HC Deb 02 April 1947 vol 435 cc2142-59
The Chairman

Mr. Butler.

9.23 p.m.

Mr. Pickthorn (Cambridge University)

Could I ask, Major Milner, is it not your intention to call the first Amendment on the Order Paper—in page 1, line 18, to leave out "appear to him to be," and to insert "are"?

The Chairman

I have not selected the hon. Member's Amendment, which appears to me to be merely a matter of drafting. He can deal with it when we discuss the Clause as a whole, if he wishes.

Mr. R. A. Butler (Saffron Walden)

I beg to move, in page 2, line 5, to leave out Subsections (3) to (5), and to insert: (3) No Order in Council shall be made under this Act unless, after copies of the draft thereof have been laid before Parliament, each House presents an Address to His Majesty praying that the Order may be made. I certainly hope my hon. Friend the senior Burgess for Cambridge University (Mr. Pickthorn) will deal with his point on the Question "That the Clause stand part of the Bill." I hope it will then be found that that point is one of very considerable substance, to which he alone can do adequate justice. Therefore, I will not—indeed, I do not think I would be in Order—refer to those matters here.

The Amendment I have moved is designed to substitute for the negative procedure as suggested in this Bill, the affirmative procedure, under which we consider these matters would be better safeguarded than they can be in the terms suggested in the Bill as it is before us. We have on many occasions, in the course of legislation in this Committee, recommended the use of the affirmative Order rather than the negative Order. I think this is a peculiarly appropriate occasion upon which to stress the need for the affirmative procedure. I realise that the Foreign Office are not used to legislation, and, therefore, I sympathise with the Minister of State, who is very green in these matters, and is not used to the rough and tumble of the ordinary legislative procedure of the Committee. I know that when I was in his position I had no Bills with which to deal.

But I must remind him that he is here coming to the common ground which is familiar to all of us who take part in the ordinary legislative processes of the House. He will realise that one of the most important points, to which we attach importance on this side of the Committee, is that matters in the House should have the chance of proper ventilation. I feel sure that if he will consult with the Home Secretary, who, I see, wisely has been brought in to sit beside him, as well as his other right hon. Friend, he will get from them sufficient encouragement to give way to the opinion of the Opposition on this most important point. They are well versed in the attitude of the Opposition in these matters, and realise the importance we attach to them.

The point of our Amendment is this. Under this Bill it is possible for His Majesty to make as many Orders in Council as he may feel inclined to make. I will leave that point for the hon. Gentleman the senior Burgess for Cambridge University to develop. But the fact is that the explanations given by the right hon. Gentleman in the course of the Second Reading of the Bill have not completely satisfied us. He designated certain matter—very technical matters on which he thought that Orders will be necessary; and he felt, on this occasion, that, by designating those matters, he had satisfied us, and allayed our apprehension. By a process of elimination, his acute mind attempted, on that occasion, so to distract our attention that he indictated a series of Orders, which he regarded as not so essential as we should regard them; and, by designating a list of such Orders, he hoped, thereby, to distract our attention from the procedure laid down in this Clause.

I do not feel satisfied that the Minister has realised that in the immense range of the Orders set out in the Treaties we have before us there may be many im- portant matters, such as those dealing with foreign nationals' property in this country, and other matters. These will involve Orders of considerable importance. We do not feel that that process of elimination, distinguishing Orders which are unimportant from Orders which are important, is sufficient justification for retaining the negative procedure. It must be well known to all Members of this Committee attending here tonight that the affirmative procedure is very much more effective than the negative procedure. The affirmative procedure demands, on the part of both Houses of Parliament, a positive act. It does not demand the procedure laid down here, on which an Order may simply lie for so many days, and, if nobody takes any positive action, then it has the force of law. Therefore, the positive procedure is much more important than the negative procedure. Although we may sit up late at night, and move Prayers at late hours, as we try to do with great assiduity in the House, we cannot, under the negative procedure, get as much value as we can get out of the affirmative procedure. The affirmative procedure is much more disturbing to the Government, because by it they cannot get the Orders without an affirmative Resolution by both Houses. Therefore, it is always natural for the Government to avoid the affirmative procedure.

But tonight I may give the right hon. Gentleman a little of my own experience in the important matter of the Government of India Act, 1935. As matters in that Measure were of Imperial interest, and come second only to those matters of world interest with which the right hon. Gentleman deals, we were ready to adopt the affirmative procedure by Order in Council, rather than the negative. I think it is a very bad mark against any Government that they would prefer to lay an Order on the Table of the House, in the hope that that Order will get through without any undue trouble—unless hon. Friends of mine on this side of the Committee raised the matter at a late hour, and were swamped by the overwhelming vote from the Government side—rather than adopt the alternative method of procedure. I, therefore, hope that the Government, on this occasion, and on such an important matter as Treaties of Peace, and on one of the rare occasions when the Foreign Office comes to the House of Commons with proposals for legislation, will take the sense of the Committee, which I am sure is present tonight, that an affirmative act is necessary in matters dealing with foreign policy rather than a negative act; and that they will, therefore, accept our Amendment in the spirit in which I move it.

9.30 p.m.

Mr. Pickthorn

I hope I may be allowed to refer, in passing, perhaps, to the Amendment which has not been called, without prejudice to my right, if I should think it necessary, to say something about it on the Question "That the Clause stand part of the Bill."

The Chairman

Quite clearly, the hon. Member must confine himself to the particular Amendment under discussion.

Mr. Pickthorn

I quite understand that the Debate is about the second Amendment. What I was asking was that I might be allowed to refer to the object of the first Amendment which has not been called, because I think the argument on this Amendment is affected by what was desired there, whether or not the exact proposal for meeting that desire be now in Order. I hope I make myself clear, and I would, in any case, be very short on that point, and if you pull me up again, Major Milner, there is an end of it, of course.

The right hon. Gentleman the Minister told us, when debating this on Second Reading, when I think he was very fair and candid with us, that he could assure us that he could not imagine the Government not taking care, at the worst, that there should be full opportunity for Debate on any of these Orders of a substantial kind; that is not exact, but I am not misrepresenting him. I think that is what he said, and hon. Members will find the words in column 1597 of HANSARD. I would ask him to consider now whether really it is not possible to go a little further and give us the positive procedure, which is the official and clear and binding way of making sure that there is opportunity for full discussion. I took him the other day to mean by full discussion—that if a matter was of real importance, the Government would not leave it to an 11 o'clock Prayer, but would take care that we had a full chance at a proper time.

The way to make that position surer would be by giving us this positive procedure, and I ask the right hon. Gentleman to consider carefully whether there is not an advantage in the positive procedure, even from the point of view of the Foreign Office itself. Either the negative procedure is always futile in connection with matters of this sort, in which case I am sure the right hon. Gentleman would not recommend the Committee to accept the negative procedure, or we can leave that hypothesis, and upon the alternative hypothesis, that the negative procedure may sometimes be effective, I ask the right hon. Gentleman to consider how very bad a result that would have from. the office point of view; we imagine that under this Statute, when it becomes a Statute, an Order in Council has been issued with legislative effect which affects matters of great importance both to our nationals and to foreigners; on the 39th Parliamentary day after that has been issued, there is a Prayer against it, and, upon my hypothesis, because the Committee will remember that we are assuming that, on this occasion, the negative procedure is going to be effective and acceptable, upon my hypothesis, the Prayer is successful.

Now surely the Foreign Office then will be in a much worse position with regard to both its own nationals and to foreigners; some legislative effect has been had, has been running for 39 days and indeed all that—all that, of course, that has happened—will continue valid; but now those rules are clearly shown to have been not what Parliament desired, and new rules will have to be issued instead. I hope I am making the point plain and, if the point is plain, I should have thought that whatever administrative inconvenience there may be for the Foreign Office in having to bring these Orders—and there will not be very many of them, I suppose they would almost wholly run, with slight amendment, in the form that was used on the previous occasion and we know that they are already in draft; I should have thought really it would not have been administratively very inconvenient for the Foreign Office to bring those Orders before us for positive validation, and then it would know, and we should know, that we were going to have full opportunity of Debate, and the Foreign Office would know that when it got its validation, there it was, and there was no chance of being challenged, 10, 20, 30 or 39 days later. So I do not think that what we are asking is merely being asked in the interests of the House of Commons; I think that even from the Foreign Office point of view, we may ask for it to be considered whether that would not be an improvement.

Another of the assurances the right hon. Gentleman gave us the other day was that we could be certain that His Majesty's Government would not under this Bill seek unnecessary powers, would not seek for power to do something by issuing an Order in Council when they could have already done it under the bare prerogative. I think, again, I am fairly expressing the sense of what he said. Now, on this point, too, it seems to me that we should be safer with the positive procedure. I do not for a moment suspect the right hon. Gentleman himself or his right hon. Friend of any intention to break away from that promise; or even, indeed, of any temptation to break away from that promise. It seems to me that when the House of Commons is giving Government the widest and most unchallengeable powers of delegated legislation—because that is what this formula gives—unless it be amended, and the way I was trying to amend it has not been made possible this evening—unless there is some such amendment, we are giving the widest possible powers of delegated legislation here. There can be no challenge at all. If an Order in Council says that something is designed for the purposes of these treaties, then no court can challenge that, however much in the eye of commonsense it might seem designed for something quite different. The only possible challenge, if I am right in this, would be the Prayer that the Order in Council should be withdrawn, and that would clearly have immense inconvenience. We all know that in our internal affairs, to get an Order withdrawn after property rights have shifted and changed under it, is immensely difficult, so that however much an Opposition may want it done, it can hardly hope that it will get a Government to consent.

But where what is involved is not only property rights but relations with other nationals and with foreign States, clearly it is ever so much more difficult again—three or four or five times as difficult—and therefore, the argument, I think, is proportionately strengthened for the positive procedure in order not only that we should be sure that Ministers are not doing things under this which, though techni- cally within the powers of the Act, are ultra vires of what the House expected; we ought to be sure not only that Ministers have that good intention in their minds, but that on each of the occasions—and there will not be very many occasions of that sort—the House should have an opportunity of explanation being made to it of what is being done, of why it is being done, and of being clear that powers are not being taken unnecessarily, and that powers are not being taken to do things not really strictly connected with the enforcement of these treaties.

Those seem to me to be the arguments, and I do not want to say any more except one thing which sounds rather unfriendly, but I do not mean it in the least unfriendly to the right hon. Gentleman himself or, particularly for this one time, to the Government. I think that on the matter like this we ought to have had the opportunity of hearing the Attorney-General. There are difficult and technical matters, and I could have shown that my Amendment is not a matter of drafting, but a point of substance, and the sort of point we might have expected we would debate tonight. Another thing I hope I may say without being over querulous is that we should make certain that if the right hon. Gentleman gives us assurances tonight, he will now fortify himself, as he could not the other evening, with Cabinet assurances, which would mean the approval of the Prime Minister or Foreign Secretary or anyone else. I am sure the right hon. Gentleman would be the last to remain in office if his assurances were not wholly bound. I should have thought that when the Foreign Secretary was not here the Prime Minister, or a deputy of his, ought to be here to make quite clear what the assurance is, and how effective it is.

The Minister of State (Mr. McNeil)

I would not like to interrupt the harmony which is possessing the Committee tonight, nor to be ungrateful for the very complimentary things which have been said. Perhaps I might risk going slightly out of Order in response to that attitude by saying that on the Second Reading the hon. Member the senior Burgess for Cambridge University (Mr. Pickthorn) asked if I was quite sure when I said something like this, that we were following a precedent which the 1919 Act had been following. I did not mean simply that we were following the precedent set by the 1919 Act. I am most careful of anyone's reputation, and particularly careful of such a meritorious academic one like that of the hon. Gentleman, and I therefore wish to say to the Committee that, despite, as the hon. Gentleman may be assured, the most careful search by my officers, and some supplementary search by myself, I am unable to sustain the argument I offered. In other words, we are here following the precedent set by the 1919 Act. I hope I am not being seemingly ungrateful. I want to be most generous in my statement. I think it would be inadvisable to say anything more than that careful phrase.

The right hon. Member for Saffron Walden (Mr. R. A. Butler) did suggest that anyone from the Foreign Office was a rather precious flower quite unused to the hurly burly of these exchanges. It is a subject on which he should be an authority, because he graduated from that school himself. Moreover, he cited two of my colleagues, the Secretary of State for Scotland and the Home Secretary, in support of his argument. I should like to tell the Committee, having had a hurried conference with the Home Secretary, that he does not advise me to accept the advice offered by the right hon. Gentleman. He said he is on very strong grounds in offering me that advice because he was schooled to adopt that attitude while the junior of the right hon. Gentleman as Minister of Education. I should hardly dare to depart from advice so precariously exacted from tile right hon. Gentleman.

There are two main reasons why we resist this Amendment. The first is not really very disturbing to the Foreign Office. I do not feel there would be much administrative upset in a positive affirmation. But, of course, the right hon. Gentleman who has to be concerned with the Business of the House pointed out to me that the affirmative machinery is apt to consume a little more time than the negative machinery, and that the Business of the House is fairly crowded. I have also noted that views about the importance of the affirmative and negative Motion are apt to change, dependent on which side of the House one is.

Mr. Pickthorn

Only on the Front Bench.

9.45 p.m.

Mr. McNeil

I am quite prepared to accept the assurance of the hon. Gentle- man the senior Burgess for Cambridge University that he is concerned with nothing but the care of the public. I therefore say that, as far as we can see, any Orders in Council coming under this Measure would be technical orders, and, I hope, non-controversial ones dealing in the main with very small groups of people and with very limited areas of action. Perhaps I might say that the right hon. Gentleman, in making this case, which I know is a view he holds most sincerely, said there could be no challenge at all either in the House except by prayer, or outside. He seemed to me to make a statement rather like that on Second Reading, and I have reinforced myself with an opinion which perhaps I may be permitted to read carefully.

I am told that it is not strictly correct to say that the formula we are adopting prevents a court from considering whether an order is ultra vires. It is pointed out to me that this is precisely what the court was doing in the case to which the hon. Gentleman drew our attention. The court, on that occasion, came to the conclusion, as I am told they would in connection with this Bill; that anything which appeared to the subordinate legislative authority to be for the purpose stated in the Act, was intra vires, but it would never prevent anyone going to the court to ask the court whether the instrument was ultra vires. I am offering, that as a most careful opinion, from the best advice available to me. I think also that I can offer some further slight protection.. I am authorised to say, on behalf of the Government, that if an order, in the opinion of the Opposition, or of responsible elements of the Opposition, seemed likely to effect a substantial change in existing law—

Lieut.-Colonel Dower (Penrith and Cockermouth)

Will the right hon. Gentleman tell me who the responsible Members of the Opposition are?

Mr. McNeil

I should think that that is a subject on which the hon. and gallant Member might have some diffidence himself. Hon. Gentlemen will appreciate what I mean. On any instrument substantially affecting existing British law, His Majesty's Government will be prepared to provide time for adequate debate. I hope that in view of that assurance the right hon. Gentleman may find himself in the position to withdraw his Amendment.

Mr. R. A. Butler

I find that the right hon. Gentleman is as reasonable as he was in the course of the Second Reading. He has, in fact, in perhaps more precise terms, repeated the assurance he gave us in general terms on Second Reading. I wish to pursue this matter rather more closely. When he says that time will be given for discussion on any matter which, in fact, affects, to paraphrase what he said, our municipal law, I want to know what he means, because in the earlier part of his speech he was using as an argument that the Government had not time to provide for discussion of this in this House. To which views are we to listen? To the views of the Leader of the House, whom we hope to see back here before long, or to those of the acting Leader of the House? Or are we to listen to the genuine voice of the Foreign Office as put by the right hon. Gentleman in the latter part of his speech? Which voice would prevail? If it is to be the voice of the Leader of the House, or the acting Leader of the House, we know perfectly well that we shall not be given time to discuss these matters properly. We shall be crowded out and even the Foreign Office will not be able to stand up against the modern dictator of Parliament. Therefore, we do not accept the assurance as being a valid one.

If the right hon. Gentleman could give us some indication of actual subjects which he has in mind, which might have to be legislated upon by Order, then I think we should know where we were, because when these subjects came forward we would be able to nail them and demand from the Leader of the House time to discuss them. I must emphasise the fact that we on this side of the Committee are being steam-rollered in this Parliament, in a manner in which no Opposition has been steam-rollered in the history of Parliament. It is not our mood to accept this situation any longer. It is an abuse of the whole tradition of Parliament. There are Clauses and Schedules in Bills which have been guillotined—

The Chairman

The right hon. Gentleman appreciates that he is going far from the Amendment under discussion.

Mr. Butler

I do not want to discuss the Clauses or the Schedules in the Transport Bill or the other Bill, which have been guillotined without any discussion whatever, but I want to use as an argu- ment the fact that this Government are abusing the time of Parliament and, however honourably the Minister of State may be speaking on behalf of the Foreign Office, he must realise that he is speaking on behalf of a Government currency which has been debased. We cannot on this side of the Committee accept assurances from the Government that time will be given when we know that, time after time, we are steam-rollered, and given no opportunity of discussing proper questions.

Therefore, unless the right hon. Gentleman can give us some indication of the sort of subjects for which time will be found, I think he will find as an honest man, as he expressed in his Second Reading speech, that there is no value in his assurance in the present mood of his own Government. There may be value in it in his own mind, but there is no value in the light of the procedure which the Government have seen fit to adopt and in their method of abusing Parliamentary procedure and taking up Parliamentary time. Therefore, I must ask him in all good faith for a rather better explanation. I want to ask him whether he can give us an assurance on behalf of the Leader of the House that, if these matters come up, we shall have genuine time in which to discuss them.

Mr. McNeil

I must really protest against such assertions as have been made against my right hon. Friends. Indeed, if I were not more concerned with something much more important than the sensitivities of the Opposition—that is, the position of the public at large—I would withdraw the offer which I am authorised to make on behalf of the Government. However, this Government is as concerned as any Government, and I do not think that I need to add or subtract anything from what I have already offered. If an Order looks like affecting existing English law in a substantial fashion, then the Government are prepared to find time, but I deprecate the language of the right hon. Gentleman.

Mr. Pickthorn

I am sorry to take up three or four minutes more. I do not for a moment want to make this affair any more controversial than it is; nor do I want to pretend that there is—though none of us can foresee this—any great amount of substantial business to come from this, but it is a matter of great public importance. The thing is both a national matter and a House of Commons matter, quite apart from leftish or rightish feelings or anything of that sort. I would, therefore, hope that I might say, without trying to make a party point, that this is precisely the sort of subject on which we ought to have the Attorney-General and the Prime Minister or the Leader of the House. I say that not in the least by way of criticism of the right hon. Gentleman now before us.

I think it is really fair to say that. The second thing which I think it is fair to add is that really on this sort of point the right hon. Gentleman made a slight error—I do not suggest an error of wickedness, so to speak, but a slight error of judgment—in using at this particular point the argument about Parliamentary pressure. The business of His Majesty's Government is to govern the country to enforce the law and to arrange the relations of this country with foreign Powers. [Interruption.] Not every hon. Member on the opposite side of the Committee thought so yesterday, and I am glad to know that almost everybody here tonight does. That is the business of His Majesty's Government, and everything else must be done in the time that can be saved from that. It should not be said of this business of international affairs and of taking new legislative powers to deal with international affairs that it can only be done in the time spared from domestic legislation. It must be the other way round. Without any attempt to make a party point, unless any party claiming to be one of the two great parties in this State learns that lesson neither democracy nor Parliamentary government can survive in this country.

Mr. R. A. Butler

The right hon. Gentleman complained of my language. I think it a very good thing that the Committee should realise how deeply we feel and that the right hon. Gentleman should realise how deeply we feel the abuse of Parliamentary procedure which is going on at the present time. I took care to point out that we do not attach any responsibility for that to the right hon. Gentleman himself or his Department. if the right hon. Gentleman would be good enough to repeat his assurance that any matter affecting the municipal law of this country will be brought before Parliament, and given Parliamentary time for discussion if any such Orders arise under this Bill, all we can say is that we shall take the right hon. Gentleman at his word and take every opportunity to discuss such matters in the time which the Government have now undertaken to afford. I hope that on that understanding we need not press the Amendment we have on the Paper.

Mr. McNeil

I should not like any mistake to arise in the matter. I am not in a position to say "any Order or instrument affecting municipal law." I cannot add anything to what I have twice stated. If I say any Order which seems in the opinion of the Opposition, or a responsible element in the Opposition, substantially to affect existing British law—

Mr. Butler

Municipal law.

Mr. McNeil

Let us simply say "any change in municipal law"—we might find ourselves very far extended. I think my offer was fairly made. I do not wish to add to it. I hope there will be no mistake about it or any abuse of it. I am sure the right hon. Gentleman would not seek to do that.

Mr. Butler

I will only say, Let there be no confusion in the minds of the Committee on the words "municipal law" which I obviously used in the classical sense of meaning the law of this country. The only modification the right hon. Gentleman has indicated from that Box is the word "substantial." We ought to have the opportunity of considering, as the Opposition, any change in British law—to use a simpler term—which is likely to be affected by Orders made under these Treaties. If we could accept that, I would want to be sure that we should have adequate notice and that the Opposition would have an adequate opportunity, through the usual channels, of making representations. If that is the case, we should at least have obtained some concession from the Government tonight. I am sorry the right hon. Gentleman has not been able to persuade his right hon. Friend to give us the affirmative Order. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

10.0 p.m.

Mr. Pickthorn

This is not an issue which requires me to say very much more, but it is appropriate to say a few sentences on what I understood to be the effect of this Clause as it is and as it might have been amended. I fully admit to the Committee that I have no great confidence in my understanding of the matter, and I am not setting up to explain it to anybody, but the right hon. Gentleman himself was careful to be equally undogmatic when we discussed it on the Second Reading and I dare say he is now. That is precisely why I thought it would be an advantage if we had the King's principal legal adviser here to put us right. The point I was trying to make was that I think the words as they stand would seem to put it out of any discussion under Subsection (1) whether the Order in Council in question was, or was not, relevant to the enforcement of the Treaties. What I have been advised by competent, though, no doubt, fallible legal authority, was that if we had said, "such things as are," or perhaps better still, "such things as shall be," instead of "such things as appear," we should thereby have widened the opportunity of making any such possible ambiguity impossible.

No private hon. Member can be sure in such a matter that he is wholly right, still less that his unaided intelligence has drafted the right form of words, but I should like the right hon. Gentleman to reassure us, that, whether or not we were mistaken about the effects of the words we suggested, at any rate, we were mistaken about the effects of the words as they stood, and that he is really quite sure that the effect of the words as printed are what he told us just now. If he really is quite certain that it is challengeable whether an Order in Council under this Statute is necessary for carrying out the said treaties, and if he now assures us that the lawyers are certain that those words leave that question justiciable, which is what I understood him to say a quarter of an hour ago, I am willing to Jet this Clause go, and am quite satisfied.

Mr. McNeil

I must, of course, be very careful. I do not need to retract from what I have already said because I have, as most healthy British people have, a very zealous care for the rights of the individual and what I said relating to the ability to ask the court to decide whether or not an Order was ultra vires, is, on the best advice available to me, accurate. It is true that if we adopted the form offered by the hon. Gentleman the senior Burgess for Cambridge University (Mr. Pickthorn) just now, we would annul the application of such an Order. In the opinion of legal advisers available to me in dealing with such technical matters as we have to deal with inside this Bill, it would be unduly cryptic so to word the Subsection. It would be better to stick to the phrase upon which a court has already given judgment under the 1919 Act. The hon. Gentleman referred on Second Reading to one of the cases brought under that Act. There has been at least one other case on substantially the same ground, which did slightly narrow the decision, and I am told, in that sense, that the Bill which we have moved has slightly less power than the 1919 Act. But it would be inappropriate to narrow the scope of the Bill by omitting the words suggested, and we must adhere to the drafting of the Bill.

Mr. Pickthorn

I wonder whether in any way within the Rules of Order I could ask the right hon. Gentleman how to arrive at the conclusion that my Amendment was a drafting Amendment.

Mr. R. A. Butler

Can the right hon. Gentleman, with whose position in this matter we sympathise, give us any particulars of the second case under the Act of 1919? His sources of information are very much more voluminous than ours are, and it would interest the Committee very much to hear under which law it was ruled that matters affecting municipal law could be raised in the courts in respect of Orders of this kind. We do not want him to go into details, but to reply to the point put by the senior Burgess for Cambridge University (Mr. Pickthorn).

Mr. McNeil

I did not offer to prove that the judgment of the court was competent in such a case. I quoted from a legal opinion offered to me to show that it was competent for any subject to ask a court to decide whether an Order was in fact ultra vires or not. The particular case, to which I referred—I an sorry that I cannot give the dates—was one in which the use was being debated of the words to which the hon. Gentleman has directed our attention. The court decided that the Act must read as if the words appear to him necessary", were in it. I am sorry if I misled the right hon. Gentleman into thinking that. I was suggesting I was offering the judgment of a court, as to whether an order was ultra vires or not.

Mr. Butler

The right hon. Gentleman will nevertheless be in a position to give an opinion, upon the advice which is available to him, whether it is possible for a citizen aggrieved under an Order, made in pursuance of this Bill—a Bill to implement certain Treaties of peace—to obtain justice in the courts, provided the wording remains as in Clause 1 (1). If that is the advice given to the hon. Gentleman it would be considerable consolation to us on this side of the Committee.

Mr. McNeil

I most carefully quoted the advice on that point and I do not want to repeat it. I am sure hon. Gentlemen opposite do not wish me to do so. I am also sure that it is not particularly correct to say that the formula we are using prevents a court from considering whether an Order is ultra vires.

Mr. Boyd-Carpenter (Kingston-upon-Thames)

I hope that the right hon. Gentleman will carry that explanation a little further. He has told the Committee that a court would be competent under the Clause to consider whether an Order was ultra vires or not. Can he say whether, if one of His Majesty's Secretaries of State put in an affidavit that in his opinion the Order was necessary for the purposes of the Measure, it would then be possible for the court to go behind that affidavit and inquire into the genuineness of the decision?

Mr. McNeil

I am quite certain that the hon. Member who has just asked me a question would not earn the salary he does if he really needed an opinion from me on that point.

Mr. R. A. Butler

We now see the benefit of having a Solicitor-General. I would ask him whether he can give us his opinion on these important points. I do not wish to rehearse the argument in front of the Solicitor-General. I am sure he has already been informed of it by the right hon. Gentleman. Can we prevail upon the Solicitor-General to give us his advice, in support of his right hon. Friend?

The Solicitor-General (Sir Frank Soskice)

I will intervene extremely briefly, if I may, being comparatively unfamiliar with the argument. Hon. Gentlemen opposite probably know the case ex parte Bayer, which was decided in 1941, and turned upon the wording in a Statute, very similar to the wording the Committee in now considering. It was decided that what the court could do was to inquire into no more than this—whether it did in point of fact appear expedient to an authority which has power to make an Order, to make that Order. In effect, of course, that means that the courts cannot go beyond that. It really means that they cannot decide an order to be ultra vires provided it is shown, on affidavit if necessary or however else it may appear, that it did appear expedient to the order-making authority.

Mr. Boyd-Carpenter

I think the learned Solicitor-General has now confirmed what I put to the right hon. Gentleman, that although a court can go into the matter, if the applicant is met by an affidavit of one of His Majesty's Ministers to the effect that it did appear expedient, it cannot go any further. There is really no protection, because an affidavit from a Government Department is a complete bar to any public inquiry.

Question put, and agreed to.

Clause ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

Preamble agreed to.

Bill reported, without Amendment.

Motion made, and Question proposed, "That the Bill be now read the Third time."

10.12 p.m.

Mr. R. A. Butler

I do not wish to detain the House, but I do wish to draw attention to the fact that in 1919 these issues, which have been regarded as being rather a nuisance because we on this side of the House have raised them, were discussed at considerable length. They are issues of supreme constitutional importance, and I must honestly confess that I do not consider they have been satisfactorily resolved in the course of the discussion of this Bill this evening. This is the Third Reading of the Bill, and it is legitimate to consider any issues arising within the scope of the Bill. I do not wish for a moment to refer to the Foreign Office questions upon which I always find myself in such considerable agreement with the right hon. Gentleman and his right hon. chief, but I do consider that the constitutional issues raised in this Bill are not so satisfactorily treated as some of the Foreign Office matters which we have discussed. To many of us, it appears to have been left open as to whether the ordinary subject of this country, the ordinary citizen, can be aggrieved by not having proper appeal to the courts as a result of the passage of this Bill.

I think the other issue that has been left open is whether the ordinary Members of Parliament, and I do not refer to the submissive Members on those benches over there who are ready to accept almost anything from their own Government, but to hon. Members on this side of the House, will have adequate opportunity on normal occasions of using the affirmative procedure which we want to use. I do not think it has been left in a satisfactory sense. I have no desire to add to the discussion, or to the acerbity of our exchanges, but I do think that when the Foreign Office comes down to the House with a Bill which appears to them to be simple, they will find that there are many deep issues which remain as yet unresolved, although the Bill is about to achieve its full and complete passage through this Chamber. There are matters in this Bill which, to all lovers of constitutional propriety, are not satisfactory. I do not think we ought to let the Bill have its Third Reading without mentioning them, although we are powerless do any more.

10.15 p.m.

Mr. McNeil

As far as I and the Government are concerned, no one objects to the right hon. Gentleman and his colleagues bringing forward points about which we must all be properly very jealous. My only objection was to the language which the right hon. Gentleman used. I do not think he strengthened his case, nor do I think it was up to his normal stature, to seek such methods to uphold his argument. I certainly do not object to the right hon. Gentleman bringing forward those points, although I am conscious of my inability to deal with such important constitutional points.

Question put, and agreed to.

Bill accordingly read the Third time, and passed.