§ Major Sir David Maxwell Fyfe
On a point of Order. May I ask your guidance, Mr. Speaker, as to the nature of the Iron and Steel Bill, which will shortly come before the House? As I think everyone realises, the question on which we desire your guidance is not whether the Iron and Steel Bill is a Hybrid Bill, but whether it comes within the words of Standing Order No. 36? Perhaps I may remind the House of how that Order reads:Where a public bill (not being a bill to confirm a provisional order or certificate) is ordered to be read a second time on a future day, and it appears that the standing orders relative to private business may be applicable to the bill, the examiners of petitions for private bills shall be ordered to examine the bill with respect to the applicability thereto of the said standing orders …I do not think the rest of the Order arises on this question, which is whether the Standing Orders applicable to Private Bills may be applicable to this Bill? In other words, no opinion against sending a Bill to the examiners could be given unless the view is taken that it is impossible that the examiners should think that the Standing Orders relating to Private Bills should apply.
Perhaps I may say a word or two about a Hybrid Bill, as the matter is not within the immediate knowledge of everyone. The modern definition, of course, is that a Hybrid Bill is a public Bill which appears, on examination, to affect private rights. I fully accept the qualification that it is not the practice of this House to refer Bills dealing with public policy whereby private rights of a whole class are affected. That is the sense of one of the passages of Erskine May, page 490, which deals with this matter. The most recent definition of which the House has had advantage occurs in the Report of the Select Committee on Hybrid Bills. page IV: "A hybrid bill … has also, in large or small degree, the character of a private bill, since it affects the interests of specific individuals or corporations as distinct from all individuals or corporations of a similar category.I do not think there would be any question as to the definition, and it is on the point that it affects individual corporations, and not all corporations in a 48 similar category, that I ask for your opinion, Sir. Clause 11 of the Iron and Steel Bill sets out to nationalise, by vesting their securities in the Iron and Steel Corporation, the companies specified in the Third Schedule. It sets out to nationalise a list of 107 individual corporations. I submit there is no significance in the introductory words:Subject to the provisions of this Part of this Act …because apart from Subsection (3) of Clause II they do not give us a great deal of assistance. The form is to nationalise a list of companies and then, in Subsection (3), we have some merely descriptive words. In Subsection (3) it states that the companies it is designed to nationalise are those which—and I stress these words—in the opinion of the Minister comply with the conditions of the Second Schedule. Apart from that the only other provisions that could be relevant in this part of the Bill are those in Clause 20, which merely give to the Minister the right to exclude from the Third Schedule a company which, in his opinion, has got rid of its iron and steel plant.
Clause 22, which supports my contention, goes further. It deals with recovery of assets transferred, and gives the right to the Minister to recover assets which have been transferred without giving any of the notices or publications which it is necessary to give in the ordinary case where private rights are affected. This is, in form and in fact, legislation against a number of individual companies.
The second point which I would draw to your attention is in Clause 11 (3). There the question of subsidiary companies is introduced and certain conditions imposed where subsidiary companies are steel companies. It is matter of common knowledge that the companies affected in the list of 107 individual corporations have subsidiaries that are not steel companies, so that the position is that, apart from the companies themselves, the subsidiaries are divided into a number of forms of activity. In those forms one will have the position where part of the category carried on by the subsidiary is nationalised and part of the category is not nationalised, a blatant case in my submission of discrimination within a category.
49 The matter goes further than that and raises a matter of principle which is new and not covered by any precedent. in Clause 11 (3) there is an attempt—I say an unsuccessful attempt—by description or explanation to make a category, and, therefore, to get out of this difficulty. The category which is attempted to be made is one which will not stand examination for a moment. The category is not the companies that comply with the conditions in Schedule 2, but the companies which, in the Minister's opinion, fulfil the conditions set out in Schedule 2. I say quite plainly that is not a category at all, because when it is left to the Minister's opinion and the legislation is passed, there is no power on earth that can correct a Minister if he makes a mistake. The courts cannot say anything to him, and if the Minister is quite wrong no action can be taken at all. That is not a category, and on that alone the attempt to make a subjective classification depending on the whim of a political Minister is not creating a category which is affected within the precedents of this House. That is apart altogether from the inroad into the conception of a category which is made by the proviso that excludes the manufacture of motor vehicles.
The purpose of the distinction which I am venturing to impress upon you, Mr. Speaker, is perfectly clear. If the whole of a category is the subject of legislation, then it is right and proper, and has been recognised by the practice of this House for 500 years, that that should be a matter to be discussed by the representatives of the people in this House. If there is not the whole of a category and a discrimination is made between members of the category, then again for 500 years it has been the practice of this House that those who are discriminated against and between whom distinctions are made should have the right to make their own individual defence. I know tile common attack that is always made when lawyers raise a point. Therefore, I anticipate those who will make an attempt and in all seriousness I say that this is not a pettifogging or legalistic point. It is a question of common justice for people who are affected by individual discrimination.
I am sorry to detain the House for this time, but I should like to say a word about the precedents, which I am sure, Mr. Speaker, are in your mind. The 50 precedents, of which no doubt you are aware, are quoted in Erskine May on page 836. They really come down to two where your predecessors have come down on the side of the Public Bill and one on the side of the Hybrid Bill. The first one is that of the Railways Bill of 1921. I am sure that you have seen it at some time as well as the method of Ruling of your predecessor of that date. It is fully summarised in Erskine May where it is quoted:Mr. Speaker ruled that the Bill dealt with a question of public policy affecting all the main railways of Great Britain.Mr. Speaker, you may remember that in column 44 the then Speaker is dealing with that and makes it the keystone of the decision which he then formed.
The other example that is given is the Electricity (Supply) Bills of 1926 and 1934. There again the ground of Mr. Speaker Whitley in 1926 and Mr. Speaker FitzRoy in 1934 was the same, that these Bills affected all the undertakers of a particular class alike—that is there was no description within a clear and definite class. I respectfully submit to you, Mr. Speaker, that neither of these precedents is authoritative as saying that a particular class may be constituted by the whim of the Minister.
The other example in which the other view was taken is the example of the Canals Bill, 1905,which did not apply to canals generally but which compulsorily transferred to the trust the undertakings of certain canal companies only, which were specified in a schedule.That is the other point which I wish to put to you, that this raises a fresh issue which is not covered by the precedents in the House. The last thing I want to do is to raise any point which is of doubtful validity, and, therefore, I would only remind you that when Mr. Speaker Whitley ruled on the Railways Bill the question of the Standing Order to which I have referred was not mentioned to him. Owing to the research of Mr. Dennis Herbert, as he was then, it was mentioned in the case of the Electricity Bill. Since then there has been revision of the Standing Orders by which this Standing Order was transferred from those applicable to Private Business to Public Business. It, therefore, becomes quite clear in my submission that this is a definite problem posed to you by the Standing Orders.
51 The problem is not whether this is a Hybrid Bill, but whether there is a sufficient case for the Bill to be considered by the examiners. I submit that for all the reasons that I have given there is a case for consideration, and that the interest and rights of the companies affected ought at any rate to receive the safeguard that the examiners will consider their position, and when the examiners have reported the matter it comes back to this House.
§ Mr. Speaker
I have been asked to give my Ruling whether the Iron and Steel Bill should be referred to the examiners. I should like to thank the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) for giving me notice that he was going to raise this question.
Our procedure is governed by Standing Order No. 36—(Bills which are prima facie hybrid)—which must be read in conjunction with Standing Order 224 relating to Private Business. Although Standing Order No. 36 first appeared in 1945 among Public Business Standing Orders it contained no new provision. The same procedure had been directed by Private Business Standing Order No. 216. It seemed more appropriate for' the provisions affecting public business to be put in Public Business Standing Orders. This was done without any amendment, other than by drafting Amendments.
It is laid down in Erskine May, page 490:It is not the practice to refer bills dealing with matters of public policy, whereby private rights over large areas, or of a whole class, are affected.This statement is supported by rulings of my predecessors, in 1921 on the Railways Bill and in 1926 and 1934 on the Electricity (Supply) Bills. In all these cases it was ruled that the Bills were matters of public policy and that they must go through the ordinary procedure of the House, without reference to the 52 examiners. Moreover, none of the large nationalisation Measures in relation to coal, transport, electricity or gas has been referred to the examiners, nor has this procedure been in any way challenged.
The purpose, as I see it, of the Iron and Steel Bill, is to bring under public ownership all important companies producing iron ore and certain basic iron and steel products, the limits for acquisition being laid down in the Second Schedule. This is a matter of public policy, as in the case of previous nationalisation Bills, and deals with private interests only generally, as respects a particular class. The Railways Bill of 1921 applied not to all railways but to all railways of a particular class, namely the main line railways. Similarly, the Transport Bill, though it provided generally for the acquisition of railway and canal undertakings, did exclude certain small undertakings not controlled by the Government during the war, and other undertakings whose railway or canal activities were not main activities of the undertaking. These seem to me to be very complete precedents for the action which has been followed in this case of not referring the Iron and Steel Bill to the examiners.
There is one other point to which I should perhaps refer. In Clause 11 (3) it is laid down that the companies which are to be taken over are governed by the Second Schedule, which states the minimum output qualifying for acquisition in four different types of activity. There is, however, a reference to those companies which, "in the Minister's opinion" fulfil the conditions. It seems to me that the Minister's opinion can only be given on the question of fact whether a particular company does or does not fall above or below the line,' and that this does not affect the principle in question. For the reasons, therefore, that I have given, I consider that this Bill should not be referred to the examiners.