§ Mr. Boyd-Carpenter
I beg to move, in page 5, line 25, at the end, to add:(2) Any Order in Council made under this section shall be laid before Parliament and shall cease to have effect on the expiration of a period of forty days from the date on which it is made unless at some time before the expiration of that period it has been approved by resolution of each House of Parliament, but without prejudice to anything previously done thereunder or to the making of a new Order.In reckoning any such period of forty days no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.122 Under Clause 4 power is taken not only to apply this Measure to a number of territories outside the United Kingdom, but to adapt and to modify it in the process. The Amendment provides that when that is done, a measure of Parliamentary control shall be exercised. I do not think that any hon. Member would dispute that the application of the Measure, possibly adopted and modified, to an entire territory to which it does not at present apply, is obviously a matter of first class importance. That being so, the question arises, first, whether it is not right to provide that there shall be some control by the House of Commons and, secondly, to decide, if that be so, what particular measure of control shall be exercised.
The Amendment proposes that the affirmative procedure should be adopted, 123 the particular form of this affirmative procedure being the one under which the Government have the full power to make an order but that the order itself lapses unless approved by affirmative Resolution during 40 sitting days. That form of the affirmative procedure is proposed in order to deal with the situation which might arise in some emergency when the House of Commons was not sitting. There is nothing in the Amendment to prevent the Government acting promptly and applying the Measure to the colonial territory concerned. All that is required is that during the 40 sitting days of the House the required affirmative Resolution shall be put through. This suggestion embodies a fair compromise between the possible demands of an emergency situation and the necessity for maintaining some control by the House.
It is a matter calling for a good deal of research to discover what are the territories to which, under the Clause, this Measure can be applied. It is a case not only of legislation by reference, but of legislation by reference twice over. The territories are those referred to in Section 5 (4) of the 1945 Act, but on referring to that subsection one is merely referred back to the 1939 Act. It is, therefore, a matter calling for a certain amount of research, but as I understand it—the Solicitor-General will correct me if I am wrong—the territories we are considering in this matter are, first, the Colonial Empire and, secondly, any territories effectively occupied by His Majesty under some other form of authority.
We in the House of Commons owe a very definite duty to the Colonial Empire. We are responsible for what His Majesty's Government do in that Empire, and if we pass the Clause as it stands we are handing over to the Government very substantial power to legislate for the Colonial Empire without any control whatever by the House. It seems to me that to do that would really be to abdicate the duties which we owe to our fellow subjects under the Crown in the Colonial Empire, and that it would be entirely wrong for us to do so.
On the Second Reading, the Secretary of State for Air, during a speech which I do not suppose he will recall as one 124 of his happier forensic efforts, said that the reason why no provision for Parliamentary control was made in this Measure was that no similar provision was made in the 1939 Act. To that I would say two things. I have never taken the view, although it seems to have adherents on the Government Front Bench, that everything done in 1939 was so obviously right as to be sacrosanct. Nor should one ignore that in 1939 we were faced with a situation of actual war on a great scale when, quite obviously, not only was the attention of this House very properly focussed on rather different matters, but equally under the ordinary understandings of our constitutional system much less regard was paid to the necessities for preserving Parliamentary control.
We are not at this moment in that situation, and for that reason it does not seem to me that the precedent of 1939, on which the Secretary of State for Air relied, really has any validity today. In any event, this Committee is perfectly free now to decide this matter and I would remind hon. Members that if we decided in the sense of preserving the Clause as it stands we would be providing a very strong precedent for future Governments who seek to legislate for the Colonial Empire without any control by this House. We would be doing so with our eyes open and in a time of what is at any rate technically peace.
I cannot see how hon. Members opposite, who are often so ardent in their desire to protect colonial peoples from alleged oppression, can possibly reconcile that attitude with apparently being prepared to allow a Measure of this sort—a Measure for the control of those peoples by emergency powers—to be applied by His Majesty's Ministers without the House of Commons having any direct control over it at all. It seems to me that if they are prepared to swallow that a rather curious light is thrown on their protestations of concern for the welfare of the peoples of the Colonial Empire.
It is a matter of principle that this House should not give this great power to the Government without keeping some control for itself. For it is a very great power to be able to apply a complete statute and to be able to amend and modify it in the process of applying it to 125 complete territories. Even the Solicitor-General cannot say that it would not be worth debating it because hon. Members would not know enough about it; on either side of the Committee there are hon. Members with direct knowledge of the Colonial Empire.
The Amendment seems to me to put forward an issue of not inconsiderable importance in principle. If accepted it can involve no embarrassment to His Majesty's Government and no diminution of their power to act speedily and effectively in an emergency. All it will do is to retain ultimate control over their actions in the House of Commons.
§ Sir P. Spens
It is of course a matter of history that, for years, statutes of this country have been applied to the Colonial Empire by Orders in Council, and I believe that the power of doing so and to make exceptions, adaptations and modifications is of very long standing. But it does result in this, that while we discuss and debate the wording of the Bills which come in front of us the Executive alone here and in the colony or territory concerned decide what form the statute shall take as applied to that territory, and the power to modify and make exceptions and adapt has resided often in very substantial differences between the Measure as passed in Parliament here and the Measure as it is put into force in the Colony or Territory.
It is only necessary to take one general Act of any sort, for instance the Companies Act, and compare its wording as passed by Parliament here with the form it takes in various parts of the Colonies to realise that in fact every time we give this power to the Executive we are giving very wide power to modify and alter the form of legislation approved in this country. It is something which is of long standing but something which, I suggest, is of great constitutional importance and something which this House ought to consider.
If this Bill is to be applied with modifications and alterations to any territory surely the Government ought to come back to this House and justify the alterations, exceptions and modifications to us and explain to us why, after we have approved a Bill in a certain form in this House, it should go in a different form to some part of the Empire. I cannot believe that hon. Members realise what 126 has been going on in this way during the last 30 or 40 years. Quite frankly, I had no idea of it until it became my duty to construe Acts applicable to India which had been given a local effect in this way. One imagined one would find the same Sections and Acts, but suddenly one found alterations in the wording. I suppose it was often justified on some local ground, but time after time one took the view that some draftsmen, either in this country or elsewhere, thought they could draft parts of a Section or proviso rather better than this House had approved it.
I believe this is a serious constitutional matter and this House ought to insist that whenever any Act of Parliament of importance is applied by Order in Council to parts of the Empire, unless it is practically verbatim the same, it ought to come back to this House in order that the differences should be explained and approved by this House. For that reason I support the Amendment.
§ The Solicitor-General
In framing the Clause in this way we were simply following precedent and very strong precedent. One hon. Member said that when reference was made to the Emergency Powers Act, 1939, that after all was an Act passed in contemplation of the imminent outbreak of war. That is perfectly true, but it is nevertheless true that the circumstances were not in any material sense different in this case and the form of wording was incorporated in that Act which was passed by a Conservative Government. The provision was also made in that Act that the particular enactment should be applied to the Colonies with or without modification, which meets the point made by the hon. and learned Member for Kensington, South (Sir P. Spens).
§ Sir P. Spens
I think the Order in Council procedure goes back to before the First World War, but it has been so used that substantial adaptations and modifications have been made, and I venture to think that this House would not approve of them. That should be reconsidered and this House ought to obtain control over such procedure.
§ The Solicitor-General
The hon. and learned Gentleman is now arguing right in the face of the current of established precedents. He has just referred to precedents earlier than 1939, and I should 127 like to remind the Committee of one or two of them. I have just reminded the Committee of the fact that, in regard to the 1939 Act, it can be said that there was the prospect of an imminent outbreak of war, but, if one goes back further—and I have carried out some researches in this matter—one finds precedent after precedent providing for modifications to enactments applying to this country and without any provision for Parliamentary control such as is sought to be imported into the Bill by this Amendment.
I think I ought to remind the Committee of some of these precedents. For example, the Visiting Forces Act, 1933, contains such a precedent, and, in Sections 5 and 6, it is provided that the Act can be applied to the Colonies with or without modifications. Equally, if one takes another example of about that time, the Whaling Industry (Regulation) Act, 1934, provides a similar precedent, showing that, in the mind of the Government of that day, there was a very consistent view on this matter. Here, again, if hon. Members will look at Section 13 of the Act, they will find:(1) His Majesty may by Order in Council direct that the provisions of this Act shall extend, with such exceptions, adaptations or modifications, if any, as may be specified in the Order, to the Isle of Man, any of the Channel Islands, Newfoundland or any colony.There is another precedent in the Geneva Convention Act, 1937, which again contains a similar provision. I think these precedents are sufficient to establish that it must have been the very consistent policy of pre-war Governments, and Conservative Governments in particular, to adopt this particular form for what we are now doing. It cannot really be said that they were temporarily driven from the path of rectitude by the prospect of the outbreak of war in 1939, because again, and for the fourth time which I have discovered, they followed the exact precedent which we have incorporated in our Bill.
But it does not stop there. It would be extremely difficult now to depart from these precedents. In 1945, the Supplies and Services (Transitional Powers) Act adopted the same form and made applicable Section 4 of the Emergency Powers Act, 1939, again making applicable precisely the same machinery as we are adopting now, and, again, that 128 procedure was used in 1947 for the Supplies and Services (Extended Purposes) Act of that year.
That current of authority does indicate a settled policy extending over a great many years as to what is the right way of treating this matter. The hon. and learned Gentleman who last addressed the Committee said that we were now, for the first time, departing from that. The mere fact that a practice is settled does not necessarily mean that it should always remain, and, in this particular instance, it would be extremely difficult to do that. If hon. Members will look at Clause 4, they will see thatHis Majesty may by Order in Council provide for extending any of the provisions of this Act, with such exceptions, adaptations and modifications, if any, as may be specified in the Order, to any of the countries or territories to which any provisions of the Supplies and Services (Transitional Powers) Act, 1945, extend by virtue of subsection (4) of section five of that Act, and any such Order may be varied or revoked by a subsequent Order.The effect of adopting the Amendment would be this, and I would illustrate the point by reference to a particular Defence Regulation which I select at random. I select Defence Regulation 55, which reads, and I read only the material words:(1) A competent authority, so far as appears to that authority to be necessary for any of the purposes specified in subsection (1) section one of the Supplies and Services (Transitional Powers) Act, 1945, may by order provide—certain things. If we adopted this change in the new context in which it is sought to be proposed, the result would be this. What the Bill does in the case of an ordinary Defence Regulation, such as No. 55 to which I have referred, is to include the purposes specified in the 1945 Act as well as the purposes specified in the present Bill.
If we adopted this proposal to make adaptation to the Colonies subject to the affirmative Resolution, the result would be that, when we were looking at Defence Regulations and considering them as not incorporating certain purposes, we should not have to have an affirmative Resolution if it was desired to apply it to the Colonies, but, when we were considering Defence Regulations in this new form, and incorporating new purposes which this Bill introduces into it, we should have to have an affirmative Resolution before 129 applying it to the Colonies. I think everybody would agree that that would be hopelessly illogical and quite absurd.
If this is a wrong procedure—and here I would address my remarks particularly to the hon. and learned Member for Kensington, South (Sir P. Spens)—and if we are to make this change it really is a most difficult time at which to make it. It is a most inopportune moment, having regard to the way in which previous Acts have used the precedent. On some future occasion, perhaps, we might reconsider the whole position, but I really do urge the Committee to accept the view that to do this now and make this violent break with tradition, with the result that we shall introduce into the Measure some really absurd inconsistencies, in that we shall have to have an affirmative Resolution in the one case and not in another, really cannot serve any useful purpose.
I hope the Committee will agree that it would be producing a very undesirable result to make this change now, though at some future time perhaps we might consider it. I do not wish to be taken as assenting to the view that the process should be changed, but, whether it should be changed or not, this is a most difficult stage in the evolution of this legislation at which to do it.
§ Sir D. Maxwell Fyfe
Would the right hon. and learned Gentleman tell us what is the position in regard to Newfoundland?
§ Sir D. Maxwell Fyfe
I do not want to make any mystery about it. The 1945 Act refers us back to the 1939 Act, which contains a reference to Newfoundland. Clearly, however, we ought not to legislate for Newfoundland. Obviously, I am not making a party point, and I shall try to catch your eye, Sir Charles, in a moment or two. In the meantime, I want to know if the Government have considered this, because we should not legislate for a part of the Dominion of Canada.
§ The Solicitor-General
As to what is the precise constitution, and what are the results of constitutional changes, in Newfoundland, I should want to look into more fully, but I have no doubt that the provisions of the Statute of Westminster 130 would be applicable, and that that, probably, would provide the answer to the right hon. and learned Gentleman's question. I assume that the Statute of Westminster would apply, and would exclude the territory from the category of territories dealt with in the Act.
§ Sir D. Maxwell Fyfe
I am sure that the right hon. and learned Gentleman appreciates the point that we do not want even to purport to be legislating for parts of the Dominions, but this legislation by reference and going from one Act to another is difficult to follow. I do not want to make any difficulties for the Government on this point, but perhaps—
§ The Solicitor-General
I am much obliged to the right hon. and learned Gentleman for raising the point. Obviously, it is a point which we should look into. In 1939, to which reference has been made, the status of Newfoundland was different from what it is today. I am obliged to the right hon. and learned Gentleman for drawing attention to this matter.
§ Sir D. Maxwell Fyfe
I am grateful to the right hon. and learned Gentleman for undertaking to look into it, because it is worthy of consideration for we should not appear even in curia to legislate—
§ The Solicitor-General
If I may be allowed to intervene, I believe the position to be that the 1950 Act contained the necessary provisions which would exclude Newfoundland from the ambit of Section 4 of the 1939 Act as made applicable in this Bill.
§ Sir D. Maxwell Fyfe
I am sure the right hon. and learned Gentleman will confirm that that is the position, because I think it is important that we should clear up the point. I am rather worried by the aspect of this matter raised by my hon. and learned Friend the Member for Kensington, South (Sir P. Spens). I think the House ought to try to approach it irrespective of party and irrespective of our views on other matters on which we have divided today. The right hon. and learned Gentleman gave us an argument on what the precedents are and made a very strong argument, if that were enough. But I always remember, when I was arguing a case in another place in 131 its judicial capacity before Lord Macmillan, among others, that Lord Macmillan said to me, "You have shown us what the law is but what I am interested in is why that is the law."
I think we all agree that the right hon. and learned Gentleman has shown us what the precedents are, but I do not think he has quite satisfied us as to why these precedents are still effective today. If one puts into a statute the right to apply one of our Acts to a Colony, then I cannot see why that should be left to the Executive without any Parliamentary control, and I do not think the right hon. and learned Gentleman has really answered that point. He has given us an argument with regard to this special subject matter with which I shall deal in a moment, but surely it is our job in this House, so long as we keep the right to consider and criticise administration in the Colonies, to see that if our Acts are applied the method by which they are applied can be considered by us.
I am not speaking in any provocative or party spirit at the moment, but I should have thought it was an aspect of dealing with our Colonies which many hon. Gentlemen opposite would have felt was one of great importance and interest to them. It seems an extraordinary way for the central Parliamentary machine to do its work to say that this Act may be applied to overseas territories, including the Isle of Man, the Channel Islands and Colonies and Mandated Territories and the like, and it can be applied with any alterations which the Executive choose to make, and we do not care about it again, we do not want to see it again. We do not care how it is applied or with what methods or modifications it is applied. I think my hon. and learned Friend the Member for Kensington, South, has done the Committee a great service in raising this point.
With regard to the particular subject matter I confess I do not see the great difficulty which the right hon. and learned Gentleman raises. The way it would 132 work out would be that before the Order in Council applying this Act or a regulation to any Colony gave that Colony or the Executive of that Colony the right to use it for defence purposes, as opposed to other purposes already in being, there would have to be the confirmative approval of this House. I do not see any particular illogicality in having to have the confirmative approval of this House before these powers are used for the purposes which are set out in the Act.
The right hon. and learned Gentleman has said that that is going to cause administrative difficulty. I think he has over-stressed the difficulty. The time has come for us to review this as a procedure. It is an extraordinary inversion of the ordinary accepted things that the party for whom I speak should be asking for a fresh approach to the application of imperial legislation to the Colonies and the party for whom the right hon. and learned Gentleman replies should say, "Ah, but remember these precedents. Do not budge from the procedure which was applied in 1939 and again applied in 1945. I ask the right hon. and learned Gentleman and hon. Members opposite, if I may make so bold, to approach it from the point of view of the merits of the problem and of the duties of the House of Commons.
I shall not advise my right hon. and hon. Friends to divide against the matter, therefore, I make this appeal without the usual House of Commons in terrorem background. I ask the right hon. and learned Gentleman to consider this problem. I hope that as I have not even asked it as a condition, he will consider it all the more and that we can look at it again from the aspect of colonial administration.
§ Amendment negatived.
§ Clause ordered to stand part of the Bill.
§ Clause 5 ordered to stand part of the Bill.
§ Bill reported without Amendment; read the Third time and passed.