HC Deb 19 February 1946 vol 419 cc1046-65

7.35 p.m.

Sir John Mellor (Sutton Coldfield)

I beg to move, That an humble Address be presented to His Majesty, praying that the Order in Council, dated 20th December, 1945 entitled the Air Navigation (Amendment) (Ministry of Civil Aviation) Order, 1945 (S.R.& O., 1945, No.1637), a copy of which was presented on 22nd January, be annulled. This prayer raises an important question of legislative principle. Whatever view the House may take of the observations I am about to make, all Members will, I think, be grateful to the Scrutinising Committee for having called attention to points of difficulty. I should make it clear at once that I am raising nothing which has to do with the merits of the matter. The purpose of the Order is merely to substitute "The Minister of Civil Aviation" for "The Secretary of State for Air '' in the various Air Navigation Orders which are already in existence.

The point to which I particularly want to draw attention is— and this is my principal objection— that the Order contains retrospective provisions without express statutory sanction To that point the Scrutinising Committee drew particular attention. The Committee considered a Provisional Order, which was drafted to all intents and purposes in the same terms as this Order. They observed, as a result of that scrutiny, and after consideration of a memorandum from the Ministry, as follows: Statutory Rules and Orders, should not purport to have restrospective operation unless Parliament has expressly so provided. Those words are contained in the Second Special Report of the Scrutinising Committee. It was ordered to be printed on 11th December. At this stage I wish to ask the Parliamentary Secretary whether he will, when he comes to reply, say whether he agrees with the words which I have just quoted from the report of the Committee.

The Order, which is No. 1637 of 1945, was made on 20th December. It contained in Article 2 this provision: This Order shall be deemed to have effect as from the date of the passing of the Ministry of Civil Aviation Act, 1945. That date was 25th April of last year. In the Order, no authority whatsoever is recited for making that provision retrospective. All it says is: Whereas it is expedient that, consequent upon the enactment of the Ministry of Civil Aviation Act, 1945, the said Order should be amended in manner hereinafter appearing.…. There is no recitation of any express authority for making the provision contained in Article 2 retrospective. The explanation which was offered by the Department to the Scrutinising Committee was as follows: The authority for making the Order retrospective is contained in Section 30, Subsection (2), of the Air Navigation Act, 1936, the provision in question being deemed in the circumstances of the case to be necessary or expedient for the purposes of the Order. I would ask the House to consider the terms of Section 30, Subsection (2), which are: An Order in Council made under any of the provisions of the principal Act and this Act may contain such incidental and supplementary provisions as appear to His Majesty in Council to be necessary or expedient for the purpose of this Order. There is no express authority there for making any provisions in such an Order retrospective. I should be glad if the Parliamentary Secretary will say whether or not he agrees with that statement. Apparently, it is quite common whenever it is consdered necessary that power should be given for an Order to be made with retrospective operation, for such express power to be contained in the governing Statute. In that connection, the Scrutinising Committee drew attention to the provisions under Section 4 of the Chartered and Other Bodies (Temporary Provisions) Act of 1939. In Section 4 of that Act one finds the following words: Any Order in Council made under Section 2 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 1939. I am pleased to see the Attorney-General present in order to assist the Minister, because I now propose to quote an extract which I have taken from Maxwell on Interpretation of Statutes, page 189. Again, I should be glad to know whether this statement is accepted by the Attorney-General as a correct statement of law. The statement is: It is a fundamental rule of English law that no Statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. I submit that a fortiori, or at least equally, power granted by Statute should not be exercised retrospectively unless the Statute granting that power expressly so provides. I hope the Minister will say whether he agrees with that proposition. Surely, if the Government have found it necessary to make retrospective provision it should have been done by a Bill so that it could have received the proper consideration of this House. As the merits are apparently non-controversial, a Bill would have been a much more simple operation than this Order has turned out to be. The Department has already made some reference to that in the Memorandum which was submitted to the Scrutinising Committee. They said: Those powers had not, however, been transferred to the Minister by the Act of 1945 since transfer by Act of Parliament of powers given by Order in Council was regarded as inappropriate. I cannot quite see the force of that statement. I ask the Minister whether or not he is advised that this retrospective operation of the Order is ultra vires? If he believes it to be not ultra vires, then does he consider it a desirable form of delegated legislation? In either case will he agree that in view of it being at least undesirable, it would be better that this Order should be annulled? The matter could then be dealt with perfectly simply by a short Bill which would not be controversial.

There is only one further point to which I should draw attention, and that is the question of consolidation. It was mentioned in the Report of the Scrutinising Committee. If we look at this Order No. 1637 we see that there have been already, before this Order, 33 Amendments to the principal Order which was made in 1923. The Scrutinising Committee made this observation: In the further examination of this amending Order in Council your Committee became. aware that it appears to be the 34th Order amending the Order. They consider this long sequence of documents should be consolidated. I agree with that most strongly because if anyone wishes to ascertain what the position of the law is at the moment he is in great difficulties. I myself thought it would be desirable to have in my possession for the purpose of this discussion a copy of the principal Order of 1923. Rather than have to carry about a large book from the Library where, of course, there are copies of the principal Order, I inquired at the Vote Office and was told it was too long ago for them. I then inquired at the Sale Office who said they would procure a copy from the Stationery Office. I received a reply this morning that the principal Order of 1923 was out of print. When the principal Order is out of print it is not very easy for any seeker after the present position of the law to discover from such of the 33 Amendments which happen to be in print what the position is.

This is not merely a subject of historical interest, because these Air Navigation Orders govern all the obligations and rights, and so on, of civil aviation. The Parliamentary Secretary will correct me if I am wrong, but I think they govern everything to do with air navigation. There must be many people now who are desirous of ascertaining what they can and cannot do. Therefore, it seems to me to be very unsatisfactory that they should have to examine, altogether, some 30-odd Orders, several of which are presumably out of print. I think that the Ministry should take note of the observations of the Scrutinising Committee and see that these Orders are consolidated at a very early date.

7.51 p.m.

Mr. C. S. Taylor (Eastbourne)

I beg to second the Motion.

I think that all hon. Members who have listened to the case put forward by my hon. Friend this evening will agree that it is one of considerable substance. There are, to my mind, three or four important matters arising out of this Order. In the first place, as my hon. Friend mentioned, there is the question of retrospective legislation, and I think he has shown to the House that there is no authority whatso- ever in the 1936 Air Navigation Act to make retrospective legislation by order under that Act. While I am dealing with that point, I would like to say, with all seriousness, that our charge tonight lies also in the reply by the Department of Civil Aviation, which I think is endeavouring to mislead this honourable House. They said, in reply to the observations of the Select Committee: The authority for making the Orders retrospective is contained in Section 30 (2) of the Air Navigation Act, 1936. Assuming that some hon. Members had not taken the trouble to look up that Act, the House might have accepted this completely false case of the Ministry of Civil Aviation. I regard these two points as very serious. One is that they have taken retrospective powers without having any authority from Parliament to do so, and, secondly, they have misled the House, in answer to the observations of the Select Committee, by saying that they have these powers and have quoted the Act under which they say they have the powers, when we know quite well, by reading the appropriate Section referred to, that these powers do not exist at all. I would like to have an explanation from the Minister about this very misleading and most improper statement from the Ministry of Civil Aviation.

Thirdly, I would like to say that, if this Order is passed tonight, it will create a precedent. Whether we agree or not with the substance of the Order, we do not agree that such an Order should be allowed to go through without challenge, because of the precedent it may establish for future years. We do not want it stated on future occasions that we allowed, without the authority of Parliament, an Order making retrospective legislation to go through unchallenged. So tonight, unless we get a favourable reply, we propose to take this matter into the Division Lobby. The Government can think of a way of reintroducing this Order in a more effective way by means of a Bill, in which they must ask Parliament and this House to give them the powers to make this retrospective legislation.

The other point which my hon. Friend made was on the question of consolidation, to which the Select Committee drew attention. I would like to ask the Minister whether he has looked up all these other Orders referred to at the bottom of the first page of the Air Navigation Order. Can he tell us what was in them, because, if he cannot, some of my hon. Friends on this side may be able to help him. Before bringing such an Order before Parliament, he should know, and we should know, what is in those Orders, such as are referred to in the footnote at the bottom of page 1. Surely, the time has now come when, if we are really going to take civil aviation seriously, all these 34 Orders should be consolidated, so that, if anyone wants to find out what the situation is, they should be able to refer to one document and not have to wade through this immense number of Orders in Council and subsidiary Orders that we have to wade through if we wish to understand what this really means.

My hon. Friends and I will give our assurance that, if this Order is withdrawn and a Bill produced in substitution for it, putting the matter on a proper footing, whereby Parliament will be asked to approve retrospective legislation, then we shall assist such a Bill to go through without discussion. I ask the hon. Gentleman who is to reply to withdraw the Order and to do the job properly instead of in this unfortunate and very unsatisfactory way.

7.58 p.m.

Mr. Maude (Exeter)

I cannot help saying that all of us must have been horrified, when we came to the House, to find this cluster of Orders. It is not often that one has to dive into such a vast volume, but there are five vast volumes now—a mass of Orders—and when I saw this particular Order, and looked at the footnote, in which no less than 33 Orders were referred to, then, indeed, did the cry go up very seriously from all persons unexhausted by Parliamentary procedure and still hoping that it might become better—" Let us pray." We are here tonight to beg that something may be done in this matter, and, in my submission to the House, it is a very good moment to do it. It is quite intolerable that Orders should have gone on, like the family of the old lady in the shoe, getting more and more numerous, until one could do nothing about it, short of child murder Here is a mass of Orders—not 10, or 15, but no less than 33 amalgamated into an enormous snowball which makes it infinitely difficult to look any of them up.

May I point out to the right hon. Gentleman the Home Secretary, whom I see in his place, that he twitted me some months ago with the fact that I had failed to notice that a certain Order had been revoked. I am much obliged to the right hon. Gentleman because lie said it with a smile and it was charmingly put. I went to the Library and looked at the Defence Regulations which are supposed to be kept up to date. They have not been annotated since 20th December. I am sure the right hon. Gentleman is surprised to hear that. There is no reason why somebody should not go from the Home Office and keep things in order so that one can see what is up to date. One cannot expect people here to annotate books, because officials of the Home Office do not do it more frequently. The officials themselves are obviously in misery, too. If one looks at the Memorandum of the Select Committee of this House dated 25th February and particularly at paragraph 2(3), one can imagine the misery they must have gone through. It says: A close scrutiny of the many Orders in Council containing such powers and repeated consultations with other Departments concerned were necessary before the transfer could be effected by the present Order. It is simply intolerable. The moment has come to agree that what happened here is, that when the Ministry of Civil Aviation Act, 1945, was about to come into operation in April, an official who was overworked, slipped up, and did not realise it was necessary to wade through an absolute Sargasso Sea in order to get the thing right. Somebody finds it out in the month of December—a long time afterwards—and goes to the Minister who, I suppose, turns it back again to the legal advisers of the Crown and, eventually, it is brought here.

In effect, what the Minister is trying to do is something exceptional. The rule is that, prima jade, legislation is not retrospective, but prospective. If the learned Attorney-General or the learned Solicitor-General, whoever replies, can show that there is something similar elsewhere, well and good, but if there is no precedent it is extremely bad. The ordinary rule is well established and has been recently established in a case which, so far as I know, has not been overruled—the case of the Land and Property Co.versus Pajzs, reported in 1943 in the All England. Reports, and no doubt elsewhere. The rule is quite clearly established, and there is no doubt in the minds of people who are faithful followers of all this legislation, such as the hon. Member for Eastbourne (Mr. C. S. Taylor)—who is unflagging in his attention in these matters—and my hon. Friend. As the result of pertinacity and industry, they have, in fact, brought up a most unfortunate instance of carelessness which did not come to light for several months, when it was thought necessary to introduce this Order to put it right. I cannot conceive that was not the case. When the Bill was going through there must have been some carelessness. It should- have been apparent to those responsible that care should be taken to see that this matter was properly dealt with at the time.

In conclusion I would like to say that I am extremely sympathetic to those persons who deal with these matters. The burden is almost intolerable. I hope, as a result of this exposure—and I call it so without any offence—we shall get a consolidation, not merely in respect of this particular Order with all its intolerable accretions, but that the idea will spread like wildfire through a number of other Departments so that Butterworth with its five volumes will shrink down to a comparatively small size and that one will not be bothered with such an Order as the Green Onions Revocation Order. Indeed, the Department is so fond of them that they have given this Order the name of the Green Onions Revocation Order No. 3, 1945. I know that in the exercise of our profession outside these walls this is no laughing matter—it is bread and butter for many of us—but within these walls we must do something about it.

8.7 p.m.

The Attorney-General (Sir Hartley Shawcross)

I am not prepared to dissent for a moment from many of the propositions put forward by hon. and hon. and learned Members who have very properly raised this matter. I entirely agree with the general proposition that unless a Statute expressly gives retrospective powers, delegated legislation ought not to take effect retrospectively. Indeed in most cases one looks at, the particular Statutory powers acted under cannot take effect retrospectively. That is a general principle to which the Government will certainly adhere. If I may be permitted to say so, the Select Committee and the hon. Members who have put down this Prayer have certainly performed a useful function in drawing attention to the general importance of that principle. But, although that is a very sound rule of 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 have been exercised in a particular case.

Let me say at once about this case that I think it is not an easy one. It is a case about which it is quite possible for two views to be held but, on the whole, I have come to the conclusion that what was done here was intra vires. I have also come to the conclusion that whether it was intra vires or not, it has, in effect, not operated to affect any rights at all. I will explain why I have reached that view about it. In one sense, the matter is academic in that it has not effected any illegality, even if one were to assume that the retrospective operation of this Order was ultra vires of the Statute under which it was made. The position was that under powers contained in the original Air Navigation Acts of 1920 and 1936—powers which did not limit the persons to whom such functions might be given or restrict them in any way to the Secretary of State for Air— Orders in Council had, in fact, been made conferring certain functions in c6nnec-tion with what we now know as civil aviation on the Secretary of State for Air. The Civil Aviation Act of 1945, in general, operated to transfer from the Secretary of State for Air to the Minister of Civil Aviation, the Secretary of State's former functions in regard to civil aviation where those functions themselves were based and directly based, upon Statutes, but it did not operate to transfer the civil aviation functions of the Secretary of State where those functions arose not directly from the Statutes but from Orders in Council. That was designedly so, because the practice is that where a matter is dealt with by Order in Council, and the Order-making power still subsists as it does here under the Act of 1920 and the Act of 1936, that matter is not altered or amended by Statute but by another Order varying or revoking the original one under which the matter first arose.

The result was that although the general intention of the 1945 Act was to transfer the functions of the Secretary of State in connection with civil aviation to the Minister of Civil Aviation, under various Orders certain functions—they related mainly to the granting of licences and so forth in connection with civil aviation—remained vested in the Secretary of State and continued to be lawfully exercisable by the Secretary of State That matter had to be dealt with in order to implement the clear intention of Parliament that, as expressed in the 1945 Act, in future the Minister of Civil Aviation should be generally responsible for all matters relating to civil aviation. Accordingly, not at once but after a lapse of some little time, which occurred for departmental reasons which my hon. Friend will indicate, an Order was made under Section 17 of the Act of 1920, which gave power to revoke or vary Orders which had previously been made under that Section, and under Section 30, Subsection 2 of the 1936 Act, which provided that Orders made under these two Acts, which are read as one, might contain such incidental and supplementary provisions as appear to His Majesty in Council to be necessary and expedient for the purposes of the Order.

There was really nothing sinister about it. All that it did was to deal with the position which had arisen during this transitional period. As the House will understand, it was not possible to transfer all the functions, officials and officers of the Secretary of State for Air in regard to civil aviation at a single instant to the Ministry of Civil Aviation, and for a time it necessarily happened that, notwithstanding the general transfer of powers under the 1945 Act, certain functions continued lawfully to be exercised by the Secretary of State or by his officials or with his authority. They continued to be so exercisable lawfully, because they had been conferred on him by Orders made under the principal Act which had not been varied or revoked by the 1945 Statute. All this Order did was to provide that the name of the Minister of Civil Aviation should be substituted for the name of the Secretary of State in the various Orders which hitherto had in- vested the Secretary of State with the functions in regard to civil aviation.

The purpose of it was to give effect to the undoubted intention of Parliament that the Minister should be responsible for all matters relating to civil aviation. The retrospective operation of if merely resulted in those who in the interim had been exercising civil aviation functions quite lawfully in the name of the Secretary of State, being deemed to have acted as the agents for the Minister of Civil Aviation in so doing. In that effect and in that operation it was, in the view of the Crown in Council—and the House will notice that this is a matter for the Crown in Council, and not for the House nor indeed for the courts—necessary and expedient to make that provision as a supplementary provision to the main purpose of the Order, which was to transfer those functions in futuro from the Secretary of State, who, up to that moment, had been lawfully exercising them to the Minister of Civil Aviation, who, in future, was to be responsible to Parliament for the general policy of his Department. So far as I can see, in relation to the actual acts which have taken place under this Order, the matter was purely machinery and no legal rights have been affected in the slightest degree. No liberties have been infringed and nothing has been made lawful which was not lawful already. All that has been done is to provide that what was done, and lawfully done, should be deemed to have been done by persons acting as the agents of the Minister of Civil Aviation rather than as the agents of the Secretary of State.

I will go further and say that we will investigate every act that has taken place during the interim period, which may in any way have been affected by the retrospective operation of this Order. If, after investigating every licence which has been granted and every act which has taken place under the Orders and which is affected by this Order, we have any doubt whatever as to the legality of what was done, we will come to the House with the necessary Bill. We do not think that position will arise. We believe this is purely machinery, and that in the events that have occurred, in fact, nothing has, been done in reliance upon the retrospective operation of this Order, which was not already legal under the Orders as they stood before. If that is not the case, we: will come back to the House. The position as we understand it now, on the facts as we have been able to ascertain them so far, is that nothing which was not already legal has been legalised by this retrospective operation, and, whilst any general retroactive operation is certainly to be avoided in delegated legislation of this kind, its operation in this particular case has been technical and, as I invite the House to say, unobjectionable.

Mr. Maude

Would the learned Attorney-General answer this question before he resumes his seat? It is clear from what he has said that a large, or at least, a substantial burden of work is likely to fall on some official. He has also indicated that this sort of thing will probably be guarded against in the future

The Attorney-General indicated assent.

Mr. Maude

I am much obliged to the learned Attorney-General for his nod of assent. That is really largely the object of what we are doing here tonight. Personally I shall be entirely satisfied with the learned Attorney-General's nod.

The Attorney-General

Yes, I have indicated, I hope, that 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.

8.19 p.m

Sir J. Mellor

I think I have a right to say something on this matter, and 1 propose to exercise it very briefly. In view of the last observation of the Attorney-General when he repeated what he had previously said in his speech, it is very difficult to understand how he can claim that this Order is not ultra vires. I have listened with the greatest attention to everything he has said, and it seemed to me that he was not very happy about his case. I also thought he did not feel any great confidence that this matter was intra vires, and still less did he seem to feel that it was a desirable form of delegated legislation. He observed, I think, in support of his argument that the matter was good on its merits. I entirely agree. I said at the outset of my remarks that I had nothing to say about the merits That is common ground. Then he said, that this Order would legalise nothing that was not already legal.

In those circumstances it seems to me that the Order is entirely unnecessary and could be annulled without harm to any one. The reason he gave for the need for making this Order retrospective was that there had been a lapse of time since the passing of the 1945 Act. Of course, it would obviously be right if an Order of this kind had to be made that it should be made to come into operation simultaneously with the 1945 Act, but that was not done I cannot think the courts would take the view that something would be rendered intra vires because of a departmental delay when it would be ultra vires for other reasons. I cannot think the courts would regard the difficulties of the Departments with such indulgence that they would say the delay of something like eight months, April to December, was justified and so rendered the Order intra vires.

The Attorney-General

1 hope the hon. Member did not understand me as putting forward that proposition. I certainly would not have done so I was merely explaining the facts under which this Order came to be promulgated. I was not saying those facts made the Order legal or illegal. I justified the legality under the terms of the Statute under which it was made. If the House will permit me I will say this. If I thought any substantial number of persons or any number of persons had been affected by this Order, that private rights had been materially affected by it, then I might well take a different view about it. As it is, I would suggest to the House that this matter which may be in doubt, although I have expressed my own view about it, can safely be left to the courts. Nobody has suffered any injury, no rights have been affected, and therefore it is most unlikely that anybody would have recourse to the courts in regard to it

Sir J. Mellor

I really do not think the House ought to be put in that, position. The Attorney-General is now asking us to allow. to be passed some delegated legislation about which he admits he has considerable doubt, because he says that if anybody happens to take the matter to the courts—which I agree is very unlikely—the courts will deal with the matter. We are always being criticised for passing rather sloppy legislation, and I do not think we ought to expose ourselves to justifiable criticism from His Majesty's judges by permitting this Order to go through. The whole burden of the speech of the Attorney-General was to excuse this retrospective legislation, which he admits is not good, on the grounds of the facts. I cannot see that good facts can turn bad law into good law. I think we should consider this matter, as I endeavoured to raise it, purely as a question of principle. I was anxious to make it clear that in my view the merits do not arise. If the principle is bad, and we have this retrospective provision without any statutory sanction to support it, then I say it is our duty to annul this Order and leave it to to Government to bring in a Bill to put the matter in order, which they could do quite easily without the slightest difficulty or trouble. I hope the Government are not going to be so squeamish that they will not admit they are wrong to pursue this Order, and the right, proper and handsome thing is to say they will accept the annulment and will put the matter right, in which I am quite certain they would have the general assistance and support of the House. I feel that unless the Government can agree we shall have to carry this to a Division.

8.24 p.m.

The Parliamentary Secretary to the Ministry of Cvil Aviation (Mr. Ivor Thomas)

There are a few things that I ought to say from the departmental point of view. It is perhaps thanks to the excellent air services now provided by my Department that I was able to be in negotiations at the Quai d'Orsay in Paris this morning and in my place in the House of Commons this evening to defend my Department. I hope hon. Members opposite will accept this as proof of the seriousness with which we treat their observations on this matter. In one sense it is an academic matter, but from another point of view it is very important. If I may say so without presumption, I am grateful to the Select Committee and to hon. Members for having raised this matter. I will deal with the question of consolidation which has not been touched on this side of the House so far. I agree entirely with the need for consolidation of the many Orders. That work has been in hand for some time, but it is a long business and it will take some months yet before it is complete. As the House well knows, we have a major Bill in preparation, together with another important Bill. Obviously those Bills must have precedence, but we regard the consolidation as necessary and desirable.

The hon. Member for Sutton Coldfield (Sir J. Mellor) has asked me to give a direct and clear answer to the question: Do I agree with the words in the report of the Select Committee to this effect, that they feel strongly that Statutory Rules and Orders should not purport to have retrospective operation unless Parliament has expressly so provided? I do give the clear answer that I accept that injunction, and so far as my Department is concerned I give a promise that it will be carried out in any future Orders. The legal aspect has been dealt with very fully by my hon. and learned Friend and it would be presumptuous of me to attempt to deal with it. All I wish to say from the departmental point of view is that when this Order was made it was naturally made on advice, and there seemed no doubt at all at the time that this Statutory Rule and Order was valid. There was no hesitation at all until the subject was raised by the Select Committee. Here I come to one thing which has been said opposite with which I disagree, and I hope the hon. Member opposite will not feel inclined to press his observations when he said that my Department were attempting to "mislead the House" and had made "a false statement," a statement which was "most improper." I can assure the House that that is not the case. Whatever was done was done in good faith, and every attempt was made to give the Select Committee all the information it desired.

Mr. C. S. Taylor

But surely Section 30 of the Air Navigation Act, 1936, does not give powers for retrospective legislation?

Mr. Ivor Thomas

No, Sir, that is precisely the point which I cannot concede. I have made it clear that when the Order was drafted my Department was of the opinion, and was advised, that powers to make it retrospective were given by the Air Navigation Act, 1936. That was and still is the view of my Department and of our advisers in this matter. But now the Select Committee has raised the matter I can see it is an arguable question. I only say that there are arguments on both sides.

The hon. Baronet was good enough to say he was not raising anything about the merits of the Order. The House may like to know, however, that it concerns the signing of licences and the renewal of licences for civil aviation personnel such as pilots, navigators and ground engineers; and the signing of certificates and the renewal of certificates of airworthiness of aircraft. The situation could have been obviated if someone in the days of the war had had the foresight to see that when the Ministry of Civil Aviation Act was passed there should have been also passed an Order dealing with these matters. We have inherited this situation from our predecessors. I cannot blame them, because during the war people were far too occupied with other matters to take all these things into account. Therefore, my submission to the House is that the verdict of the House should be, "Not guilty, but do not do it again."

8.32 p.m.

Mr. Charles Williams (Torquay)

I have been convinced by the two Government speakers that they really have made the most first-class case for withdrawing this Order. First of all, it seems to be retrospective, and both the last two Government speakers seemed not to like retrospective Orders of this kind. That is a very strong factor for anulling the Order. What is the good of having hon. and also learned Gentlemen here giving us advice that a thing is bad, if they then insist on our keeping it? I think every one of us will agree that they have made an absolutely good case for withdrawing the Order. This Order may seem fairly harmless, but it should be withdrawn. It offends against some other principles with which hon. Members on all sides of the House agree. They say, as I understand it, that for all practical purposes it never was used and is not very much likely to be used. What is the good of keeping an Order going and incurring unpopularity by doing a silly thing which is retrospective, but apparently has not been used and is not likely to be used? What is the good of keeping it going? Why should Ministers not get up and say,

" This Order is not really necessary and not very much wanted, and we shall be very nice and withdraw it tonight, because it obviously offends against the instincts of the people." I see the Attorney-General shakes his head. I am used to that sort of obstinacy by the Law Officers. Why stick to that point of view always?

Law Officers are not the only people in the Government. There are representative and able people in the Cabinet here, sensible and able to adjust themselves to the will of the House. I should not like to draw attention to anyone in particular. It might cause jealousy, and J know there is far too much of that in the ranks of the Government already. But really it does seem the absolute height of absurdity that you have to pass an Order of that sort and make arguments against it and then say you are going to keep it, anyhow. That is how they presented the argument. 1 cannot help the muddle which they made. They must not shake their heads at me and blame me for that. I do say, quite frankly, they have put themselves in an absurd position. There may be other Orders, for all I know. How much stronger their argument will be if they give way gracefully on this occasion and meet the will of the House. I would ask them just to give us this one Order, so that they may not seem so overwhelming and domineering as some people outside are beginning to think. In view of the arguments advanced from the Front Bench, I hope, if it is necessary to have a Division, that hon. and right hon. Gentlemen on the Front Bench opposite will vote in the same Lobby as I.

Question put, "That an humble Address be presented to His Majesty, praying that the Order in Council, dated 20th December, 1945, entitled the Air Navigation (Amendment) (Ministry of Civil Aviation) Order, 1945, a copy of which was presented on 22nd January, be annulled."

The House divided: Ayes, 96; Noes, 264.

Division No. 81.] AYES. [8.38 p.m.
Agnew, Cmdr. P. G. Buchan-Hepburn, P. G. T. Cuthbert, W. N.
Astor, Hon. M. Bullock, Capt. M. Darling, Sir W. Y.
Beamish, Maj. T. V. H. Butler, Rt. Hon. R. A. (S'ffr'n W'ld'n) Digby, Maj. S. W.
Bennett, Sir P. Challen, Flt.-Lieut. C. Dower, Lt.-Col. A. (Penrith)
Birch, Lt.-Col. Nigel Clarke, Col. R. S. Dower, Eric L. Gandar (Caithness)
Boyd-Carpenter, Maj. J. A. Clifton-Brown, Lt.-Col. G. Drewe, C.
Bracken, Rt. Hon. Brendan Conant, Maj. R. J. E. Eccles, D. M.
Braithwaite, Lt.-Comdr. J. G. Crowder, Capt. J. F. E. Foster, J. G. (Northwich)
Gage, Lt.-Col. C. Maitland, Comdr. J. W. Shephard, S. (Newark)
Glossop, C. W. H. Marples, Capt. A. E. Shepherd, Lieut. W. S. (Bucklow)
Glyn, Sir R. Marshall, Comdr. D. (Bodmin) Smiles, Lt.-Col. Sir W.
Gomme-Duncan, Col. A. G. Maude, J. C. Smith, E. P. (Ashford)
Hannon, Sir P. (Moseley) Molson, A. H. E. Smithers, Sir W.
Head, Brig. A. H. Morris-Jones, Sir H. Spearman, A. C. M.
Hinchingbrooke, Viscount Morrison, Maj. J. G. (Salisbury) Spence, Maj. H. R.
Hogg, Hon. Q. Mott-Radclyffe, Maj. C. E. Stoddart-Scott, Col. M.
Hollis, Sqn.-Ldr. M. C. Neven-Spence, Major Sir B. Stuart, Rt. Hon. J.
Hudson, Rt. Hon. R. S. (Southport) Nicholson, G. Sutcliffe, H.
Hulbert, N. J Noble, Comdr. A. H. P. Taylor, Vice-Adm. E. A. (P'dd't'n, S.)
Hutchison, Lt.-Cm. Clark (E'b'rgh, W.) Osborne, C. Thorneycroft, G. E. P.
Jennings, R. Peake, Rt. Hon. O. Thorp, Lt.-Col. R. A. F.
Keeling, E. H. Poole, O. B. S. (Oswestry) Touche, G. C.
Kerr, Sir J. Graham Prescott, W R. S. Turton, R. H.
Kingsmill, Lt.-Col. W. H. Price-White, Lt.-Col. D. Vane, Lieut.-Col. W. M. T.
Langford-Holt, J. Raikes, H. V. Walker-Smith, D.
Legge-Bourke, Maj. E. A. H. Ramsay, Maj. S. Wheatley, Colonel M. J.
Lindsay, Lt.-Col. M. (Solihull) Rayner, Brig. R. White, J. B. (Canterbury)
Linstead, H. N. Reid, Rt. Hon. J. S. C. (Hillhead) Williams, C. (Torquay)
Lloyd, Maj. Guy (Renfrew, E.) Renton, D. Winterton, Rt. Hon. Earl
Low, Brig. A. R. W. Roberts, H. (Handsworth) Young, Sir A. S. L. (Partick)
Lucas-Tooth, Sir H. Robinson, Wing-Comdr. Roland TELLERS FOR THE AYES
Mackeson, Lt.-Col. H. R. Sanderson, Sir F. Sir John Mellor and
Macmillan, Rt. Hon. Harold Scott, Lord W. Mr. C. Taylor.
Adamson, Mrs. J. L. Delargy, Captain H. J. Jones, J. H. (Bolton)
Alpass, J. H. Diamond, J. Jones, Asterley (Hitchin)
Anderson, A. (Motherwell) Dobbie, W. Keenan, W.
Anderson, F. (Whilehaven) Douglas, F. C. R. Kenyon, C.
Attewell, H. C. Driberg, T. E. N. Key, C. W.
Austin, H. L. Dugdale, J. (W. Bromwich) King, E. M.
Ayles, W. H. Dumpleton, C. W. Lavers, S.
Ayrton Gould, Mrs. B. Durbin, E. F. M. Lawson, Rt. Hon. J. J.
Bacon, Miss A. Ede, Rt. Hon. J. C. Lee, F. (Hulme)
Baird, Capt. J. Edwards, N. (Caerphilly) Lee, Miss J. (Cannock)
Baldwin, A. E. Edwards, W. J. (Whitechapel) Leonard, W.
Balfour, A. Evans, S. N. (Wednesbury) Leslie, J. R.
Barnes, Rt. Hon. A. J. Ewart, R. Levy, B. W.
Barton, C. Fairhurst, F. Lewis, A. W. J. (Upton)
Bechervaise, A. E. Farthing, W. J. Lewis, J. (Bolton)
Belcher, J. W. Fletcher, E. G. M. (Islington, E.) Lewis, T. (Southampton)
Beswick, Flt.-Lieut. F. Follick, M. Lindgren, G. S.
Bing, Capt. G. H. C. Foot, M. M. Lipson, D. L.
Binns, J. Forman, J. C. Lipton, Lt.-Col. M.
Blackburn, Capt. A. R. Foster, W. (Wigan) Logan, D. G.
Blenkinsop, Capt. A. Fraser, T. (Hamilton) Longden, F.
Blyton, W. R. Freeman, Maj. J. (Watford) Lyne, A. W.
Boardman, H. Freeman, Peter (Newport) McAdam, W.
Bottomley, A. G. Gaitskell, H. T. N. McEntee, V. La T.
Bowden, Flg.-Offr. H. W. Ganley, Mrs. C. S. McGhee, H. G.
Braddock, Mrs. E. M. (L'p'l, Exch'ge) Gibbins, J. McGovern, J.
Brook, D. (Halifax) Gilzean, A. Mack, J. D.
Brooks, T. J. (Rothwell) Glanville, J. E. (Consett) McKay, J. (Wallsend).
Brown, T. J. (Ince) Gooch, E. G. McKinlay, A. S.
Bruce, Maj. D. W. T. Gordon-Walker, P. C Maclean, N. (Govan)
Buchanan, G. Granville, E. (Eye) McLeavy, F.
Burden, T. W. Grenfell, D. R. MacMillan, M. K.
Butler, H. W. (Hackney, S.) Grey, C. F. Mainwaring, W. H.
Chamberlain, R. A. Griffiths, D. (Rother Valley) Mallalieu, J. P. W..
Champion, A. J. Griffiths, Rt. Hon. J. (Llanelly) Mayhew, C. P.
Chetwynd, Capt. G. R. Gruffydd, Prof. W. J Medland, H. M.
Clitherow, Dr R. Haire, Flt.-Lieut. J. (Wycombe) Messer, F.
Cluse, W. S. Hale, Leslie Mitchison, Maj. G. R.
Cobb, F. A. Hannan, W. (Maryhill) Monslow, W.
Cocks, F. S. Hardy, E. A. Moody, A. S.
Coldrick, W. Haworth, J. Morgan, Dr. H. B.
Collick, P. Henderson, A. (Kingswinford) Morley, R.
Collindridge, F. Herbison, Miss M. Morris, P. (Swansea, W.)
Colman, Miss G. M. Hobson, C. R. Morrison, Rt Hon. H. (Lewisham, E.)
Cooper, Wing-Comdr. G Holman, P. Mort, D. L.
Corlett, Dr. J. House, G. Moyle, A.
Daggar, G. Hoy, J. Murray, J. D.
Daines, P. Hubbard, T. Nally, W.
Davies, Edward (Burslem) Hudson, J. H. (Ealing, W.) Naylor, T. E.
Davies, Clement (Montgomery) Hughes, Emrys Neal, H. (Claycross)
Davies, Ernest (Enfield) Hughes, Lt. H. D (Wolverh'ton, W.) Nichol, Mrs. M. E. (Bradford, N.)
Davies, Harold (Leek) Hynd, H. (Hackney, C.) Noel-Baker, Capt. F. E. (Brentford)
Davies, Haydn (St. Pancras, S.W.) Isaacs, Rt. Hon. G. A. Noel-Buxton, Lady
Davies, R. J. (Westhoughton) Janner, B. O'Brien, T.
Davies, S. O. (Merthyr) Jeger, Capt. G. (Winchester) Oldfield, W. H.
Deer, G. Jeger, Dr. S. W. (St, Pancras, S.E.) Oliver, G. H.
de Freitas, Geoffrey Jones, D. T. (Hartlepools) Orbach, M.
Paget, R. T. Simmons, C. J. Viant, S. P.
Paling, Rt. Hon. Wilfred (Wentworth) Skeffington, A M. Walker, G. H.
Paling, Will T. (Dewsbury) Skinnard, F. W. Wallace, G. D. (Chislehurst)
Pargiter, G. A. Smith, Capt. C. (Colchester) Wallace, H. W. (Walthamstow, E)
Parkin, Flt.-Lieut. B. T. Smith, Ellis (Stoke) Warbey, W. N.
Paton, Mrs. F. (Rushcliffe) Smith, H. N. (Nottingham, S.) Watkins, T. E.
Pearson, A. Smith, T. (Normanton) Watson, W. M.
Perrins, W. Snow, Capt. J. W. Webb, M. (Bradford, C.)
Popplewell, E. Solley, L. J. Weitzman, D.
Porter, E. (Warrington) Sorensen, R. W. Wells, W T. (Walsall)
Porter, G. (Leeds) Soskice, Maj. Sir F.. White, H. (Derbyshire, N.E.)
Price, M P. Stamford, W. Whiteley, Rt. Hon W.
Proctor, W. T. Steele, T. Wigg, Col. G. E.
Ranger, J. Stewart, Capt. Michael (Fulham, E.) Wilkes, Maj. L.
Rankin, J. Stross, Dr. B. Wilkins, W. A.
Rees-Williams, Lt.-Col. D. R. Stubbs, A. E. Willey, F. T. (Sunderland)
Reeves, J. Symonds, Maj. A. L. Willey, O. G. (Cleveland)
Reid, T. (Swindon) Taylor, H. B. (Mansfield) Williams, D. J (Neath)
Rhodes, H. Taylor, R. J. (Morpeth) Williams, J. L. (Kelvingrove)
Richards, R. Thomas, Ivor (Keighley) Williams, W. R. (Heston)
Ridealgh, Mrs. M. Thomas, l. O. (Wrekin) Willis, E.
Roberts, Sqn.-Ldr. Emrys (Merioneth) Thomas, John R. (Dover) Wills, Mrs. E. A
Roberts, W. (Cumberland, N.) Thomas, George (Cardiff) Wise, Major F. J
Robertson, J. J. (Berwick) Thomson, Rt. Hn. G. R. (Ed'b'gh, E.) Woodburn, A.
Rogers, G. H. R. Thorneycroft, H. Yates, V F.
Scott-Elliot, W. Tiffany, S. Young, Sir R. (Newton)
Segal, Sq.-Ldr. S. Timmons, J Younger, Maj. Hon. K. G.
Sharp, Lt.-Col. G. M. Titterington, M. F. Zilliacus, K.
Shawcross, C. N. (Widnes) Tomlinson, Rt. Hon. G.
Shawcross, Sir H. (St. Helens) Turner-Samuels, M. TELLERS FOR THE NOES
Shinwell, Rt. Hon. E. Ungoed-Thomas, L. Mr. Mathers and
Silverman, J. (Erdington) Usborne, Henry Mr. Joseph Henderson.
Silverman, S. S. (Nelson) Vernon, Maj. W. F.