CLAUSE 5.—(Making of wages council orders.) (Hansard, 1 February 1945)

§ Mr. Summers (Northampton)
I beg to move, in page 5, line 21, at the beginning, insert "a clear indication of."
This Clause deals with the objections which may be made to the formation of a wages council, and the field covered by this machinery for dealing with wages is a much larger field than has hitherto been covered under the Trade Boards Act. It therefore becomes increasingly important that the proper facilities should be available to those who may have objections to make. Sub-section (2) of this Clause, as drafted, requires that an objector shall, first of all, state the specific grounds of his objection, and secondly omissions, additions or modifications asked for. As drafted, it would seem that the objector could have his objection invalidated, if the wording which he proposed to sub- 1657 stitute did not technically comply with the Bill. The object of these additional words is to make sure that objectors do not have their objections invalidated on purely technical and drafting grounds. The intention is that, if a clear indication that the change is needed is, in fact, submitted, that should be sufficient for the purpose.

§ The Minister of Labour (Mr. Ernest Bevin)
The wording I have followed in this Clause is precisely the wording that has been in operation in all these wages Bills since 1909. It is absolutely essential, if a statement is put in objecting to a wages council, that it should be in writing and set forth what it is to which objection is taken. Apart from that I think the hon. Member will agree that "a clear indication of" would be very bad English, very bad drafting, and would not ensure what the Minister is entitled to have if he is to determine whether an objection is valid. The hon. Member said that if an objection was submitted in a bad form no notice would be taken of it. That has never been the case. During the whole time that trades boards have been in operation we have never ruled out anything because it was not absolutely in precise form. I ask the Committee to reject this Amendment, because the stipulation that the statement should be made in writing and give the actual "omissions, additions or modifications" asked for is absolutely essential, first for the commission of inquiry, and, secondly in case the Order subsequently made has to be defended in this House.

§ Mr. Summers
I understand the Minister to say that an objection which might technically be invalid would nevertheless be considered, in the spirit in which it was submitted, and with that assurance I beg leave to withdraw my Amendment.

§ Mr. Summers
I beg to move, in page 5, line 23, leave out "appearing to him to be," and insert "so."
This Amendment also deals with the question of the validity of objections. One fears that there might be a conflict of opinion on whether an objection was valid or otherwise because doubt might exist about whether the person putting forward the objection was or was not affected. 1658 A person quite a long distance from the immediate object of the inquiry might justifiably consider himself to be affected, but as the Clause stands the decision whether he is to be properly regarded as affected rests solely with the Minister. It cannot be challenged by the objector, since it depends upon the words "if it appears to the Minister." The effect of my Amendment, if adopted, would be to make the Sub-section read: shall consider any such objection made by or on behalf of any person so affected. The question whether an objection was or was not valid would be a question of fact which, if necessary, could be challenged at law. The grounds for my Amendment are that it would give an additional assurance to an objector.

§ The Solicitor-General (Major Sir David Maxwell Fyfe)
The real question here was that put by my hon. Friend towards the end of his speech, as to whether a right of challenge in the courts is really required, or whether, as I suggest, it is a matter for this House. The Minister will, of course, consider the objection and must make up his mind whether the objector is affected or not. If he decides that the objector is not affected and therefore rules out his objection that is not the end of the matter, because the Order which the Minister makes is one which can be annulled in this House. If the Minister says in this House: "I have not considered that objection, I did not think that the objector had any locus standi and that his objection was relevant," and the House takes the view that the Minister was wrong, the Minister will be put in a serious difficulty and will have to answer to the House. The question for this Committee is, Is that a House of Commons matter, or is it a matter that ought to be litigated in a court of law? It think it is essentially a matter for this House, because it is an administrative matter. It is a matter for the Minister, who has the whole picture in his mind and can decide the status of the person who wishes to object. I wish to assure my hon. Friend that it is not from any desire either to evade the decision or evade the liability for answering for that decision, that I resist his Amendment, but that I do so because I suggest that it is essentially an administrative and Parliamentary matter for which the Minister should answer here.

§ Lieut. Commander Joynson-Hicks (Chichester)
I do not at all agree with my hon. and learned Friend in the argument which he has just submitted. He agrees that the issue is the determination of a question of fact, and I venture to submit that Parliament has neither the time nor the facilities for determining minor issues of this description. That is pre-eminently the duty and the responsibility of our justiciary. To burden Parliament with the determination of minor issues concerning whether or not the administration has been correctly carried out in accordance with the law would make the working of the machinery of government quite impossible. It is a matter for the courts, and I hope sincerely that my hon. and learned Friend will reconsider this matter and allow it to go through the proper, normal and traditional channels, which are the courts of law.

§ Mr. Summers
I beg to move, in page 5, line 41, leave out "in his opinion."
The arguments which I brought forward in support of the previous Amendment are in large measure applicable to this one also, because the question whether modifications which the Minister may make in the recommendations submitted to him on the grounds that they are unimportant is, as the wording of the Clause stands, to be judged solely by him. He is to be the judge of whether they are unimportant. This again is, I submit, a question of fact, which should not depend solely on the decision of the Minister, subject to the power of Parliament to challenge the wisdom of his decision. A wider issue is really involved. If the Minister is to be allowed to have this discretionary power and the right to decide for himself, on the ground that Parliament can always challenge him, there would appear to be no limit at all to the extent to which discretionary powers may properly be accorded. I always understood that to give discretionary powers to a Minister which cannot be challenged in the courts was a procedure which must be carefully safeguarded if things are not to get completely out of hand. I do not wish to repeat my argument, but I submit that this point should not be lightly passed over, nor should Parliament be regarded as an adequate safeguard in all cases where the Minister is given discretionary powers.

§ The Solicitor-General
My hon. Friend himself has said that the issues here resemble those raised by the last Amendment, and therefore, like him, I shall refrain from repeating what I said, and shall try to confine what I have to say to some differences which in my opinion strengthen the Government in resisting this Amendment. The issue here is whether the Minister is to decide according to his opinion—that is, applying his knowledge and his judgment—whether a matter is important enough to go through once again the procedure laid down in the Bill or whether he can make an amendment himself. That is the point which I should Like my hon. Friend to remember. Here it is not a question of the Minister deciding once and for all whether an Order is inter vires or anything of that kind, but whether he should repeat the procedure or should, in order to save time, say: "I consider that this Amendment does not introduce important alterations and therefore I shall make it myself." As I rather elaborated on the last Amendment, the same safeguards remain, namely, that Parliament can take the Minister to task.
I should face up to the point raised by my hon. and gallant Friend the Member for Chichester (Lieut.-Commander Joynson-Hicks). This is definitely a question that can only be important on the basis that the Minister is really abusing his powers. Unless the Minister abuse his powers there is nothing in the point at all, and therefore I consider that the question whether a Minister should have acted in that way is really a House of Commons' point. That is my view, and my hon. and gallant Friend disagrees with it, but I submit it for the consideration of this Committee. I have one word to say on the wider issue which the hon. Member for Northampton (Mr. Summers) sought to tack on. This is not the sort of point which was criticised in, for example, the Donoughmore Report as ousting the jurisdiction of the courts. The case there was where a Minister makes regulations and the vires of the regulations were not challengeable in the courts. This is not a matter of that kind. No power of subsidiary legislation is involved here. It is simply a question of whether the Minister responsible to Parliament for the proper administration of the Act is to be entitled to decide whether he must lay a 1661 fresh draft or whether he can make minor amendments. That, I submit, is properly a matter for him.

§ Mr. Summers
Might I ask what is the broad approach of the Minister to the question of what is, or is not, important? Is a penny an hour an important or unimportant qualification in the recommendation? One would have felt happier if some idea could be given of the type of modification, or change, which would clearly be regarded as important.

§ Mr. Bevin
Anything that has to do with rates or conditions will always be regarded by the Minister as important. One always gets minor things in a draft, or recommendation, which needs adjustment in order to make it work. Apart from that, I can assure my hon. Friend that anything that touches the recommendation fundamentally is always regarded as important.

§ Mr. Summers
In view of what the Minister has said, I beg to ask leave to withdraw the Amendment.