§ 9.14 p.m.
§ Sir John Mellor (Sutton Coldfield)
I beg to move,That an humble Address be presented to His Majesty, praying that the Rules of the Supreme Court (No. 1) 1946 (S.R. & O., 1946, No. 310), dated 1st March, 1946, a copy of whip h was presented on 11th March, be annulled.I move this Motion with some reluctance because I recognise that the merits of the case are unimpeachable, I also 2460 move with some diffidence as the Rule making authority consists of such eminent persons as the Lord Chancellor, the Lord Chief Justice, and the President of the Probate, Divorce and Admiralty Division. The Rule, in fact, is made by the Lord Chancellor. with the concurrence of the other two. But under the Statute, namely, the Act of 1925, which gave power to make these Rules it is provided that these Rules shall lie upon the Table. Therefore, we have a duty, from which we ought not to try to escape, to examine these rules with all care. Our duty is all the more obvious when we consider the 12th Report of the Select Committee on Statutory Rules and Orders, which was available in the Vote Office today. In the course of that report, referring to No. 310 of Statutory Rules and Orders, they say that they are of opinion that the attention of the House should be drawn to these rules on the ground that they appear to make some unusual or unexpected use of the powers conferred by the Statute under which they are made. Number 310 continues in operation from 24th February rules which were in force during the war under the provisions of the Emergency Powers Act, 1939. They are concerned with such matters as procedure in poor persons cases, pleadings in matrimonial cases and the registration of powers-of-attorney executed outside this country. These rules were made on the 1st March, 1946, but, through an oversight, they were unfortunately made about six days too late. In order to cover the gap it was provided in paragraph 4 of the rule as follows:These rules shall be deemed to have come into operation on the twenty-third day of February. 1946.In the Act of 1925 under which the rules were made, there was no authority whatever for such retrospective operation. In the preamble of the rules the Lord Chancellor says he… hereby makes the following rules of court under Section 99 of the Supreme Court of Judicature (Consolidation) Act, 1925.I have searched that Act carefully, and I find no authority whatever for giving rules made under it retrospective operation. In the Second Special Report of the Select Committee on Statutory Rules and Orders, which was published last December, these words appear:Statutory Rules and Orders should not purport to have retrospective operation unless Parliament has expressly so provided2461 They proceeded to give an example, tot the purpose of illustration, of a case in which Parliament had expressly so provided. They referred to the provisions of the Chartered and other Bodies (Temporary Provisions) Act, 1939, and mentioned that in Section 4 of that Act the following words appear:…any Order in Council made under section two of this Act, shall, if the…" Order so provides, have effect as from such date as may be specified therein, not being a date earlier than the first day of September, nineteen hundred and thirty-nine.It is quite clear that it is a most unusual use of the powers to give these rules retrospective operation. I am sorry to say we have had cases before. On two occasions I have, by means of a Prayer, drawn attention to what I regard as similar irregularities. In the first case, when I moved on i9th February to annul an Air Navigation Order, the learned Attorney-General replied and used the following words:I entirely agree with the general proposition that unless a Statute expressly gives retrospective powers, delegated legislation ought not to take effect retrospectively.Later on he said:… we entirely agree with the view that subordinate legislation ought not to be operated retrospectively unless the Statute giving power so to do is abundantly clear in giving that power.''—[OFFICIAL REPORT, 19th February, 1946: Vol. 419, C. 1055–1059.]He sought to justify the retrospective exercise of power in the case of that Air Navigation Order—and that is where I think it is to be distinguished from this case—by saying that in the case of the Air Navigation Order nothing had been made lawful which was not lawful already. That was an arguable point. I am sure the learned Solicitor-General will not say the same thing about these rules, because the rules which were made on 1st March, 1946, were made to date back in their operation to 24th February, 1946, for the purported object of legalising what was done during that gap of five or six days.
I certainly think it was necessary, when it was discovered that owing to an oversight these rules were not made in time to continue in effect the provisions which were operative during the war, that some action should be taken. I do not for a moment suggest that that gap should be left, or that anything done in purported 2462 pursuance of the wartime rules should remain illegal. But there is a right way and a wrong way of doing everything, and, in my submission, in this case the wrong way has been selected. The right way would have been for the Government to have brought in a Bill, which would not have met with the slightest opposition in this House, to regularise the position.
In the 12th Report of the Select Committee on Statutory Rules and Orders, which, as I mentioned, became available in the Vote Office today, there appears as an appendix to the Report a memorandum from the Lord Chancellor's office in which it is sought to justify the retrospective operation of these Rules. To start with, they say that hardship would have resulted if there had not been such retrospective provision. I really do not think we ought to be forced back to the old adage that hard cases make bad laws. I do not think the Solicitor-General will insist very much on that ground. Secondly, the memorandum states as follows'There is an inherent power in the rule-making authority to ensure that matters of procedure, adjectival law, are so regulated as to do what is just and right in the interests of litigants.But these steps were not taken under any inherent power. They were taken under the provisions of the Supreme Court of judicature (Consolidation) Act, 1925, Section 99. That is expressly so stated in the preamble to the Rules. Therefore, I do not think we are concerned tonight with whether any inherent power exists or not. If the inherent power does exist and is adequate for the purpose, then, certainly, these Rules are not required and can well be annulled without any harm resulting.
Thirdly, the memorandum relies upon a precedent where similar retrospective action was taken in 1940. That may well be the case. But we are not bound by a precedent that occurred in 1940 when, indeed, everyone's attention was fully occupied with far more urgent matters and it was only too likely and probable[HON. MEMBERS: "Not everybody."] Well, most people were. It was then only too likely and probable that certain Rules which might themselves have been ultra vires slipped through and remained unnoticed until today. In my submission this retrospective operation is not only undesirable, it is irregular. If the Government are prepared to regularise the 2463 position by introducing a Bill for the purpose I should be only too happy to withdraw this Prayer. I have no desire to cause inconvenience or embarrassment of any sort, and if that undertaking can be given, I shall have pleasure in withdrawing the Prayer, and I am quite certain that we on this side of the House will offer no difficulty in the way of the passage of the necessary legislation.
§ 6.28 p.m.
§ Mr. E. P. Smith (Ashford)
As a Member of the Select Committee on Statutory Rules and Orders, I make a point of never speaking in regard to any Prayer laid before this House as a result of a reporting of a Statutory Rule and Order by the Committee; hut, in this instance, I feel that there is a point of such legal and, indeed, constitutional importance involved that I must break even my Trappist silence. On 24th February, 1946, the Emergency Powers (Defence) Act, 1939, came to an end. That was a natural and long expected demise. It was adumbrated, and did not break in on the consciousness of the Lord Chancellor like a thief in the night. After all, he was a Member of the Government which had been sitting at the patient's bedside for weeks, listening to its last expiring sighs. Nevertheless, the Lord Chancellor's Department seems to have been otherwise engaged, because this decease came plainly as a surprise to them, and, as a result, the facilities for Poor Persons' Matrimonial Causes—the facilities for Poor Persons' Divorces—hung for six days suspended like Kipling's Mr. Tomlinson between heaven and hell. The Lord Chancellor saw plainly that this was a position unrelated to gravity, and would bring hardship, inconvenience and annoyance to hundreds of persons, and would also render nugatory any individual action taken between the expiry of the Emergency Powers (Defence) Act, 1939, and the institution of any compensatory authority.
What did the Lord Chancellor do? He exercised what, I venture to suggest with great respect, was misplaced ingenuity. He called to his aid the Lord Chief Justice and the President of the Probate, Divorce, and Admiralty Division and between them thy issued the Statutory Order, No. 310, of 1946, having retrospective effect for six days to 23rd February, 1946. They did this, ignoring the fact that the parent Act 2464 gave them no power to make a Rule or Order having a retrospective effect. I feel that this will be regarded as something shocking to the conscience of Parliament. It is, I submit, the technique of the coup d'étât or at least of "L'Etât, c'est moi." The most famous and best beloved of Lord Chancellors said:The Law is the embodimentOf everything that is excellent;It has no kind of fault or flawAnd I, my Lords, embody the law.But his obiter dictum has, I understand, not been received with favour by the most up-to-date of modern jurists. It seems to me undesirable that three legal gentlemen, however eminent, should go into a huddle and evolve out of their own inner consciousness what amounts to an Act of Parliament, and proceed forthwith to put it into operation. I acquit the Lord Chief Justice and the President of the Probate, Divorce and Admiralty Division of any attempt to seize power by unlawful means.. After all, they have never been, in a technical sense, Parliamentarians. But that does not apply to the Lord Chancellor. For many years he was a Member of this House; and, or so I am credibly informed, he sat on several sides of it; and, therefore, had an exceptional opportunity to acquire an all-round experience of the susceptibilities of the House of Commons. I should hate to think that he now views us, from the heights of Mount Olympus, with a cold and aquiline contempt. What would have been more simple than to confess to a technical error, and to rectify it in a technical way by means of a short amending Bill? But no. He has invoked in support something known as adjectival law. As a layman, I must confess that I am uncertain as to what precisely adjectival law means. To me, it suggests the idea of law as conceived by an unsuccessful litigant, and I have occasionally felt that way myself.
We are in this dilemma. The Lord Chancellor, or his Department, has blundered. To neutralise that blunder, they have taken the course of issuing a Statutory Rule and Order, with retrospective effect, although the parent Act gives them no such authority. Like the conspirators in "Much Ado About Nothing ", they are bobbing down behind the bush—the hush of adjectival law —in the hope that the hero and heroine will not notice them. But they have forgotten the Watch—the Select Committee 2465 on Statutory Rules and Orders—and the Watch have noticed them. What is the logical outcome? No one wants to see poor persons deprived for six days of their rights in regard to divorce because the Lord Chancellor has made a technical mistake. The logical outcome, I maintain, once the Select Committee detected the manœuvre, was that the Order should be reported to the House, and that was done; secondly, that it should be prayed against, as it has been done by my hon. Friend the Member for Sutton Coldfield (Sir J. Mellor), and thirdly, that this offending, arbitrary and demonstrably illegal Order 310 of 1946 should be withdrawn and a short amending Act passed which would leave everyone, including the hon. and learned Solicitor-General, lawful and happy, and so ring down the curtain on the Lord Chancellor's unfortunate little comedietta.
§ The Speaker
I thought that the hon. Gentleman was seconding the Prayer. I gathered from his speech that he was doing so.
§ Captain Crowder
Further to that point of Order. If an hon. Gentleman's name is not on the Order Paper to the Prayer, is he in Order in seconding it?
§ Mr. Speaker
Certainly. As a matter of fact, I was not told who was going to second the Motion and, therefore I made my choice.
§ 9.36 p.m.
§ The Solicitor-General (Major Sir Frank Soskice)
May I, with considerable trepidation, emerge from behind the bush to address the House? May I approach this subject from the standpoint with which it was dealt with by hon. Gentlemen opposite? I gathered that their case was that what was done was illegal, and that, as these Orders were retrospective for six days before they were made, they were ultra vires the powers conferred on the Lord Chancellor by Section 99 of the Supreme Court of Judicature (Consolidation Act) 1925. Reference has been made to a statement which was made by the Attorney-General when a previous 2466 Order was being discussed. What the learned Attorney-General said was that, unless an Act gave power in terms to make retrospective delegated legislation, it certainly was the case that it ought not to be made retrospective. He went on to say that that was a sound rule of policy in the exercise of delegated powers, but nevertheless it. remained to be considered from the wording of each enacting power which gave authority to make delegated legislation, whether, upon a true construction of its terms, it did in fact enable retrospective legislation to be made.
I take the view very definitely that this particular Order was entirely intra vires. I think that there is some misconception about this so-called retrospective delegated legislation. Some delegated legislation is made retrospective to a date before the Act which creates the power comes into force. For example, retrospective legislation made under the powers of the Chartered Bodies Act, 1939, to which reference was made, could be made retrospective to a date before that Act comes into force because of the express terms of Section 4 of that Act, which enabled it to be made retrospective to 3rd September, 1939, although the Act itself only came into force on 16th November, 1939.
§ Mr. Marlowe (Brighton)
We have had, before this, the explanation that it was a matter of policy whether legislation of this kind could be retrospective or not. Will the hon. and learned Solicitor-General say, as a matter of law, whether without an Act, Statutory Rules and Orders can be retrospective?
§ The Solicitor-General
That is what I was going to say when the hon. and learned Gentleman interrupted. There is undoubtedly a general rule of construction which states that no Act is to be construed retrospectively unless it is so provided. It may be that if one is considering delegated legislation, which is retrospective to a date before the date on which the statute itself comes into force, that maxim would be applicable. But that does not necessarily apply when consideration is given to delegated legislation which does not go back to a date before the Act came into force. [HON. MEMBERS: "No."] Hon. Gentlemen opposite say "No "with one accord. I should like to see any authority they can 2467 give for the view which they express. There is no authority as far as I know, and each case depends upon consideration of the terms of the Statute under which delegated legislation is made. There are plenty of suggestions that, ordinarily, a Statute should not be construed retrospectively, but there is an exception to that general rule and that is a Statute dealing with matters of procedure, and in that ease the maxim is not applicable. In general, the whole basis is that it is considered that Parliament would not enact a Statute to affect vested rights, which have been acquired before the Statute came into operation, unless it says so in definite terms. That is a perfectly intelligible rule, the consequence of which is that Statutes dealing with mere matters of procedure, which do not affect acquired rights may be retrospective. Here we are dealing with delegated legislation, which is retrospective for six days only, and which is not retrospective before the date the Statute came into operation, because the date of the Statute was 1925.
It is also entirely concerned with platters of procedure and affects no vested right whatever. As a matter of fact, it is an Order which purports to confer upon the subject increased facilities Gar obtaining a remedy in regard to divorce. Therefore, for many reasons it cannot possibly offend against the maxim which states that legislation must not be construed retrospectively, unless it is laid down in definite terms. For these reasons I ask the House to say that I am right in asserting that this piece of delegated legislation is not only eminently desirable—no one contends to the contrary—but, in fact, is intro vires to the principal Act of 1925 and that, therefore, this Prayer ought to be negatived.
§ 9.44 p.m.
§ Mr. Marlowe (Brighton)
I would not have risen to reply to the hon. and learned Gentleman had he adopted a more conciliatory attitude about what is obviously a blunder in the Lord Chancellor's Department. We are always making howlers from time to time, and being what we are, are always ready to forgive mistakes provided the people making them admit that they have made a mistake and are sorry. The hon. and learned Gentleman has not taken that attitude at all. My hon. Friend the Member for Sutton Cold-field (Sir J. Mellor) referred to retrospect- 2468 tion here being undesirable. That may be, but what I am more concerned with is whether it is legal or not. The general principle, which has been enunciated by the Attorney-General more than once, is that unless the Statute gives retrospective power then Statutory Rules and Orders making retrospection nave no effect. I am prepared to accept that principle. The learned Solicitor-General agrees that this Statute does not give retrospective power. This would be, of course, a very good case to argue ii one could arouse much sympathy as to the liberty of the subject and so forth.
That does not arise in this case, I quite agree. It is purely an administrative point. But the principle remains the same, and there is the question as to whether the law is to be made by Parliament or by some other people meeting in a secret place. The regulation which has been made is, I agree, a beneficial one, and I have no objection to it; what I object to is the constitutional point of whether the Lord Chancellor and two of His Majesty's judges can meet and flout the authority of Parliament by making law themselves. That is the issue we have to deal with here. I take the view that the law-making authority of this country is Parliament. Whatever the law, it should be made in no other way than through the duly constituted authority.
I ask the Solicitor-General to deal with the point which he has not dealt with at all. He defended the attitude taken up in the Twelfth Report on the ground that what had happened had happened suddenly, and that the Government had had to take immediate steps to deal with it. Perhaps it has forgotten that everybody knew at the end of September last that the Emergency Powers Act would end on 24th February. The Report says that the sudden ending of that Act created a situation which required this Regulation to be made. But there was no sudden ending of that Act at all. Everybody knew, months before, that that Act was coming to an end. The Lord Chancellor's Department was caught napping. Why not own up and say so, instead of putting up this bluff and pretending that this was a most unfortunate circumstance which caught them by surprise? All of us knew that the Emergency Powers Act would end on 2469 24th February last. If the Government did not, then they ought not to be governing. It is fatuous to say that there was a sudden ending of the Act which caught them napping—
§ The Solicitor-General
May I ask the hon. and learned Member, who is one of His Majesty's Counsel, whether he has taken the trouble to see whether there is any authority for the view he is expounding, that this is ultra vires, and, if so, whether he can quote such authority?
§ Mr. Marlowe
I am sure the hon. and learned Gentleman will not wish to disagree with the Attorney-General—
§ Mr. Marlowe
The authority on which I am relying is the statement of the Attorney-General in this House on 19th February, when he said that unless the Act contained power to create retrospective legislation then such legislation should not be created. That is the effect of what he said.
§ The Solicitor-General
Perhaps the hon. and learned Member will allow me to cite what the Attorney-General did say. It was this:I entirely agree with the general proposition that unless a Statute expressly gives retrospective powers, delegated legislation ought not to take effect retrospectively.…That is a general principle to which the Government will certainly adhere.…But although that is a very sound policy in the exercise of delegated powers, it does not always follow that the powers themselves, do not, in law, enable retrospective Orders to be made. One has to look at the powers themselves and see the exact manner in which they can be exercised in a particular case."—[OFFICIAL REPORT, 19th February, 1946: Vol. 419, C. 1055–56.]
§ Mr. Marlowe
That is exactly the point I am making. The Solicitor-General has agreed that under the Supreme Court judicature (Consolidation) Act, 1925, under which this Statutory Rule and Order is made, there is no express power to create retrospective legislation. I do not accept what the hon. and learned Gentleman always says, but I accept for this purpose what he says. The Government cannot indulge in retrospective legislation unless the parent Act gives them power to do so. I would not accept that it is a matter of policy. That is why I interrupted the Solicitor-General on this 2470 point. I want to find out in this matter what is the law. It will not do, in dealing with matters of law, to say that the Government may adopt as a policy that they will indulge in retrospective legislation or not. I want a clear definition of the law. It is intolerable for the Law Officers to come to the House time after time and say, "It is a matter of policy and we think it ought to be retrospective." That will not do for the subject, who is affected by the law.
The Solicitor-General has to make up his mind on this point. I apologise for putting it to him in the absence of his learned leader, but somebody has to decide on this issue. Is it a question of law or is it a question of policy? Are we to understand that when it suits the Government to make legislation retrospective they will do so, and when it does not they will not do so, and that the law does not matter? That is the issue that I want the Solicitor-General to face. That is the issue which has to be met some time on all Statutory Rules and Orders. I shall not take up more of the time of the House. [Interruption] I am not surprised that hon. Members opposite do not like it when they are faced with logic. I want the Solicitor-General to tell us whether we are to deal with the law of this country as a matter of Government policy or as a matter of law. If this is a matter of law, of course, I am prepared to debate it with the Solicitor-General at any time, but if it is a matter of Government policy, I am completely out of my depth.
§ Mr. Speaker
It is not in Order for the hon. and learned Member to deal with Government policy under this Order.
§ Mr. Marlowe
I entirely accept your Ruling, Mr. Speaker. I was rather provoked by the Solicitor-General's quotation as to what was a matter of Government policy. I would like at some time to be able to deal with these Statutory Rules and Orders on some other basis which would enable us to know whether we are to regard them as matters of law or matters of Government policy.
§ The Solicitor-General
Will the hon. Gentleman answer my question, whether he took the trouble to look this up before expressing a view contrary to mine, and if so, whether he was able to find any authority for the views he has expressed? 2471 The authority which he cited, and which I read out, was completely the opposite of what he said.
§ 9.53 P.m.
§ Mr. Pritt (Hammersmith, North)
I am somewhat reluctant to intervene in a lawyers' Debate. This appears to be a most extraordinary storm in a teacup, the disadvantage of which is that it has not even a teacup to be in. The proposition is this. Here is a Statutory Rule and Order. The hon. and unlearned Gentleman who moved the Prayer said that the Order was a perfectly good one, but he wanted to raise the point of law. What is the position? Either there is power to make this Order or there is not. A number of hon. Members, some of whom are learned and some of whom are not, put down a Prayer to ask for the Order to be annulled on the ground, apparently, that it is unlawful or ultra vires, that is to say, that there is no power in the law to make it. The first hon. Member who spoke referred 'o many things, and the second hon. Member also spoke on many things, but neither claimed to be a lawyer.
§ Mr. C. S. Taylor (Eastbourne)
On a point of Order. Is it in Order for the hon. and learned Member for North Hammersmith (Mr. Pritt) to refer to another hon. and learned Gentleman as the hon. and unlearned Member?
§ Mr. Speaker
Hon. Members sometimes do not seem to know who is learned and who is not. Some hon. Members appear to think that everybody who has studied the law is learned. That is quite wrong. The term is used only of those hon. Members who are K.C's.
§ Mr. Kinley (Bootle)
Is it in Order, Sir, for hon. and learned Members and hon. Members to turn the House into a bar parlour?
§ Mr. Pritt
We had a speech from one of His Majesty's Counsel, the hon. and learned Member for Brighton (Mr. Marlowe), who spoke of cold logic but who was neither very cold nor very logical. What is his proposition? He asks whether the Law Officers of the Crown will please 2472 tell him whether it is good or bad in law. I am very glad to think that he does not conduct his cases in court by the method of going in with no arguments and asking the other side to provide him with some. Hon. Gentlemen make this Prayer basing it on the assertion that the thing is bad in law; some say nothing about the law, and the other asks which way it is, is it good in law or bad in law? He is naturally challenged for his own authority which he produces as a speech by the Attorney-General who, in fact, did not say anything at all about it being bad law but said that as a matter of general policy it is better not to do it. I do not say whether I agree with that, but here the proposition is that it is bad in the law and no one produces any argument to suggest that it is so. It is a point of construction to which I have given a little thought, and I am not surprised that nobody can make a case for himself because I do not think it is in these circumstances that the very important right of making Prayers against delegated legislation is to be exercised.
§ 9.57 p.m.
§ Mr. Boyd-Carpenter (Kingston upon Thames)
The hon. and learned Solicitor-General's line of argument was that the Order in question was both desirable and legal. It is possible for an advocate to over argue his case and I am perfectly certain that the hon. and learned Solicitor-General has gone farther in defence of the Lord Chancellor's Department than that Department itself has found it necessary to go. If the hon. and learned Solicitor-General would be good enough to turn to the Memorandum which was submitted to the Select Committee on behalf of the Lord Chancellor's Department, he would see that at the beginning of paragraph 6 the Lord Chancellor's Department adopt a different and, if I may say so, a very much more proper attitude to this question than the hon. and learned Solicitor-General has seen fit to adopt. The paragraph begins:The fact that the Rules mentioned above would lapse on the expiry of the Emergency Powers (Defence) Act, 1939, was, most regret-ably, not noticed until four days after that Act had expired.''If the Department of the learned Lord Chancellor had taken the same view as the learned Solicitor-General that the making of this Order was both desirable and legal they would not have thought it necessary to express the view that this 2473 lapse was most regrettable and, with great respect, I would commend to the learned Solicitor-General the undesirability of being more Royalist than the King.
The learned Solicitor-General has commented to the House that this is desirable. There have already been quoted to him the words of his own superior officer only a few weeks ago on the question of desirability and I will not weary the House by repeating them to the House. They are perfectly clear and unambiguous. On the question of legality may I put this to the learned Solicitor-General? If there is an inherent power in the case of delegated legislation to make retrospective Rules and Orders then perhaps he would be good enough to explain to the House why in the Act which was referred to by the hon. Baronet who moved the Prayer it was thought necessary to give in Section 4 express power to make retrospective Rules and Orders.
§ The Solicitor-General
That was necessary because it was desired to make Orders taking effect back to 3rd September, 1939, before the Act itself came into operation, which was 16th November, 1939.
§ Mr. Boyd-Carpenter
I am afraid that the Solicitor-General cannot ride off with it like that. The power is expressly given in the Act to make these Orders retrospective. It makes no difference whether power is given to make them retrospective to the date when the Act came into force or a previous date. The Solicitor-General, who is so prone to throw out challenges about authorities, has cited no authority on the point that there is any difference between an Order retrospective to the date of the Act and an Order retrospective to a date prior to the coming into force of the Act. I notice that he does not intervene at this stage to cite any authority. There has not been one scintilla of authority cited tonight for any such proposition.
I commend this paragraph to the House. It points quite clearly to the fact that the Government of that day, no less well advised by its Law Officers than the Government of this day, thought it necessary to provide express power to make retrospective their subordinate legislation, That is surely a clear indication that, in the view of that Government, advised by its Law Officers, there was no inherent 2474 power to make retrospective Rules and Orders unless express power was given by the Statute. With all due respect to the high office of the Solicitor-General, I suggest that he did confuse the matter a little by referring to the construction of Statutes. He advised the House that it was sometimes possible, in the construction of Statutes, to construe them as having a retrospective effect in procedural matters. Be that as it may, the House is dealing not with Statutes but with subordinate legislation. This House can enact what it pleases, but that is quite a different thing from saying that a subordinate authority to whom authority has been delegated by this House, has any such wide power. There is all the difference in the world between construing a Statute as having a retrospective effect and construing a power that has been delegated as a power to make retrospective Rules and Orders under the Statute. I am informed that the learned Solicitor-General has been studying Maxwell on the Interpretation of the Statutes all the afternoon and that it is in front of him now. I am sure he is perfectly well aware of that vital distinction.
I am a little disappointed at the tone of the Solicitor-General's speech. There was none of the regret that the Lord Chancellor's Department saw fit, very properly, to express. His attitude was that all was well; that, after all, it was only for six days; and that the Orders were beneficial. I have the most profound respect, as I am sure all hon. Members have, for the Supreme Court, but the very fact that there is even a possibility of error in the proceedings of that august organisation is a far graver cause for disquiet than if there were any irregularity by some such department as the Ministry of Food, from whom one expects it. Therefore, I suggest that it is a responsibility resting on the Solicitor-General to make quite sure that not the slightest doubt exists as to the legality of the transactions of that vitally important body, the Supreme Court. The Attorney-General in his speech on the Third Reading of the Trade Disputes Bill referred to that Bill as "bastard legislation." I would say that that observation, which merely indicated that the Attorney-General did not like the Act of 1927, was much more applicable to this Order, which has come illegitimately and illegally 2475 into being. I suggest to the Solicitor-General that it is his duty to introduce a Measure to legitimise his bastard.
§ 10.6 p.m.
§ Mr. Lennox-Boyd (Mid Bedford)
This Order is made retrospective in order to save the Government from the consequences of their own neglect. I wish to take up the point made by the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter). The Lord Chancellor's Office said in their appendix to the Memorandum that they deeply regretted the situation. If the Solicitor-General had been equally humble, this Debate might well have come to an end some little time ago. Obviously the Lord Chancellor's Office could not give the real reasons why.
This House, which has been promised a great deal of legislation in the future, and legislation by Order in Council and Statutory Rule and Order, ought certainly to have its attention drawn to the consequence of this spate of public business with which all Government Departments are overwhelmed. If the Government Departments were not overwhelmed with functions and duties which are not their real province, such things as this would not pass by and proper public duties would be discharged. We are deeply concerned, not with the merits of this Order, but with the precedents involved. We appreciate that this Order is beneficial to the litigant, but the Order may equally be followed by another Order which may be harmful to the litigant. We have had a promise from the President of the Board of Trade that, in the near future, the powers of Parliament would be very substantially curtailed, and a great many obstacles to hasty legislation which, in the wisdom of our fathers, have been put in the way of over ambitious Governments would be removed. Therefore, it must become the prime function of this House to fasten on any and every attempt made to interfere with the proper discharge of Parliament and its functions as being the only legislative Assembly in the land.
We have been promised much legislation by statutory rules and orders, and we are a little alarmed at finding that even in the appendix submitted by the Lord Chancellor's Department, the question of precedent is raised. The Government cannot complain of every new example brought to the attention of the House by the action of a Select Committee whose 2476 function it is to warn the House in advance of the consequence of Government illegal action. The Government cannot complain if the House is chary of giving them powers, even though in this case it will be an advantage. We have learnt today, in the view of the Solicitor-General, that matters of policy and not matters of law settle whether Orders are to have retrospective effect. We have asked vainly that there should be amending legislation to meet the errors of the Government owing to the fact that His Majesty's Government are now so busily occupied in interfering with the private lives of our citizens. If that is impossible, we might expect them and the political experts on the Front Bench to be as candid in their explanation as their advisers under the Gallery have been in theirs. I do not think any Member of this House will regret this matter having been raised so succinctly by my hon. Friend or the time and the discussion given to it.
§ 10.10 p.m.
§ Mr. Charles Williams (Torquay)
I agree with the hon. and learned Gentleman the Member for North Hammersmith (Mr. Pritt). As I understand it, the Lord Chancellor said this mistake was most regrettable. The Lord Chancellor is a pretty astute politician and he knows very well that one of the easiest ways to get a thing through Parliament quickly, is to express regret that a mistake has been made and then Parliament will rectify it as quickly as possible. But there was nothing of that attitude of mind in the hon. and learned Gentleman opposite. He had not even the courtesy to be here when the Debate began, but came down with the attitude, "You have to take this." That is all very well, but we had much the same thing on another question early in February when we were promised by the other Law Officer, that he would look into things and see that these mistakes did not happen or, if they did, that they would be rectified very quickly, The position is that this mistake has been made; we all want to put it right and we do not want the unfortunate people concerned to be in a difficulty. For that reason, if there is a Division on this Order, I shall certainly vote against the Government. [HON. MEMBERS: "Hear, hear."] It may be a surprise to hon. Members opposite to know that I have done it before. 2477 I shall certainly vote against the Government, first because I think the Law Officer in charge grossly muddled his case in not expressing some sorrow at the mistake where the Lord Chancellor expressed it. Secondly, because in a matter of this kind, although it may be possible to override the rights of the House, in actual fact those powers are being used in a manner which is certainly regrettable in the opinion of a far higher authority than anybody sitting on the Front Bench opposite.
§ Mr. C. S. Taylor
May I ask the Government if they intend to reply to the numerous points which were made after the learned Solicitor-General spoke?
§ Question put, and negatived.
§ Resolved: "That this House do now adjourn."—[Mr. R. J. Taylor.]
§ Adjourned accordingly at a Quarter past Ten o'Clock.