I do not want to enter into controversy, but, broadly speaking, there is or should be an affirmative Resolution where it is a case of amending the Bill or extending its life, as that is something which affects the Bill as a whole. Where we are doing something under the Bill, perhaps the right procedure is a negative Resolution. I am very grateful to my hon. Friends for the way they have raised the point. I think we can say that we were right when we moved the new Sub-section (6) providing for an affirmative Resolution. The Government of the day must come to Parliament and say, "We ask you to scratch out 'five' and put in 'ten'." Our proposals involve an affirmative Resolution for one provision and a negative one for the other cases. The negative Resolution probably is right for Orders in 126 Council dealt with under Sub-section (2). I cannot forecast what the decisions will be on this topic and how it will be related to things that we have passed, in relating negative procedure to the original Orders and an affirmative one to an extension of the Bill. The right hon. Gentleman raised a point and I did not quite follow it but I should think that is very likely my fault. He may be right that there should be a consequential Amendment to Clause 2, make it plain that all it contains about negative procedures is related to Orders in Council under Sub-sections (1) and (2) of Clause 2 and that it does not apply to the affirmative procedure which arises under the new Sub-section (6). I might move a manuscript Amendment making it clear that Clause 2 only applies to Orders in Council under Sub-sections (1) and (2). I think that will clear up the difficulty in his mind.
Question, "That the Clause stand part of the Bill," put, and agreed to.
Clause 3 ordered to stand part of the Bill.