§ Order for Second Reading read.
§ 10.0 p.m.
§ The Attorney-General (Sir Frank Soskice)
I beg to move, "That the Bill be now read a Second time."
Mr. Speaker, this Bill is introduced in consequence of two Rulings which you gave declaring that two Orders were not properly made. They were made by the Board of Trade and by the Ministry of Supply. I should at the outset like to apologise to the House on behalf of the President of the Board of Trade, who is unable to be here owing to an appointment which he must keep. My other right hon. Friend, I think, will be here at any moment.
The two Rulings which you gave, Sir, were, as to the first of them, given on 4th April, 1951, that an Order, the Iron and Steel Prices Order, 1951, S.I. No. 252, made by the Minister of Supply under Defence Regulations 55 and 55AB was not properly laid; and the other Ruling which you gave was on 19th April, 1951, and that was with regard to S.I. No. 413 of 1951, and you equally ruled that that Instrument had not been properly laid. That was the Utility Apparel (Maximum Prices and Charges) (Amendment No. 2) Order, 1951; and that was made by the Board of Trade under the Goods and Services (Price Control) Act, 1941.
Your Ruling, Sir, was based on the circumstance that certain documents called Related Schedules in the case of 332 the Board of Trade Order and Deposited Schedules in the case of the Iron and Steel Order were not physically laid with the Orders themselves; and, Mr. Speaker, I think I interpret your Ruling aright as proceeding upon the general principle that Orders could not be said to be properly laid when something which constituted an important part of them was not laid with them.
Mr. Speaker, the Government were hound—and, of course, readily and immediately did—to accept your Ruling, and the President of the Board of Trade and the Minister of Supply, when your Rulings were brought to their notice, took steps, in the case of each of the Orders to which your Rulings related, to re-lay them with the relevant Related and Deposited Schedules, in the case of the two Orders.
When we came to consider the scope and effect of your Rulings it became immediately apparent that they were of a very wide application, and the question arose how far they extended. We instituted careful inquiries to see how many previous orders were covered by the principle which your Rulings enunciated. The result of our inquiry was this: that it was found in the case of the Board of Trade orders that your Rulings would cover Instruments going back as far as 1942; that is to say, in the case of orders laid under the Goods and Services (Price Control) Act, 1941; and back to 1945 in the case of Board of Trade orders made under Defence Regulations 55 and 55AB.
The House will notice that we have set out in Parts I and II of the First Schedule to the Bill the respective orders made under the Goods and Services (Price Control) Act and under the Defence Regulations by the Board of Trade. In the case of the Ministry of Supply the orders were made under Defence Regulations 55 and 55AB. The effect of your Rulings was to cover those orders back to 1946, and the Ministry of Supply orders are those set out in paragraph 3 of the Schedule to the Bill.
As the House will see, there are a very considerable number of orders in question; they run to something like 250. In those circumstances, there arose the further question: whether it would be right and proper that the Government, having made the error to which your 333 Rulings called attention, should come to the House and ask to be excused for that error, and for an Indemnity Bill to be passed. It is to ask the House to excuse those errors—misinterpretations of the existing statutes, particularly the Statutory Instruments Act, 1946 that we now come to the House to ask that this Indemnity Bill may be passed.
The Government took the view—and I hope the House will agree that they were right in so doing—that here was a clear case of failure to do what the statute enjoined; and you, Mr. Speaker, had ruled perfectly clearly that that was the case. Not only was that the case, but it would be hardly practicable to re-lay a number of the orders within the scope of your Rulings, as we re-laid the orders to which your Rulings in terms related.
The situation was therefore similar to, and in some respects more serious than, the situation which was dealt with by the National Fire Service Regulations (Indemnity) Act, 1944. The effect of your Rulings was that a number of orders had not been properly laid; and indeed are, as a result of your Rulings, up to this moment not properly laid. Some of those orders were still operative; some were operative in amended form; some had been operative for a period of time and had subsequently been repealed.
As I have already reminded the House, research showed that there were a considerable number of orders which fell within that category. In those circumstances, what we thought would be right would be to follow closely the precedent which was set in the 1944 Indemnity Bill which became the National Fire Services (Indemnity) Act, 1944. We accordingly modelled this Bill, which I now commend to the House, upon that precedent, not merely because it was a precedent but because we thought that it was a precedent which was perfectly right and proper in the circumstances, and that we should accordingly follow it.
The error to which your Rulings, Mr. Speaker, called attention was really an error in a somewhat narrow compass, and the considerations in the case of those orders made by the Board of Trade and those made by the Ministry of Supply were not really quite the same. I think I am rightly interpreting your Rulings in saying that the general principle was similar, but the circum- 334 stances affecting each set of orders differed in some particulars, and I think the House would desire me to deal in a little detail with the two types of orders.
I start with those made by the Board of Trade. The Board of Trade has for a long time followed the practice of fixing the price of particular goods by taking, in the cases of wholesalers and retailers, the purchase price and adding a percentage to that price. But for a number of utility articles, apart from that price an over-riding maximum price is fixed, and it has been the practice to set out those over-riding maximum prices in documents to which I have previously referred, and which are mentioned in the Bill, namely, related schedules. They are separate documents which are not physically printed as part of the order; they are independent documents printed and published separately by the Stationery Office.
Since 1942 or thereabouts it has been the practice of the Board of Trade to lay the related schedule in question only together with the order which first brings it into existence. The order which first makes the Related Schedule operative is laid and together with it is laid that related schedule. Then, when subsequent orders are made, a subsequent order may bring into operation new related schedules. In that case it has always been the practice to lay together with the new related schedule.
Sometimes, however, the new order refers for some reason or another to a related schedule which was laid with a previous order. For example, the previous order might have fixed a maximum price, say for two articles, to take a rough example, gloves and shoes. By reference to the related schedules laid with that order, a subsequent order wants to change the price of gloves but not of shoes. What it does is that it changes them by introducing in respect of gloves a new related schedule, which is accordingly laid with the order; but, in the case of the shoes it retains the previous price. It does so simply by making a reference to the old related schedule. When that was done, the old related schedule was not laid.
To summarise: Only new related schedules are laid with a new order which brings those new related schedules into force. When the new order makes reference to an old related schedule the 335 practice has been not to lay again the old related schedule which has already been once laid before each House of Parliament. The effect of your Rulings, Mr. Speaker, was that in such cases the failure again to lay the old related schedule invalidates the laying of the subsequent Instrument and that order, as I have said before, procedes upon the general principle that something which was an important part of a subsequent Instrument was not related with it.
In the case of the Board of Trade Order upon which you ruled, the House would no doubt like to have the facts. There was a principal Order, which was Statutory Instrument No. 216, 1951. It was the Utility Apparel (Maximum Prices and Charges) Order, 1951. That Order fixed maximum prices for wholesalers and retailers for utility apparel. This Order refers to six related schedules. Three were laid with it and three were old schedules which had been previously laid.
This Order was amended by Statutory Instrument No. 296, 1951. It was the Utility Apparel (Maximum Prices and Charges) (Amendment) Order, 1951. This Amending Order substituted two new related schedules for two of the six referred to in the principal Order and those two new ones were laid. Then came the Order on which you ruled. That was No. 413 of 1951, the Utility Apparel (Maximum Prices and Charges) (Amendment No. 2) Order, 1951. That amending Order, the No. 2 Order, introduced two new related schedules which were laid and referred, in the way that I described earlier, to the four old ones, that is to say two which have survived from the principal Order and two introduced by the first amending Order.
The four old ones, which, the House will realise, had already been previously laid, were not relaid with this Order. It was this failure to relay with No. 413 which, in the terms of your Ruling, had the result of causing Statutory Instrument No. 413 to have been not properly laid.
With regard to the Ministry of Supply Order, your Ruling, Mr. Speaker, related to the Steel Prices Order, 1951, Statutory Instrument No. 252. I should tell the House what the practice of the Ministry of Supply has been, because the considerations differ somewhat in the case of the two Ministries. They have laid orders fix- 336 ing the prices for iron and steel, the orders being made under Defence Regulations 55 and 55AB. This they do by referring in the Order to independent price lists. Until the Supplies and Services (Transitional Powers) Act, 1945, was enacted there was no obligation on the Ministry of Supply to lay orders at all, but as from 10th December, 1945, when that Act came into operation Ministry of Supply Orders had to be laid.
To comply with this requirement the Ministry of Supply laid before both Houses copies of the price lists which had been enacted by orders brought into operation theretofore and they so laid them amended up to the date when they were laid in pursuance of the requirement imposed by the 1945 Act. These documents are extremely bulky—in the aggregate they run into many hundreds of pages, if not more.
The difficulty arose with regard to amending the prices in those price lists after the 1945 Act required them to be laid, and the practice of amending prices in those price lists was the following. To avoid recopying a large and bulky document, a slip containing the amendment was pasted on to the schedule—they are called deposited schedules and not related schedules—which it was desired to amend. It is pasted on to both the copy in the possession of the Minister and on to the copies in the possession of the two Houses of Parliament. The slip is so worded as to say that the old schedule with the slip attached is to constitute the new substituted schedule.
It is in this way that the amendments have been made ever since 1945 and indeed, before, but it is only became material to consider them after it was necessary pursuant to the 1945 statute to lay them. This practice was followed, but the advice in terms of your Ruling, Mr. Speaker, was that there was no physical act which could be pointed to as constituting a laying again of the old schedule when, by pasting a slip upon it, it was transformed into the new schedule. The only thing that could have been said to have been physically laid before the House was the slip and not the schedule upon which the slip is pasted.
It will be apparent to everybody that the dividing line is a particularly narrow one. To show how easy it is to transgress the terms of your Ruling, Mr. Speaker, 337 perhaps I might indicate to the House that supposing one went to the place where the price list is deposited with the House, and took it away and put the slip on it and then brought it back, that, I apprehend, would have constituted a perfectly proper laying. But in terms of your Ruling, Mr. Speaker, to do merely what was done—that is to say, to hand in the slip or paste it on to the price list without taking the price list away—was insufficient to comply with the Act.
Unfortunately, in the actual case in which you ruled, Mr. Speaker, there was a further error in that the slip which was put on the old Schedule unfortunately, owing to inadvertence, did not contain the words which had the effect of adapting the old Schedule as a new one. We apprehended, Mr. Speaker, that your Ruling covered both defects and we thought in those circumstances that it would be proper to draft the Third Schedule to the Bill upon that assumption, so as to cover both those two defects which you indicated in your Ruling in the method in which this laying had taken place.
With regard to the actual form of the Bill, Clause 1 is expressed to indemnify both of my right hon. Friends. I should —I must be perfectly frank with the House—call attention to lines 27 to 30 on the second page. The House will observe —I make no attempt to conceal the fact—that that is what is sometimes described as an omnibus Clause, and the House will desire, no doubt, to justify putting into the Bill something which is an omnibus Clause and which has the effect of curing the failure to lay should there ultimately come to light any similar failure to lay in any other instance.
Our justification for asking the House to accept the omnibus Clause as part of the Bill is that both my right hon. Friends have made a very great deal of research to try to bring to light all orders Which were covered by your Ruling; and so far as we know, we have discovered all the orders which could be affected in the case of these two Departments, which would seem to be the only two Departments which would be affected.
I would seek to justify the omnibus Clause by simply submitting to the House that supposing it should transpire that our researches have failed to discover some order, it really is hardly reason- 338 able and hardly in the public interest that we should be required to come back to the House again to ask for another indemnity Bill to be passed. It is perfectly true that there was no such omnibus Clause in the National Fire Service Regulations (Indemnity) Act, but the case there, of course, was very different. That was a case in which there was simply a failure to lay owing to inadvertence; the Instrument in question simply had not been laid.
But this is a very different thing. As I have tried to explain, we are here in the realm of extremely subtle legal doctrine, and it is not at all easy to say exactly what the implications of your Ruling are, Mr. Speaker. Clearly, if I may respectfully say so, there must be limits to the application of the doctrine. Perhaps I could indicate the kind of limits there must be by referring to examples
Supposing, for example, to take an extreme but a perfectly possible case, there was an order which provides that a particular term used in the order is to have the meaning which is given to it in the Oxford Dictionary. Supposing there was an Order in that form—there might be, but it is unlikely—or that there might be an order which incorporates some other work like that by reference. Obviously I would apprehend that it could not be said to be necessary, to comply with the Statutory Instruments Act, that one would have to lay a copy of the Oxford Dictionary or of any other work of reference of that sort, and I am quite sure that the House would accept it. And I am quite sure, Mr. Speaker, that that is entirely in consonance with the Rulings you have given
Equally, there may be Instruments which refer to Acts of Parliament or to previous Instruments which they amend, and I do not think it ever has been suggested, or that it would be suggested, that merely because an Instrument refers to an Act of Parliament one has to lay a copy of the Act of Parliament with the Instrument. I think that that would be perfectly in consonance with your Ruling but, perhaps, pushing the application of it a little too far.
One can go even further and say: What is the position when an Instrument refers to a previous Instrument and amends it? Is it invalidly laid because 339 one does not lay with it a copy of the previous Instrument which it amends? One is drawing, perhaps, a rather fine distinction, because the Related Schedule which should have been laid and was not laid really forms part of the previous Instrument, which, in a particular case, may have been amended. But there is your Ruling, Mr. Speaker, and the distinction is one which we must try to draw, and we have tried to draw it. I call attention to that in support of my submission to the House that it is not unreasonable to ask the House to include an omnibus Clause in the Bill.
My reason is that it is extremely difficult to find exactly what are the limits of the doctrine and that it is perfectly possible, after making the fullest study and research in the matter, to go wrong in the case of a particular order. I hope the House will agree that it is not unreasonable for us to ask for an omnibus indemnity in case it should transpire that in the case of any of these orders we have made a mistake.
Hon. Members may ask why subsection (2) is necessary. Personally, I think there is little doubt that failure to lay an order does not invalidate the order, but in the case of the National Fire Services Indemnity Act almost exactly the same situation arose and the hon. and learned Member for Northants, South (Mr. Manningham-Buller) who, I believe, is to speak, will remember that he took part in that debate and the then Attorney-General, Sir Donald Somervell, now Lord Justice Somervell, dealt with almost exactly the same kind of problem I am putting before the House tonight.
He said that the reason why, even though the orders might be perfectly valid although not laid, was that he thought it was generally constitutionally proper and desirable that, there having been an omission to comply with the requirements of an Act, the Government responsible for the omission should come, as did that Government, and ask to be excused for their non-compliance and because I adopt precisely the same line of reasoning, I urge on the House that it is right and proper to ask for this indemnity, which we now do.
We might have taken the course of saying that, as the Instrument was valid although not properly laid, there was 340 no real need in the light of your Rulings, Mr. Speaker, to ask for an indemnity, but I think that would be improper constitutionally and propriety would require, having failed to do what the Act required us to do, that we should come and offer our excuse to the House and ask the House to say that we should be indemnified with respect to what was not really inadvertence—not forgetfulness, or anything of that sort—but an error in failing to appreciate properly the true implications of a statute which is by no means easy in some implications to construe. For these reasons I venture to commend this Bill to the House for Second Reading.
§ 10.27 p.m.
§ Mr. Manningham-Buller (Northants, South)
The right hon. and learned Attorney-General has explained at some length the difficulties the Government have apparently experienced in laying certain kinds of Statutory Instruments, but it is conceded for the purposes of our discussion tonight that whatever may be the limits of the doctrine following upon your Rulings, Mr. Speaker, no fewer than 183 Statutory Instruments have, in recent years, not been laid in accordance with the statute.
In those circumstances, I am sure that everyone will agree with the observations of the right hon. and learned Gentleman that the Government, having failed to do what they were required to do by Act of Parliament, should come to the House and explain the circumstances which led them to follow that course of conduct.
That, indeed, was the course first taken in 1944 by the right hon. Gentleman the Foreign Secretary, who was then Home Secretary. He came to the House in July of that year and explained what had occurred with regard to the Fire Services Regulations, which had not been laid, purely by inadvertence. It was only later that a Bill to provide for an indemnity was brought before the House. This, consequently, is the second occasion on which the House has been asked to consider a Bill to indemnify Ministers and on this occasion a Bill to indemnify two Socialist Ministers because they have been compelled to confess that they had failed to comply with the statutory duties imposed upon them by Act of Parliament.
341 The last occasion was only in relation to 23 regulations which had not been laid in war-time. Compared with the number of regulations, that was a comparatively small matter. If my calculations are right, the number we are concerned with here is 183 Statutory Instruments, only 12 of which were made before 1945. I should have thought it a serious matter to have to admit that a Minister has failed to comply with the requirements of a statute. Here, we have a failure to comply in 171 cases since 1945. The right hon. and learned Gentleman has explained how it came about, but I proceed to consider this position on the basis that it is clear that 183 orders have not been laid as required by statute.
§ The Attorney-General
I was not attempting to try to apportion such blame as there is in this case. If it is the case that 183 Statutory Instruments have not been laid since 1945, they have not been laid in accordance with a practice which began in 1942, when the present Government were not in office.
§ Mr. Manningham-Buller
I quite appreciate that: one has only to look at the Schedule to see that. But it is one thing not to lay these Instruments properly in war-time. What we are being asked to do here is not only to consider the right hon. and learned Gentleman's explanation of why this has happened, but also to consider whether a Bill of indemnity should be passed. That raises different considerations from the question of what was the cause for these Orders being improperly laid.
The right hon. and learned Gentleman referred to what he called the omnibus Clause in the Bill. No doubt a certain amount of consideration will have to he given to that, but apart from the omnibus Clause covering other regulations which have not as yet been discovered to have been improperly laid by these two Ministries, subsection (1) goes so far as to cover similar regulations by any other Ministry.
I should have thought that the right hon. and learned Gentleman must have been able to tell us whether there were any similar regulations with related schedules laid by any other Ministry. If there are not, then it would seem unnecessary to give this omnibus cover to any other Department, although in view 342 of what he said as to the difficulty of defining the limits of the doctrine, there may be some case for a general extension of that kind to these two Ministries which, he says, were the only two Ministries to lay Instruments of this sort.
When the right hon. and learned Gentleman said he followed the 1944 precedent, it is worth bearing in mind that he has departed from it, in this respect. I am sure he will agree that further consideration will have to be given to the point and to the actual form of words. The right hon. and learned Gentleman said he took the view that the failure to lay these orders in conformity with the statute did not affect the legality of the Orders as originally made. That view was first expressed by the Foreign Secretary in 1944. He said then that so far as he was aware there was no sanction for failing to lay orders in that case and that their legality was not affected.
If that be so, then one wonders what really is the need for this Bill of indemnity. It is a different thing from the Government coming to the House and making an explanation. When we have a Bill of this character it is one which we should consider seriously, even at this late hour. In 1944 a similar Bill was the first Order of the day. Tonight we have to discuss this indemnity Bill at a later hour, but, at the same time, it is our duty to consider it fully.
If it is the case, and it is the view of the right hon. and learned Attorney-General, that all these Statutory Instruments have had legal effect from the day they were made, notwithstanding that they were not laid in proper form, then it seems to me difficult to justify the inclusion of subsection (2) of Clause I, because that subsection would seem to me as it stands, and on the right hon. and learned Gentleman's view, too, to be of no effect whatever. It is one thing to say there must be an explanation; it is another to say there must be an Act of Parliament.
No doubt the right hon. and learned Gentleman has considered this point carefully, and if it be the case that it is there for the avoidance of doubt, the subsection should be in a different form. Quite apart from the question of legality, there is also the question of what we are being asked to indemnify Ministers against. The right hon. Gentleman the 343 Foreign Secretary said in 1944 that there was no sanction for failure to lay. If there is no sanction for failure to lay, is there any need for this indemnity? If the orders are legal—and I think that is agreed—what action can be brought in respect of failure to lay in proper form?
I should have been interested to have heard what the right hon. and learned Gentleman had to say about that. The indemnity is drawn so wide in this Bill to indemnify against any possibility of criminal or civil proceedings. Unless there is any real risk of action being brought there would not seem to me to be much need for subsection 1 of Clause 1. While I do not in the least dissent from anything the right hon. and learned Gentleman said about the desirability of an explanation of the circumstances which led to these errors, I do suggest to him that more justification is required before a Bill of this character is passed by the House.
The right hon. and learned Gentleman made considerable reference to the related schedules and other schedules given under a different title. The Bill itself refers to analogous documents and other documents. It may be the case, and the right hon. and learned Gentleman may be able to say that all these documents, making in total the Statutory Instruments which were not laid properly, because they were laid at different times and in different parts, are available to hon. Members of the House. If they are not, I suggest to him that, notwithstanding all the defects there might have been in the past, he should give an assurance that the Statutory Instruments which are now in effect, should be made available in their complete form so that Members of Parliament and the public can secure or refer to them.
I have asked a number of questions about this. I suggest that any Bill asking for an indemnity is one which should be given serious consideration and particularly when the need for that indemnity has come to light after these matters were, I think, first raised on Prayers in April of this year and in consequence of a Ruling given by you, Mr. Speaker, which has made it abundantly clear that these 183 Statutory Instruments did not comply with the Act in that the Ministers 344 responsible did not lay them in proper form.
§ 10.41 p.m.
§ Mr. Hopkin Morris (Carmarthen)
The Attorney-General put the case for the Second Reading of the Bill clearly before the House but with a great expression of doubt, as I understood him. I do not follow altogether why the Bill is necessary. The Attorney-General raised three objections himself that might reasonably have been expected from this side of the House against the Bill.
The first is that the orders that have been laid are valid. If they are valid why do we need an indemnity Bill at all? The next point he raised is that in his view the omnibus Clause becomes necessary. Taking the illustration he used about the Oxford Dictionary, supposing the order referred to the dictionary meaning of a specific word and that dictionary meaning was the meaning in the Oxford Dictionary, he would not lay the Oxford Dictionary.
I find it hard to draw the line between that and a criticism of the actual Rulings which you made, Mr. Speaker, making the orders in question invalid. If that be a valid illustration by the Attorney-General that must be a criticism of your Rulings and it is inconsistent with the position of the Bill. The second point is that the Attorney-General himself finds that Clause 2 appears to be unnecessary. Therefore, on the three counts there seems to be no justification for the Bill.
But I want to draw attention to another phrase in the Bill beyond that. It is in Clause 1 (1) which says that these people areeach of them…hereby freed, discharged and indemnified from and against all consequences whatsoever, if any, incurred "—Then come the words:or to be incurred.…They are to be indemnified not only against something which has already occurred in the past, but we are to indemnify them against anything which might occur in the future.
§ Mr. Leslie Hale (Oldham, West)
The reason for putting in the words…or to be incurred…is that consequences of some past Order may arise in the future. People affected under that Order may still be affected in 345 future and in an indemnity Bill one must cover the future consequences.
§ Mr. Hopkin Morris
But the Attorney-General says that these Orders are valid. If this Bill is passed then they will be valid by virtue of this Bill, so that any prosecution in future will be prosecution after this Bill becomes law. Therefore, why not throw out these wordsor to be incurred…since they cannot refer to this Bill?
§ Mr. Hale
They are clearly necessary if one is to have a valid indemnity to cover all cases whether they occur before or after the passing of the Bill. This raises the question we shall discuss later, of the conflict between the High Court of Parliament and other courts of the Realm. Parliament is the judge of its own ruling and to leave matters to be challenged in a court of law would surely be undesirable.
§ Mr. Hopkin Morris
Once the Bill becomes law that settles the matter and the courts cannot challenge it. The Clause and subsection (2) particularly are unnecessary; indeed, the whole Bill is unnecessary, if the Orders are valid. This matter ought to be looked at again.
§ 10.45 p.m.
§ Mr. Lionel Heald (Chertsey)
I would not oppose the passing of an indemnity Bill where it is shown to be reasonably necessary. I think it was made clear by the Attorney-General that it is constitutionally desirable that, where it is admitted that Ministers have made an error, and legislation has come into being in an improper way, it should be made clear by Parliament that Parliament has decided to overlook the matter.
After all, there is this good reason for it: that it is still possible for Ministers to be impeached. Perhaps one of these days we shall see that happen if Ministers make a habit of doing this. That is why this indemnity Bill is required. It is also the fact that the Minister could be said to be guilty of a common law misdemeanour, and the courts have recently decided that the limit of two years was a mistake. They said that there was no limit. I understand that the Attorney-General was solicitious for the welfare of his brethren. So there is good reason for an indemnity Bill.
But I would like to emphasise that the Attorney-General said that this was not 346 a very grave case. It is the old excuse, made in a very different connection, "It was only a little one." I would suggest that there is no differentiation in this case. If it is necessary to have a Bill, it is a very serious matter. It means that laws have been brought into force without the necessary formalities being complied with, and that it is considered necessary by the Government solemnly to introduce this very remarkable legislation.
§ The Attorney-General
I did not say that this was not a grave case. I drew a distinction between a case, as in 1944, where the failure was due to inadvertence, and the present case, where the failure was due to misunderstanding of the true effect of statutory law in a difficult field of legal doctrine.
§ Mr. Heald
I would have thought that the reason why a mistake was made was immaterial. I hope that no hon. Member thinks that I am making capital out of this. It is the fact that Ministers have had to admit that a mistake was made. What I am saying is that the fact that a Bill is necessary requires the House to regard the matter with care and attention —and with no less care and attention because the Bill is required through a misfortune and a difficulty, as is suggested.
Before the House agrees to give the Bill a Second Reading, I would suggest that we ought to insist upon steps being taken to put the whole matter of statutory orders into proper shape: that it ought not to be possible for the right hon. and learned Gentleman to give us a very lucid and complicated explanation of the difficulties, and on the question whether a particular label was fastened to a particular piece of paper by a certain time. The House of Commons has been unable to tell what is the content of these various orders. If the House of Commons is unable to do that, what is the position of the unfortunate people in the commercial world who have to proceed under these orders? I suggest that the first thing we ought to do this evening is to demand that the Government should overhaul the whole procedure of laying these orders and the schedules connected with them.
The other point to which I should just like to refer is that some of us were rather surprised—those of us who are newcomers to the subject—that when the Government admitted that 183 orders had been wrongly laid, or not dealt with in 347 the proper manner, the matter should be dealt with after ten o'clock at night. That is dealing with the matter in an almost hole-and-corner fashion, and some of us felt that we should have to apologise; perhaps apologise for getting up and talking about the matter.
We wondered why that should be, but for myself, when we were told of the precedent of 1944, I carried out some investigations of my own because I thought there was an earlier precedent than that. I found that as far back as 22 years ago, the Prime Minister introduced an indemnity Bill for the purpose of protecting his Government from the results of having five Under-Secretaries in the House when it should have had four. The matter was treated as one of importance, and there was discussion on it; and not only the Prime Minister appeared, but Mr. Stanley Baldwin, Mr. Lloyd George, and Sir William Jowitt, and a number of other prominent hon. Members took part. What was said by Mr. Baldwin on that occasion might explain why the Government, this evening, thought that this matter was -not important enough to bring on during the day.
Mr. Baldwin was then Leader of the Opposition, and there was a Labour Government on this occasion of precedent. Mr. Baldwin said on that occasion:While 60 years ago this question might have afforded a pleasant subject for debate for days, today the situation is different. It might have been very culpable to have made such a slip, a regrettable one, 60 years ago; it is today much more understandable, and while 60 years ago there might have been blame attaching to so admirable a Government as that of Lord Palmerston for not having seen this grievous wrong, today so many are the faults of the Government that it does not matter."—[OFFICIAL REPORT, 3rd December, 1929; Vol. 232, c. 2213.]Today, so many are the faults of the Labour Government that it does not matter if there is one more. Is that not the least of the reasons why we are asked to deal with this matter as one which is so small?
§ 10.54 p.m.
§ Sir Herbert Williams (Croydon, East)
I am anxious to take part in this debate because I think I was the first person, as a result of your Ruling on Statutory Instrument No. 143, Mr. Speaker, to say that an indemnity Bill was necessary. I think that all of those of us who have 348 been in the House at all for a considerable time are a little blameworthy because I remember 24th August, 1939, when I was on holiday, and learned through the B.B.C. that your predecessor, at the request of the Government, had called a meeting of the Commons that day.
We were summoned technically by the "London Gazette," but, in fact, by the B.B.C. It was all because of the disgraceful appeasement treaty between Hitler and Stalin and we had a general debate on the situation and out of the cubby holes of the Committee of Defence there was produced the Emergency Powers Bill. That Bill passed through all stages in this House and in another place and received the Royal Assent before we went home, three hours after it was introduced. It was unfortunate. We were standing in front of the "tapes," gossiping in the Lobbies, talking in the Smoke Room, and doing all the things which the House does at a time of great emotion, and very few of us took any active part in the discussion on the Emergency Powers Bill.
Looking around the Chamber tonight, I should say there are probably fewer than one-third of right hon. and hon. Members present now who were present on that very emotional occasion. If we had only taken more trouble then about the emergency regulations, this problem would not, in all probability, have arisen. I see the hon. Member for Stoke-on-Trent, South (Mr. Ellis Smith), nodding in agreement.
§ Mr. Ellis Smith (Stoke-on-Trent. South)
We have to remember the atmosphere and the circumstances then.
§ Sir H. Williams
Certainly, but that was when this trouble began.
We had before us then a Bill of the utmost constitutional importance, which passed through both Houses of Parliament and received the Royal Assent, in only three hours, and this afternoon I checked it in HANSARD. I remember suggesting to some of those in authority afterwards that a Joint Select Committee of both Houses should be appointed to examine that great mass of emergency legislation—we used to pass 10 bills a day—and to examine the orders made under them. My suggestion did not meet with much approval.
Everybody was emotional, and it was not until about two years later that some 349 of my hon. Friends and I decided to form a little group to examine delegated legislation. Over that period, we have between us examined some 30,000 orders, which is not an easy task. But, after a bit, one gets somewhat expert at it. We discussed all the snags when, I think, the then Home Secretary, now the Foreign Secretary, came to the House in the whitest sheet he has ever worn, and apologised. I pay him every tribute for apologising about the great mistake made over the National Fire Services Act. There was a great irregularity and on the 1st August, 1944, we had a debate in which I took part, and the Government of the day thought it sufficiently important to bring the debate on as the first Order of the Day.
I think it is an absolute scandal that this constitutionally important Bill was not started tonight until 10 p.m. I agree the Government is in a jam for time, and we are inclined to be a bit forgiving because we want to get away on 3rd August. But this is a Measure of the utmost constitutional importance and I was promised in answer to a Question that this Bill would be presented to Parliament before the 30th June last. We did not get it until the 18th July. The Bill should have been before us three weeks ago.
Let me take the minds of hon. Members back. We had a rather lively night on the 8th-9th March when we had a number of Prayers on the subject of rising prices and, on that occasion, I moved the second of those Prayers on the subject of related schedules. The Home Secretary dashed out to the Vote Office and came back with a whole number of copies of the wrong related schedules. The correct ones were not available. That is the first time we got rather interested in related schedules.
When Mr. Speaker, on that day in April, said that Statutory Instrument No. 413 was not there, and my hon. and gallant Friend the Member for Scotstoun (Colonel J. R. H. Hutchison) was told by you, Sir, that he could not pray against what was not there, the Government got into a real jam. I wish hon. Members opposite would take more interest in this problem of delegated legislation instead of making disorderly noises when we speak about it.
§ Sir H. Williams
After all, these orders are just as important as Bills, and yet Members opposite think it is a lovely joke to interrupt us when we speak on them. I have devoted part of my time as a Member of the House and part of my time when I was not a Member—but was anxious to help hon. Friends of mine who were Members while I was not—to the study of this problem.
Now the Government are in a jam. The interesting thing is this. We had from the Attorney-General and my hon. and learned Friend the Member for Northants, South (Mr. ManninghamBuller), the interesting indication that this Bill is not necessary. Where are we? We pass Acts of Parliament in which we lay upon the Executive, in certain cases, the obligation to make affirmative orders. That is easy: they have got to do it. In the majority of cases the provision, however, is that they can be objected to by Prayer within a specified number of Parliamentary days, now generally 40.
Now we have this stated to us: that if the Government fail to lay orders in proper form they are legal for all time, though this democratic Assembly is deprived of its powers to move Prayers against them. That indicates to me that the Statutory Instruments Act, 1946, must be amended, because otherwise the whole procedure is a complete farce.
Members on both sides, irrespective of their party affiliations, will agree with me that if the House confers upon Ministers the power to make laws by delegation, and provides that Parliament can challenge those laws, it becomes completely monstrous if, through the failure of Ministers to go through certain motions, the House is deprived for all time of the right of opposing those laws. That is the complete dictatorship of the totalitarian State. Therefore, my purpose tonight is to ask that the Government—or the Government to be from this side of the House—shall take into the most urgent consideration the necessity of amending the Statutory Instruments Act, 1946, in such a way that if there is a failure to lay delegated legislation, so that hon. Members are prevented from praying against it, the delegated legislation shall lapse within some period or another.
351 We are told by the Attorney-General and by my hon. and learned Friend—and I had some conversation with him earlier, and I think that he is right—that all these things we are validating tonight have been effective law all the time, though it is necessary at this moment to move a Bill to say that all those who have committed these breaches of law are not guilty. I think that that is a state of affairs so monstrous that this Government or a future Government must take into account providing against a repetition of such a scandal. Both sides of the House are involved.
§ Mr. Ellis Smith
We all know that the hon. Gentleman is an outstanding example, from the Conservative point of view, of hon. Members who have taken the keenest interest in this matter. I am speaking from memory, and if my memory is at fault perhaps the hon. Gentleman or some other hon. Gentleman will correct me, but I remember that a Committee was set up to examine such orders as these before they were laid on the Table. If I remember rightly, the advice of Sir Cecil Carr was available to a great extent. Would not that machinery have enabled the Government to have avoided this mistake?
§ Sir. H. Williams
It was the group of Members I founded, of which the present leader is my hon. Friend the Member for Mid-Bedfordshire (Mr. Lennox-Boyd), whose absence, and the reason for it, we all regret. He had an operation yesterday and I am glad to say that he is making good progress.
It was as a result of our activities during the war that the Select Committee on Statutory Instruments was appointed —with very restricted powers. After 1945 that Committee was re-appointed with rather more extended powers. That was largely due to the Foreign Secretary, to whom I pay tribute for that. The Statutory Instruments Act, 1946, improved the situation because it unified the whole procedure, and brought under review a great deal of delegated legislation that previously could not be prayed against.
That Committee, the Chairman of which, the hon. Member for Farnham (Mr. Nicholson), is present, and who, I hope, will take part in this debate, still has very restricted powers. They have 352 the guidance of the counsel to Mr. Speaker, to whom the hon. Member for Stoke-on-Trent, South (Mr. Ellis Smith) has referred. I look through these orders every week; there are up to 50 in some weeks; and it does not necessarily follow that that Committee, with all the assistance they have at their disposal will become aware of the fact that a document is incompletely laid. What I am suggesting is that if a mistake is made in laying and that mistake is revealed, then obviously it should not be regarded as good law for eternity.
The point made by both the Attorney-General and my hon. and learned Friend in their persuasive speeches makes it perfectly clear to me that these things have been valid law all the time, and yet the House has been deprived of that opportunity conferred upon it by statute of praying against them. That seems to me to be a complete denial of the democracy in which both sides agree. and I therefore very much hope that as a result of this debate, urgent steps will be taken to examine the terms of the Statutory Instruments Act, 1946, so that in due course we shall have a statute which protects not merely Ministers but the public interest. After all, lots of people have been fined under these Instruments, for the making of which we are indemnifying Ministers, but we are not returning the fines of those people, or compensating them for any imprisonment they may have undergone, because the Attorney-General has said that they were valid all the time.
I have tried to make my protest, I hope in moderate terms, but nevertheless with some measure of passion, because I have taken a tremendous interest in this problem for 10 years. I hope that as a result of this debate we shall, in due course, pass an Act of Parliament which will put the whole thing on a satisfactory basis.
§ 11.7 p.m.
§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
The very fact that the learned Attorney-General has had to stand at the Treasury Box and offer, as he did very handsomely, the apologies of His Majesty's Government and to seek the authority of this House for the validation of 183 specified Statutory Instruments, as well as an unknown number of unknown ones, surely makes clear beyond doubt, if it makes clear nothing else, that the 353 confusion on the subject of delegated legislation requires urgent and immediate action to clear it up.
As my hon. and learned Friend the Member for Chertsey (Mr. Heald) said, if hon. Members in this House are in a difficulty in this matter, what about the public outside? But I thought he did not go far enough. It is not only a question of the difficulty of this House in understanding the matter. It is the fact that even the Government, with all the assistance of the Law Officers of the Crown, and the legal advisers of the great Departments of State, can go wrong on this—and that, indeed, is the origin of this Bill. In such a situation it simply is not good enough for the Government to come to the House and ask for legislative sanction for the indemnifying of Ministers for their failure to carry out the law and leave it at that.
Before the House gives its consent to this Bill, and gives the Government the indemnity that they ask for, I hope that we shall get from the Government a statement that, in the somewhat unlikely event of their being in a position to carry out the undertaking, they really will, if belatedly, tackle this whole subject of delegated legislation, because a situation in which even the Law Officers of the Crown have to get up and say, "Well, it is all very difficult to follow the exact implications of your Ruling, Mr. Speaker," really is not good enough in a sphere of legislation which affects the every-day lives of every trader—and, indeed, every person in this country.
I thought that the opening of the Attorney-General's speech was infinitely preferable in its tone to the way in which this matter has previously been dealt with from the Government Front Bench. The House will recall that on 24th April the Leader of the House, now the Foreign Secretary, in reply to a Question on this subject, said:It is very far from clear that the practice which has been followed since 1943 of laying with any order, referring to separate schedules, only those schedules which it brings into force and not those which it continues in force and which have been previously laid, involves any irregularity on the part of anyone which would require indemnifying legislation."—[OFFICIAL REPORT, 24th April, 1951; Vol. 487, c. 203.]I must say I was very much relieved that the Attorney-General, in moving the 354 Second Reading of the Bill, said that there was here a clear failure to do what the statute enjoins. That, at any rate, is some progress, but I think it would have been more seemly if the Attorney-General, in coming to the House, and in offering the apologies of the Government for the misuse of power given to it by the House, had been generous enough to pay some tribute to those of my hon. Friends by whose efforts, and by whose efforts alone, this matter was brought to light in the first place.
If the right hon. and learned Gentleman had been altogether fair he would have said that had it not been for the hon. Baronet the Member for Sutton Coldfield (Sir J. Mellor), the hon. Member for Croydon, East (Sir H. Williams) and others, who, by raising these matters and by seeking your Ruling, Mr. Speaker, brought to light any irregularity, there is not the slightest doubt the matter would not have been brought to light at all.
§ Mr. Paget (Northampton)
Has the extraordinary incompetence of the Opposition that this situation displays occurred to the hon. Gentleman? Here are 173 mistakes made by the Government, and not one of them is spotted by the Opposition.
§ Mr. Boyd-Carpenter
I am interested in the hon. and learned Gentleman's definition of incompetence. As I understand it, incompetence consists in spotting an error only two months before His Majesty's Government spot it. If that is his definition of incompetence, I accept the charge, but for the hon. Gentleman—one sometimes forgets the prefix "learned"—that in this particular context is fantastic. Here is a Government equipped with all the advice of the Law Officers and the legal departments, making its own orders, and the hon. and learned Gentleman suggests the Opposition have been incompetent because, without any of the technical assistance open to the Government, they find out an error the Government never found out at all, and would not have found out had it not been for the efforts of my hon. Friends—
§ Mr. Paget rose—
§ Mr. Boyd-Carpenter
I do not know whether the hon. and learned Gentleman 355 is making a better interruption than the last, but I will chance it.
§ Mr. Boyd-Carpenter
The hon. and learned Gentleman cannot even be accurate on the figures. It is 183.
§ Mr. Boyd-Carpenter
The hon. and learned Gentleman seems to be assuming that because certain of his hon. and right hon. Friends thought fit to be in Opposition in 1944 all his colleagues were in opposition. He has not paid sufficient credit to the patriotism of some of his own leaders who were, of course, members of the Government at the very time to which he refers.
§ Mr. Sydney Silverman (Nelson and Colne) rose—
§ Mr. Boyd-Carpenter
I should like to finish with this point first.
I do not think that the hon. and learned Gentleman has very closely studied the Bill, because he will see that the statutes whose interpretation the Attorney-General said in this context were so difficult, are Measures for which this Government were responsible—the Supplies and Services (Transitional Powers) Act, 1945, and the Statutory Instruments Act, 1946. Both these Acts of Parliament were put forward by this Government and they alone are responsible for their defects.
The less the hon. and learned Gentleman applies his ingenious mind into researches into the past, and the more he seeks to attract to himself a small corner of the white sheet in which the Attorney-General was draped, the better. I hope that before this debate ends we shall have some acknowledgment from the Government Front Bench of what my hon. Friends did in this matter, and I hope we shall have it in generous terms.
This Bill is one of the most remarkable that even this Government have pre- 356 sented. There are few precedents for a Bill whose Preamble is twice the length of the Clauses, and when one recalls that the object of the Preamble is to state the reasons for the initiation of the Bill one can understand why that should be so. But it is really not good enough to do two things which the Bill does in addition to the necessary indemnification of persons.
The first is what the Attorney-General called "the omnibus provision"—or what the Leader of the House might call in another context "the last omnibus provision." The right hon. and learned Gentleman sought to defend it by saying that there might conceivably be an order, so far not traced, but which it was desired, none the less, to cover. If that is so it makes something of a sham of the orders in the Schedule. What is the use of listing scrupulously in the Schedule the orders it is sought to validate, and then to slip in a few innocent words to cover orders which might have to be validated?
I do not think it is good enough on an indemnity Bill, which is a serious Measure, for Ministers to seek to extend the provisions to cover any mistake or error they may have committed. It surely is sufficient to indemnify them for the error they know. If they find a few more, as no doubt they will, then let them come forward and seek indemnification for them. But it is quite wrong, when the right hon. and learned Gentleman cannot give an example of any order which this particular provision is acknowledged to cover, none the less to put it in the Bill in case one should turn up. I hope that at a later stage the right hon. and learned Gentleman may put up a fuller justification of these words than he was able to give tonight.
The other point concerns subsection (2) of Clause 1. I understand that we are here validating all these orders, whether they are in effect or not. I do not know—and the Attorney-General did not tell us—how many of the 183 orders are still in effect. I hope the Solicitor-General will tell us, because that does set the problem a little bit in proportion. I make a distinction between those orders no longer in effect where we are simply trying to prevent trouble being caused in relation to matters whose effective consequences 357 are over, and cases in which orders are still the law of the land.
All those orders have not or cannot have been properly laid. I see no reason in the case of orders which are still the law of the land, and which have not been properly laid, why they should not be laid now, and why their validity should not depend on their being laid now. There are two strong reasons for that. As my hon. Friend below the Gangway has said, the failure of Ministers has deprived the House of some measure of control over these Measures.
If we are to indemnify Ministers for their failure surely we are entitled to demand the restoration of our rights in so far as it is physically possible to do so. It is not possible to do so in respect of orders no longer in effect and I do not refer to them. But I see no reason why orders which the Government desire to keep in effect as part of the law of the land, and which, ex hypothesi, they have failed to lay properly before the House in the proper form, should not be laid and should not be subject to ordinary Parliamentary process.
Another practical advantage is this. How is any citizen—trader, worker, or whoever is concerned—to find his way through the morass of the law? If laid with schedules attached in the proper way, orders will be properly available and properly reprinted and bound in the volumes of Statutory Instruments and it would be possible for those who desire diligently to inquire into these matters to find out what is the law of the land. But if they are not laid—and we know these have not been laid and have never been properly related to the schedules attached —how can anybody find out what is the law if he so desires?
It seems to me that two advantages would be obtained by having relaid—or perhaps I should more particularly say—laid for the first time, all orders which the Government desire to keep in effect under this Bill. Parliament will thereby have re-asserted its rights, and when Parliamentary sovereignty is being challenged in many parts of the world, that is no small consideration. In the 1944 case the orders were relaid and the right hon. and learned Gentleman, who apparently regards everything done in 1944 with such uncritical enthusiasm, will no doubt regard that as an encouraging precedent.
358 I put this to the Government and to the House. The Government have come and asked to be indemnified for their errors. It is manifestly in the public interest and for the avoidance of confusion that in due course they should be indemnified, but the House should equally insist on their rights of Parliamentary control of delegated legislation, of having orders laid before them. It is equally important that we should try to get this branch of the law into some understandable and available form.
§ 11.24 p.m.
§ Mr. Charles Williams (Torquay)
I think I have heard most of the indemnity Bills during a considerable number of years. This Bill is different in three ways from the other Bills I have heard discussed. First of all, it is not a Bill for indemnifying any person or one or two persons for one fault; it is a mass indemnity of many people for many mistakes over many years. The second difference is that when we have had a mistake of this kind in the law before, it has always been brought up for debate by the Government early in the day, so that the country might know that the Government have made a mistake and that it is being put right.
Tonight it is being deliberately brought up when it will get the least possible amount of Press publicity. The third difference is that always before when we have had a Bill of this kind, the Minister who has brought it in has done so with a full sense of apology, which the House expect on these occasions, and with a full meaning, without trying to make mistakes seem little errors. I only wish that I had had at school the capacity of the right hon. and learned Gentleman to make my mistakes sound so little to my teachers. I should have had a much easier time if I had. I never heard a Law Officer of the Crown make less of a serious affair, which ought to have been published at the proper time and with proper discussion. Those are the three differences between this Bill and a normal Bill.
My hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) has said we are giving indemnity to those Members of the Government who have made mistakes, but what about the people who have been 359 prosecuted under the illegal orders? Are they to be given back the time they spent in prison, if they were sent to prison for an alleged offence under these orders? Are they to be given back their fines? They had not broken the law, because it is not the law of the land until these orders have been laid properly. The Government have been solicitous about their own indemnity, but have they taken any action to indemnify all those prosecuted under the illegal orders?
They must have taken trouble about this Bill and have found out about that clear point which they realised must be raised in the course of our proceedings. They have no right to come to ask for indemnity for themselves, unless they are prepared to let the House know how other people have suffered. This Bill shows that we have in this country, instead of clear and simple legislation, complicated legislation, backed by orders so innumerable that it is impossible for Parliament to know about them.
That is the position we have got into, and whatever Government is in power in the autumn—and it will not be the present one—will have to turn its mind to cleaning up our procedure for rules and orders so that they are simplified to the extent that the House of Commons can understand them and are not of such numbers that it is impossible for the House of Commons to understand them, except for a few experts, or for the ordinary citizen to follow them because of their multitude.
It is a very big question the House, of Commons will have to examine and decide in future. Unless it is done there will be endless confusion in the law. Nothing is worse than having a Minister break the law, thus bringing the law into contempt, and for this reason the House will have to deal with this urgent matter. The Bill will be passed with the usual courtesy which the House gives on these occasions, but I welcome the opportunity tonight of protesting against the system which creates it.
§ 11.30 p.m.
§ Mr. Godfrey Nicholson (Farnham)
Although my interest in this matter arises from the fact that for the last 18 months I have had the honour of being Chairman of the Select Committee on Statutory 360 Instruments, I must disclaim any pretence to speak for the Committee. As far as I can recollect I have not discussed, the matter with any Member of the Committee; indeed, it would have been, highly improper for the Committee to have considered this Bill, as it would have been outside their terms of reference.
I have not had the advantage of a legal training, so I will not say much about the steps the Government have taken to get themselves out of the dilemma in which they find themselves. Rather I shall address myself to the real causes of the dilemma. As far as the remedies proposed in the Bill are concerned, I cannot for the life of me think that the Bill is necessary. It does not validate anything that was invalid. All it does is to relieve certain Ministers of the very slight risk of being charged with a common law misdemeanour in not having done something Parliament ordered them to do. I should have thought that risk was minuscular, and that it hardly justified the immense amount of research in the Departments, and the immense thought given to the subject before the Bill was introduced.
The really interesting question is how this dilemma has arisen. The answer I venture to put before the House is that it has arisen owing to the practice, which I can only call pernicious and dangerous, of indulging in related schedules and deposited schedules. I do not think anybody knows the difference between,hose two, and I shall refer to both as related schedules. Related schedules are not Statutory Instruments. They can point to no parent in the sense of an Act of Parliament or a Defence Regulation. Legislatively speaking, they are illegitimate. Defence Regulations 55. 55AA and 55AB do not authorise them, and it is impossible for anybody by any research to find any justification or legalisation for them.
§ Mr. Ellis Smith
The hon. Member has great experience, but it is not fair to say they have no parents.
§ Mr. Nicholson
No. I suppose everything has a parent, but they do not know their father. That is the trouble. The fathers of the related schedules cannot be traced. They are excrescences in the field of delegated legislation. They have been 361 allowed to arise for reasons of Departmental convenience, and the result has been to allow Departments to indulge in delegated legislation in a more slack and less tidy way than otherwise they would have done.
If there had been no related schedules this Bill would not have been necessary. I ask for an assurance from the Government that in future Statutory Instruments will be self-contained. There is no reason at all why everything contained in a related schedule should not be contained in the original Instrument. Statutory Instruments must be self-contained if they are to be understanded of the people.
On the more general question of the confusion in which the whole field of delegated legislation finds itself there would be material for many and long speeches. I do not propose to go on for very long. The measure of the confusion may be found in the fact that this House has set up a Select Committee to deal with delegated legislation, and that, on the average, that Committee see well under half of the Statutory Instruments that are promulgated. It will be found that during this Session they have seen about 5/13ths of the Statutory Instruments that have appeared and have the force of law.
The whole field of delegated legislation is in a complete muddle. Some years ago a Select Committee on Procedure was set up. It reported in 1946 and expressed the hope that a proper inquiry would be set on foot to bring some order into this department of legislation. I plead with the Government, and with the next Government, wherever it may come from, to give us that inquiry, and to try to consolidate this branch of law. Many of these Statutory Instruments are issued under legislation, or derive their authority from, legislation passed before either the negative or affirmative Resolution procedure was envisaged.
I could give many examples of that. There is no common body of policy linking all these parent Acts together; no standard line of procedure is laid down. The result is that delegated legislation is haphazard and higgledy-piggledy. One gets confusion and rulings from Mr. Speaker, which cause these sort of Bills to be brought forward. One will get confusion among the people who have to order some part of their lives by dele- 362 gated legislation. For the man in the street these things are really of greater significance than Acts of Parliament. For Statutory Instruments govern the lives of the ordinary man and woman more than statutes do.
I hope that the House as a whole will take warning from this sorry story. It is a sorry story when the Government have to bring in an indemnity Bill of this nature. The whole subject needs to be inquired into and ought to be cleared up. As a start, I would urge the Government to give me an assurance that in future Statutory Instruments will be self-contained, and that the related schedule will become a thing of the past.
§ The Clerk at the Table informed the House of the unavoidable absence of MR. SPEAKER from the remainder of the day's Sitting.
§ Whereupon Major MILNER, THE CHAIRMAN OF WAYS AND MEANS, took the Chair as DEPUTY-SPEAKER, pursuant to the Standing Order.
§ 11.37 p.m.
§ Colonel Gomme-Duncan (Perth and East Perthshire)
It is with timidity that I, a simple soldier, intervene in this abstruse legal discussion. I feel particularly diffident because the learned Attorney-General has said what a difficult and complicated matter it is. If it is a difficult and complicated matter for him, it must be much more so for me. From my reading of the Bill, I assume that it is not applicable to Scotland. I hope that I shall have confirmation of that from the Solicitor-General, or whoever is to reply. I see that the Bill is presented by the President of the Board of Trade, supported by the Minister of Supply and the learned Attorney-General. There is no mention of the Secretary of State for Scotland, or of the Lord Advocate.
What we have heard tonight shows to what a dreadful state of affairs this delegated legislation will bring us. The Preamble alone, as my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) said, is longer than the rest of the Bill. That, in itself, is a confession of something very wrong. To hear the learned Attorney-General, with all the ability at his command, trying to explain why different bits of paper which ought to have been stuck on were not stuck on, or which ought not to have 363 been stuck on and were stuck on, is an indication that something is wrong.
Can we have a categorical answer from the Solicitor-General, or whoever is to reply, to the question put by various of my hon. Friends: Who is indemnified by the Bill? We know that Ministers are. But what about the persons who may have been fined or imprisoned? What about the police, the magistrates, and others? Have any persons been imprisoned or fined under any of the orders, who ought to be indemnified just as much as the Ministers concerned?
The 1944 case, which I think was in the August, was the subject of what I might call an abject apology by the then Home Secretary, now the Foreign Secretary. I notice a very different attitude on the part of the Government now because, far from an abject apology, they merely state that they have misconstrued some abstruse legislation for which they are responsible. What the present Foreign Secretary said in 1944 was:There lies on every Minister a heavy responsibility to secure meticulous observance of a mandatory duty imposed on him by Act of Parliament. When Parliament has enacted that Regulations shall he laid, failure to comply with that enactment is a grave offence by the Minister responsible."—[OFFICIAL REPORT, 1st August, 1944; Vol. 402, c. 1218–9.]These were the words of the then Home Secretary, but I noticed nothing so impressive in the excuse put forward by the learned Attorney-General tonight. The present Foreign Secretary's colleague, then Mr. Pethick-Lawrence, on that same day, said:What the House wants to be satisfied about is that this kind of thing shall not happen again‥‥and this was after the then Home Secretary had made his apology; Mr. Pethick-Lawrence later said:I imagine that as soon as the matter was brought to the attention of the House by the necessity of introducing this Bill, they …that is, the Departments concerned,put their own house in order, but I think it would he just as well if we had a positive assurance from the Attorney-General."—[OFFICIAL REPORT, 1st August, 1944; Vol. 402. c. 1223.]These are two statements from two responsible right hon. Members of Parliament—one now of another place. The desire was that what had happened should not happen again. That was 364 what one assumed, but now we have the same thing on a far greater scale than in 1944, and one is entitled to ask if there is anything wrong with those in charge of Departments, or with the Departments themselves. When the learned Solicitor-General replies, I hope that we shall be told, conclusively this time, and not as in 1944, that Departments have been warned, and that administration has been tightened up to ensure that this sort of thing does not happen again. I earnestly hope that we shall get that assurance, because free British people should not be penalised under laws and regulations made by Ministers who have not the right to do so.
§ 11.44 p.m.
§ The Solicitor-General (Sir Lynn Ungoed-Thomas)
We have had a searching debate upon this Bill, and I should like, so far as is possible, to try to answer the numerous questions raised during the discussion. The convenient method may be to deal first with the questions raised by the hon. and learned Member for Northants, South (Mr. Manningham-Buller), and those other speakers who, in a number of cases, reiterated the various points which he made.
In the first place, it is desirable to have a perfectly clear idea of the fault which occasioned the need for the National Fire Service Regulations (Indemnity) Bill; and that is not the same as that which occasioned this one with which we are dealing tonight. In the case of the former, the fault was that the orders were not laid "as soon as may be", if I may quote the relevant words, because of inadvertence. The trouble with which we are concerned tonight is not that at all; the trouble here is the difficulty of appreciating precisely what was required to constitute a technical laying.
§ Mr. Manningham-Buller
I never sought to suggest that the failure was the same. One was a failure in not laying at all and the other, in relation to these 183 orders, was in not laying them properly.
§ The Solicitor-General
Well, laying them inadequately. I do not wish to quarrel with the hon. and learned Gentleman over this, because the difference between what occurred in the National Fire Service Regulations (Indemnity) Bill and this Bill is clear.
365 I wish to show that it is not a repetition, on this occasion, of the fault which occurred on a previous occasion. I gladly acknowledge the candid observations of the hon. Member for Croydon, East (Sir H. Williams), that we are all in this, that there are Conservative Ministers involved, as well as Labour Ministers, and that all parts of the House, in the exercise of their duty, cannot be considered completely free from the smallest shadow of responsibility. But that does not make it the less necessary to consider this in a very searching way, and I am not suggesting that for one moment.
May I come to the specific questions asked in the debate? The main and dominant question was with regard to the legal effect of not laying and the need for the indemnity which is connected with it. It is necessary to keep clearly in mind, (1), the legal effect with regard to the operation of the order; (2), the legal responsibility arising from not laying the order properly. My right hon. and learned Friend the Attorney-General indicated that his view was that the non-laying of the order does not make it inoperative. I can, perhaps, usefully refer, in view of the observations made in the debate, to the speech of the then Attorney-General at that time, Sir Donald Somervell, in the debate on the National Fire Service Regulations (Indemnity) Bill. With regard to the operation of the order, he said:My hon. Friends took the view—and there is a good deal to be said for it—that the failure to lay, although a grave error and an omission on behalf of my right hon. Friend, does not invalidate the Regulations. You cannot say, 'This ought to have been laid on 1st June and it is now 30th June, and, therefore, it becomes invalid,' just as if it had been annulled by a Prayer. They say that, if that is so, the latter part of Clause 1 is unnecessary.I think that my hon. and learned Friend the Member for Ilford, while accepting that legal point of view, thought—and others have said the same—that, whatever the legal position, it was constitutionally right that, if there had been an omission to do what the Statute said should be done, it was right not merely that there should be a statement to the House, but that the matter should he dealt with in a Bill which the House could discuss.I agree with that, and I would say that, although my two hon. Friends may be right on the legal position, it is possible, as my hon. Friend the Member for Gorbals (Mr. Buchanan) said, for an argument to be raised on the other side, and for someone to say that these words go to the root of the matter, and that if a substantial time had elapsed the court 366 ought to hold the Regulations invalid. Obviously, doubts must he cleared up, and that is done in the Bill.I also agree with those who say that, although the legal position may be fairly certain, it is constitutionally right in the circumstances for the House to he asked to pass a Bill in these terms."—(OFFICIAL REPORT, 1st August, 1944; Vol. 402, c. 1245–1246.)Here, similarly, with regard to the operation, my right hon. and learned Friend has already indicated his view that the orders are operative under the relevant acts. Second, of course, it cannot be said that the matter is completely free from a single shadow of doubt. Third, when we come to consider the indemnity point, it is right, for the reasons which I need not reiterate, which were given so completely by the then Attorney-General in the passage I have quoted—it is constitutionally right—that the Government should come before the House and ask it for an indemnity, and not merely leave it to some explanation and a general debate of that kind. Therefore, I hope for these cogent reasons that both aspects of this Bill will commend themselves to the House—first, the aspect of indemnity, and, second, the aspect that the orders should be made operative without any shadow of a doubt at all attached to them.
Now I pass on to some of the other questions that were raised. Both the hon. and learned Gentleman the Member for Northants, South, and the hon. Gentleman the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) raised the question of the omnibus cover for other Departments. A full examination has been made. We have tried to find out any order which bears a resemblance at all to the orders which we have here scheduled in this Bill. As far as we know, these are really the complete orders. There are no others at all that we know of; it is very unlikely that there is any other order.
The reason for including this omnibus provision is that given by my right hon. and learned Friend in opening the debate. I can only repeat what he said—that it is undesirable, should there be by any chance some other order within this category, when the House will have decided this on principle—I am taking it now on that footing—that we should come back with another Bill to deal with one particular order. We are dealing in this Bill with the principle. We ask the 367 House to approve the principle. We come forward with every single order that we know of, and then we ask the House to say that the reasonable course is, having taken this precaution, to say that it will approve the Bill with the provision which is now contained in it.
§ Mr. Manningham-Buller
The hon. and learned Gentleman will agree that that extension does go beyond the two Ministries which are the only two Ministries his right hon. and learned Friend said had made these Instruments with related schedules?
§ The Solicitor-General
I agree that it. goes beyond those two Ministries. I quite agree, but, as far as we know—we can examine this further at a later stage—no other order will come within the Bill. We are asking for this Bill as a precautionary measure for the reasons which I have already given. It is merely to prevent a repetition of coming back to the House when the House, ex hypothesi, has agreed.
Now I pass on to another matter, which was particularly stressed by the hon. Gentleman the Member for Kingston-upon-Thames. That was with regard to the number of orders which were in operation and how far those orders have now been properly laid. There are five orders which are now in operation, four Board of Trade orders and one Ministry of Supply order. With regard to three of the Board of Trade orders, the schedules which have not been properly laid have been superseded by other Schedules, and so they are outwith, if I may so express it. With regard to the fourth, that was re-laid with S.I. No. 1100 of 1951. That order was debated on 17th July this year. So I trust that that point is covered.
§ Mr. Boyd-Carpenter
May I ask the hon. and learned Gentleman a question about the three orders? As I understand it, the schedules originally attached to those orders have had other schedules substituted. The basic order remains in force. What then is the difficulty about laying the basic order with the new schedule?
§ The Solicitor-General
Because the original order is there, and the original order is available, as it is now in operation, with the new schedule under the new order. I would gladly meet the hon. Gentleman if there were any substance in this, but when he reconsiders this I hope he will see that there is no substance in what he is now saying. The orders are there complete; the schedules are there complete; the whole things as now in operation are, in fact, available, and are properly laid.
The Ministry of Supply Order was Order No. 252 of 1951, and is the one subject to Mr. Speaker's Ruling. That, of course, has been properly laid, so that as far as the operation at the moment is concerned I trust that everything is in order.
I pass on to the observations of the hon. and learned Member for Carmarthen (Mr. Hopkin Morris). I regret that he is not here, but he has explained to me that, unfortunately, he has had to leave. He raised a question on the words "to be incurred." I do not want to enter into a great dispute about these words. They were included, and there was a justification, which was mentioned by my hon. Friend the Member for Oldham, West (Mr. L. Hale). They were inserted largely because the same words occur in the 1944 Act, and we thought it was desirable to follow the 1944 Act as far as possible.
Hon. Members will appreciate that we have done so as closely as we can in this Bill. If there are any really strong objections to these words which can be substantiated in Committee, then I certainly would not suggest that they would not be sympathetically considered. There are the points made by the hon. and learned Gentleman; but, on the other hand, there are the points made by my hon. Friend the Member for Oldham, West, and I hope the House will consent to consider that as a matter which can properly be dealt with in Committee.
The hon. Member for Farnham (Mr. Nicholson) mentioned the long-standing grievance about the related schedules, and how far they could be laid as part of the order. I am sure he will appreciate that the difficulty there is that, if the related schedules were made as part of an order 369 and always included as part of the order, we make an extremely bulky document of the order. It would not only make the order an extremely bulky document, but an instrument which would contain a tremendous amount of unnecessary material for those tradesmen and others who require to study the order. That is a sheer waste of money, paper, and so on. It is for that reason that the related schedule principle has been adopted, as much for the convenience of the very persons who use the orders.
§ Mr. Nicholson
Does the hon. and learned Gentleman not see the impropriety of publishing documents which, in the eyes of the public at large, are assumed to be Statutory Instruments which have the force of law, but which are not Statutory Instruments? It is only right that the man in the street should have in his hands the legal authority for acts which may be put upon him, and for the orders he has to obey. I beg the hon. and learned Gentleman to look at it from still another point of view, the fact that it is an invitation—
§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
The hon. Gentleman must not make a second speech.
§ Mr. Nicholson
May I just finish my sentence? I suggest that it is an invitation to Departments to be slack in their delegated legislation.
§ The Solicitor-General
I really cannot agree with that. I have given the explanation which has been given by more than one hon. Member for adopting this particular method. This method is convenient for tradesmen. It is the method which, in fact, was adopted because it was found convenient for the very people who use these orders.
I now come to Scotland and the hon. and gallant Gentleman for Perth and East Perthshire (Colonel Gomme-Duncan). This Bill does apply to Scotland and I hope that he will not take any great offence at that. The other point he raised 370 was with regard to the people who had been fined, and so on. Of course, the hon. and gallant Gentleman will appreciate that everybody has acted upon the footing throughout that these orders are valid, operative orders. Everything has been done on that footing. Not only that, but as my right hon. and learned Friend indicated, these orders are, in our view, operative orders; in other words, they are completely effective. There is no question of anybody having been improperly fined and still less can there be any question of an indemnity arising on that footing. Therefore, that question does not arise.
§ Colonel Gomme-Duncan
First of all, on the point of Scotland. It was established that it applied not only to the Ministry of Supply and the Board of Trade, but other Departments were indemnified. Therefore, the Department of the Secretary of State for Scotland is included. In that case why is the Secretary of State not here? Why does his name not appear on the Bill—or at least that of the Lord Advocate, along with that of the Attorney-General?
§ The Solicitor-General
There are other Departments who may be concerned, but their names do not appear on the list.
I come to the observations made by the hon. and learned Gentleman for Chertsey (Mr. Heald), who spoke with his usual fairness. There was one part of his speech by which I was intrigued. I could not quite understand why he made reference to the original Indemnity Bill of 25 years ago, unless it was to find out why the Leader of the Opposition thought fit to be there on that occasion, when he did not think fit to be here tonight.
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Committed to a Committee of the whole House—[Mr. Bowden]—for this day.