CLOSED HIGHWAYS (REVOCATION ORDER) (Hansard, 7 March 1951)

§ Sir Herbert Williams (Croydon, East)
I beg to move, That an humble Address be presented to His Majesty, praying that the Order, dated 10th February 1951, entitled the Stopping up of Highways (Various) (Revocation) (No. 3) Order, 1951 (S.I., 1951, No. 220), a copy of which was laid before this House on 12th February, be annulled. When I put this Motion on the Order Paper, I had not anticipated that only today there would be in the Vote Office the Third Report of the Select Committee on Statutory Instruments, which I have only had time to look at somewhat briefly.

§ Mr. Speaker
There are three Orders and the point is the same in all of them: would it not be convenient to discuss the three on the first?

§ Sir H. Williams
I have no desire to discuss any but the first Order. The others are put down to draw attention to the principle. There are two others which we could have prayed about on Friday, but we thought it would inconvenience hon. Members if we had a debate late on Friday. I do not want to move the Motions relating to the other two; I want the debate to take place on the first.
The Third Report of the Select Committee, ordered by the House to be printed on the 5th, was available in the Vote Office today. It would be improper for me to read it now, but I hope hon. Members will read it. It draws attention to delays in the presentation to the House of Statutory Instruments, and that is one of the points I wish to raise in moving this Prayer.
There are three Acts involved in this Order—the Emergency Powers Act, 1939, and Defence Regulation 16 under that Act; the Requisition of Land and War Works Act, 1945, and the Requisition of Land and War Works Act, 1948. The matter is of some complexity. Perhaps these Orders can be challenged in the courts, but I think it is right that they should be challenged in this House, to see whether the Acts have been properly complied with. The Acts laid down certain procedure, and in the Statutory Instruments Act. 1946, which amended the Rules (Publication) Act, 1893, certain procedure with regard to Statutory Instruments is prescribed.
616 My impression is that the Acts of Parliament have not been properly complied with. Therefore, I am inclined to think there may be some challenge before the House as well as what may happen in the courts as to whether these Orders are valid. When Black Rod appears and we are asked to go to another place and hear the Royal Commission read, in that Commission we are told about "good and perfect Acts." That has no relation to their merits. The phrase means that the courts have to take cognisance of them and that all the King's horses and all the King's men can be used to enforce them.
I understand that it would be quite improper for me to indulge in any argument about the merits of the three Acts I have mentioned, but I am entitled to ask whether the Minister has done what is necessary. It is important that hon. Members should realise that in this matter we are standing for Parliament and not for party. Hon. Members opposite always think of themselves as supporters of the Government, but the time will come when they will find themselves supporting an Opposition, and their present state of mind will be altered. Few hon. Members opposite have had that experience. Only a remnant of them will have it shortly. But that remark is made just in passing.
During the last 10 years I have had a standing order with the Vote Office whereby every Friday I received a complete bundle of the Statutory Instruments. I tacitly assumed that every Statutory Instrument reached me; but I had no knowledge of the three Statutory Instruments to which these Prayers relate until, by chance, I read the Second Report of the Select Committee on Statutory Instruments and found a reference to the five Statutory Instruments to which I have referred. I was rather surprised that I had not seen them. I went into the Vote Office some days ago, and said that I wanted copies of them. Then, to my amazement I found that there was none available. It seemed to me to be most improper because. in view of the terms of the Select Committee's Report, I knew that they were prayable Instruments. If we could move a Prayer, in respect of them—

§ Sir H. Williams
According to the conventions of the House, under Standing Orders I do not think that the hon. Member can indulge in that effort for another hour. That may comfort him. As I was saying, although I look through these Orders every Friday, these particular Orders did not reach me. It was only upon reading the Second Report of the Select Committee on Statutory Instruments—I think it was the Second Report—that I discovered that these Orders had been made. I found that they were prayable Instruments.
While it might not be unreasonable that any Statutory Instrument in respect of which we can take no action should not be available in the Vote Office, it seems to me to be fundamentally wrong that Statutory Instruments in respect of which we can take action, should not be in the Vote Office. I made inquiries, partly by Questions and partly by visiting the Library. In regard to the Question which I asked the Minister of Works on 6th March, I got this answer: These Statutory Instruments were laid before Parliament in the normal way by depositing three copies in the Votes and Proceedings Office, and two copies of each have been available in the Library since the dates of laying. At the same time 15 copies were sent to the Select Committee on Statutory Instruments. The Instruments are revocation orders and of local interest only, and it has not been the custom to make extra copies available to hon. Members through the Vote Office."—[OFFICIAL REPORT, 6th March, 1951; Vol. 485, c. 45.] If the right hon. Gentleman who gave me that answer will take the trouble to read the Statutory Instruments Act, 1946, he will find that it is the duty of the Stationery Office to number, print and circulate these documents. The Stationery Office, to whom I addressed this question, had it transferred to the right hon. Gentleman; they quickly got rid of it to him. He gave me a very strange answer. I was also concerned with the principle involved. I addressed the Question to him because he had signed the Order, but by this strange process of abdicating responsibility, he shoved it off on to the Minister of Transport.
The name at the end of the Order is "R. R. Stokes, Minister of Works." That, in itself, is all right, but he is not Minister of Transport. But the question addressed to him was not answered by him; it was answered by the Minister of Transport. It seems all very strange to me. I asked 618 that a Bill should be introduced to amend the Requisitioned Land and War Works Act, in view of the fact that Orders under it to close up highways were not debatable in the House, while Orders to reopen such highways were debatable. The Minister of Transport replied: I do not think that such a Bill is required. The Act contains sufficient safeguards in regard to the closure of highways by its provisions for dealing with objections, for reference to the War Works Commission in the event of sustained objections, and for reference to Parliament of any case in which departure from a report of the Commission is proposed."—[OFFICIAL REPORT, 6th March. 1951; Vol. 485, c. 51.] Now, that answer is complete and unadulterated nonsense because these Orders which he is repealing were not made under that Act. They were made under Defence Regulation 16 of the Emergency Powers Act of 1939, and not the Requisitioned Land and War Works Acts of 1945–48. The answer was nonsensical. So I have had two nonsensical answers, one from the Minister of Transport, and one from the Minister of Works.
In fact, are these things valid at all? On innumerable occasions, Mr. Speaker, when you have presided during the hearing of a Prayer, you have probably had in your hand a small document "printed and published by the Stationery Office." Instead of that, to-night I have three documents, none of which is published by the Stationery Office. They were typewritten and duplicated in the right hon. Gentleman's office, and he is not authorised by Statute to do that. So he also is probably committing an offence.
When I got these Orders—which were not sent to me, but which I discovered through the Select Committee's Report—I read them. Now, these Orders contain at the bottom a Schedule of what they are intended to do, and at the bottom there should also be quoted the Acts of Parliament under which they have been made and the Statutory Instruments being reversed. If any hon. Member has these Orders, he will see that they quote "8 and 9 Geo. 6. c. 43," "9 and 10 Geo. 6. c. 26," and "11 and 12 Geo. 6. c. 17"; but although there are twelve Instruments which have been repealed, none of the original Orders is called a Statutory Instrument.
So we have the extraordinary spectacle of the Minister repealing things which never existed. He has achieved many 619 things in his life, and I have a great respect for him, but I think there is something wrong here. The Orders are of local interest, and cover a large part of the country, and, on balance, most of the people concerned are rather glad that the illegal Orders have been repealed; but I am raising this issue to challenge our whole procedure. Delegated legislation is a necessity. It is frightfully important, from the point of view of hon. Members on the other side, that when the Minister signs things which have the force of law there should be no departure, from any of the general protective procedure.
I do not know who can make the decision and whether you, Mr. Speaker, can say if the Orders are valid or not; but I think you can say whether they were properly laid. As I understand it, it is our duty to make sure that when a Statute lays down that certain things are to be done about placing things in our Library and the Vote Office, those things are in fact done. It seems to me quite wrong that an ordinary Member of Parliament who relies on an instruction given to the Vote Office to send him all documents cannot reasonably expect to receive them.
The reason they were not sent is that the Vote Office did not receive them, and the reason the Vote Office did not receive them was that the right hon. Gentleman and those who look after his Department did not trouble to send them. They were available only after I had put a Question, and then only in a form which was most irregular. They had not been printed by the Stationery Office and did not even bear the imprint of the right hon. Gentleman's Department. There have been irregularities in connection with these Orders. The whole basis of liberty in this country is involved and the whole matter of delegated legislation impinges upon the liberty of hon. Members. Someone has to be vigilant to make sure that our Parliamentary liberties are not abused.

§ Dr. Hill (Luton)
I beg to second the Motion.
I shall not attempt to make a general survey of the kind my hon. Friend the Member for Croydon, East (Sir H. Williams) has made, for I am not 620 competent to do so. I should say, however, that the House is indebted to my hon. Friend for his vigilance in these matters, so that the position of the House may be preserved. I want to ask the right hon. Gentleman whether he will make two points clear when he replies, and in particular one point which is raised by the Order.
The first paragraph of the Order, beginning, "Whereas" refers to the fact that the highways were stopped in the first place by virtue of the powers conferred by Regulation 16 of the Defence (General) Regulations, 1939. It will be within the knowledge of the House, of course, that that Regulation was, in fact, revoked in 1945. In that sense the paragraph is incomplete, as it refers only to the Defence Regulation by which the stoppage was first made and not, excepting by implication in the second paragraph, to Section 21 of the Requisitioned Land and War Works Act, 1945. When one examines the 1945 Act one finds that, Any order made under any Defence Regulation…unless… and until …revoked…shall continue in force…until the expiration of two years from the end of the war period.… When that passes, Section 3 (2) of the Requisitioned Land and War Works Act. 1948, is invoked; but when one examines Section 3 of the 1948 Act—for it is under that Act as well as the 1945 Act that the Order is revoked, so this Order states—one finds that these are the relevant words, in subsection (1): (1) Where a Minister certifies as respects any highway—

(a) that in the circumstances existing at a time before the twenty-fourth day of February, nineteen hundred and forty-six an order could have been made under Regulation sixteen, fifty-two or sixty-nine A of the Defence (General) Regulations, 1939, as in force at that time, stopping up or diverting the highway; and

(b) that the exercise of the right to use the highway has been continuously prevented since that time, but without the making of such an order;"—
where, in short, there has been illegality in closing the highway— then section fifteen of the Act of 1945.…shall apply.… But when one examines Section 15 of the 1945 Act, one finds that it relates to permanent stoppages of highways.
621 The question I want to put to the Minister is this. As the Order invokes Section 3 of the 1948 Act, and as, when one reads that Section, one is referred to Section 15 of the 1945 Act, how is it that what has presumably been a temporary closure is referred to under the procedure for a permament closure? This is a matter of some importance, for Section 15 of the 1945 Act not only refers to permanent closures, but it provides for a number of other things also. It provides for the provision of alternative roads, and for expenditure under a number of headings on the assumption that the highway is permanently and finally closed.
I have a great respect for the right hon. Gentleman's capacity, but I ask him how it is that an order which is clearly intended to bring to an end certain temporary closures of highways is to apply to highways which, in fact, have been permanently closed and for which alternative routes have been opened up? In which of the cases referred to in the Orders was the closure permanent, so rendering it necessary for the Minister to invoke the 1948 Act and, indirectly, Section 15 of the 1945 Act—a procedure for permanent closure—in order to bring to an end the temporary inconvenience from which the residents of the various areas have suffered?

§ The Minister of Works (Mr. Stokes)
I must admit at the commencement that I am a little bewildered by some of the conundrums that have been posed to me, but as there is unlimited time at my disposal, I shall do my best to answer them. The first point put to me by the hon. Member for Croydon, East (Sir H. Williams), who raised the issue, was whether the Orders were valid. I am advised that they are, and that they were properly laid.

§ Sir H. Williams
Were the people who made the Orders the people who gave the right hon. Gentleman that advice?

§ Mr. Stokes
That advice, naturally, comes from the Law Officers of the Crown, in effect. The hon. Member complained that he did not see copies in the Vote Office, but I must say that the procedure, which he has discovered for himself by making inquiries, is, I am told, correct; that it has been the custom to put three copies in the Votes and Proceedings Office, that two of those three 622 copies go to the Library, and that 15 copies go to the Select Committee on Statutory Instruments. It has never been the practice to send these Orders to the Vote Office. They have never been asked for before.

§ Sir H. Williams
Which Orders?

§ Mr. Stokes
This type of Order.

§ Sir H. Williams
They have never been laid before.

§ Mr. Stokes
Oh, yes, they have; and presumably that course has been followed because they are of local not general interest. It is purely in the interests of economy. The fact that they have now been reproduced in the office of the Ministry of Works—so the hon. Gentleman tells me, and I will not deny it, though I did not know—was for his convenience.

§ Sir H. Williams
For the convenience of the House.

§ Mr. Stokes
For his convenience and for that of the House. Fifty copies were put in the Vote Office having regard to the fact that the Prayer was being moved tonight. What the hon. Gentleman says is correct, that the procedure we followed is the procedure which has been followed hitherto, and I am advised that it is in order.
The hon. Gentleman said that he raised this issue in order to challenge the procedure with regard to delegated legislation. Well, he will not expect me to answer that tonight. I take it that is a form of question which he should address to my right hon. Friend the Prime Minister, and not to me without notice. When he asked why the Question put down to me was transferred—well, when I was a back-bencher, that was always a source of bewilderment to me, but I am bound to say that on this occasion I think the procedure was right.
In that Question the hon. Gentleman asked whether a Bill would be introduced to amend the Requisitioned Land and War Works Act, in view of the fact that Orders under that Act to close up highways are not debatable in this House, while Orders to re-open such highways are debatable. It was obviously not appropriate to me because now I only open highways, and as this Question concerned the closing of highways, which is the responsibility of the Minister of 623 Transport, it seemed to me reasonable that it was transferred to that Minister. I am opening the highways in question today because I shut them—or one of my predecessors did. It is for that reason that I signed the Orders.

§ Sir H. Williams
I am sorry to interrupt—

§ Mr. Stokes
I am glad to be interrupted.

§ Sir H. Williams
The right hon. Gentleman said that his predecessor shut them, but the Schedule does not indicate who shut them. Here is a Schedule of 10 cases and there is no indication except that Orders were made.

§ Mr. Stokes
I know, but the hon. Gentleman surely was in the House at the time—

§ Sir H. Williams
No.

§ Mr. Stokes
Surely. These Orders were made in 1945, 1944 and even in 1942.

§ Sir H. Williams
But they were not presented.

§ Mr. Stokes
They were made under Defence Regulation 16 and in those days did not have to be presented. What I am intending to do today is to tidy it up. I should have thought that that would be welcome. What these three Orders do is to open up 16 out of 17 highways or by-ways to which reference is made. The hon. Member for Luton (Dr. Hill) asked particularly which was the highway now permanently closed. I am glad to say I can answer that.

§ Sir H. Williams
Hear, hear.

§ Mr. Stokes
It is the one mentioned on page 1 of the Order relating to the Parish of Simonswood. That has been permanently closed by the Minister of Transport because it is now permanently blocked and there is no possibility of an alternative. The reason I am now declaring it open is for the purpose of tidying up. I am advised by the legal authorities that the process is correct. Having closed it under Defence Regulation 16, I now declare it open, despite the fact that it has since been permanently closed. I am 624 not a lawyer but I understand that is quite a normal procedure.
I hope that the hon. Gentleman is completely satisfied with the answers I have given. I have answered the point raised, and explained quite clearly why we have taken this action. I am surprised that there should be an effort on the part of the Opposition to protest against the opening. The hon. Gentleman said that was not his intention, and I understood he was not protesting against the opening but against the fact that he could not protest when the roads were closed. As he has not raised that point, I think I had better conclude my comments by saying that I hope that the House will reject these Prayers.

§ Mr. Lennox-Boyd (Mid-Bedfordshire)
We have had a fascinating explanation of a typical piece of Socialist planning—first declaring something illegal, and then declaring it legal when people are no longer in a position to take advantage of it. The Minister said that it has not been the practice to submit such Orders for printing, and that hitherto it has always been the practice to send copies to the Library and to the Select Committee. He then said that this is done in the interests of economy. At what point, if at all, was the change made in the normal practice?

§ Mr. Stokes
I was not trying to mislead the House. I supposed that this limitation of printing was imposed in the interests of war-time economy. It has never been changed, and it is the practice we have followed. The hon. Gentleman will agree that there is a great deal too much printing thrown about, and what is the point of having great numbers of these small Orders printed, provided they are to be found in the right place? I agree that these Orders were not served on the breakfast table of the hon. Gentleman the Member for Croydon, East, but he did not raise the point because he is interested but because he wanted to protest against the procedure of delegated legislation. Surely the House is not going to suggest that we should indulge in profligate reprinting of Orders which, in the main, are of very little interest. This is merely a form of procedure which has proved completely satisfactory in the past.