HC Deb 07 May 1954 vol 527 cc735-50
Mr. J. E. S. Simon (Middlesbrough, West)

I beg to move, in page 2, line 5. to leave out from "make," to "for," in line 6, and to insert "regulations."

The effect of this Amendment is not to take away the power of the Minister to make regulations, but merely to see that the jurisdiction of the courts exercised in favour of the liberty of the subject is not ousted to determine whether any regulations made are within the powers conferred by Parliament or not. The Clause, as sought to be amended, will read: The Minister may make regulations for securing humane conditions… I fully support the purposes of the Bill, and I congratulate the hon. Member for Oldbury and Halesowen (Mr. Moyle) who has introduced it and brought it so far in furthering its beneficent purposes. I fully accept that this is the sort of Measure where the delegation of power to make regulations to the Minister is eminently reasonable.

I think that we should, however, realise that the regulations that may be made are quite serious ones. In Clause 2 (1. a) the Minister may: prescribe requirements for the construction, layout and equipment of premises used as slaughterhouses or knackers' yards. That is a very proper purpose for making regulations, but it does mean interfering with the subject's business. It becomes more serious when one sees the penalties that can be imposed by regulations. Under Clause 2 (4) regulations may prescribe penalties, and under Clause 5 those penalties can be a fine up to £50 or imprisonment for a term not exceeding three months.

These are matters which seriously affect the subject who may be prosecuted under the regulations made. The regulations also, under Clause 6 may affect the power of entry into premises. Under Clause 7, the regulations are subject to annulment. It says: …regulations. Shall be exer[...]iseable by statutory instrument…subject to annulment in pursuance of a resolution of either House of Parliament That being so, the question is whether the individual who is prosecuted for a breach of regulation, or whose rights and interests are otherwise affected by these regulations, shall be able to claim in the courts, if he finds his pecuniary position or liberty in jeopardy, that the regulation is within the purpose of the Act or outside the purpose for which Parliament intended the Minister to legislate on its behalf, or whether the Minister shall be the sole judge of that matter.

As the Clause provides at the moment, it is the Minister's discretion which determines whether he considers or whether objectively it is to be considered that the regulations which he makes are within the four corners of the Act and are within the purposes for which Parliament intended provision should be made. It is a small point in this Bill, because this is a comparatively small corner of national life which is affected, but it is an important constitutional principle.

It is a question really of whether, when Parliament delegates powers to the Minister to make regulations, it shall be completely at his discretion to decide how far he shall go, or whether the age-long power of our courts to determine whether the regulations made within the four corners of the Act are intra vires or shall be ousted. We have had great protection of our liberties in the past. Parliament should make the laws and the Executive should carry them out, but we have an independent judiciary which should interpret the laws and, in particular, determine whether the action of the Executive is within the general purposes of the powers conferred by Parliament.

I am glad that the right hon. Gentleman the Leader of the Opposition is sitting opposite today, because he gave a striking speech the other day in this Chamber upholding the independence and status of the judiciary. He referred to its purpose in the constitution in this respect and this is merely the application of those powers. I am sure that the hon. Member in charge of this Bill, who is eminently reasonable in these matters, will not put forward the argument, at which I must now proceed to glance, and I am sure that the Parliamentary Secretary will not do that. I hope it will not be said by anyone that this form of words has a precedent—although that, unfortunately, is true. I think it is only comparatively recently that public opinion has been awakened to the danger that this type of words has—to the serious invasion which the principle enshrined is to our liberties—the danger it may have on the general balance of the constitution on which those liberties depend.

I sincerely hope, for that reason, that it will not be said that, merely because this form of words has appeared in other Acts, we should not now be vigilant to its dangers and ensure that it does not appear in the future. After all, the argument that it has been done before was the argument which Lord Palmerston used year after year when he came to Parliament to defend flogging in the Army. I hope that we shall hear nothing of that argument in this debate.

The other argument frequently used in this sort of issue is that the real safeguard is Parliamentary control. It would be far from my purpose to minimise the importance of that. It is an important element, and an element which we must all see is maintained. But it can be over-emphasised; and, to a large extent, in this sort of matter, it is unreal. Parliament simply has not the time to maintain a vigilance over the mass of regulations and Statutory Instruments which, under our modern machinery of government, is poured out day by day. We have the Scrutiny Committee with a very valuable purpose, but it cannot amend and cannot even oversee the whole mass of Statutory Instruments. In any case, its functions are limited to, I believe, six comparatively major matters which it considers in deciding whether to report to the House or not. Of course, it is quite incapable of deciding whether a regulation is or is not within the four corners of an Act. That, essentially, is the job of our courts of justice.

The question arises when someone is prosecuted or otherwise finds his rights invaded by regulations. We then have a conflict between the subject whose liberties are invaded and the Minister who has made the regulation. In my submission it is axiomatic in our constitutional system that that sort of dispute should be independently decided; that justice should be seen to be done; that there should be an impartial, irremovable, body of judges who can decide fairly between the subject and the State. We should not have 'I'll be judge, I'll be jury,' said cunning, old Fury in any way invading our constitutional principles.

I welcome the purpose of this Bill; and the Amendment I seek to make does not in any way infringe its purpose. The Minister could still make regulations; but they must be confined within the four corners of the Act. The Amendment preserves the right of our independent judges to decide whether the regulations are within the four corners of the Act. Let it not be thought that this is a small point. In itself power to make regulations in respect of slaughterhouses may be of slight consequence. But so often one finds liberties, not swept away by a torrent, but worn away drop by drop. It is like the rain coming down. After a time it can wear away the toughest of primaeval rocks, until they are brought crashing down in ruins. That can happen to civil liberties, as we have seen abroad in our lifetime. It is for those reasons that I commend this Amendment to the House.

12.15 p.m.

Mr. Ronald Bell (Buckinghamshire, South)

I beg to second the Amendment.

The words the Amendment proposes to remove from the Clause.

as appear to him to be expedient, may have the effect of ousting the jurisdiction of the court, but, in this context, I should not like to be dogmatic about that. Either they have that effect, or they have no meaning at all and are unnecessary. If these words mean anything at all, it must be that the Minister can make such regulations as he wants and the court cannot inquire into them. I am rather inclined to think that they do not mean anything at all, and that the effect of leaving them out would simply be to improve the grammar and style of the Clause. That is an equally good cause, and I have nothing to add to what was said on the general principles by my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon). Whether it be on grammar or principles, I have great pleasure in seconding the Amendment.

Sir Waldron Smithers (Orpington)

I wish to support the Amendment because, as my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) said, it raises a constitutional point. I have tried to study this to the best of my ability. I am not a lawyer, but I am always willing to follow the advice and recommendation of such a good lawyer as my hon. and learned Friend.

As it stands, the Clause gives too much power to the Executive, and the Amendment would ensure that any regulations made by the Minister shall be within the purposes of the Bill. It would then be for the courts to decide whether there was a 'Case or not. In order to save time, I want to refer to the book written by Professor Keeton, "The Passing of Parliament." Summed up, that book says that when the Government goes in for nationalisation of industry and bulk purchase abroad all the responsibility—this includes slaughterhouses—for the details of our daily life is put into Whitehall, or with the local authorities, and the machine is breaking down. I wish to take every opportunity I can of taking away any additional power given to the Executive and of preventing the Executive from taking power over the liberty of the individual. For that reason, I support the Amendment.

Mr. Frederick Willey (Sunderland, North)

I hope that the Parliamentary Secretary will be able to intervene and express the views of his Department on this Amendment. I appreciate all that the hon. and learned Member for Middlesbrough, West (Mr. Simon) said. Whilst this is a small point, it is an important one. I think the hon. and learned Member has very persuasively worn the mantle of the late Lord Chief Justice Hewart, but we must remember that times have changed and we have to strike a balance. Even constitutionally it is important to remember that we remain the High Court of Parliament.

The hon. and learned Member anticipated many points which have been raised, but I do not think he anticipated this point, or, if so, he did not do so sufficiently. I think he would readily concede that one of the very important things about law is that it should be certain. It is a grave disadvantage to everyone if there is a substantial element of uncertainty about the law.

Until this device was used there was continual uncertainty about the exercising of delegated legislation. I think the hon. and learned Gentleman conceded that, and it is an element of particular importance in delegated legislation, in short, when a statutory order becomes law, we should be reasonably certain about it and it should not be open to the vagaries of interpretation in so far as they can be avoided.

Mr. Simon

Would the hon. Gentleman carry that argument further and apply it to all delegated legislation? In other words, does he agree that the courts should never have the power to determine whether any delegated legislation, even bye-laws, are within the terms which Parliament has decreed?

Mr. Willey

Far from it, and I am not trying to put this case absolutely at all, but we should try and strike a balance as to the certainty of these matters in delegated legislation. For that reason, despite the views of Lord Chief Justice Hewart and others, we have worked this device on occasions, and I think this is one of the occasions on which it is justified on any ground.

We want to uphold respect for the courts. I agree with everything that my right hon. Friend the Leader of the Opposition said in the debate to which the hon. and learned Member referred, but we must assist the courts by not putting an undue burden upon them. I know that in theory they are knowledgeable about everything, but from a practical point of view we should accept limitations about this. From a practical point of view, what is at issue here is, What is humane and what is not humane in the slaughter of animals? It is a matter on which there are many differences of opinion.

Mr. R. Bell

rose—

Mr. Willey

I should like to complete this point before giving way. I referred to the High Court of Parliament, and that the Minister, in the light of his knowledge,—and he is more knowledgeable about this probably than anyone else—determines the regulations and then comes to Parliament. They have to be approved by Parliament and, when everything has been said upon them, then I say we ought to take it as decided. If there are points to be raised upon any of the matters in the regulations, they ought to be expressed here. The hon. and learned Gentleman the Member for Middlesbrough, West has helped us all in calling attention to this matter. We ought to be alive to our responsibilities regarding delegated legislation.

Mr. R. Bell

I am only interrupting to seek elucidation from the hon. Gentleman on his argument, because it is a point on which there are differences of opinion. Is he saying that the Minister should have power to make any regulations which he honestly thinks expedient and which he thinks are within the law, even though the court, if it had jurisdiction in the matter, would decide they were outside the protection of the Act?

Mr. Willey

I think a judgment has got to be expressed upon all 'this, and on delegated legislation there is the Minister's accountability to this House. That is the sort of case in which this procedure is proper. I think that in each instance we should review whether this power should be given, but I say this is the sort of case where it can be given. I have invited the views of the Parliamentary Secretary on this matter because of that. This is the sort of case where the Minister—I am not going to say any unkind things about him on this occasion; I have said them previously—and his successors will exercise an honest judgment, and because they will exercise it we should have certainty.

If there is to be a review and a reconsideration, then it should be done in this House. It is very undesirable, particularly on this sort of issue that there should be this considerable element of uncertainty, which there would be if the Amendment of the hon. and learned Gentleman were carried. For these reasons, I hope the House will place every confidence in the Minister and will rely upon his judgment so that, when this Bill becomes an Act and the Minister submits the regulations, we shall be able to scrutinise them as carefully as possible to see that they represent the views of the House.

Sir Herbert Williams (Croydon, East)

I have listened to this debate with great care and my mind is considerably confused. I am looking at this matter as an engineer and not as a lawyer. It is sought to leave out the words …such regulations as appear to him to be expedient… In the first place I do not suppose any Minister would make regulations which did not appear to be expedient, and, therefore, the words do not seem to be of any importance at all so that I rather agree with my ton. Friend the Member for Buckinghamshire, South (Mr. R. Bell). On the other hand, my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) made a rather terrifying case as to what would happen if those words remained in and the Minister made regulations which he considered to be expedient. I take that to be the implication, though I do not see why that should be, because there are all kinds of slaughterhouses. There will be one upstairs next week I understand, and I am wondering whether the regulations will extend to it.

This debate reminds me of many to which I listened in the House in days gone by about a man "genuinely seeking work" We had to examine the mind of a man to see whether he was genuinely seeking work, and apparently in this case we have to examine the mind of the Minister to see whether what he is doing is expedient. If my hon. and learned Friend is right that the inclusion of these words would limit the power of the courts to determine the regulations as ultra vires, his Amendment ought to have support, and I am prepared to support it. On the other hand, if the words do not mean anything, I still think that the Amendment ought to be supported, important or unimportant, and I shall do so.

Mr. Charles Doughty (Surrey, East)

I rise to speak briefly, because I do not want to hold up the Third Reading of the Bill, but I should like to say something on what I consider to be an important constitutional point. Delegated legislation must be watched upon every occasion. It has gone much too far, and Lord Hewart, in spite of what has been said this morning by the hon. Gentleman the Member for Sunderland, North (Mr. F. Willey), was quite right. This is an exception, and this is a case where we can pass delegated legislation with all the limitations set out in the various Clauses of the Bill.

My hon. Friend the Member for Croydon, East (Sir H. Williams) was quite right in saying that if we passed the Bill in its present form the Minister would have a completely free hand in presenting regulations that he thought, rightly or wrongly, were correct. The only safeguard that exists is the very cumbersome method of praying against the regulations, which only gives power to reject the whole of them and no power to amend them.

The question of reducing uncertainty has been mentioned; but it should be remembered that a great many regulations which are drafted produce anything but certainty. They produce far greater uncertainty than can possibly arise in any Act of Parliament which is scrutinised and amended by this House, and drafted by Parliamentary counsel. Therefore, I consider that this is a typical case when, instead of saying, "Those words come from another Act," or "These words have been used before," we should say, "It is time it stopped."

In this Bill there is power given to the Minister to make regulations upon a very wide number of points. I hope he will make these regulations, and I hope he will lay them before this House. I hope, too, that the House will approve them, but I could not give my support to granting a Minister a free hand to make such regulations as may appear to him to be expedient upon very wide and general matters such as are covered by his Bill and which will effect not only the pocket of the subject but his or her liberty. Therefore, if this matter is carried to a Division, I shall vote in favour of the Amendment and against the views expressed by hon. Members opposite, one of whom suggested that we should strike a balance. We are striking a balance and we are giving the Minister powers to make regulations, but we are tying him down to the limitations prescribed in this Bill.

12.30 p.m.

The Parliamentary Secretary to the Ministry of Food (Dr. Charles Hill)

My hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) put the general case for this Amendment in persuasive terms, but my hon. Friend the Member for Buckinghamshire, South (Mr. R. Bell) seemed to think that the words were meaningless. I accept the view of my hon. and learned Friend the Member for Middlesbrough, West that they are of real significance in connection with this Bill.

Should that general doctrine be made to apply as a matter of common sense on this issue? In the amended form the Minister may make regulations for securing humane conditions should it be a matter for the courts to decide what are humane conditions? I am sorry that I cannot use the complicated legal terminology with which the subject has been surrounded this morning, but that is the real issue.

As my hon. and learned Friend pointed out, this issue will arise when some one is charged with a breach of the regulations. He will be able to plead that the regulations are ultra vires, that the Minister, in interpreting the words "humane conditions," has gone too far, not far enough, ox in the wrong direction. It will then be left to the bench of magistrates to determine what are humane conditions, and that will mean different interpretations of those words in different courts at different times. Further, it will mean that the issue will be determined in the courts instead of in this House.

This is an issue of policy rather than of law. My hon. and learned Friend said that complicated regulations receive little attention in this House. This subject, however, has received a great deal of attention in this House and, when these regulations are laid, they will receive a great deal of attention. So I think there is no chance that inadequate, insufficient or unpopular regulations will survive the scrutiny permitted by this Bill, that is, scrutiny under the negative procedure.

Therefore, I ask my hon. and learned Friend to withdraw his Amendment. I am not seeking to traverse his general argument, which will find considerable sympathy on both sides of the House, particularly amongst lawyers. It is the application of a general principle to a narrow problem that we are considering. I ask the House to retain the position that the Minister, advised, criticised, checked, as Ministers are, has the responsibility laid on him to judge what are humane conditions when so much difference of opinion is involved. For I do not think that even in obedience to the general doctrine, interpretation of those words should be left to these different bodies with their differing standards.

Mr. Moyle

I was impressed with the eminently reasonable way in which the hon. and learned Gentleman the Member for Middlesbrough, West (Mr. Simon) put his case, and being one who is disposed at any time to strike a blow for liberty a,; against authority, I was tempted to go his way. Quite frankly, however, I think that the occasion of this Bill is not quite the right place to let loose upon us the philosophy of liberty in relation to the Minister and the courts.

May I remind the hon. and learned Gentleman that this is an enabling Bill and that the purpose of the regulations is to give effect to the Bill. In other words, the regulations are the policy. If we were to accept this Amendment it would mean that the purposes of this Bill, when it became law, would become the sport of the courts; instead of the policy being the responsibility of the Minister, it would ultimately be the responsibility of the courts.

The previous Amendment places beyond any doubt the legal right of any aggrieved person to appeal to the courts against an adverse decision by the local authority of refusing or not a licence or renewing a licence at the end of 12 months, and this Amendment is covered by it. There is the machinery of the Prayer. Moreover, the Minister of Food will be solely accountable to this House for the operation of the Act. I hope, therefore, that the hon. and learned Gentleman will not press the Amendment to a Division and that, having made his speech, he will be good enough to withdraw his Amendment and so keep the party happy.

Mr. Simon

Would not the hon. Gentleman admit that his Amendment refers only to the granting or withholding of licences, and would not affect in any way the right of an individual prosecuted for breach of a regulation to say that the regulation should not have been made?

Mr. Moyle

I appreciate the point but the regulations, in so far as premises are concerned, will be drafted by the Minister for laying down a minimum standard of suitability. When an application for a licence is considered by the local authority, the issue will be whether the premises for which a licence is sought are up to the minimum standard laid down in the regulations.

Mr. R. Bell

If the hon. Gentleman is still notionally vertical, may I ask him whether he realises that if the regulations which the Minister makes are for the purpose of securing the purposes of the Bill they will be valid under the Amendment, but supposing the Minister makes a regulation altering, for instance, the foreign currency allowance for tourists under this Bill, is he saying that ought not to be challengeable in the courts? I am giving an absurd illustration to make the point clear. Supposing the Minister makes a regulation about something not inside the Bill, I have been told— I was surprised to hear it—that, as the wording stands, any regulation which the Minister makes purporting to be in pursuance of this Bill, is valid. That is the position we are trying to correct. Is the hon. Gentleman really supporting that position?

Sir Thomas Moore (Ayr)

I hesitate to enter into this legal discussion because I am not qualified to do so, but I hope there will not be any confusion of thought or decision on what is a minor point. The words are simple and they make it clear that the regulations are for securing humane conditions. That is the only purpose for which these regulations will be made, and therefore the wording merely seems to me to clarify the functions of the Minister.

It is fascinating to hear lawyers express their views on these, to us, simple matters, but I hope that in this instance my hon. and learned Friends, whose opinions I value greatly, will not try to pursue this matter too far, thereby perhaps upsetting the harmony which is spread over the House today, since we all have one purpose only, to get this Bill on the Statute Book at the earliest possible moment.

Mr. Ede (South Shields)

I had some sympathy at any rate with the motives of the supporters of this Amendment until the last intervention of the hon. Member for Buckinghamshire, South (Mr. R. Bell), because I thought that up to that stage they had been arguing that it might be possible to make a regulation germane to the subject matter but which did not quite touch the question of humane conditions. They now appear to fear that the Minister of Food, in dealing with this subject might make a regulation that dealt with some other and quite foreign matter. It might be the amount of the allowance for foreign travel.

If the hon. Member for Buckinghamshire, South fears that-, he does very little justice to the acumen of the hon. Member for Croydon, East (Sir H. Williams) who, like myself, reads every Statutory Instrument that is deposited in the Vote Office. I am certain that if I happened to miss it, the hon. Member for Croydon, East would find it. Let us not get into that fanciful realm where we assume, in the first place, that a responsible Minister of the Crown acts in bad faith and that, having obtained power to make a regulation to define humane conditions in a slaughterhouse, he says to himself, "Very well, I will limit the foreign currency allowance to a fiver in the current year."

Mr. R. Bell

I made it clear that I was exaggerating to make the argument clear. It is very often quicker to use a dramatic exaggeration in order to make one's point clear.

Mr. Ede

That is a favourite trick of lawyers and, as the Parliamentary Secretary suggested, this is very largely a matter where we get into these refinements of legalistic considerations which can make procedure in this House appear to be ridiculous. But, fortunately, we are still governed by common sense rather than by the lawyers, and even the lawyers find themselves in great difficulties when they try to impose these fanciful things on lawyers who have been elevated to high positions in the judicial system.

I cannot help thinking that the hon. Member for Buckinghamshire, South, by the line he took, disposed of the arguments adduced. I sincerely hope that the advice given to the House by the Parliamentary Secretary, who for once has deviated into advocacy of a policy of common sense, will be listened to. I hope that the fact that my hon. Friend the Member for Sunderland, North (Mr. Willey) and myself, who always regard the Parliamentary Secretary when speaking at the Dispatch Box with the gravest suspicion, feel that on this occasion his advice should be followed, will not be without weight in the considerations of the House.

Sir H. Williams

The right hon. Gentleman has not dealt with my point, that these regulations might raise a conflict as to who is to inspect first, whether a veterinary surgeon or a sanitary inspector, and so on. The Minister might act in a way clearly undesirable, which might not be spotted in this House, and the courts would be entitled to say that he had gone beyond his powers because he had made conditions with regard to inspection which were not authorised by the words of the Bill.

Mr. Ede

I should have thought that securing humane conditions might depend upon the officer appointed, and I should have thought that that would be just the kind of point which the Bill clearly indicated that the Minister should have in mind.

12.45 p.m.

Mr. Simon

I should like to be allowed to intervene again, with the leave of the House. I have been quite unconvinced by the, arguments that have been put forward against the Amendment. As the hon. Member for Sunderland, North (Mr. F. Willey) said, this is a point of constitutional importance. With very great respect, I do not think that the right hon. Member for South Shields (Mr. Ede), as a former Home Secretary, does the House any service in minimising a matter of this sort as being a legalistic quibble.

It is within the knowledge of the House that many miscarriages of justice have occurred under this form of delegated legislation. The House should watch it closely. It is quite unreal to suppose that public opinion is not gravely disturbed. We have seen only in recent months occasions on which officials, in what they regarded as the pursuance of duty, have caused a miscarriage of justice. However, I can never resist an appeal for harmony, particularly when it comes from my hon. Friend the Member for Ayr (Sir T. Moore); and therefore I do not propose to advise my hon. Friends to divide. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Moyle

I beg to move, in page 2, line 19, after "may," to insert "(a)."

I suggest that it will be for the convenience of the House if with this Amendment we also take the further Amendment in the same line.

The purpose of both Amendments is to provide a discriminatory power for the Minister to select certain slaughterhouses along the docks and wharfs of this country which are used occasionally and only for the specific purpose of slaughtering an animal which may be sick or has been maimed during transit from another country.

The Amendments enable the Minister to discriminate by specifying in the regulations certain of the slaughterhouses, such as the one at Birkenhead, which would rank for the application of the whole of the regulations under this Bill, so that if any emergency arose and any extra work had to be provided for, these slaughterhouses could be used for permanent and not for special or temporary purposes.

Mr. Ross

I beg to second the Amendment.

Amendment agreed to.

Further Amendments made: In page 2, line 19, leave out "relate to premises," and insert: are made for the purposes mentioned in paragraph (a) of the last foregoing subsection, be made to.

In line 22, at end, insert: (b) in any case be made without applying, or applying subject to exceptions or modifications, in relation to slaughterhouse's forming part of an imported animals wharf or approved landing place for the purposes of the Diseases of Animals Act, 1950, or applying (with or without exceptions or modifications) only in relation to any such slaughterhouse of that description as may be specified in the. regulations.— [Mr. Moyle.]