CLAUSE 1.—(General amendments.) (Hansard, 25 July 1946)

Mr. Noel-Baker
I beg to move, in page 2, line 19, after "affect", insert "the validity or".
This Amendment is intended to make it doubly certain that this Clause cannot change the present operation of any existing Order in Council. We propose it, not because any of us on this side of the House or my legal advisers have any doubt about the interpretation of the existing words of the Bill, but because hon. Members opposite did have doubts, and we hope that the Amendment will alleviate those doubts.

§ Mr. Manningham-Buller
I recognise the attempt the right hon. Gentleman has made to meet the point raised by my hon. Friend the Member for Northwich (Mr. John Foster). I hope he will not think I am being ungracious when I say I do not think this Amendment really meets that point at all. I want, quite shortly, to address a serious argument to him on that subject. The question at issue has never been the validity of the Orders in Council under Section 1 of the principal Act. It has always been agreed that these Orders in Council are not, by this Bill, annulled. The point that we on this side of the House make is this. By this Bill, Part II is taken out of the 1944 Act and a new Part II is inserted. Thus, when there is an Order, like the European Coal Organisation Order, made under the 1944 Act, it is found that certain people shall have the privileges specified in Part II of the Act. If that Order in Council remains, one obviously looks to see what Part II of the Act is. From now on a different Part II from the Part II that was in operation when that Order was made will be found. So, without the validity of the Order in Council being in the least degree affected, as I see it, its operation must, as a matter of law, be extended by the Amendments made by 367 this Bill to Part II of the 1944 Act. I hope I have made myself clear, because I am trying to put the point as shortly as I can.
The right hon. Gentleman says he has been advised by his legal advisers. I must say, I would like to hear either the learned Attorney-General or the learned Solicitor-General on this point, and I think the House is entitled to hear their views upon it. I would suggest to the right hon. Gentleman—because I do not want to indulge in a controversy with him, however much he may wish to trail his coat—this possible Amendment, which I think will meet the point he has tried to meet—but which I think he has failed to do—and do no harm at all. Suppose in front of "affect" the words "extend or" were inserted. It would then read: The foregoing Subsection shall not extend or affect the operation of any Order, in Council. I think the right hon. Gentleman will agree with me when I say that what he is trying to do, and what we want to try to do, is to keep the Orders in Council under the 1944 Act having precisely the same operation as they now have; that is to say, they shall not be affected in any way by this Measure. As I see it, it is very arguable indeed, putting it at its lowest, that the Orders under the 1944 Act are automatically extended, so far as Part II is concerned, by the provisions of this Measure. If the words "extend or" are inserted he will achieve his object, and he will meet the wishes of hon. Members on this side of the House. I would ask him to give serious consideration to that point. We do not want to take up any time on what is really a point of drafting as to how the purpose is achieved. I do not think the right hon. Gentleman has met us so far. I welcomed his desire to do so, and I think the words I have suggested to him really achieve our common purpose.

§ Lient.-Commander Joynson - Hicks (Chichester)
I desire to reinforce the argument put forward by my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller). I really cannot see what advantage the introduction of the words contained in the proposed Amendment can possibly have. In default of any advice from either of the Law Officers I think the House is rather at a disadvantage. There is no way, that I 368 can understand, whereby "The foregoing subsection", that is Subsection (1), can possibly affect the validity of an Order in Council. That is the sole point which I understand this Amendment is designed to overcome. I do not think there has ever been any question of the validity of the Order in Council itself being affected by this Subsection; the whole question was whether or not the Subsection might extend or vary the Order in Council, not whether it would affect its validity. I urge upon the right hon. Gentleman that the point should be taken into consideration, because the introduction of the words may throw doubt upon the whole question.

Mr. Noel-Baker
Our intention originally in using the word "operation" was that it should cover both the validity of the Order and the effect of the Order, so that what actually happened under the Order should not be changed. As we understood the arguments of the hon. and learned Member for Daventry (Mr. Manningham-Buller) and other hon. Members opposite, their point was that the word "operation" only meant "validity"; that of course the Order would go on, but that its effect would be changed. We thought, by inserting the word "validity" we would make it plain that "operation" must mean something else; that "operation" must mean the effect which the Order had, and for that reason—although we believed it to be plain in our original draft and that the courts would so -;construe it we were quite ready to put in the words "validity or operation," meaning the word "operation" to convey the intention and effect. The hon. and learned Member now proposes another change, which perhaps will make it still clearer—"extend or affect." I am quite ready to accept it, if he thinks it an advantage.

§ Mr. Godfrey Nicholson (Farnham)
Surely the meaning of these Orders must be affected owing to the Amendment to the Schedule? Surely they must have a totally different meaning after that?

Mr. Noel-Baker
That is the point we have been discussing.

§ Mr. Manningham-Buller
With the leave of the House, Mr. Speaker, I would like to thank the right hon. Gentleman for saying that he will accept this Amendment I have suggested. I think it makes this rather complicated point absolutely 369 clear, and removes all uncertainty from this particular provision.

§ Mr. Speaker
There is a little difficulty about procedure here. I think this Amendment has to be withdrawn and a new one moved, because I think the words will be in the wrong place after "affect." I think they should come before "affect." Therefore this Amendment must be withdrawn and a new Amendment moved.

Mr. Noel-Baker
May I, with the leave of the House, withdraw the existing Amendment and, if that is agreed to, propose a new Amendment which would be: After the word "not," in line 19, to insert "extend or," and after the word "the" to insert "validity or."

§ Mr. Speaker
I think the whole Amendment should be withdrawn and then a new Amendment should be moved, and that would be: After the word "not" to insert "extends or affects the validity or." I think that is the correct way of doing it.

§ Mr. Manningham-Buller
It should be "extend."

§ Mr. Speaker
Can it be written out?

§ Mr. Nicholson
With all respect, Mr. Speaker, I submit that we must leave out all the words in that line after the word "not"; that is, leave out "affect the operation."