EMERGENCY POWERS (DEFENCE) (GENERAL REGULATIONS) (Hansard, 18 December 1945)

§ Major Boyd-Carpenter (Kingston-upon-Thames)
I beg to move, That an humble Address be presented to His Majesty, praying that the Order in Council dated 16th November, 1945, amending Regulation 42CA of the Defence (General) Regulations, 1939 (S.R. amp; O., 1945, No. 1451), made under the Emergency Powers (Defence) Acts, 1939 to 1945, a copy of which Order was presented on 16th November, be annulled. As the House will observe, this Motion on the Order Paper in the name of my hon. Friend the Member for Huntingdon (Mr. Renton) and myself asks for the annulment of Statutory Rule amp; Order No. 1451. The Statutory Rule amp; Order in question was made on 16th November last. Perhaps it would be proper if I read it to the House: Statutory Rules and Orders, No. 1451. Order amending Regulation 42CA of the Defence (General) Regulations, 1939. After paragraph 4 of Regulation 42CA of the Defence (General) Regulation, 1939, which relates to unlawful gaming parties, the following paragraph shall be inserted: ' 4A. Any constable may arrest without warrant any person whom he has reasonable ground for suspecting to have committed an offence against this Regulation.' Perhaps it would be proper, in order to clarify the matter, if I reminded the House that Regulation 42CA, to which No. 1451 is an amendment, is the Defence Regulation dealing with unlawful gaming parties. The short point that arises on this Motion will be quite apparent to the House. It is that this Statutory Rule amp;; Order gives power to any constable to arrest with out warrant, at any time or place, any person whom he reasonably suspects of taking part in one of these unlawful gaming offences. I would stress two points, the first of which is the extraordinary width of that power. It is not in any sense confined to arrest at a gaming party, but would permit the arrest in the street 12 months later of 1246 anyone suspected of having taken part in it. Secondly, this is done by Statutory Rule amp; Order and is, in fact, as from 16th November, already the law of the land. Since we put down this Motion, one or two matters have arisen to which it would be material to invite the attention of the House. The first and most important is that the Select Committee on Statutory Rules & Orders has made its Sixth Report which states that the Committee have also considered,the. Order in Council amending Regulation 42CA of the Defence (General) Regulation, 1939 (S.R &O. 1945, No. 1.451) a. copy of which was presented on 6th November, and are of opinion that the special attention of the House should be drawn to it on the ground that it appears to make some unusual or unexpected use of the powers conferred by the Statute under which it is made. That is the Report of the Select Committee responsible for reading and reporting upon this delegated legislation and, if I may say so without impertinence, for discharging the duty of watchdog, on behalf of the House, in connection with delegated legislation.
Another matter that has arisen is the fact that the right hon. Gentleman the Secretary of State for the Home Department has, in Committee upstairs, introduced an Amendment to the Emergency Laws Bill designed to give to the police some, but by no. means all, of the powers already possessed under this Regulation. I understand that the right hon. Gentleman is not too strongly devoted to this Regulation, and that he may be able to take a reasonable attitude with respect to it. Should he be so inclined, I respectfully suggest to him that it would be a very fitting and proper thing for him to indicate that he is prepared not to dissent from the Motion now before the House. The right hon. Gentleman is, if I may say so without impertinence, a democrat and a Parliamentarian, and if he could see his way to state the attitude which I have indicated it would vindicate in a very emphatic way not only the value of the Reports of the Select Committee, but also the responsibility of this House to be vigilant in respect of delegated legislation. In particular, it would make it clear that the safeguard of any hon. Member being able to set down a Motion such as this for the annulment of these Regulations was a reality and not a sham. Therefore, apart from the merits or demerits of this 1247 particular Statutory Rule and Order, a matter of a certain constitutional importance is involved.
I have indicated that I understand the right hon. Gentleman does not regard the Regulation with undue respect or affection and therefore I think it unnecessary to go into the merits of the Regulation at any length. The power of a constable to arrest without warrant is one which affects the liberty of the subject, and it has been the object of a great deal of legislation and discussion. I stand subject to correction by many hon. and learned Members of the House in submitting that, in general, and subject to a certain number of exceptions, the tendency has been for arrest without warrant to be confined either under the common law to felonies, or to cases of some seriousness, or cases where the offence is committed in the presence of a constable. The present Regulation goes considerably further. I do not seek to justify or palliate the folly of gaming parties, in which quite a number of very foolish people have succeeded in losing a great deal of money. But it is quite another thing to say that the offence of taking part in such parties must be treated as a subject matter of great gravity. I would remind the House that this Regulation 42CA, in connection with which these wide powers of arrest are already given, is a Regulation which carries a maximum punishment of three months' imprisonment, or a fine of £500 and therefore does not seem to be regarded as of great gravity.
I do not wish in all the circumstances to detain the House any longer on this point. [An Hon. Member: "Hear, hear "] I would say to the hon. Member who said "Hear, hear," that there are still some of us who value the liberty of the subject and who do not regard a few minutes of Parliamentary time as wholly wasted in the matter. I would draw attention to one further point. This wide power of arrest, without warrant, unlimited in time or place, has been given not by legislation which is subject to Parliamentary criticism, but by regulation, by Statutory Rule and Order, which becomes the law immediately and which only becomes the subject of Parliamentary discussion if an hon. Member puts down a Motion similar to my own.
I submit as a general proposition that in time of peace it is undesirable that 1248 measures affecting the liberty of the subject and the power of arrest without warrant should be dealt with by regulation. I would respectfully submit that, where it is necessary to obtain such powers, the proper and right thing to do — as the Home Secretary is now doing— is to come to the House and ask for legislation in the normal way; I would in those circumstances ask the right hon. Gentleman to consider whether he cannot accept this Prayer.

§ Mr. Renton (Huntingdon)
I beg to Second the Motion.
The case has been put forward very clearly by my hon. and gallant Friend the Member for Kingston-upon-Thames (Major Boyd-Carpenter). As the hour is late and it does not seem necessary, where the principle is so clear, to elaborate the matter, I will leave it at that.

§ The Secretary of State for the Home Department (Mr. Ede)
The hon. and gallant Member for Kingston-upon-Thames (Major Boyd-Carpenter) might have carried his researches a little further, especially into the proceedings of the Committee Upstairs, He would then have found that I told the Committee on nth December that I proposed to revoke this Order which is the subject of the Prayer, on the earliest possible occasion. The exact words I used were: The existing paragraph (4A) of Regulation 42CA, which confers a wider power of arrest than is necessary, is to be revoked at the next opportunity; that is to say, at a meeting of the Privy Council which I anticipate will be held on 14th of this month." [OFFICIAL RE PORT, Standing Committee B, 11th December, 1945; Col. 113.] That is the present month of December. Unfortunately, it was not possible to hold a Privy Council meeting on that day. A Privy Council is to be held the day after tomorrow, and an Order revoking this Order will then be submitted, in accordance with the promise which I made to the Standing Committee. The date of those remarks of mine in Standing Committee B was the day on which the Report of the Select Committee scrutinising these Orders was published, and my statement was made before 1 had seen the Report of that Committee.

§ Major Boyd-Carpenter
Is the right hon. Gentleman aware that this Motion was on the Order Paper three days prior to that?

§ Mr. Ede
No, I was not. My attention had not at that stage been called to it, and I apologise to the hon. and gallant Gentleman that I did not search the Order Paper to find out what his activities had been. I ought to say that I have included in the Emergency Laws (Transitional Powers) Bill a new paragraph which sets out so that all who read the Bill may see them, the exact powers I propose to take. At the end of the proceedings on the Emergency Laws (Transitional Powers) Bill, when it has become an Act of Parliament, I propose to re-publish such regulations as remain, in the form in which they will then be, so that, in one volume, Members will be able to find all the regulations that remain, and from time to time I have undertaken, if alterations are made, that republication of the volume in an amended form shall take place. But I must warn the House that, in accepting this Prayer, I do not accept all the arguments that have been adduced by the hon. and gallant Member for Kingston-upon-Thames this evening. It will be necessary, as it is under the Gaming Act of 1845, to arm the police, when they visit these illegal gaming houses, with the power of arrest and search of the persons found there —

§ Major Boyd-Carpenter
On the premises?

§ Mr. Ede
Found there. I shall carefully examine, as I promised the Standing Committee, the words which I have put into the Bill to make quite sure that I take no further power than that. I am exceedingly anxious— and I thank the hon. and gallant Gentleman for giving me the opportunity for saying this— that now we have reached a period of what, I think, was called in another place the other day, "incipient peace," these Defence Regulations, which we are bound to continue in the transitional period, shall be in such a form as can readily be comprehended both by Members of the Bar and by the laity. I do not want to have a repetition of what happened the other night when the hon. and learned Member for Exeter (Mr. Maude) spent some time denouncing me for two regulations which I had already revoked. Therefore, I hope the House will realise that I accept the general spirit of the remarks that were made by the hon. and gallant Member for Kingston-upon-Thames, who, I may say, reminds many of us of the distinguished part his 1250 father used to play in this House, and whose Parliamentary abilities we recognise. At the same time, I am very anxious that no more powers than are absolutely necessary shall be taken, and the House will have an opportunity on the Report Stage of the Emergency Laws Bill to examine the new wording of this Regulation and to propose such verbal Amendments to it as they think fit. I advise the House to accept the Prayer.

§ Mr. Maude (Exeter)
Before the right hon. Gentleman resumes his seat, as he has been so very pleasant and considerate in this matter, may I ask him one thing? As we are nearing the New Year, will he make a resolution not to be quite so naughty again for some considerable time?

§ Mr. Ede
My opportunities for naughtiness will expire on 24th February, and I hope I may have that short time in which to enjoy myself.

§ Mr. Renton
May I express my —

§ Mr. Speaker
The hon. Gentleman has already addressed the House and he can only speak again by leave of the House.

§ Mr. Renton
I would like to express my appreciation and that of my hon. And gallant Friend, in regard to the action taken by the right hon. Gentleman, and to say that the Prayer was not prayed in aid of gambling — [Interruption].