CLAUSE 4.—(Provisions as to Orders in Council.) (Hansard, 23 March 1948)

§ Lieut.-Colonel Lipton
I beg to move, in page 3, line 29, to leave out "annulment in pursuance of," and to insert "confirmation by affirmative."
This Amendment, I hope, will be regarded as an acceptable one, and I think that perhaps we may have a fellow-traveller in the person of the right hon. Gentleman the Member for Saffron Walden (Mr. Butler). A short time ago the Attorney-General said that this Bill was an extraordinary Bill that was being put on the Statute Book in extraordinary circumstances. That is a sentiment with which Members of all parties will agree. 2948 He said it is impossible to be sure that we have envisaged every matter on which legislative authority will be required. It is true that under this Bill the Government propose to take very wide powers. The Orders in Council which may be made under it are unlimited.
I appreciate that my right hon. and learned Friend said that these powers will be used very sparingly and with very great care. That makes it all the more easy for him to accept this Amendment, which proposes that whatever action is intended by the Government in the shape of Orders in Council shall require affirmative Resolution by the House. That will enable the House to retain a greater measure of control in the exceptional cases in which these admittedly wide powers have to be used. I hope, therefore, that this Amendment will commend itself to the Government, and that they will be disposed, in the very special circumstances which are admitted on all sides of the Committee to exist, to accept it, and thus enable the House to retain that measure of control which the difficulties and complexities of the problem require.

§ Mr. H. Strauss
May I point out to the hon. Member that his Amendment does not achieve the object he has outlined? He talks about this House, but his Amendment leaves the wording "either House of Parliament," and makes the position rather worse as regards control by this House.

§ The Attorney-General
I shall deal with this Amendment not on the technical point which has, quite rightly, been raised by the hon. and learned Member for the Combined English Universities (Mr. H. Strauss), but on the principle which I apprehend is underlying it. I am bound to say at once that I have a great deal of sympathy with that principle. There is, I think, no precise constitutional doctrine as to when subordinate legislation by way of Orders in Council should be made subject to affirmative Resolution, and when it should remain subject only to negative Prayer; but in general, I think, the practice the House has pursued has been that affirmative procedure has been regarded as appropriate where any substantive and substantial change in the law is involved—particularly a change involving any matter of a constitutional nature; while the negative Prayer procedure has 2949 been used in cases where it is subordinate legislation dealing with the machinery for implementing some policy, some principle, which has been accepted and established by statute. While that is the principle which the House seems to have followed in the past, it is necessary that every case of this kind should be dealt with on its merits and I do not think there ever has been an attempt to lay down any hard-and-fast rules with regard to the matter:
In the case of the present Bill there is a great deal to be said in favour of the affirmative Resolution procedure, but the difficulty—and it is a real difficulty, a practical difficulty—about the adoption of that procedure now is that there may not be time to carry it out. We shall certainly want some matters dealt with by Orders in Council before 15th May, but at the speed at which we are proceeding at present it is hardly likely that the Bill will receive the Royal Assent before the middle of April. If, after that, Orders had first of all to be laid before the House and confirmed by the House, and then submitted to His Majesty in Council, that would mean that some matters with which we want to deal urgently could not be covered in time.
While I accept a great deal of what my hon. Friend has said, those reasons force us to the conclusion that we must resist this Amendment. We are fortified in that view by the fact that there are a number of precedents for it both in this Parliament and in previous Parliaments. The Irish Free State Act, the Ceylon Independence Act and the Mandatory and Trust Territories Act made Orders in Council subject to negative Prayer procedure. We must ask the House to agree to that procedure, I am afraid, in this case.

§ Mr. R. A. Butler
I am very grateful to my hon. and learned Friend who drew attention to a slight defect in the wording of this Amendment in relation to "either House of Parliament," a technical defect to which the Attorney-General also drew attention. That does not totally take away from the value of the Amendment, and as I said earlier, we are sympathetic with the line this Amendment desires to take. In the circumstances, I certainly could not say that it is incumbent upon my right hon. and hon. Friends on this side to challenge this matter in a Division. I do not think the Amendment 2950 actually carries out what we want, and therefore we shall have to take an opportunity at a later stage, either here or in another place, to try to get this matter rectified on lines more sound than this Amendment. While I do not think we can take the matter further now, we remain of the opinion that the affirmative Resolution is the right method of achieving the aim we have in mind.