HC Deb 15 April 1947 vol 436 cc107-27

6.59 p.m.

Sir John Mellor (Sutton oldfield)

; I beg to move, That the Regulation of Payments (General) Order, 1947 (S.R. & O.,1947,No.343),dated 26th February, 1947, a copy of which was presented on 3rd March, be annulled. In moving to annul Order No. 343, I should make it clear that I am not in any way attacking the merits of the Order. I do not propose to make any criticism whatsoever of the merits. However, I desire to take this opportunity of objecting to the use, at the commencement of the Order, of the words "all other powers enabling." These words appear in a large proportion of similar orders, and, I believe, have been in use for some time past. But it will be my contention that their use should cease, and I hope to be able to explain my reasons to the House as I proceed. With regard to this particular Order, on 27th March, I asked the Financial Secretary to the Treasury this Question: If he will identify the powers included in the expression all other powers enabling, contained in the Regulation of Payments (General) Order, S.R. amp; 0., 1947, No. 343; why these powers were not specified in the Order; and if he will instruct Departments in future to specify such powers in the explanatory memorandum. The Financial Secretary replied: No, Sir. I regret that I have nothing to add to the general explanations which I gave on 18th March last. I then asked the Financial Secretary this supplementary question: If the right hon. Gentleman is unable to identify the powers, does it mean that there are no powers, and that the expression referred to in the Question is completely meaningless? The right hon. Gentleman replied: Not necessarily; it may well be, or, on the other hand, it may not. As I tried to explain to the hon. baronet the other day, this is common form, and is put into Orders in order to attract any subordinate powers which may be there, and at some time might be necessary."—[OFFICIAL REPORT, 27th March, 1947; Vol. 435, c. 1404–5.] I think this calls for a good deal of comment, because the Financial Secretary used the expression "at some time might be necessary." Surely, if these subordinate powers were required at all, if they were required at any time, they were necessary at the time the Order was made? I think his refusal to identify the powers is rather remarkable. I asked him a perfectly straight forward question. I asked him to identify the powers comprised in the expression "all other powers enabling." I will now read the paragraph in Order 343 in which this expression appears: Now, therefore, the Treasury, in pursuance of their powers under the said Regulations 3c and 5B as having effect by virtue of the Supplies and Services (Transitional Powers) Act, 1945(a), and of all other powers enabling them in that behalf, hereby make the following Order:— Surely, if there are any powers they should be specified? If there are no powers that expression is singularly misleading. For the Financial Secretary to refuse to explain, and not even to explain whether it was an admission of inability or whether it was a refusal, was rather curious. Indeed, when we refer back to his statement on 18th March, which he mentioned in his answer, it is not all clear whether he and his officials know what these powers are and merely decline to specify them, or whether they do not really know at all on what powers they are purporting to rely. On 18th March, in reply to a Question which I asked, the Financial Secretary said: The use of these words is a harmless device, and they are necessary to catch up any other powers which may be there. They do no harm; they have been in use since 1862, I think, and I am sure that will appeal to the hon. Baronet. I then asked: Without wishing to discourage the right hon. Gentleman's respect for precedent, is not the present situation entirely unprecedented in that we are now virtually being governed by Statutory Orders and, therefore, we ought to be far more fastidious as to their form? The Financial Secretary replied: No, Sir, that is not the position at all. In so far as these Orders refer to Statutes, the Statutes are definitely specified. This is simply a device to catch up any other enabling points or measures which might necessarily be brought in. Again, I cannot understand what he means by "which might necessarily be brought in." Surely, they were necessary when the Order was made, otherwise they would never have been necessary at all. I then asked him: Is it not the duty of the Ministers and the draftsmen to know what powers they are intending to exercise and to give the necessary information in the Order? He replied: That is the case. They know very well … Surely, if that is so, and they know what these powers are, when I ask for identification I am entitled to have it. It is a very curious position that when a Member of this House asks a relevant Question about an order which has been made by the Treasury, and asks the Financial Secretary to state the powers upon which he relies, which he says are well known to the draftsmen, the Member cannot get a clear-cut answer. The Financial Secretary went on: Ninety-nine times out of 100 there are no other supporting Regulations or powers within the parent Act which need be included.''—[OFFICIAL REPORT, 18th March, 5947; Vol. 435, c. 196–8.] If that is correct, apparently these words "all other powers enabling" are inserted unnecessarily 99 times in order to save the trouble of specifying the powers in the hundredth case. Surely, any draftsman proceeding to draft an order must first of all consider what powers are at his disposal. Surely, he can be in no doubt. If that is so, if the draftsman knows the powers he is proposing to exercise, I cannot see how there can be any difficulty whatsoever in giving that information in the order. If anyone affected by the order, or his legal advisers, wishes to consider whether or not the order is within the scope of the Minister's powers, and wishes to consider whether he has a defence of ultra vires, then his task in deciding whether or not the order is within the powers should not be made more difficult. He is entitled to have the powers set forth clearly in the order so that he or his advisers can more easily come to a conclusion. It is not fair to expect them to wait until perhaps they get before the court to find that there is some remote and unexpected power on which the Minister has relied, and of which they were unaware.

With regard to Order 343, I again wish to ask the right hon. Gentleman if he will now, notwithstanding his previous refusal, tell me whether the words "all other powers enabling" have any meaning, because if there are no other powers the presence of these words is misleading. If, on the other hand, these words have meaning, are the powers statutory powers, or are they prerogative powers? Will he give that information? If they are statutory powers, will he give a perfectly clear statement of their origin? I know that he will rely, as he has relied before, on precedent, and point out that the use of those words has been customary for quite a long time in the past. I do not dispute that, nor do I dispute that their use is quite common. But at this time, when the use of statutory orders is not only much more frequent than in the past, but also affects the lives of the people of this country in far greater detail and in far more important direc- Lions than in the past, it is, I submit, the duty of this House to have much closer regard to the drafting of the orders than has been considered necessary before.

I would also remind the House that the Select Committee on Statutory Rules and Orders has to consider these powers, and in particular it is the obligation of that Committee to report to the House any unusual or unexpected use of a statutory power. That Committee cannot possibly determine whether the use of a statutory power is unusual or unexpected unless they are clearly able to identify the power. Unless the Minister is prepared to state clearly in the order upon what powers he relies, the work of the Select Committee is being made unnecessarily difficult. I feel that this is a matter which perhaps is more important than might appear at first sight. It may be quite easy for people to say, "This is common form, it is in common usage and has been in use for a long time past, therefore why not let it go on?" But I would say again that the present use which is being made of statutory instruments by the Government is quite unusual. The Statutes which are being enacted are really in skeleton form; the real powers are being exercised through statutory instruments. In my submission, therefore, it is the duty of the House to have the most meticulous regard to the drafting of these statutory instruments.

7.13 p.m.

Mr. Spence (Aberdeen and Kincardine, Central)

I beg to second the Motion.

It is because of my own experience in a type of business which is governed in many of its phases by these statutory rules and orders, which are now coming more and more into use in the regulation of our lives, that I feel it is necessary to have a clear expression of the statutory powers tinder which these orders become law. One is rather reminded of a man who has caught two or three fish on a line at the same time, and sweeps the whole lot into a landing net. These wide words, "all other powers enabling," are put there just to fill up any possible loop-hole, but we have got to the stage in legislation and in the use of statutory rules and orders when we must be more particular to set out the actual authority from where the orders derive. I hope that as a result of this Debate we shall receive an assurance from the Financial Secretary that this matter will be gone into, because it should not involve any hardship: After all, if an order is tabled, the first question that should be gone into is, what is the authority for the order? Surely, therefore, something could be inserted to give that detail, and there should be no need for anything further.

As my hon. Friend has said, reference has been made to the fact that this is common form. It may be common form, but I submit that it is bad form. It is not quite fair to those who are governed by them to put out orders including that phrase. It is our duty to guide the people and govern them wisely, and not to produce orders that may in fact incriminate. It is therefore terribly important that the phrasing of orders shall be such that any one who wishes to look up the authority for them shall find a reference to that authority in the title. For these reasons, and from my own experience in dealing with statutory rules and orders, I have pleasure in seconding the Motion.

7.17 p.m.

Mr. Pritt (Hammersmith, North)

I do not want to take up very much of the time of the House on this matter, but I have heard this identical argument put before, so far as it is a general argument applied to all these statutory rules and orders. I have always refrained from seeking to intervene because these Debates are apt to take place late at night, and I have not wanted to keep the House long at such a time. If the hon. Gentleman who has put this forward will forgive me for saying so, it really is nonsense. The position as I understand it is this. Government Departments often have to make orders, but I do not suppose that any Department will ever make an order without knowing that it has at least one definite statutory authority to cover what it wants to do. Normally, in every preamble—if that is the right word—it states one, and sometimes two or three definite statutory authorities on which it is acting, and then adds words more or less to the effect, "all other powers there unto enabling." That, of course, is a general sweep-up clause in case there is some other authority which supports the rule-making body.

The same thing is seen in conveyancing. If the hon. Baronet were dealing in land and employed a solicitor, and if the solicitor left out words something like those and it was found afterwards that if he had put them in it would have saved a bit of an estate or possibly a sum of money, the hon. Baronet would complain bitterly to his solicitor for having left them out. Ordinarily speaking, when you come to look for the authority, it is the authority expressly given, and the safeguarding words are never actually needed, but suppose you get some particularly ingenious person challenging the authority of a Government Department. That has almost become one of our major public popular sports, and people hire lawyers to challenge this, that and the other. We have a very complex system of law in this country. I wish we had not; although I make money out of it, I still wish we had not, because it would be better if we had a simpler system. If these words were left out, and it were suggested that an order had gone a little beyond this, that or the other authority, a couple of good lawyers could find a way through almost anything. So naturally and inevitably any Government Department or its lawyers would be guilty of a dereliction of their public duty if they did not put in these extra words to safeguard themselves in the one case out of 100.

Sir J. Mellor

Would the hon. and learned Gentleman agree that there is this distinction between the solicitor who is drafting a conveyance and the Minister and his draftsmen who are drafting a statutory order—the solicitor has not made the law, but the Minister and his draftsmen are making the law? They are making a statutory order, and there is no reason at all why they should not make it perfectly clear and explain the powers from which it derives.

Mr. Pritt

The hon. Baronet has said most of that five times already this afternoon, but on the point as to whether there is a parallel or not, the Minister does not make the law any more than the solicitor. The Minister is making a bit of law which he has to base on existing law, and, as I say, he would be very foolish, he would be neglecting, not the private duty of a solicitor but the public duty of a Minister, if he did not put in words like that to safeguard himself. When you get an ingenious person who goes to a solicitor and says he can make himself or keep himself richer, or make the country or keep it poorer if he chal- lenges a particular order, the solicitor says, "Here are the saving words; you will have to look at the prerogative and at other Statutes to see if you can really get round it." The solicitor will say that this country is not so badly governed that a person can go into court and say that if these words had been put in he would have been defeated, but because they have not been put in he can go right through the order and defeat the public. To suggest that the Government should withdraw these words is like suggesting to one's enemies on the battlefield that they should first withdraw their bullets before starting to fight.

I do not need to urge the Government not to withdraw the words; I am quite sure they would not do anything so foolish. Of course, I sympathise with those people who want to defeat the operation of Government and who want to be told where the authority lies, and I am perfectly certain that no Department, drafting one of these orders, would leave out or fail to mention any specific Statute which gave them the power. Any grievance on that point is therefore beside the point. I do not want to say anything exacerbating, but as far as the general argument is concerned it has now been put three times in the House—which is twice, and possibly three times, too often.

7.22 p.m.

The Financial Secretary to the Treasury (Mr. Glenvil Hall)

The hon. Baronet has raised this matter, as my hon. and learned Friend the Member for North Hammersmith (Mr. Pritt) has said, on more than one occasion, though I think that up to now the occasions on which he has raised it have been at Question time and it has not been as easy as it will now be to put to him the other point of view. The Order to which he takes exception is, as he and the House know, a regulation to make changes in the Payments (General) Order, 1947, which deals with exchange control. This Order is a loosening of the regulations. If we take the words to which the hon. Gentleman has referred, I should say that he has no ground for complaint. Suppose we are increasing, as he asserts we are, the powers at our disposal. This would in fact mean that instead of tightening the orders that exist or increasing the burdens on the individual, we are loosening up. I under- stand that the ground of his objection to the words all other powers enabling is that if there are no other powers the words become meaningless, and that if additional powers are there they should be caught up and embodied in the Order.

Sir J. Mellor

I said that if no other powers were involved the words are not only meaningless but actually misleading.

Mr. Glenvil Hall

I accept the correction. Nevertheless, I think I am right in saying that the hon. Member's main contention is that if there are no other powers the words are meaningless. He now says that they are in addition misleading, and that if there are additional powers they should be embodied in the Order so that people would know what the powers were. I hope I have now got the hon. Gentleman's argument correctly.

It may surprise the hon. Gentleman to learn that we need not use the phrase "all other powers enabling" at We need not put in the other part of the sentence of which this phrase forms a part. The Order would be quite valid, I am advised, if we simply said: Now, therefore, the Treasury hereby make the following Order: We believe it is customary and necessary to give the reader of these orders some idea of the Act or regulation under which the order is made, because the public have a. right to know to what enactment the Treasury, in this case, went in order to get its authority to make the order.

Sir J. Mellor

Might I answer that point? I entirely agree that the public should know. I say that they should not only know the principal Act but the other Acts upon which the Treasury rely.

Mr. Glenvil Hall

I will come to that point, if the hon. Baronet will allow me to do so. He may recollect that I stated only a few moments ago that that was one of his objections. I will try to answer it as well as the other points which he made. The point I am making now is that the words to which I have referred are not essential. The main enactment is put into this Order so that the public should know the main authority to which the Department making the Order has gone. The hon. Gentleman now says that they should also add any other enactment which they desire to call in aid.

If we did that it would often mean giving a long list of the enactments which might possibly have a bearing on the Order. As he himself has said, this practice goes back to 1862, or probably much farther back than that, as a way of referring to enactments to which a Department has gone. By adding these omnibus words in order to catch up any other enabling enactment which might be essential to validate the Order, the public are informed and not mystified, and the Department are covered in every eventuality. In answer to a query the other day I indicated that sometimes there is no other enactment to which these words would apply, although they are put in. I now have to tell the hon. Gentleman that very often there is another enactment—and sometimes more than one—which it is desired to include. There is, for example, the Interpretation Act, 1889, which it is very often essential to include.

This particular Order is based on powers given to the Treasury under Regulations 3C and 5B of the Defence (Finance) Regulations, 1939. It revokes, as the hon. Member will see from Article 4, the Regulation of Payments (General) Order, 1946, but that power to revoke is not in any way included in Regulations 3C and 5B. The power to revoke an Order is found in Regulation 98 of the Defence (General) Regulations as applied for the purposes of the Defence (Finance) Regulations by Regulation 9 (1) of the Defence (Finance) Regulations. As far as this Order is concerned it is desirable therefore to include the words to which the hon. Gentleman takes exception.

I ought to add that there is another reason why it is desirable to include these words. The power to make this Order is a continuing one—that is, once used, the poser does not lapse. In other words, we include the words to which the hon. Gentleman objects, in order to show that the order, like many of these orders, attracts the provisions of Subsection (I) of Section 32 of the Interpretation Act, 1889, as applied by Regulation 99B of the Defence (General) Regulations, 1939. If we began to put all these references into these Orders, the general public would be no wiser. On the contrary, they would become very muddled. A great deal of fun would be made of the orders—even more fun than is now made of the legal tangled phraseology of many of them.

Sir J. Mellor

Surely the general public or their legal advisers would have the advantage that they would know that no powers were relied upon which were outside the list. The right hon. Gentleman said that it would be necessary, perhaps, to have a long list of powers which might have some bearing on the Order. That is not the point at all. All I am asking is that the powers should be cited on which the Order is made. I am not asking for something which might have some bearing on the Order. I am merely asking that those powers should be cited under which the Order was made.

Mr. Glenvil Hall

That is exactly what we do. If the hon. Baronet turns to page 1 of the Order he will see that we refer specifically to Regulations 3C and 5B of the Defence (Finance) Regulations, 1939. Those two Regulations are the meat of the Order, and the others are subsidiary. That is what I am trying to point out to the hon. Baronet. These others could be included, but there is no point in including them because they are quite subsidiary. At one time draftsmen were not sure whether Berwick-upon-Tweed was in England or not. If we included the words "all powers enabling," so far as the courts and the purists are concerned that would solve the difficulty. It would catch up an enactment which was passed years ago which put it beyond any doubt, whether Berwick-upon-Tweed was to be considered for the purpose of certain Acts of Parliament to be in England or in Scotland.

I assure the hon. Baronet that these words are essential and that in very many cases there are subsidiary powers, very often minor in character, which ought to be included and which help the lawyer to construe the Order. If there are no other powers it does not mean that the mere inclusion of the words creates them. As my hon. and learned Friend the Member for North Hammersmith pointed out, we cannot make new law by an order of this kind. All that we can do under powers conferred by Act of Parliament is to make certain regulations under powers which have already been given. Whether or not those words are there, additional power is not given. I am rather surprised that this matter should be raised. The hon. Baronet has been in this House for more than 12 years and, so far as I know, and he will correct me if I am wrong, it is only quite recently that he has begun to raise this matter in the House, first at Question time and now by this Prayer.

I think the words are rather nice. They are sonorous. I cannot see how anybody could object to them particularly as, at the worst, they are harmless and, at the best, they avoid a lot of technical language in statutory rules and orders. After all, that is the real reason for putting them there.

Mr. Spence

Would the right hon. Gentleman not agree that, rather than have a nice-sounding rounded phrase, it is far better to have the exact authority from which an Order derives its power? That is what we want instead of a woolly sort of language that does not define from what the power is derived.

Mr. Glenvil Hall

I will repeat what I said a few moments ago in reply to the hon. Baronet. This Order as drafted gives the main regulations under an enactment to which attention should be directed. The words about which complaint has been made are there in order to catch up subsidiary enactments which really have nothing whatever to do with the ordinary public but simply put the thing completely beyond doubt. As I indicated, it is to put it within one of the Sections of the Interpretation Act of 1889 and certain other enactments which might apply. For example, under Article 4, which revokes an earlier Regulation, it carries us back to Regulation 98 of the Defence (General) Regulations. Therefore, there is every reason why it should be there and why normally it should be in all enactments.

Sir J. Mellor

The right hon. Gentleman says that the words are there to put the matter beyond doubt. It does not put the individual who has to study the Order beyond doubt, because he does not know what is comprised in the expression "all other powers enabling." He does not know whether anything or everything is comprised in that expression.

Mr. Glenvil Hall

I am afraid that I have not yet got my point over to the hon. Baronet. All he is concerned with is what is in this Statutory Rule and Order. The whole of the words about which he is complaining are words which relate to authority for what is in the Order. Therefore, if an individual comes to this Order to see whether he is within or without the law, to find whether there is something which he ought to do or ought not to do, it will be in the Order. The hon. Baronet is not complaining that the words are obscure, though often I am afraid that they are in these orders. His contention is that the powers under which the Order is made should be set out at length. I have said, and I repeat, that the main powers under which the Order is made are set out, and it is in order to catch up any subsidiary powers that there may be, and which should have been included, that it is phrased in this way. Sometimes when these orders are drafted the officials concerned have not the time to go back over years and years of enactments to make sure that, perhaps in some obscure Act, there was something which might be included. It does not alter the fact or put the individual who comes under an order under a greater or lesser degree of duress—if that is the correct word to use—if these words are or are not included. That is the point which I am trying to get over to the hon. Baronet I do not know that I can say any more.

I think I have shown quite definitely that, so far as this Order is concerned, the words are necessary. The alternative would be to put in a long-winded phrase Instead of the paragraph which says: Now, therefore, the Treasury, in pursuance of their powers under the said Regulations 3C and 5B as having effect by virtue of the Supplies and Services (Transitional Powers) Act, 1945(a), and of all other powers enabling them in that behalf, hereby make the following Order: — if we did what the hon. Baronet wants us to do, we should have to make that sentence run something like this; Now, therefore, the Treasury, in pursuance of their powers under the said Regulations 3C and 5B as having effect by virtue of the Supplies and Services (Transitional Powers) Act, 1945, of Regulation 98 of the Defence (General) Regulations, 2939, as applied by Regulation 9 of the Defence (Finance) Regulations, 2939, and as having effect as aforesaid, and of subsection (1) of Section 32 of the Interpretation Act of 1889, as applied by Regulation 99B of the Defence (General) Regulations, 1939, as having effect as aforesaid, hereby make the following Order: — I think that on reflection hon. Members will see that what I am saying is correct. My contention is that these words which have been in use for many years and mention the chief enactment under which the new powers are taken are better than that long rigmarole of subsidiary Sections in obscure Acts, many of which deal with interpretations of words and areas and are of no use to anybody. The purpose is just as well performed by what I think are rather beautiful words: …all other powers enabling.

7.41 p.m.

Mr. Challen (Hampstead)

My apology for prolonging this discussion is that I really think that the subject is a bit deeper than the Financial Secretary has given the House to understand. This Prayer was not put down lightly merely to provoke a little talk at the conclusion of the Debate on the Budget. It was put down because for a long time some of us have felt that the use of this expression—not only in an order of this nature but in other publications and orders issued by the Crown, into which I will not go because it would be irrelevant to the present discussion—is a mere cloak, as the Financial Secretary has practically admitted, for a civil servant who has not the time to look up what his powers are, to enable him to construct an order which, on the face of it, looks genuine, but which leaves serious doubt as to what is intended by that expression.

Take the case of a subject who complains that an order is ultra vires. He goes to his lawyer and brings an action in the High Court to declare one of these orders ultra vires. All the order has stated is that it purports to be an order made by His Majesty or by the Executive under a certain Statute. The subject may be perfectly satisfied and his legal advisers may be satisfied, that in fact with regard to that Statute the order is ultra vires, and the court may come to that conclusion. At the conclusion of the argument the court would turn to the Attorney-General or whoever may be appearing for the Crown, and say, "Mr. So-and-so, I cannot see under what powers this order has been issued." Then the Crown would have to produce the various statutes or odd little bits of power which the Financial Secretary says they are endeavouring to catch up. These bits of power reposing in the Crown would have to be produced as a justification for an order which vis-à-vis the Statute itself was ultra vires. How much better it would be, instead of leading the subject up the garden path, as one might say, into the law courts, to have an order declared ultra vires which on the face of it was ultra vires—

Mr. Janner (Leicester, West)

May I he permitted to ask one question of my hon. Friend? Does he not think that instead of flogging this particular issue, if I may use a vulgarism, his duty is to find out, as an hon. Member of the House, whether the order complies with the powers that are vested in the House, and then to complain if that is wrong, and not to leave it to the public, whoever they may be, to consider the long phraseology which has been suggested? Surely that is the duty of the House?

Mr. Challen

We are not considering any power vested in the House but the powers that are vested in the Executive. That brings me to the constitutional point I had in mind. The fact that the Financial Secretary says that the use of this expression dates from 1862 does not very greatly impress me. If he had said 1066 or from King Alfred, then as a constitutionalist and a believer in tradition, I should hesitate very much in seeking to upset or criticise a time-honoured expression that had stood the test for a thousand years. But if it dates from 1862, that is not very convincing, because 1862 was not precisely in the best age of jurisprudence in relation to statutory enactments. In 1862 the Government draftsmen hardly visualised the spate of orders that would be produced in a century's time by virtue of the powers reposing in the executive, nor did they exactly appreciate perhaps that the time would come, as it has come, when the powers of the Executive are almost, if not entirely, controlled by statute.

We are not in the days of Hampden and Ship Money when the King or the Executive could impose taxation and when it required an action taken before the Lord Chief Justice to establish that the King had no power to impose such taxation. The fact that the King had such power does not alter the fact that we are now in the days when the Executive must derive its powers from the statute. When I say the Executive, we know perfectly well that I mean a Government Department. The officials in a Government Department cannot make an order of this nature by invoking or catching up, as the Financial Secretary says, from a misty atmosphere some vague powers that may exist in the Executive. To make an order such as this, these powers must be derived from an enabling Measure, and if it is necessary to state the various enabling Measures and if there are half a dozen or 10 or 12 of them, why not say so and state them and let the subject and his lawyer understand in advance on exactly what powers the Executive seeks to act.

The Financial Secretary first of all indicated that this expression is used for the benefit of the public. I cannot see how it benefits the public to use a vague expression that requires the employment of a lawyer at vast expense to delve into all the Statutes and discover what kind of other powers may exist, apart from those mentioned. In these modern days of statutory powers, a Government Department must either know its powers or declare itself incompetent. It is not sufficient to say that they are taken up with other things and have not got the time to find out what their powers are and that therefore some vague generality about catching up powers that may exist in the atmosphere, as it were, is enough to justify the publication of an order.

As the Financial Secretary says, it is not in fact necessary to state what his powers are. The order might be completely valid without stating from what statute it was derived, but in these modern days it is the practice to define one's powers, and the fact that he states one statute only makes it more abundantly clear that he should go out of his way to state the various authorities, powers and legislation that enabled him to make an order which will bind the subject in a variety of fashions, small or great, that interfere with his private life, and put him in the position of having to consider whether it is possible to contest the validity of such orders in the courts or not. I do not want to flog this. [HON. MEMBERS: "Oh."] We are on a constitutional point. This little precedent dating from 1862 is thought to be justified in the masses of orders which are being turned out and submitted to the public—

Mr. Walkden (Doncaster)

The hon. Member has said that before.

Mr. Challen

I know I have said it before but I want to rub in the point, just as the point is very often rubbed in, in order to make people appreciate that it is not an idle or a small point. I invite the Financial Secretary and the Government to consider again the importance of this apparently little point, and not only to take the advice of their Law Officers, but possibly have an inquiry into the use of an expression of this nature, because it offends a constitutional lawyer. It is very easy to say that lawyers understand it, but the point that my hon. Friend and I are putting comes from our legal hearts. It is offensive, it offends any constitutional lawyer who likes to see—

Mr. Glenvil Hall

I am sorry to interrupt, but it would help us considerably if the hon. Gentleman could name one constitutional lawyer that this Order, or orders like it, apparently affronts.

Mr. Challen

The question has not been raised. The right hon. Gentleman says that this phrase is being used bit by bit in order after order and, as so often happens, we are now confronted with its becoming a stock phrase to justify the production of Orders in Council, ministerial orders, and so forth in cases where those who devise the order have either not had the time or taken the trouble to ascertain precisely what are their powers. Either the expression is useless and unnecessary; if so, leave it out; but, if it is necessary to state your powers, then constitutionally the powers should be stated. I do not want to be repetitive but we have reached the day when the powers of the Executive are derived almost if not entirely, from statute, and when we are giving vast powers to the Executive to produce orders day by day and in the way we know. It is surely important, therefore, from the constitutional point of view, that they should know from whence they derive their powers.

Mr. Walkden

The hon Member has said that before, too.

Mr. Speaker

I must remind non Members of the Rule against wearisome repetition. Mr. Smith.

7.53 P.m.

Mr. E. P. Smith (Ashford)

I suspect that my hon. Friend the Member for Sutton Coldfield (Sir J. Mellor) is not wholly popular with hon. Gentlemen and right hon. Gentlemen opposite because of his persistence in praying against these statutory rules and orders; and he may not, for all I know to the contrary—and of course you appreciate, Mr. Speaker, that I have no inside information on the subject—even enthuse the Chair. But as one who is condemned to study, and to study very closely, every statutory rule and order which is issued, I can say that the standard of draftsmanship is steadily improving in the various Government Departments. The Departments realise today that they have not only to run the gauntlet of the scrutiny of the Select Committee on Statutory Rules and Orders, which can only, of course, deal with the form and presentation of an order, but they also have to run the gauntlet of the informed criticism of what I might call the inveterate prayers, whose privilege it is to deal with the merits. The result is that fewer orders are being reported to the House, and fewer orders are being prayed against. We are slowly but inexorably educating our masters. In this particular Order the offending phrase is: And of all other powers enabling them"— That is to say, the Treasury— in that behalf.… The objection to it is that it is one of those slovenly, all-embracing phrases slipped in by the draftsman in case, like the White Knight in "Alice Through the Looking Glass," he may need it—a preparation for some eventuality which might have been foreseen, but, in fact, was not. How can any one administering this Statutory Rule and Order know what other powers the Treasury possess enabling them in this behalf?" Because the powers are not specified in the Compensation of Displaced Officers (War Service) Act, 1945. The offending phrase itself does not appear in that Act; I have hunted through it. Where should one turn for enlightenment? I do not think the answer which the right hon. Gentleman the Financial Secretary gave to my hon. Friend the Member for Sutton Coldfield on 27th March was particularly enlightening, and when he was pressed as to this particular point he said, "It may be; it may not be." That reminds me of the delightful game we all played as children, "He loves me; he loves me not," but, Sir, that is not a pastime for adults, and I demand to know what are these mysterious powers which the Treasury has called to its aid.

If we turn to the Supplies and Services (Transitional Powers) Act, 1945, which is the grandfather of the Act I have previously quoted and the remote ancestor pf this little Statutory Order, we find that the offending phrase does not appear in that Act either. This Act of 1945 superseded the Defence Finance Regulation Act of 1939, and, as it was a complete supercession, and stated to be so, I have not extended my researches so far as the 1939 Act. It is quite obvious, however, that the disease which has manifested itself in this baby Statutory Order 343 of 1947 is not truly hereditary. The phrase has been inserted as a sort of ministerial umbrella in regard to this particular Statutory Rule and Order. Now I contend that that is peculiarly inappropriate in a statutory rule and order, because, if you have omitted some power from one order which you may find you need, you can always and easily amend your position by issuing another order inserting it, and so reinforcing it. And, while omnibus phrases of this kind are all very well in the legitimate legislation which has to be passed by both Houses of Parliament, and must therefore naturally be as ambiguous as possible, I contend that it is extremely undesirable that they should find their way into this sort of bastard legislation by statutory rule and order, which, if it is to be tolerated at all, must be definite, simple and precise.

I contend that legislation by statutory rule and order should never be a Garden of Eden for the serpentine legal mind which always has an arrière-pensée or a conceivable eventuality in every coil. The reason why this phrase falls to be used, so I am told, is because it has been used intermittently elsewhere since 1862. Tory though I am, that reason seems inadequate to me. I take no particular pride in wearing, in these austere days, clothes which were made for me in 1936, when my figure had not suffered from the ministrations of successive Ministers of Food. And to be told that a thing must be because it has been since 1862, seems to me an example of the perfect non sequitur.

I remember, as a boy, being shown a giant tortoise which I was told had been a contemporary of my ancestor King Charles the Second. When I saw it, I was told that it was well over 30o years old, and I was exhorted to consider the mercy of the Creator in allowing this cumbrous creature to have a life span five times the length of that allotted to me. Now, I am an inveterate lover of animals, but I have never felt more inclined to destroy any living thing than that hoary and venerable reptile. That is exactly how I feel about the foolish phrase in this Order, and I hope the House will join with us in chopping off its nasty head.

8.1 p.m.

Lieut.-Colonel Sir Walter Smiles (Down)

I came into the House this evening to listen and learn, and I have learned. I heard the Financial Secretary make a speech in which he repeated himself three times. Three times he gave us the words which would have to be used if he had not used the omnibus clause that is put down here. I suggest that it would be an excellent thing to use the words which he quoted to us. I have not the advantage of being a lawyer, but I think it would be possible by diligence to go through the statutes and find out what is meant by these words. All of us in this House have gone through various Acts to find out to what this or that refers. It would be very much easier for some of the Financial Secretary's staff to do that work, when they make such an Order, and to put down the number and Sections of Acts to which they refer. They have the whole Library at their command, and it has been suggested that civil servants have the time also. Then such a matter would be made clear to the laymen and people who have to obey these Orders. After all, the British subject wants to obey Orders—

Mr. Glenvil Hall

What I would like the hon. Member to do is to answer this—I failed to get an answer out of the hon. Baronet the Member for Sutton Coldfield (Sir J. Mellor). Why is it that, although both of them have been in the House a great many years, and have seen these words in Statutory Rules and Orders, they have not until this Government came into office, and then only recently, begun to raise questions of this kind?

Sir W. Smiles

I certainly could not answer for the hon. Baronet; I can only answer for myself. I am not perfect and do not pretend to have understood every Bill which has become an Act since I became a Member of Parliament. But I listened to the Financial Secretary, whose statement I treat with the greatest respect, and I think the words he mentioned would be very much better than those in the omnibus clause in the order. It reminds me of "A Child's Guide to Knowledge." I can remember when I was learning at a kindergarten school we were told about exports to various countries, and in each case, whether it was the Argentine, India or anywhere, the paragraph ended "and very many other useful things." The omnibus clause is one of the other useful things. I ask the Financial Secretary in future to cite exactly what is referred to in each such order, and then it will be very much easier for us to obey the orders which he makes.

Question put, and negatived.

Motion made, and Question proposed, "That this House do now adjourn."—[Mr. Collindridge.]