§ 7.15 p.m.
§ The Attorney-General (Sir Hartley Shawcross)
I beg to move, in page 11, line 10, at the end, to insert:other than an Order made under Section twenty-three thereof.Perhaps the Committee might conveniently take the Amendments in lines 14, 15 and 16 along with this one. They are substantially drafting Amendments to secure a very simple and straightforward purpose. Their object is to remove any Order in Council which relates to the Isle of Man from the scope of the requirement that the draft must be laid before Parliament, and that the Order may not be made unless our Parliament here approves the draft. This of course is to conform to the recognised constitutional practice in regard to subordinate legislation affecting the Isle of Man. It is contrary to practice that Orders in Council relating to the Isle of Man should be submitted to the approval of this House. The Minister will be in consultation with the Isle of Man Parliament, and they take into account local law and conditions, and it would of course be inappropriate for them to come before this House.
§ Mr. Manningham-Buller
I appreciate the purpose of this series of Amendments, but I am a little concerned about the second one, in line 14, to leave out "in Council." With those words omitted it would appear that any Order made under this Bill—
may be varied or revoked by a subsequent Order made in like manner and subject to the same conditions.I would like to ask the right hon. and learned- Gentleman whether there are any orders other than Orders in Council to which this Subsection (2) can possibly apply, and, if so, would he say what they are. This Amendment would appear to be giving power to vary orders made under this Bill without those orders coming before this House, and without any opportunity being given of praying against them. I do not know if that is the intention; if so, it is going a little further than the right hon. and learned Gentleman stated in moving the Amendment. If there are orders other than Orders in Council, I would like to know what type of orders he is referring to.
§ The Attorney-General
I took it very quickly. The position in regard to the Amendment in line 14 is that it is consequential on the new Clause of which the marginal notice is "Termination of power to make up civil remuneration," and on the new Subsection (2) to Clause 2, which enables the Minister of Health and the Secretary of State respectively to make orders which are not in fact Orders in Council.
§ Amendment agreed to.
§ Further Amendments made: In page 11, line 14, leave out "in Council."
§ In page 11, line 15, leave out "like," and insert "the same."
§ In page 11, line 16, at the end, insert "as the original order."—[The Attorney-General.]
§ Mr. Pickthorn
I beg to move, in page 11, line 18, to leave out from "shall," to the end of the Subsection, and to insert:be of no effect unless they are approved by resolution of each House of Parliament.This is a small but, I think, quite important skirmish in a very ancient and continuous battle, the battle that delegated legislation should be permitted only where it is clearly shown to be necessary, and that where it is shown to be necessary the maximum control should be maintained by this House. I hope that no hon. Member will think that this is simply an Opposition matter. Hon. Members who have been in this House at all long will know that a considerable number of us have fought this battle along the same lines, whichever party has been in power.
§ The Attorney-General
Perhaps the hon. Member will allow me to tell him that the battle is already won. I can explain what I think the hon. Member has in mind. He may not wish to give way to me.
§ Mr. Pickthorn
I am quite willing to do so if the Attorney-General prefers to make his speech now. Reserving any right I may have, I am quite willing.
§ The Attorney-General
I think I have the point in mind which the hon. Member desires to put. It is that any Regulations, as distinct from Orders, made by a Minister should be subject to approval. I apprehend that that is why he wishes 882 to delete the words, "by a Service authority."
§ Mr. Pickthorn
The Attorney-General appears to be speaking to the wrong Amendment. We are on the next one.
§ Mr. Pickthorn
I must say that it is very gratifying indeed to find a Minister so anxious to help us in saving time, but if time is to be saved Ministers must be quite sure they know which point of the Bill we are at.
Shall I start all over again, or does the Attorney-General retain in his mind my opening tropes? Some of us have always wished that there should be as little delegated legislation as possible and that whenever there must be delegated legislation there should be that additional Parliamentary control which is implicit in the positive procedure rather than the negative procedure. On almost all occasions where the negative procedure is provided for in Bills, some of us have put that point. I hope that the Committee will consider that we are on particularly strong ground in pressing that argument on this occasion. We think it is universally admitted that we are making a great and unprecedented interference with the ordinary constitutional arrangements of this country. I believe that that is universally admitted to be true.
Secondly, we are doing that in pursuance of a pledge given by the Government on coming into Office. We are doing it on this Bill in Committee of the whole House. I would argue, if it were to be argued, that there have been other Bills to which equally that pledge ought to have been held to apply. That point I will not now argue. This I will say: This is one of a very few Bills to which the Government have admitted that the pledge applies. Even on this Bill the Government are applying the pledge very much more in the letter than in the spirit. If they admit that this is a Bill of immense constitutional importance, they are not really giving that due amount of Parliamentary control which they promised when they said that these matters should be taken in Committee of the whole House, by sitting more or less continually for anything—we do not know what—from 36 to 48 or 60 hours.
883 That does not really give the House that opportunity on this kind of legislation which I think we all thought on all sides of the Committee that the Government were promising us two years ago. I ask hon. Members opposite to agree with me that their leaders are bound in this Bill to meet any reasonable, constitutional demand that is put up by either. I think—I am sorry for my voice, which has been rather overworked lately—that the general case (a) for as little delegated legislation as possible and (b) for the maximum of positive procedure when there must be delegated legislation, is peculiarly and almost uniquely strong in this connection. I beg the Committee not to believe that this Amendment should be rejected except upon very strong and explicit arguments.
§ The Attorney-General
I am very sorry for the misunderstanding. I must be a little hard of hearing. I thought the Amendment to line 17 was being called. I agree that great constitutional issues are involved here, but what is of constitutional importance is the Bill, the Act, when the Bill passes into law. Regulations of the kind which may be made by the Services Departments hereafter, and which will merely carry out and provide the machinery for implementing the new constitutional principles which Parliament itself will have implemented when it passes the Bill, have always been regarded as proper subject matter of the negative Prayer procedure. The practice is only to adopt the affirmative Prayer procedure in cases where delegated legislation itself involves something which is in the nature of a new principle or a new constitutional issue. Where the delegated legislation is merely machinery for carrying out and bringing into effect or into operation a constitutional principle which has itself been adopted by Parliament in the Bill, the procedure that is followed is the negative Prayer procedure.
It is not desirable to add to the classes of case in which the affirmative Prayer procedure is adopted, except where it is perfectly clear that the subject matter of the Regulations is likely to raise issues of great constitutional importance which Parliament would certainly be likely to wish to debate. That is not the case with these Service Department Regulations, and to 884 make them the subject of affirmative Prayer procedure would involve a considerable waste of Parliamentary time. It would mean that before any of them could be brought into operation we should have to move them in the House and to provide an opportunity for Debate upon them. Therefore, I am sorry that we are not able to accept the Amendment.
§ Mr. Harold Davies (Leek)
I want to know exactly what is to happen under this Clause. We are afraid of the growth of delegated legislation and so I humbly appeal to the Committee. I do not know whether I can make my case clearly to the Committee, but I believe that any regulation made under the Bill by a Service authority has to be laid before Parliament and thatif either House within the period of forty days beginning with the day on which any such regulations are laid before it resolves that the regulations be annulled"—and this is where I am getting to the hub of the problem—they shall thereupon become void; but without prejudice to the validity of anything previously done thereunder or to the making of new regulations.I appeal for information here. Do those words mean that if this House decides that a Service authority has made a regulation which is unconstitutional and shall be void, we are not allowed to touch that regulation till the expiry of the 40 days? In other words, for a period of some 40 days, the Service authority has had the supremacy over the sovereign body of the people.
§ 7.30 p.m.
§ Mr. Manningham-Buller
The hon. Member for Leek (Mr. Harold Davies) has put the point with extreme clarity, and, if I may say so, has slightly understated it in one respect. For instance, if this House rises before the beginning of August, or at the beginning of August, as I understand is the intention, and as I understand is the pretext for the performance to which we are being subjected, and does not meet again until near Christmas, then the Service regulations will be imposed and enforced. If, for instance, they are made in the first week in August, they will be in force for months without this House having any opportunity at all of saying that the regulations are bad, and if this House does say that they are bad when it first has 885 an opportunity of doing so, that will not affect anything done under the regulations.
I am rather astonished by what the right hon. and learned Gentleman said in justification of this form of procedure with regard to the regulations which can be made under this Bill by a Service authority. He said that he did not think that Parliament would be likely to wish to debate these regulations. I very much doubt the accuracy of that statement when one comes to consider the various matters on which the Service authorities can make regulations, and when one bears in mind the importance, from the individual's point of view, of seeing that there is some co-ordination between the various regulations, and that the particular man who is directed, for instance, to the Naval Reserve, has not cast upon him by regulation far greater obligations than those cast upon a man who is directed to the Army or to the Territorial Reserve. If the right hon. and learned Gentleman will look at Clause 2 (4), he will see that the Service authorities have power to make regulations as to what constitutes a day's training. That will be a matter affecting a considerable number of young people. I can well imagine that, when it sees those regulations, this House will want to say something about them. When we look at Clause 4, we find that regulations may be made for the compulsory transfer of a man from one Reserve to another without any option, except in a few cases, on the part of the individual affected.
In Clause 5 there are regulations saying what terms of service shall be equivalent to terms of whole-time or part-time service. I should have thought that these were matters affecting the liberty and the duties of the subject which this House would anxiously consider, and would desire to have the opportunity of considering and expressing an opinion upon before the regulations came into force. We do not want to hold up this Bill, the principle of which we support, but I think that if the right hon. and learned Gentleman could meet us in this respect, that would meet with the approval, not only of hon. Members on this side of the Committee but, obviously, from the observations of the hon. Member for Leek, with the support of hon. Members opposite.
I would ask the right hon. and learned Gentleman, who has been very good in 886 this Committee, if he would look at this matter again, because the need for coordination between the Regulations of the various Services is imperative. I am sure that the right hon. Gentleman the Minister of Defence will agree that, so far as that can be ensured, it should be ensured. Probably the best way of ensuring it is by saying that none of the regulations shall have any effect until approved by Parliament.
§ Mr. S. Silverman
Disliking and opposing this Bill as I do, I am strongly tempted to support the Amendment. But, if I am to look at the matter conscientiously as one of delegated legislation, without giving effect to my desire to make the Bill not work, then I am bound to agree with the Attorney-General's view of the matter. It seems to me that one of the criteria in deciding whether to use the negative or the positive procedure, which is really the issue involved between the Bill and the Amendment, is whether the Government need the regulations in the meantime, subject to the right of the House to challenge and annul them if it disapproves of them at a later date, or whether the things are of such a nature that they ought not—whether Parliament deals with them or not—to be law without the positive and affirmative approval of Parliament.
§ Mr. Pickthorn
Is the hon. Gentleman suggesting that the Departments do not already know what regulations they are going to need under this Bill? What "meantime" does he refer to?
§ Mr. S. Silverman
I had in mind the argument of the hon. and learned Gentleman who spoke just now, when he said that, supposing we have regulations, it would, in any case, be a very long time before the House could challenge them. That, of course, is true, but if we use the affirmative procedure, then it will equally be a long time before the Department, administratively, could have them, and it might well be—I do not know—that in these circumstances, the Bill would have to be held up until November.
I think that the distinction is correctly given effect to in Clause 19. It will be seen that in Subsections (1) and (2) of that Clause, the affirmative procedure is followed, subject to the Amendment which the Committee accepted a moment ago on a narrower point. In general, however, the Orders in Council required 887 under Subsections (1) and (2) are expressly given the affirmative and not the negative character, whereas in Subsection (3) the negative form is used. If one considers what is done under Subsections (1) and (2) and contrast that with the kind of thing done under Subsection (3), one appreciates very clearly the difference between the kind of Regulations which demand affirmative procedure and the kind of Regulations which are dealt with in the other Amendment, which, After all, the House can, by Prayer, control.
§ Mr. H. Strauss
The hon. Member for Nelson and Calne (Mr. S. Silverman) would accurately have stated the case for the negative procedure had he been right in saying that the positive procedure would make the Bill unworkable. But in suggesting that it would make it unworkable, I do not think he gave a conclusive reason, and certainly that argument was not the argument put forward by the right hon. and learned Attorney-General. He did not assert that this would be unworkable, and I think that if the hon. Member for Nelson and Colne will examine the particular matters dealt with in this Bill, he will see that in the long time before it actually comes into operation there will be plenty of time to adopt the affirmative procedure. I do not think, therefore, that it can be said that the affirmative procedure would make the scheme unworkable.
But the right hon. and learned Gentleman put a different ground. He suggested that it was only right to have the positive procedure if matters of great constitutional importance arose under the Regulations. I think he overstated the case. The point that the Committee really should consider is whether Parliament is likely to wish to debate these Regulations. I believe that in answer to that question, hon. Members in every quarter will say, "Yes, they are Regulations which the House will wish to debate." Then the main difference between the positive and negative procedure is this: If it is the positive procedure, the Government must find suitable time for it. If it is the negative procedure, the Government do not find convenient time for it. There was a period in our Parliamentary history when the distinction between those two forms of procedure may not have been of such over- 888 whelming importance. It is right hon. and hon. Members opposite who have made it of enormous importance. As we know from the arguments which take place every Thursday, Parliamentary time is one of the most important matters concerning the working of our Parliamentary institutions. Therefore, if the Committee come to the conclusion, as I am certain they will, that they will wish to debate these Regulations, then they will be Regulations for which the Committee will desire the Government to find convenient time.
To secure that position, they have only one means, and that is to adopt the positive procedure. For those reasons, I say in answer to the hon. Member for Nelson and Colne, that in this case the positive procedure does not make the Bill unworkable, nor, indeed, has the Attorney-General suggested that it did. That being, I think, the only argument that could be used against the positive procedure, I say that the positive procedure is the one on which the Committee should here insist.
§ Mr. Byers
I seriously ask the Government to look again at this matter, because the question of the positive or the negative procedure is very important from the point of view of the individual. Let me remind hon. Members that during this week we have had a number of affirmative Resolutions to allow people to open cinemas on Sunday. It seems to me to be quite wrong that we should apply that positive procedure in that case, and deny it on a great constitutional issue like this. I suggest it is a constitutional issue, for, indeed, what greater constitutional issue can there be than the rights of the individual under a compulsory scheme of service of any type? I was surprised that the hon. Member for Nelson and Colne (Mr. S. Silverman) took the line that he did in his speech. I am not criticising him. I am saying this more in sorrow than in anger, in that I believe he came to that conclusion because he thought this positive procedure would make the Bill unworkable, and if he felt it would make the Bill unworkable he was perfectly entitled to make that point.
I suggest that it will not make the Bill unworkable. What it will do—and I think I can say this from my administrafive and operational experience—will be to make it far more difficult for the 889 Service authorities. What we shall, in fact, get will be more care and greater thought devoted to these Regulations. We shall get far fewer of them, because every time anybody in a Government office has got to draft one of these regulations—and the Secretary of State for War knows this very well indeed—he will say to himself, "Wait a minute, this is going to call for a Debate. Let us be careful. Let us have a word with the Air Ministry. Let us go and see what is happening in the Admiralty." But when the penalty is that of being "carpeted" by the Minister for letting him in for an all-night sitting instead of getting the thing right in the first place, I say we shall get far better regulations; we shall get far fewer of them, but they will be well thought out.
I do not wish to make a party point about this, but perhaps I might give an illustration. In the last six months we have had a regulation to decrease the amount of poultry feeding rations. I am quite convinced that if that regulation had been an Act of Parliament or an affirmative Resolution of the House, the Ministry of Food would have scoured this country to find the 200,000 tons of feeding stuff required, rather than take up Parliamentary time and face the Leader of the House and the Ministers concerned. I suggest that the positive procedure will not make the Bill unworkable. We would get fewer and better regulations and better co-ordination, and the interests of the individual would be far better considered under the positive procedure than under the negative procedure.
§ Mr. M. Philips Price (Forest of Dean)
I approach this question with an entirely open mind. I must admit that the views expressed by hon. Members opposite certainly require most careful consideration. I feel Parliament has to watch all the time and guard its rights against the Executive, There is a constant danger of too much delegated legislation which Parliament is unable to control. At the same time, we have to preserve a balance. A great deal of legislation in these days is very complicated. Some Members think there should be less. I think we are right to have a lot. On the other hand, there is a danger of the cluttering up of Parliament and of the whole procedure getting bogged down in a mass of words. Therefore, we have to draw the line between 890 affirmative and negative Resolutions. Negative Resolutions can be obtained easily. Affirmative Resolutions have to be put before Parliament, and time has to be found for them by the Government. I can see the Government's point of view. Affirmative Resolutions may make too serious a demand on the time available. I think the answer to the hon. Member for North Dorset (Mr. Byers), who has just made an interesting speech, is that a negative Resolution can be dealt with, if necessary, by a Prayer. In that case, I think it is not necessary to insist upon an affirmative Resolution, and, where it is necessary to raise Prayers, we can find the necessary time.
§ Sir John Mellor (Sutton Coldfield)
I find some difficulty in appreciating exactly which side the hon. Member for the Forest of Dean (Mr. Philips Price) is on. I think the only real support that the learned Attorney-General has had has come from the hon. Member for Nelson and Colne (Mr. S. Silverman). My impression is that he most emphatically underlined the intervention of the hon. Member for Leek (Mr. Harold Davies) which, I thought, was a most impressive contribution. There is one thing which is quite apparent, namely, that these regulations will be discussed by hon. Members who have the opportunity of discussing them. It is quite true that hon. Members can put down a Motion to annul regulations where the negative procedure is applicable. But some hon. Members may have some diffidence about doing that, and it may be that, first of all, they would like to ascertain, after debate, just what are the pros and cons in the matter. They may not wish to take the step of putting down a Motion to annul a regulation when they are not at all sure whether they approve or disapprove it. If the Government adopt the affirmative procedure, then automatically at the end of Government Business, a Motion is moved from the Front Bench that the regulation be approved, and then hon. Members have an opportunity of asking questions, not necessarily with any hostility towards the regulation but in order to elicit information, and to express their views. An opportunity is there given for the House to 891 give proper consideration to the regulation without anyone taking the initiative in expressing hostility by putting down a Motion to annul.
The only argument the learned Attorney-General put forward in favour of the negative procedure in this case was, first of all, that he thought it was more in accordance with practice, and that if the affirmative procedure were adopted it would involve waste of Parliamentary time. What does he mean by a waste of Parliamentary time? I do not consider that Parliamentary time is wasted when hon. Members on both sides wish to discuss something. In regulations arising out of this Bill, above all, it is evident that discussion will come from both sides of the House. In the course of the Debate so far we have seen, I think, that, if anything, rather more contributions have come from the other side of the Committee than from this side. Therefore, this is not a case where there would be likely to be in the minds of the Government any fear of their Business being interrupted or held up out of any partisan motives. The discussion on these regulations, if it takes place, will be not on a party basis at all. I think the learned Attorney-General will need to consider this matter fairly, and to give a further and better reply before we leave it, as to what view he takes of the contributions which have been made from this side and from the other side of the Committee in the course of this discussion. It is perfectly evident that great interest will be taken in these regulations. If the regulations give no offence to any hon. Member they will go through with q nod. What harm is done? It merely means that a Minister will have to put in attendance at the end of Government Business, and to bow to the Chair when the matter is reached in the course of Business. That is all a Minister need do: bow to the Chair. If he is asked by any hon. Member for an explanation he ought to give it. If discussion arises as a result of that explanation the Government ought not to resent it. We ought now to have a further explanation from the Attorney-General, because it is not good enough merely to tell us that it is more in accordance with practice, and that if the affirmative procedure were adopted it would be a waste of Parliamentary time.
§ The Attorney-General
I am always happy to try to respond to the appeals 892 of the hon. Member for Sutton Coldfield (Sir J. Mellor). I hope I am as jealous as the hon. Member of any possible encroachment on the proper functions of the Legislature by the Executive. When I put this matter to the Committee I sought to put it on the basis of what I conceive to be the true constitutional doctrine, and not on any grounds of expediency, although there are, indeed, very strong practical reasons against the adoption of the affirmative procedure. The position is that all the previous National Service Acts have had regulation making powers, some of them wide powers, which have been subject to negative prayer procedure. In the last two years, of course, as the Committee very well knows, we have passed a number of Statutes which contain regulation making powers of a very drastic nature, sometimes also subject to negative prayer procedure. But the regulation making power under this Bill is really of a very restricted kind. Even if it did happen that particular regulations had been made, and were subsequently declared void by a negative prayer in this House, no great constitutional or individual harm could, in fact, be done.
Just look at what the regulation-making powers in fact, are. First of all, under Clause 2, to define what constitutes a day's training. It is perfectly idle to say that there is any constitutional issue in that. The real constitutional issue is whether the Service authorities should be empowered to decide what is a day's training. That is the constitutional issue, and that is the issue which this Committee have already disposed of by deciding to confer that power upon the Service authorities. Whether the Service authorities, in the exercise of that power, decide that a day's training is constituted by four hours or four and a half hours is, quite clearly in my submission to the Committee, not a constitutional issue at all. One can see the practical point in making that particular regulation. Suppose that in August it was found, owing to experience in camps and so on, that it was desirable to alter the period of hours from six to four, or from four to six. Would it really be desirable that the Service authorities should have to wait until Parliament met in October, perhaps later, when they would be able to get an affirmative prayer before the House?
Take the next one, under Clause 4, to provide for transfer from one auxiliary 893 force to another. The constitutional issue there is, whether the Service authorities should have power to provide for a transfer by regulation from one force to another. That is the constitutional issue—a very important one, certainly. The Committee have already affirmed that the Service authorities should have that power. They have decided that constitutional issue. How that power is exercised in practice is a mere matter of machinery in carrying out something which this Committee have decided should be vested in the Service authorities. It is the same under Clause 5, to definewhat terms of Service shall be treated as equivalent to terms of whole time and part time service …and to provide for notification of changes of names and addresses. I ask the Committee to say that this is a mere matter of machinery, and that it would be quite wrong to apply to it the affirmative procedure.
§ Mr. Pickthorn
I really do think the arguments of the Attorney-General get "curiouser and curiouser" His first argument, I think, was that for the necessities of war and under the necessities of war great powers of this kind have been given to previous Governments, and therefore they should go on being given. His second argument is this; Although during the war we were always promised, whenever any of these things were done, that they should be for the war period and that only, yet he now says that in the postwar period—if the last two years are properly described as "postwar period"—the Government have, in fact, again taken vast powers of delegated legislation, and therefore they should now be allowed to take more powers of delegated legislation. That does not seem to me to be a very good argument. His third argument is, that it is not a constitutional issue, and that the constitutional issue is whether the Services should have these powers. Of course, that is a larger constitutional issue; but that does not exclude the possibility that these are constitutional issues.
§ Mr. Pickthorn
The hon. Member for Nelson and Colne (Mr. S. Silverman) has made one speech on this matter. He may make another speech on this matter if he likes, and I hope he will; but dogmatically to interject "They are not" is really not at all helpful.
§ Mr. Silverman rose—
§ 8.0 p.m.
§ Mr. Pickthorn
The hon. and medically learned Gentleman and I share a background in a small, geographically remote part of the world, and I am glad that, politically, we should tend together at this moment. The argument of the Attorney-General was, as I was saying, that this is not a constitutional issue because something bigger than this is a constitutional issue. He says this is not a constitutional issue at this point, because at this point these are only small matters that are concerned—changes of address, little things of that sort; and then he says it would be administratively impossibly inconvenient that they should not be able to alter the regulations about these things without having to wait. If these are small administrative matters I should have thought that even the Secretary of State for War, with the help of the organisation he has behind him, would be able to get the thing right at the first shot—at any rate, to get the thing good enough, that it would not go wrong just after he had gone off grouse shooting at the beginning of August. Or, perhaps, he grouse shoots from his yacht—a difficult thing to do, I believe. It really ought not to be impossible for them to get these regulations so nearly right that they do not often have to come to Parliament for new regulations. I do hope that the Committee are not going to allow the Attorney-General to get away with this argument, and certainly I hope we shall divide on the point.
§ Mr. Gallacher (Fife, West)
There is great suspicion here in regard to this Bill, and, in particular, in regard to the methods by which the regulations are to be made. One reads:Any Order in Council may be varied or revoked—
§ Mr. Pickthorn
We are long past that. Like the Attorney-General, the hon. Gentleman has got the wrong Amendment.
§ Mr. Gallacher
I have been busy about the House, and I was asking, having returned, about the Amendment.
§ Mr. S. Silverman
I do not want to make a speech, but I do want to apologise to the senior Burgess for Cambridge University (Mr. Pickthorn) for my seeming discourtesy. for what seemed to him to be dogmatism in the interjection I made. The fact that one thing is a larger constitutional issue does not exclude the possibility that the smaller question, though smaller, may still be a constitutional issue; but I thought that, perhaps, a regulation deciding whether four hours, or three hours, or two hours shall constitute a training day for a period of 6o days might properly be described as not being a constitutional issue.
§ Mr. Pickthorn
That is not what everybody said was a constitutional question. What we said was a constitutional question in that connection was, that the House of Commons should have the assurance, by a positive method, that,
§ for instance, in that connection, the various Service Departments are keeping in step with each other, and that they should not be free to run off in devious or divergent ways. I think that this is a matter on which we should assure our constituents that we have constant watch and positive control.
§ Mr. S. Silverman
That was not in the hon. Member's original speech. The question obviously was whether the regulations which are made under the authority of Subsection (3) of this Clause are, in fact, matters of constitutional importance, or matters only of administrative detail; and I should have thought, subject to what the hon. Member thinks, that they were matters of administrative detail, and not matters of constitutional law.
§ Question put, "That the words proposed to be left out to the word but,' in line 21, stand part of the Clause."
§ The Committee divided: Ayes, 239; Noes, 109.897
|Division No. 197.]||AYES.||[8.6 p.m.|
|Adams, Richard (Balham)||Crossman, R. H. S.||Henderson, Joseph (Ardwick)|
|Alexander. Rt. Hon. A V.||Davies, Edward (Burslem)||Hobson, C. R.|
|Allen, Scholefield (Crewe)||Davies, Harold (Leek)||Holmes, H. E. (Hemsworth)|
|Alpass, J. H.||Davies, Haydn (St, Pancras, S.W.)||House, G.|
|Anderson, A. (Motherwell)||Deer, G.||Hoy, J.|
|Anderson, F. (Whitehaven)||de Freitas, Geoffrey||Hubbard, T.|
|Awbery, S. S.||Delargy, H. J.||Hughes, Hector (Aberdeen N.)|
|Ayles, W. H.||Diamond, J.||Irving, W. J.|
|Ayrton Gould, Mrs. B||Donovan, T.||Isaacs, Rt. Hon. G. A|
|Bacon, Miss A.||Dugdale, J. (W. Bromwich)||Janner, B.|
|Baird, J.||Durbin, E. F M||Jay, D. P. T.|
|Balfour, A||Dye, S.||Jeger, G. (Winchester)|
|Barstow, P. G||Ede, Rt. Hon. J. C.||Jager, Dr. S. W. (St. Pancras, S.E.)|
|Barton, C.||Edwards, N. (Caerphilly)||Jones, Rt. Hon. A. C. (Shipley)|
|Bechervaise, A. E[...].||Edwards, W. J. (Whitechapel)||Jones, D. T. (Hartlepools)|
|Bellenger, Rt. Hon F J||Evans, E. (Lowestoft)||Jones, Elwyn (Plaistow)|
|Beswick, F.||Evans, John (Ogmore)||Jones, J. H. (Bolton)|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Evans, S. N. (Wednesbury)||Jones, P. Asterley (Hitchin)|
|Bing, G. H. C.||Ewart, R.||Keenan, W.|
|Binns, J.||Farthing, W. J.||Kenyon, C.|
|Blackburn, A. R||Field, Capt. W. J||King, E. M|
|Blenkinsop, A||Fletcher, E. G. M (Islington, E.)||Kinley, J.|
|Blyton, W. R.||Foot, M. M||Kirby, B. V.|
|Boardman, H.||Forman, J. C.||Lawson, Rt. Hon. J. J.|
|Bowden, Flg.-Offr. H. W.||Freeman, Maj. J. (Watford)||Lee, F. (Hulme)|
|Bowles, F. G. (Nuneaton)||Gaitskell, H. T. N.||Lee, Miss J. (Cannock)|
|Braddock, Mrs. E. M. (L'pl, Exch'ge)||Gibson, C. W.||Leonard, W.|
|Brook, D. (Halifax)||Gilzean, A.||Leslie, J. R.|
|Brooks, T. J. (Rothwell)||Glanville, J. E. (Consett)||Levy, B. W.|
|Bruce, Maj. D. W. T.||Gocch, E. G.||Lewis, A. W. J. (Upton)|
|Burden, T W.||Goodrich, H. E.||Lewis, T. (Southampton)|
|Burke, W. A.||Gordon-Walker, P. C.|
|Castle, Mrs. B. A.||Greenwood, A. W. J. (Heywood)||Longden, F.|
|Chamberlain, R. A.||Grey, C. F.||McAdam, W.|
|Champion, A. J.||Grierson, E.||McAllister, G.|
|Chafer, D.||Griffiths, D. (Rother Valley)||McEntee, V. La T.|
|Chelwynd, G. R.||Griffiths, Rt. Hon. J. (Llanelly)||Mack, J. D.|
|Clitherow, Dr. R.||Gunter, R. J.||McKay, J. (Wallsend)|
|Cobb, F. A.||Guy, W. H.||Mackay, R. W. G. (Hull, N.W.)|
|Collins, V. J.||Hall, W. G.||McKinlay, A. S.|
|Colman, Miss G. M.||Hamilton, Lieut.-Col. R.||McLeavy, F.|
|Cook, T. F.||Hardman, D. R.||MacMillan, M. K. (Western Isles)|
|Corbet, Mrs. F. K. (Camb'well, N.W.)||Hardy, E. A.||Macpherson, T. (Romford)|
|Corlett, Dr. J.||Hastings, Dr. Somerville||Mainwaring, W. H.|
|Corvedale, Viscount||Henderson, A. (Kingswinford)||Mallalieu, J. P. W|
|Manning, C. (Camberwell, N.)||Randall, H. E.||Tiffany, S.|
|Manning, Mrs. L. (Epping)||Ranger, J.||Titteringlon, M F.|
|Marquand, H. A.||Reid, T. (Swindon)||Tolley, L.|
|Marshall, F. (Brightside)||Rhodes, H.||Ungoed-Thomas, L.|
|Middleton, Mrs. L||Richards, R.||Vernon, Maj. W. F.|
|Mikardo, Ian||Robertson, J. J. (Berwick)||Viant, S. P.|
|Millington, Wing-Comdr. E. R||Rogers, G. H. R.||Walkden, E.|
|Mitchison, G. R.||Ross, William (Kilmarnock)||Walker G. H.|
|Monslow, W.||Scott-Elliot, W.||Wallace, G. D. (Chislehurst)|
|Morley, R.||Sharp, Granville||Warbey, W. N|
|Morrison, Rt. Hon H. (L'wish'm, E.)||Shawcross, C. N. (Widnes)||Watson, W. M|
|Mort, D. L.||Shawcross, Rt. Hn. Sir H. (St. Helens)||Webb, M (Bradford, C.)|
|Moyle, A.||Shurmer, P.||Weitzman, D.|
|Nally, W.||Silkin, Rt. Hon. L||Wells, W. T. (Walsall)|
|Nicholls, H. R. (Stratford)||Silverman, J. (Erdington)||West, D. G.|
|Noel-Buxton, Lady||Silverman, S. S. (Nelson)||Westwood, Rt. Hon. J|
|Oldfield, W. H.||Simmons, C. J.||White, H. (Derbyshire, N.E.)|
|Oliver, G. H.||Skeffington-Lodge, T. C||Whiteley, Rt. Hon. W|
|Paget, R. T.||Skinnard, F. W.||Wigg, Col. G. E.|
|Paling, Rt. Hon. Wilfred (Wentworth)||Smith, C. (Colchester)||Wilkes, L.|
|Palmer, A. M. F||Smith, H. N. (Nottingham, S.)||Wilkins, W. A.|
|Pargiter, G. A||Smith, S. H. (Hull, S.W.)||Willey, F. T. (Sunderland)|
|Parker, J.||Snow, Capt. J. W.||Williams, J. L. (Kelvingrove)|
|Parkin, B. T.||Solley, L. J.||Williams, W R (Heston)|
|Paton, J. (Norwich)||Sorensen, R. W.||Willis, E.|
|Pearson, A.||Sparks, J. A.||Wise, Major F. J|
|Peart, Capt T. F.||Steele, T.||Woodburn, A|
|Platts-Mills, J. F. F||Stress, Dr. B||Woods, G. S.|
|Popplewell, E.||Swingter, S.||Wyatt, W.|
|Porter, E. (Warrington)||Sylvester, G. O.||Yates, V. F.|
|Porter, G. (Leeds)||Taylor, R. J. (Morpeth)||Young, Sir R. (Newton)|
|Price, M. Philips||Thomas, Ivor (Keighley)||Younger, Hon. Kenneth|
|Pritt, D. N.||Thomas, I. O. (Wrekin)||Zilliacus, K.|
|Proctor, W. T||Thomson, Rt. Hn. G. R. (Ed'b'gh, E.)|
|Pryde, D. J.||Thorneycroft, Harry (Clayton)||TELLERS FOR THE AYES:|
|Pursey, Cmdr. H||Thurtle, Ernest||Mr. Hannan and Mr. Daines.|
|Agnew, Cmdr. P. G.||George, Maj. Rt. Hn. G. Lloyd (P'ke)||Morrison, Maj. J G. (Salisbury)|
|Allen, Lt.-Col. Sir W. (Armagh)||George, Lady M. Lloyd (Anglesey)||Morrison, Rt. Hon W S. (C'nc'ster)|
|Amory, D. Heathcote||Gomme-Duncan, Col. A||Mott-Radclyffe, Maj. C E|
|Baldwin, A. E.||Gridley, Sir A.||Neven-Spence, Sir B.|
|Beechman, N. A||Grimston, R. V.||Noble, Comdr. A. H. P.|
|Bennett, Sir P||Gruffydd, Prof. W. J.||Nutting, Anthony|
|Birch, Nigel||Hare, Hon J. H. (Woodbridge)||Orr-Ewing, I. L.|
|Boothby, R||Houghton, S, G.||Peto, Brig. C. H. M|
|Bowen, R.||Headlam, Lieut.-Col. Rt. Hon Sir C||Pickthorn, K.|
|Bower, N.||Hinchingbrooke, Viscount||Pitman, I. J.|
|Boyd-Carpenter, J. A.||Hogg, Hon. Q.||Ponsonby, Col. C. E|
|Braithwaite Lt.-Comdr. J. G||Hope, Lord J.||Prescott, Stanley|
|Buchan-Hepburn, P. G. T.||Howard, Hon. A.||Prior-Palmer, Brig O|
|Butler, Rt Hon. R. A (S'ffr'n W'ld'n)||Hudson, Rt. Hon. R. S. (Southport)||Rayner, Brig. R.|
|Byers, Frank||Hulbert, Wing-Cdr. N. J.||Renton, D.|
|Carson, E.||Hutchison, Lt.-Cm. Clark (E'b'gh, W.)||Roberts, Emrys (Merioneth)|
|Clarke, Col. R. S.||Jennings, R||Robinson, Wing-Comdr. Roland|
|Clifton-Brown, Lt.-Col. G||Lancaster, Col. C. G.||Ropner, Col. L.|
|Conant, Maj. R. J. E.||Langford-Holt, J.||Shepherd, W. S. (Bucklow)|
|Crookshank, Capt. Rt. Hon. H. F. C||Legge-Bourke, Maj. E. A. H.||Smith, E. P. (Ashford)|
|Crosthwaite-Eyre, Col. O. E||Lindsay, M. (Solihull)||Snadden, W. M|
|Cuthbert, W. N.||Linstead, H. N.||Stanley, Rt. Hon. O.|
|Davidson Viscountess||Lipson, D. L.||Stoddart-Scott, Col. M.|
|Davies, Clement (Montgomery)||Lloyd, Maj. Guy (Renfrew, E.)||Strauss, H. G. (English Universities)|
|Digby, S. W.||Low, Brig. A. R. W||Stuart, Rt. Hon. J. (Moray)|
|Dodds-Parker, A. D||Lucas-Tooth, Sir H||Thomas, J. P. L. (Hereford)|
|Drayson, G B.||McCallum, Maj. D||Touche, G. C.|
|Drewe, C||MacDonald, Sir M. (Inverness)||Vane, W. M. F.|
|Dugdale, Maj. Sir T. (Richmond)||Mackeson, Brig. H. R.||Walker-Smith, D.|
|Duthie, W. S.||Maitland, Comdr. J. W||Ward, Hon. G. R.|
|Elliot, Rt. Hon. Walter||Manningham-Buller, R. E||Wheatley, Colonel M. J.|
|Fletcher, W. (Bury)||Marlowe, A. A. H.||White, J. B. (Canterbury)|
|Foster, J. G. (Northwich)||Marples, A. E.||Willoughby de Eresby, Lord|
|Fraser, Sir I. (Lonsdale)||Marshall, D. (Bodmin)|
|Fyte, Rt. Hon. Sir D. P. M||Marshall, S. H. (Sutton)||TELLERS FOR THE NOES:|
|Gage, C.||Medlicott, F.||Mr. Studholme and|
|Galbraith, Cmdr. T. D.||Mellor, Sir J.||Lieut.-Colonel Thorp.|
|Gates, Maj E. E.||Morris, Hopkin (Carmarthen)|
Question put, and agreed to.
§ Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."898
§ 8.15 p.m.
§ Mr. Gallacher
I have been listening to the discussion on various Amendments, 899 and I think there is very great suspicion and doubt about this Bill and about the regulations arising out of this Clause. The hon. Member for Nelson and Colne (Mr. S. Silverman) argued that, if the positive method is adopted it would make the Bill unworkable, which was an argument that made it clear that, if the House of Commons passed this Bill containing this Clause, it would be finished with the whole business. That is the argument. I heard the hon. Member for Kingston-n-Thames (Mr. Boyd-Carpenter) saying earlier that he was very unhappy about this Bill. The hon. Member is only one of a great majority of unhappy men in this Committee. In view of the character of this Clause, and of the conditions under which we are going to place these lads, in view of the regulations which may be brought in and later discovered to be of a worse character, I hope hon. Members of this Committee will consider whether they ought not to get together for the purpose of killing this Bill and restoring freedom and peace to these lads. If they read the Clause carefully, they will see that that is the job they ought to do.
§ Mr. Boyd-Carpenter
I had understood that the Amendment which stands in the names of my hon. Friends and myself was going to be favourably treated, and I do not know whether, on the question of the Clause standing part, I should be in Order if I referred to the issue which my Amendment raised.
§ The Chairman
The Amendment was not called, but the hon. Member would be in Order in referring to the contents of the Clause.
§ Mr. Boyd-Carpenter
In that case, I have been misinformed, but I am obliged to you, Major Milner, for what you have said. The hon. Member for West Fife (Mr. Gallacher) was good enough a few moments ago to refer to some remarks I made on an earlier Amendment and I agree with him that there are a lot of hon. Members who are unhappy about many provisions of this Bill. That was the reason why I and my hon. Friends sought to impose a restriction which would strengthen the control which the House of Commons would have of the delegated legislation permitted under this Clause. We took the view that the regulations which this Clause authorises will be regulations of very great importance to a gen- 900 eration of young men who will be taken, in time of peace, by the State from their normal occupations for the purposes of the State. Therefore, it seems to us most important that the treatment of those young men should not be too far removed from close Parliamentary scrutiny and supervision.
For that reason, within the Rules of Order, I can only say that we are now faced with regulations affecting the lives of these young men which can only be dealt with, thanks to the decision which the Committee has just taken, late at night on Prayers put down by hon. Members; Prayers by which these regulations cannot be amended, thereby making it extraordinarily difficult for hon. Members who desire, helpfully and constructively, to cause variations in small parts of these regulations. As this Clause now stands I feel that we are handicapped at every turn in doing what will be one of the most important duties of Members of the House of Commons during the years in which this Bill is in force, and that is, seeing that the interests of the men for whom we are responsible for being taken from their homes are properly looked after and safeguarded. That is not a responsibility which we can, in our consciences, delegate to any Minister or to any Department, however well advised or however eminent.
§ Mr. E. P. Smith (Ashford)
I agree very heartily with what my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) has said. It is a matter of the greatest importance that it should be possible for the House of Commons to amend regulations rather than merely to vote them void. I cannot understand how the Government can have avoided putting in some words similar to those which my hon. Friend has inserted in his Amendment which has not been called. It seems to me to have been something which the Government should have themselves put in in the first instance, and I shall find great difficulty in voting for this Clause unless we can have some satisfactory assurance from the Front Bench on this point.
§ The Attorney-General
I had hoped that I had replied adequately to the speeches made before the Division, but the sugges- 901 tion that there should be a power not merely to reject these regulations—and that power is firmly vested in Parliament—but in addition power to amend them is, I hope to persuade the Committee, wrong in principle, unworkable in practic, and unnecessary in performance. It is wrong in principle because the whole essence of the practice of delegating legislation to subordinate bodies is to make sure that Parliament is absolved from the duty of examining or debating or framing in detail the legislation it has delegated. If the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) desires to discuss the details of how names and addresses should be registered, he should have secured that that should be dealt with by Bill, not by subordinate legislation. That is the whole purpose of it, to save Parliament the necessity of examining details of this kind.
§ Mr. Boyd-Carpenter
Will the right hon. and learned Gentleman allow me to interrupt? He says that the purpose of delegated legislation is to make it unnecessary for Parliament to examine these matters. Surely the whole purpose of the laying of these Orders on the Table of the House is to enable hon. [Members to examine these matters. I would suggest to the learned Attorney that it is their duty to their constituents to do so.
§ The Attorney-General
I was dealing with amending them—which I thought was the point—discussing, debating and examining them in detail with a view to amending them, and I was saying that the whole point of delegated legislation is to avoid the necessity for Parliament to deal with them. If Parliament wants to deal with matters of that kind, it does not delegate the legislative power to do it to somebody else. Secondly, in regard to amendment, it is quite impracticable to give a power to amend in either House of Parliament because if you have one set of amendments in one House and another set of amendments in another House, there is no means whatever of reconciling the two. It is quite impracticable. Did the hon. Gentleman wish to say something?
§ Mr. Boyd-Carpenter
The learned Attorney-General has asked me to intervene. It is not unknown for the House of Commons to insert a number of Amendments in a Bill and for another place to insert other Amendments in a Bill, for that Bill to come back, and for the matter to be resolved between the two Houses. It is surely not outside the flexibility of our procedure to do that in the case of these Orders.
§ The Attorney-General
I should have thought that it was, There is a well established and constitutional procedure for securing that the House of Commons view ultimately prevails in the case of Bills; there is no such procedure, nor could there be, in regard to amendment by Prayer. I hope the hon. Member will see quite clearly that that is so. You cannot have amendment by both Houses because you cannot have machinery for reconciling them. The hon. Member's purpose is really quite unnecessary. If it is thought by the House that particular regulations ought to be amended, ought not to be put into operation in their existing form, the House rejects the regulations, points out to the Minister what the amendments ought to be, and gives him an opportunity of laying them afresh.
§ Sir J. Mellor
Surely this point about the impossibility of reconciling Amendments in one place and another only underlines the imperfection of delegated legislation, because one House can annul, and you may, therefore, have the approval of a regulation in one House, but it may be annulled by the other. The Government can always deal with the situation if inconsistency arises because they can always revoke a regulation, if it has been amended in a fashion of which they disapprove by the House in which they may not have a majority. They can then make a fresh regulation. It seems to me that when the Attorney-General considers that it is not appropriate that Parliament should examine in detail the contents of regulations and have an opportunity to amend, he is really taking a strange view. I should have thought that the question of whether or not Parliament should be able to examine detail and amend, should be a matter for Parliament itself and not for the Government. If an opportunity were given to Parliament to amend regulations it would remain at the will of 903 Parliament, and I think it should. It is not likely to happen that Amendments of the trivial kind visualised by the Attorney-General would be put down.
Considerable interest has been taken in the contents of this Bill, and it is quite evident, from the interest that has been taken on both sides of the Committee in the whole of this matter, that great interest will be taken also in the contents of the regulations and in their substance. It would be most desirable that hon. Members on both sides of the House should have an opportunity of criticising those regulations by means of putting down amendments which would then be debated. At present, we only have the opportunity of criticism by negative Resolution and, as hon. Members know only too well, we have no opportunity in the House to do other than accept or annul. It may well be that the regulations would be regarded as satisfactory as a whole by both sides of the House; on the other hand, there may be particular portions of them, of some importance, that this side of the House or that may feel strongly should be a changed. Hon. Members may not at all wish to annul the regulations, but they may wish to amend them. It is often asked by a Minister, "What will happen if the regulation is annulled? There will be chaos, because there will be nothing in its place." That would not arise if there were power to amend. I think this is a matter of which hon. Members in all parts of the Committee should take great notice. Although the regulations as a whole may be desired, in special respects there may be an excellent reason for amendment.
§ 8.30 p.m.
§ Mr. Eric Fletcher (Islington, East)
The hon. Member for Sutton Coldfield (Sir J. Mellor) says that it is not likely that trivial amendments would be put down to the regulations, but I venture to think that if he is an hon. Member of this House it is most likely that a whole series of amendments will be put down—
§ Sir J. Mellor rose—
§ Mr. Fletcher
The hon. Member is a master of this subject of delegated legislation, and I think he has put down or supported as many Prayers as any hon. Member of this House. Sometimes it has 904 been a question of substance, but quite often points involved have been quite trivial.
§ Sir J. Mellor
On a point of Order. Is it not according to the usual courtesies and customs of this House that when an hon. Member directly criticises the conduct of another, the other should be given an opportunity to reply?
§ Mr. Fletcher
I am trying to answer the speech made by the hon. Member in respect of amendment of regulations. He is suggesting that the House should have the power—
§ Sir J. Mellor
The hon. Member said much more than that. He said that if the hon. Member for Sutton Coldfield was a Member, there would be plenty of trivial amendments. I think that, in accordance with the usual custom, I should be given an opportunity of challenging him when he said that. If he can give a single example—
§ Mr. Fletcher
Quite obviously it is not possible to give an example offhand of trivial Prayers which have been put down, but I am quite sure I am speaking within the recollection of hon. Members when I say there have been occasions when Prayers have been put down against delegated legislation, not because of some substantial point, but because of some quite minor point
§ Sir J. Mellor rose—
§ Mr. Fletcher
really do not want to give way again, but to answer the point the hon. Member made in regard to the idea that this House should have the right to amend regulations made under this part of the Bill. He said that it was unlikely that trivial Amendments would be put down, but the Committee must realise what the position would be if that were the case. It would be open to anyone to put down, not one Amendment, but a series of Amendments of the regulations, and all of it would involve Debate. If the House had power to amend regulations it would lead to a ridiculous position. As there is a recognised system whereby the House has the power to approve or annul an order, that would be an entirely undesirable innovation in our 905 whole system of delegated legislation. Over and over again the House has expressed the view that the right way of dealing with delegated legislation is to put down a Prayer, so that the general substance of the regulations can be discussed. The Executive can then have the benefit of seeing what particular points are raised by hon. Members, If the order is approved, well and good; if it is rejected on some ground, it is for the Executive to take the opportunity of making a new order to remove any blemishes which have been brought to light.
§ Mr. E. P. Smith
Can the hon. Member give instances of any Prayers which have been moved in the House, and which have been successful?
§ Sir J. Mellor
I would like to deal with the question of trivial Amendments. The Chair has power to select Amendments. In regard to the criticism of my hon. Friends and myself, who the hon. Member for East Islington (Mr. E. Fletcher) says have frequently moved to annul orders in order to discuss matters of minor importance, how else could we have discussed those matters? The only way we could have brought them before the House was by a Motion to annul the orders. While the matters may not have gone to the root of the whole order, or have been of vital importance, nevertheless they have been of sufficient importance for the House to consider, and that was the only way in which we could bring them before the House.
§ Mr. Hopkin Morris (Carmarthen)
think the Debate is now going off on a false point. Whether an Amendment is trivial or not, is not an important point, I remember a saying of Bagehot's about this House that good talk was better than bad talk; that is obvious, but then came his important point that bad talk is better than no talk at all. Power to put in a trivial Amendment is the chance to put in a vital Amendment and it is upon that right that liberty rests.
§ Mr. Stanley
Although at first I was rather doubtful about the proposition of my hon. Friend the Member for Sutton Goldfield (Sir J. Mellor) the speech of the hon. Member for East Islington (Mr. E Fletcher) has entirely convinced me of it merit. He has shown conclusively that the result of the present method forces people to put down Prayers to annul orders on trivial points, which otherwise could be dealt with purely by amendments. I do not propose to vote against the Clause on this occasion, because we do not want to see the Clause go, but I hope my hon. Friend will have a better chance on the Report stage of raising this point, and I only hope that then the Attorney-General will be saved from his friends.
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 20 ordered to stand part of the Bill.