CLAUSE 25.—(Discretion of Secretary of State, Governor, or High Commissioner.) (Hansard, 13 July 1948)

§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
The latter part of Clause 25 involves an exclusion from any consideration by the courts of the action of certain of the officials concerned. I am sure that all hon. Members on all sides of the Committee will agree that the courts ought not to be excluded unless some very good reason can be adduced for so doing, and I ask some occupant of the Treasury Bench to inform the Committee why it has been found necessary to exclude courts of law in this way.

§ The Attorney-General
The answer is a very short one. This is a matter of executive discretion in which the Minister, or the High Commissioner, or the Governor, is called upon to discharge 1149 functions with regard to questions of public policy and expediency at his discretion. His Majesty's judges have said a score of times that they are not competent, and do not desire, to adjudicate on matters in which questions of public policy are concerned. The responsibility of the Minister, the Secretary of State, or through the Secretary of State, the Governor or the High Commissioner, is not to the courts but to the House, and in the exercise of an administrative discretion of this kind it would be quite impracticable to give the courts any control. This is consistent with the whole process of legislation in this matter over the last 50 years.

§ Mr. Foster
I am not sure that is the answer. What the Attorney-General says about what the courts have said is true, but this case goes even further. I should have thought that the expression of the judges in the decided cases about not interfering with the discretion of the executive would stand alone, but does this provision mean that the decision cannot be questioned on any grounds? Let us assume that the Home Secretary had gone off his head. If one could not challenge the decision in the courts, it would seem to me very wrong. The provision is that one cannot challenge the decision on any grounds; what it should be limited to is that it should be challengeable on any ground when no reason has been assigned. Does either the Attorney-General or the Home Secretary agree with that?

§ Mr. Ede
This is a subject on which, in the administration of the existing law, I have from time to time had correspondence with hon. Members. Subsection (3) of Section 2 of the British Nationality and Status of Aliens Act, 1914, reads as follows: The grant of a certificate of naturalisation to any such alien shall be in the absolute discretion of the Secretary of State, and he may, with or without assigning any reason, give or withhold the certificate as he thinks most conducive to the public good, and no appeal shall lie from his decision. I do not think this Clause goes beyond that provision. On very rare occasions, in the exercise of my duties in the three years in which I have held this office, I have found it necessary on occasion to say, in the public interest, that I will not give the reason for the action which I have taken because, while I myself think 1150 it is in the public good, it would not be for the public good to have that action criticised or debated. While it is a very exceptional power, we are dealing with matters which on occasion very clearly impinge on the public safety, and the executive officer who has to discharge this function must, I think, be trusted to exercise his power. It is true that the Home Secretary may go off his head, but I am quite certain that if he did, a vigilant Opposition would very soon see that he also went out of office.

§ Mr. H. Strauss
I think what the Home Secretary has said are valid considerations, but the precedent he has quoted does not cover the words "or review," which I think are new, in the latter part of this Clause. It was these words which my hon. Friend the Member for Northwich (Mr. Foster) was questioning. I express the hope that the Home Secretary, before a later stage of the Bill, will consider whether these words "or review," which I think are quite new, and not in the passage he quoted, are necessary, and may not be a little dangerous on the grounds stated by my hon. Friend.