HC Deb 20 November 1947 vol 444 cc1375-83
Mr. Boyd-Carpenter (Kingston-upon-Thames)

I understand that the Amendment in page 2, line 19, to leave out Clause 2 has not been selected, Mr. Beaumont?

The Deputy-Chairman

It can be debated on the Question, "That the Clause stand part of the Bill."

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

Mr. Boyd-Carpenter

This Clause raises a question of principle in legislation. It is, as the Committee is aware, a Clause providing that certain regulations specified in the Second Schedule shall become part of the permanent law of the land. On this Clause I do not want to say anything about the specific merits of these regulations which the Clause is designed to perpetuate, because there are Amendments down to certain of them. The point I desire to submit to the Committee is that, whether it is right or wrong for these regulations to become part of the permanent law of the land, this is a clumsy and inefficient way of perpetuating them.

All citizens are presumed to know the law and are liable to get into trouble if they do not. If citizens are to understand the law of this country, they have to know where to find it, and, ordinarily speaking, any person trying to discover the law on a particular subject will look at the Acts dealing with that subject in general. If the variety of regulations which this Bill continues become part of the law of the land in this particular way, it will become increasingly difficult, because of their variety, for any citizen interested in one particular branch of the law to follow it up. If we look at the Second Schedule, we see that the wide variety of subjects covered by the regulations contained in it include such an agreeable mixture as the appointment of special constables, the exercise of powers by provost marshals, evidence under the Naval Discipline Act, the carriage of explosives, the enforcement of affiliation and maintenance orders and the variation of such orders. Surely, it is putting a wholly unnecessary strain upon those who have to administer the law, or try to find out the law, if legislation on that wide variety of subjects is found tucked away in an Emergency Laws (Transitional Provisions) Act.

This is a slipshod method and one that causes unnecessary trouble to everyone concerned. It would not be trying the Government very highly, if they desired the continuation of these regulations, to see that they were incorporated in the Bills dealing with these specific subjects. For instance, matters concerning affiliation and maintenance could well be attached to the Criminal Justice Bill which is to come before this House. Most of the other matters could go into the Army and Navy Act or into the Naval Discipline Act. They would then be under the right subject matter where citizens could find them, and not be lumped together in a Bill, the title of which gives no clue whatever, either to the layman or lawyer, to the subject matters contained therein. I am, therefore arguing, not that these provisions should not be continued, but that they are being continued in an inconvenient and clumsy way.

5.15 p.m.

Mr. Younger

I think that I can deal very shortly with this point. I understand that the hon. Gentleman is not anxious to dispute the fact that, possibly with a few Amendments, the provisions in the Second Schedule may reasonably be made the permanent law of the land. His complaint is of the method employed. In considering this matter, I think that we ought to leave out the layman. I do not think there is any validity in the argument that the method used here makes it more difficult for the layman, and that if other methods were used, it would be simpler for him. I think that whether we have a tiny subsidiary Bill or make these miscellaneous provisions in this Bill, in either case the layman would be completely baffled, as he is in dealing with any Act in which there is a whole series of legislative references

I suggest that if there is any problem, it is for the lawyer, but I think that it is no more difficult for a practising lawyer to look at the provisions in this Measure than it would be to look up series of Acts. Supposing that I were to admit that there was something in the hon. Gentleman's point, and that it would be slightly better to put every new provision into a new Bill under a suitable heading, I think that in the circumstances with which we are dealing it would be quite unreasonable to do so. There are in this Second Schedule, I think, some eight different paragraphs. The hon. Gentleman may remember that last year certain provisions were made permanent in the 1946 Act. There were about ten of them, which means that there have been some 18 altogether. Presumably, the suggestion is that there should be 18 separate Bills.

Mr. Boyd-Carpenter


Mr. Younger

If the proposal is not that there should be separate provision for all these matters, I am not sure that I have understood what the hon. Gentleman intends us to do.

Mr. Boyd-Carpenter

I suggested that in respect of several of these regulations it would be perfectly possible to arrange for them to be included, not in separate Bills, but in certain Measures which are now coming before this House. Certainly, one of them could go into the Army Act, which, under the constitution, the House will have to discuss.

Mr. Younger

I am advised that the hon. Gentleman is not right about that. He also mentioned the Criminal Justice Bill, and we are advised that the particular provision to which he refers could not suitably be included in that Bill. The provisions relating to the Armed Forces cover all the Armed Forces, or, in one case, they cover the Navy, and, therefore, it would be no use to attempt to include them separately in these particular Acts. One provision relates to the making of a general order by all three Services, which would require three separate Measures if we were to deal with it under the provisions of the different Service Acts, instead of by a single provision in the present Schedule, which permits of general orders being made by all three Services. I think that the miscellaneous nature of the provisions in the Second Schedule, to which the hon. Gentleman seems to object, is really in their favour. If there were a specific list of paragraphs all relating to the same subject which could be put conveniently into a single code, or which we could divide up into groups of, say, three, there might be an argument for putting them into the third part of the First Schedule, so that, in the meantime, we could bring forward legislation. The mere fact that they are, on the whole, trivial and uncontroversial, and that they are highly miscellaneous, seems to be a strong argument for getting them enacted at the earliest possible moment and not waiting until a variety of Bills have been brought forward.

Mr. W. S. Morrison

The Under-Secretary of State has treated this matter a little on the light side, because there is far more in the argument advanced by my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) than he seemed to imagine. He dismissed airily the position of laymen by saying that it did not matter for they would have to go to lawyers anyway, but I would remind the Committee and the hon. Gentleman that there are lawyers and lawyers. It is true that in the Temple or Lincolns Inn there were, at any rate until the Germans bombed those seats of learning, vast libraries containing up-to-date information on every one of the multifarious orders issued by this Government. In those circumstances one could consult a competent practitioner, certainly one who was a specialist in the branch of law involved, and who could be trusted to give a moderately correct answer to any question that the bothered laymen put to him.

However, one has to consider that that is not the way in which the law is actually administered in this country. It is not on the specialists that the advising of the laity depends. In most cases there are country solicitors up and down the land whose access to volumes of references is limited. They have to be guided by commonsense and by a knowledge of the legal principles which they apply to the problems put before them. When law and commonsense were more or less in alignment, that method worked pretty well on the whole, but now that the parallelism between law and commonsense ceases to be accurate, owing to the amount of legislation pouring forth, it is impossible to give correct advice unless one has these up-to-date sets of reference books.

I hope that the right hon. Gentleman in considering this matter will not treat it quite so lightly. It is the duty of the Government which enacts the law to strive to the utmost to place that law in an intelligible form before the people who are expected to obey it. Every time they fail in that, they are neglecting their duty, which is not only to make laws but to make laws understood by the people. It is only by that method that we get a law abiding people, because they then understand the law and respect it. The Under-Secretary seemed to think that this matter was of very little importance and disposed of it very quickly. There has been a remarkable change in the attitude of the Home Office in the last 12 months to the subject matter of this Clause. When the Act of 1946 was before the House the then Under-Secretary of State, the hon. Member for likeston (Mr. Oliver) said these words on the subject which has just been referred to by my hon. Friend the Member for Kingston-upon-Thames. A certain number of the Regulations in the First Schedule have proved to be so useful that Parliament will probably be asked before long to agree to their being permanently placed on the Statute Book—for instance, Regulation 57C about the conveyance of explosives by road, Regulation 42CA about gaming parties, Regulation 40AA about the employment of Service police in military and other stations, and various amendments of procedure affected by the Defence (Administration of Justice) Regulation. The hon. Gentleman went on to say, expressing the view of the Government 12 months ago: The Regulations in this category, however, are not being made permanent at the moment, because they make substantial changes in the law or are not suitable in their present form for permanent retention, and Parliament is right to expect that any changes which are to be made permanent will be done by the introduction of special legislation, and not by incorporation in a miscellaneous Bill like that now before us."—[OFFICIAL REPORT, 20th November, 1945; Vol. 416, c. 242.] That was the view at that time. What has occurred in the meantime to invalidate the argument of the then Under-Secretary? Parliament, he said, had a right to expect that these matters would be dealt with by permanent legislation and not in a miscellaneous collection of heterogeneous pieces of legislation such as we have before us. Parliament was right 12 months ago, and it is right today in saying what should be done about the regulations being made permanent. I do not dissent in broad terms from the description of these regulations given by the Under-Secretary of State. I think that time has proved them to be on the whole useful, or, at least, innocuous provisions, but these things should not be included in a Bill of this sort. See what the Bill is called. It is to deal with emergency laws. These are not to be classed as for an emergency, unless we are to live in a perpetual state of emergency, which I do not think the Committee desires or intends. Surely the subject matter is not indicated by the word "emergency"?

The Bill is also described as a transitional provisions Bill. How would one get a clue from the Title that important pieces of legislation, which have nothing to do with the emergency and which are far from being transitional, are being made permanent and are contained between the covers of this Bill? The thing is an anomaly and an affront to commonsense. I hope the Government will return to the view they expressed 12 months ago because that was the right view. What suggestion can I make to the Under-Secretary now? I do not wish to see an end to all these on the whole harmless but beneficial provisions, but I ask that they be sorted out as soon as possible and appropriate legislation introduced embodying them, and that as soon as they can be they should be removed from a Bill bearing a completely misleading title. It these provisions have to be revoked, they can be revoked by the powers which the right hon. Gentleman already has. I should like an assurance from the right hon. Gentleman that the view expressed 12 months ago by the Home Office still holds and that Parliament has the right to insist that legislation is enacted in an intelligible form. As soon as opportunity serves, these important matters, some of them affecting the domestic lives of our people, should be embodied in proper Bills and removed from this transitional provisions Bill.

5.30 p.m.

Mr. Ede

I do not complain about the quotation which the right hon. and learned Gentleman made from the speech of my hon. Friend the Member for likeston (Mr. Oliver) last year. During the intervening period we have been watching legislation in the hope that Bills might be found into which these provisions could be incorporated. I assure the right hon. and learned Gentleman that it is desirable that the amendments in the regulations embodied in this Measure are desirable from the point of view of day-to-day administration. It has not been found possible during this Session to introduce Bills into which these regulations could have been appropriately incorporated. I assure the right hon. and learned Gentleman that when such Bills are introduced we shall see that the provisions now embodied will be introduced into them and that repeal of this part of the Schedule will be carried out. Some of these Amendments are purely administrative matters and not likely to drive either civilians or lawyers to consult law books.

Mr. W. S. Morrison

What about the affiliation and maintenance provisions?

Mr. Ede

If the right hon. Gentleman will let me just say a word or two, I will come to that point. The first provision, enabling the Admiralty, the Army Council and the Air Council to appoint special constables in the places that they occupy is obviously desirable. I doubt whether discussion on it taking up a whole Friday would be justified in any Parliament, let alone a Parliament as busy as this. Another provision relates to the exercise of powers by provost-marshals. That is a subject which will not be discussed between civilians and lawyers. It will be discussed between the provost-sergeant and the member of the forces whom he happens to have arrested. It will very largely be carried on in the wet canteen. I have no doubt that the fact will very soon be imbibed there with the refreshment, that it is possible for a rating to be arrested by an Army or Air Force provost-sergeant. On one or two occasions objection will be taken before the officer—affectionately referred to as "the old man "—when the case is heard, that the defendant really did not think he should have been arrested by that particular sergeant; but news travels very quickly in the Services.

With regard to the proof of proceedings under the Naval Discipline Act, again, taking a certificate instead of compelling witnesses, at a considerable expense of time and money, to attend to prove mere formalities, is a thing which ought to be done, I suggest. I am told that it is not as easy to get these things done for the Navy as it is for the Army. I had hoped to be able to deal with the explosives matter in my Department, but no opportunity has occurred. I admit that the paragraph about affiliation and maintenance Orders is rather more important. They do involve the layman, the lay-woman and the lawyer upon occasions. I had hoped to be able to include them in the Criminal Justice Bill, but I am advised that they are outside the scope of that Measure as it is drafted.

I hope that it will be possible for us to meet the general point raised by the right hon. Gentleman. I should regret not hearing some of the observations he proposes to offer on some of these matters when we reach them. Of course, if the Clause is left out we should be deprived of that delight. I seriously recommend the Committee that that is a pleasure we should not forgo.

Mr. C. Williams

I did not quite understand that last challenge from the right hon. Gentleman. He seemed to think that if the Clause were left out we should not hear certain things later. I think I understand what the right hon. Gentleman is aiming at. As he has compelled me by the force of his speech to get upon my feet, I agree that what he said today is very much like what he said on the Second Reading, that the matters in the Clause are not of a very high standing or of very big constitutional importance. That is not what I object to in the Clause. I do not think it is good to have a sailor arrested by anyone from the Army, but that may very likely be prejudice. After the excuses which the right hon. Gentleman has been making that he has not had time to insert some of these things in Bills, that some of them will not go into the Criminal Justice Bill, and that he has had to lump them altogether in one Clause, I am glad that attention has been called to the matter.

These things may be harmless, but this is not a practice which we ought to agree to without some discussion. I am glad that my right hon. Friend has raised it. The Government have got into a very bad habit of lumping together a number of small things belonging to different Departments instead of dealing with them properly in appropriate legislation. I do not propose that the Clause should be voted against, but it would not be right for us to pass it without making a declaration about something which many people in this country dislike, and that is the permanent enforcement of orders which were put on during the war. The excuse for doing so may be good or bad. Any Government can put up an excuse for keeping something on and not doing a job properly. I am glad I have had this oppportunity—and I thank you, Mr. Beaumont, for allowing me to catch your eye—of protesting against this very bad habit of a very bad Government.

Clause ordered to stand part of the Bill.