HOUSING (RATE OF INTEREST) (Hansard, 6 November 1950)

§ Sir John Mellor (Sutton Coldfield)
I beg to move, That an humble Address be presented to His Majesty, praying that the Regulations, dated 3rd August, 1950, entitled the Housing (Rate of Interest) Regulations, 1950 (S.I., 1950, No. 1318), a copy of which was laid before this House on 4th August, be annulled. It is my contention that these Regulations are invalid by reason of the provisions of the Statutory Instruments Act and of the history of certain previous Regulations which were identical in substance, although slightly different in language, and which were considered in this House on 25th July. On that day a Prayer was carried against the previous Regulations. Upon the 27th July, the Vice-Chamberlain of the Household reported His Majesty's answer to the Address. He said: I shall give directions in accordance with your Address. That message was implemented on 9th October by means of an Order in Council entitled the Housing (Rate of Interest) Regulations (Revocation). That was Statutory Instrument No. 1648. The previous Regulations embodied in Statutory Instrument No. 1008 were, I repeat, revoked by Order in Council under Statutory Instrument No. 1648 on the 9th October. Meanwhile, the Minister of Health and made new Regulations without waiting for the former Regulations to be revoked.
In Statutory Instrument 1318 he made fresh regulations with exactly the same title and substance, and these Regulations 721 were made on 3rd August. In my contention, these Regulations are invalid because they were made before the previous Regulations, which were identical in sub-Lance, had been revoked. For that argument I rely upon the provisions of the Statutory Instrument Act 1946, Section 5 (1) provides that if either House resolves that an Address be presented to His Majesty praying: that the instrument be annulled, no further proceedings shall be taken thereunder after the date of the resolution, and His Majesty may by Order in Council revoke the instrument, so, however, that any such resolution and revocation shall be without prejudice to the validity of anything previously done under the instrument or to the making of a new statutory instrument. I remind the House that the new Statutory Instrument, made in place of the Regulations which were subject to a negative resolution of this House, was made after that resolution, but before revocation by Order in Council. In my submission, it does not, therefore, come within the protective provisions of this Section. I would again point out that the Section provides that: His Majesty may by Order in Council revoke the instrument, so, however, that any such resolution and revocation shall be without prejudice … to the making of a new statutory instrument. It refers to resolution "and" revocation, and not to resolution "or" revocation. Therefore, in my submission the making of a new instrument could only be valid after the process of revocation was completed. That, I suggest, is the plain language of the Statute. Here, "and" has been used deliberately. If it had been intended that it should be competent for the Minister to make a new valid statutory instrument after a negative resolution but before revocation, then, surely, the word "or" would have been used and would have done perfectly well for any other purpose. The word "and" was selected, and I have looked up the precedents. I find that Lord Justice Scrutton in the Court of Appeal said: You do sometimes read 'or' as 'and' in a Statute … but you do not do it unless you are obliged, because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. That is in Green versus the Premier Glynrhonwy Slate Company in 1928.
We have, here, a clear case where the Minister has gone wrong in being over precipitate in making new Regulations, of 722 precisely the same purport, in place of Regulations which have been subject to a negative resolution of the House. I repeat that the negative resolution was on 25th July, and that the Minister made the new Regulations on 3rd August without waiting until after 9th October when His Majesty might by Order in Council conveniently dispose of the old Regulations which had been subject to a Prayer.
I have given full notice of this point to the Minister of Health, and also to the Attorney-General. I am sorry he is not here.

§ The Parliamentary Secretary to the Ministry of Health (Mr. Blenkinsop)
My right hon. and learned Friend asked me to express his apologies for not being here.

§ Sir Herbert Williams (Croydon, East)
Why is he not here?

§ Sir J. Mellor
I make no complaint of any lack of courtesy from the Attorney-General, because he wrote to me to say he would be here if possible, but the fact remains he is not here. I complain of his absence and also of the absence of the Minister of Health, who made both these Regulations. I think he should have been here.

§ Mr. Brendan Bracken (Bournemouth, East and Christchurch)
He is no doubt recovering from his wounds.

§ Sir J. Mellor
As my right hon. Friend says, no doubt he is recovering from his wounds and drowning his sorrows. For the reasons I have given I submit that the Order is invalid, and I hope the Parliamentary Secretary has been supplied by the Law Officers of the Crown with a few points upon this matter, which is of some constitutional importance.

§ Sir Herbert Williams (Croydon, East)
I beg to second the Motion.
We all remember the Debate which we had in July, when, after the Ministry of Health had muddled about with this Order for weeks and weeks between the Ministry and the Treasury—the thing got lost for two or three weeks, so far as we can make out—some hon. Members who are supporters of the Government thought that they would appoint Tellers when the Order was debated in the House. We did not appoint any, 723 and the Government Whip was so fast asleep that he did not appoint any either. The result was that the Government supporters defeated the Government's own proposals. That was one of the occasions when they were much too clever.
The irregularity of making the Order and the delay were all reported on by a Select Committee on which both sides of the House are adequately represented. It is absolutely monstrous that the Attorney-General is not here. We know that his colleague is in the United States, which is where Ministers go nowadays when they want a change of air. He is at Lake "Failure," or Flushing Meadows, or one of those strange places where His Majesty's Ministers go. The Attorney-General ought to be here. He was here a few minutes ago, and the issue is one of constitutional importance. It is not the merits of this Order, but what we regard as a gross breach of constitutional procedure that is at issue. The Parliamentary Secretary, competent as he is in some directions in explaining away the impossible, is not the right person to deal with this constitutional issue.
To the Order in itself probably nobody objects; but if what has happened on this occasion is allowed to go through then, on something of major importance, we might well find ourselves in very great difficulties. In 1946 the Statutory Instruments Act was passed into law. I was not privileged to be a Member at that time, but it brought up to date the Rules Publication Act of 1893, which laid down the specific procedure to be followed if a Prayer was carried asking for an Order to be annulled. Then the Statutory Instrument became inoperative and later His Majesty in Council would annul the Order. Anyone reading the Statutory Instruments Act would conclude that there could not be a new Order in the same terms or in modified terms until the old one was constitutionally annulled.
This Order does not matter very much, but the constitutional issue is one of very great importance. I am not quite sure what would be the judicial process whereby it could be challenged in the courts, but I think it could be challenged if any aggrieved ratepayer felt that he had suffered some loss as a result of this Order or of its enforcement, and I believe he could apply for an injunction 724 against the local authority. I am not a legal expert and I am not quite certain of the position, but I imagine that some such procedure could be taken. But if there is no procedure operative, then this House must be operative, because it is vitally important as long as we have delegated legislation that we should have the right to check these powers and examine with the utmost care any abuse of them.
The Parliamentary Secretary is to reply, in the absence of any Law Officer of the Crown. There are four of them and only one of them is in America. Two are Scotsmen, competent to deal with this issue, the Lord Advocate and the Solicitor-General for Scotland. I presume that they must be competent, otherwise the Prime Minister would not have recommended their appointment. At least one of the four ought to be here to deal with a point of constitutional importance, even though the particular Order is not very important. The absence of the Scottish Law Officers may be due to financial reasons. I think I am right in saying that under this Order the rate of interest is 4 per cent. and that the corresponding rate in Scotland is only 3½ per cent. We ought to have had the attendance tonight of the Attorney-General.

§ The Parliamentary Secretary to the Ministry of Health (Mr. Blenkinsop)
I am sorry that this matter should come before the House for a second time, after the over-enthusiastic efforts of my hon. Friends behind me succeeded in annulling the previous Order, in which fact the hon. Member for Sutton Coldfield (Sir J. Mellor) may take some pride.
The point, as I understand it, is purely the legal and abstruse one whether the new Order is invalid because it was made before the previous Order was revoked by Order in Council. Naturally as this is a legal matter, the Department had legal advice before they went forward to lay a new Order before the House. We received full legal advice upon the matter which made it clear that the laying of a new Order was not in any way impeded by the fact that the revocation by Order in Council had not yet taken place. In, the Statutory Instruments Act, 1946, under Section 5 (1), it is laid down that His Majesty's Government may, by Order in Council, revoke an instrument, 725 so, however, that any such resolution and revocation shall be without prejudice to the validity of anything previously done under the instrument"— I ask the hon. Baronet to note these words— or to the making of a new statutory instrument. It is clear that if the hon. Baronet's interpretation of the wording were to apply, it would apply not merely to the making of a new Statutory Instrument but to the validity of anything previously done under that Instrument, which would be an impossible position. I think there is no need for the House to argue the legal point in any detail. It is a matter which might well have been answered outside the House. I am not in any way objecting to the matter being raised on the Floor of the House, but this is a personal matter which should be discussed outside the House.

§ Mr. Brendan Bracken
I congratulate the Parliamentary Secretary upon being a Ministerial Casabianca especially as the Attorney-General is now here. I am glad to see the right hon. and learned Gentleman. If I may say so, the Minister has not the legal qualifications to explain these matters, while the right hon. and learned Gentleman has those qualifications manifold, and I hope the hon. Gentleman will encourage his colleague to explain to us clearly the legal point involved.

§ Mr. Blenkinsop
We have taken legal advice on this matter, as I say, and it is perfectly clear that this Order is valid. I can assure the House it is valid and no question, in fact, arises. Naturally, if anyone wishes to challenge this Order in the courts, he is at liberty to do so.

§ Sir H. Williams
It is rather expensive.

§ Mr. Blenkinsop
At this point nobody wishes to do so, because this is an Order, as the hon. Baronet has said, to which no objection is taken so far as the matters contained in it are concerned. No question has been raised today about the matter of the Order, but merely about the legal question, upon which we have taken legal advice, as a result of which we are satisfied that the Order is valid.

§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I do not entirely accept the Parliamentary Secretary's argument that 726 this is a matter which could better be discussed outside this House or in the courts, because that argument seems entirely to overlook the very purpose for which this Instrument, and so many others, are laid upon the Table of the House. That purpose is to permit the House to make quite sure that the powers delegated to Ministers of the Crown are exercised in a proper and legal manner. I think the Parliamentary Secretary is quite wrong in adopting the attitude that because a point of law may or may not arise as to the validity of this Order, hon. Members of this House are wrong to raise this issue here.

§ Mr. Blenkinsop
I did not say it was wrong to raise it. I said it was the sort of issue that might well have been discussed outside the House. Clearly we should not have to spend the time of the House on it.

§ Mr. Boyd-Carpenter
I think the Parliamentary Secretary is still maintaining that this is not the proper way to raise this matter. I entirely dissent. I think it is the duty of this House, if they think a Minister has abused the powers delegated to him, to raise that in the only manner possible.
The only other point I desire to raise is this: the Parliamentary Secretary was at a natural disadvantage in dealing with a point of law which the hon. baronet raised, and, of course, all he could do was to say that he had been advised in a contrary way. Obviously, he has been advised in a contrary way or he would not have brought forward an Order in this form. That does not take us very far. What we require to know is whose advice did he receive that this was in order? Was it the advice of his own Ministry or of the Law Officers of the Crown? I hope I shall be acquitted of any attempt to endear myself to the right hon. and learned Gentleman the Attorney-General when I say that if it was the latter it would carry a great deal more weight than if it were the former.
In any event, it is a terribly unsatisfactory way of dealing with this matter for a Minister of the Crown to get up at the Box and say, "I am advised this is so," and not attempt to go into the question of whether or not that advice is accurate.

§ Mr. Boyd-Carpenter
I was about to make the suggestion that the whole difficulty could be resolved by the right hon. and learned Gentleman intervening. As he has now been good enough to indicate that he is ready and the purpose of my intervention therefore has been achieved, I will resume my seat.

§ The Attorney-General
I am much obliged to the hon. Gentleman. If he had consulted with the hon. Baronet the Member for Sutton Coldfield (Sir J. Mellor), he would have found that I had undertaken to the hon. Baronet that either I would be here myself, which I could not guarantee, or that the advice which was given to the House by my hon. Friend the Parliamentary Secretary would be based on my view.

§ Mr. Bracken
The hon. Gentleman did not tell us that.

§ The Attorney-General
The hon. Baronet might have confided in the right hon. Gentleman. He knew that if I were not here myself, the advice which the Parliamentary Secretary gave would be by my advice upon this matter. I came in towards the end of his speech and found him giving the advice which I would have given in far more admirable language than I would have used myself.

§ Mr. Bracken
The Parliamentary Secretary has never been in Opposition. But he will be soon. He must remember it is not for the Opposition to do the duty of the Parliamentary Secretary.

§ Sir J. Mellor
The Attorney-General was not here, but no complaint was made in regard to his courtesy. We were complaining of his absence. I mentioned that I had received a letter from him. But I am afraid he has not added anything to what the Parliamentary Secretary has said. The Parliamentary Secretary has merely said that they were advised that this Order is valid. I thought we might have had a little further light thrown on the use of the word "and." I am sorry that the Attorney-General should not enlighten us. The word "and" is used where the right word obviously is "or," if it were the desire to put upon the Section the interpretation which the Ministry of Health put upon it.

§ Mr. James Hudson (Ealing, North)
On a point of order Is the hon. Baronet in order in speaking at this length in a second speech?

§ Mr. Speaker
The hon. Baronet is entitled to speak again, but nobody else.

§ Sir J. Mellor
I hope the Attorney-General will assist us on this point because, as he tells us he has given the benefit of his advice to the Ministry of Health, it will not cause him additional effort to give that advice also to the House, with some explanation of it.
I argued that the use of the word "and" implied that the process of revocation must be complete before a new instrument could be validly made. If the House had intended anything else, if it had intended that a Minister should be competent to make a new instrument after a negative resolution but before that negative resolution had been finally implemented by a revoking Order in Council, then surely the word "or" would have been used. Neither the Parliamentary Secretary nor the Attorney-General has made any comment on that. They have merely said that they take the view that the Order is valid. I think we ought to have some comment from the Attorney-General on why in his view the word "and" was used in the Statutory Instruments Act if this interpretation is put on it, instead of the word "or." Surely by leave of the House the Attorney-General is going to speak again.