§ Mr. Graham Page
I beg to move, in page 4, to leave out lines 22 to 29 and to insert:shall be made by statutory instrument, of which a draft has been approved by resolution of both Houses of Parliament, and may be varied or revoked by a subsequent order similarly made".
§ Mr. Deputy-Speaker (Dr. Horace King)
I think that it will be for the convenience of the House if we take with this Amendment the Amendment in page 4, line 37, after "instrument", insert:(of which a draft has been approved by resolution of both Houses of Parliament)and the Amendment in Clause 6, page 6, line 33, leave out from "instrument" to end of line 34 and insert:of which a draft has been approved by resolution of both Houses of Parliament and may be varied or revoked by subsequent rules similarly made".
§ Mr. Graham Page
I am obliged, Mr. Deputy-Speaker.
The three Amendments deal with an important constitutional point. They deal 1226 with the opportunity which should be given to this House to debate the exercise of the powers of delegated legislation given in the Bill, in particular to the Treasury.
The first Amendment seeks to leave out the lettered paragraphs of subsection (2) and to substitute words to the effect that any Statutory Instrument under the Clause shall not be made unless a draft has been brought before both Houses of Parliament and approved by a resolution of both Houses. As the Clause stands, the Statutory Instruments could be made, come into effect and lie upon the Table for 40 days awaiting anyone to pray against them for annulment. That is to say, they would be subject only to the negative Resolution procedure and not to the affirmative procedure.
Subsection (2) gives power to the Treasury, by an Order of this sort, to amend Statutes. It does not merely give power to make Orders under the Bill to carry out the Bill further, but it gives power to amend two categories of Statute—an Act which refers to Her Majesty's Foreign Service and an Act dealing with any office, rank or grade in the Civil Service. So, in short, the Treasury may by Order, subject only to the negative Resolution procedure, alter Statutes which have solemnly been passed by Parliament if those Statutes deal with the Foreign Service or the Civil Service.
As far as I can see, this Clause is not restricted to anything to do with superannuation. Superannuation matters are not mentioned in the Clause at all, so it is very wide in the powers which it gives to the Treasury. The Treasury can exercise these powers subject only to annulment by the House.
There are certain recognised constitutional precedents for the choice of procedure for delegated legislation, and, in particular, the choice between the affirmative Resolution procedure and the negative procedure, that is to say, the choice between the Government being obliged to bring the Statutory Instrument before the House in draft or otherwise so that it may positively be approved by the House or, alternatively, letting it lie on the Table in the hope that nobody will pray against it in the 40 days.
1227 These recognised constitutional precedents for the choice of procedure were expressed by Sir Alan Ellis to the Select Committee on Delegated Legislation in 1963. That Committee, in its Report, quotes Sir Alan Ellis's evidence. He divided the Statutory Instruments into three main categories and one miscellaneous one, and the very first one which he said should, according to precedent, have the affirmative procedure and not the negative procedure was this category. He placed in the first class the powers which when exercised will substantially affect the provisions of an Act whether by altering its language or increasing or limiting its extent or duration or otherwise.
This exactly fits Clause 4(2). Here the Treasury is given power to alter any Act it may choose which applies to the Foreign Service or the Civil Service, and this is covered by the constitutional precedent which Sir Alan Ellis gave and it ought to have the affirmative Resolution procedure in the House and not the negative Resolution procedure. It ought to be brought before the House for specific approval by it when the Government wishes to make an Order under this Clause.
Of course, the Superannuation Acts have given powers on delegated legislation to the Treasury a great deal, but the very first one that I can trace which gave power to the Treasury to alter the Statutes was a Superannuation Act in 1909. By Section 7(2) of that Act a draft was required to be laid before Parliament before an order under that Act became effective. That, I think, is the first and a very respectable precedent for the Amendments which I have on the Order Paper. That formula was repeated in the Pensions (Increase) Act, 1944, and again in the Pensions (Increase) Act, 1959.
The cases in which the Treasury has been given the right to use the negative Resolution procedure are quite clearly the minor type of cases. I think that one can divide them into, first, the case where the Treasury has been given power to alter only the Act itself in which the provision is given to make the Order; secondly, where it is given power to alter any specific Act but within very definite limits; and, thirdly, where it is given power to alter generally Statutes in order 1228 to bring in periods of time for pension purposes where the pensioner has been in other employment.
The most exact precedent, however, for what the Government wish to do under Clause 4(2) is found in the Foreign Service Act, 1943. That Act was very similar to the Bill before us. It was setting up superannuation for the Foreign Service, and this Bill is setting up superannuation for the new Diplomatic Service. In the 1943 Act the wording is almost the same as the wording of Clause 4(2) of the Bill. Section 6 of the Act said:His Majesty, on the recommendation of the Secretary of State, may by Order in Council make such other amendments of any enactment as appear to Him to be consequential on the establishment or reorganisation of His foreign service, including in particular such amendments of any reference to an office, rank or grade as appear to Him to be consequential on the abolition or alteration of the description thereof or on the creation of any new office, rank or grade corresponding thereto.That is very similar to the first part of Clause 4(2), but then, instead of going on with this entirely new formula, that Section of the 1943 Act had this proviso:Provided that the Secretary of State shall not recommend His Majesty to make an Order in Council under this subsection unless a draft thereof has been laid before Parliament and approved by resolution of each House of Parliament.Why have the Government chosen not to take that precedent, but to produce this entirely new formula in Clause 4(2,a,b,c), which, to start with, enables the Treasury—retrospectively—to repeal Statutes by an Order? We have been talking a lot today about retrospective legislation, but here the Treasury is given power not by another Act passed through this House but by Statutory Instrument which is subject only to the negative Resolution procedure to make an Order which will take effect as from 1st January, 1965. This really is a very serious constitutional point, to give power to a Government Department by Order subject only to the negative Resolution procedure not only to repeal a Statute, but to repeal it from a past date. This really ought not to be allowed to pass through this House.
For that new formula I want to substitute the accepted constitutional principle that the Government should bring before this House an Order in draft for it to be debated. What have they got to fear from this? The House does not 1229 normally hold up these Orders, but it does want to know the contents of them, and especially when such wide powers are given to a Government Department as are given under Clause 4(2).
§ Notice taken that 40 Members were not present;
§ House counted, and, 40 Members being present—
§ Mr. Graham Page
I omitted to mention the other two Amendments which, Mr. Deputy-Speaker, you kindly said we could take with this one. The principle is exactly the same. I do not want to delay the House any further. Under Clauses 4 and 6 the Treasury is given power to alter Statutes, and again it should do so by means of a draft Order brought before this House.
§ Mr. Gordon Campbell (Moray and Nairn)
I hope the Financial Secretary will be able to accept my hon. Friend's, suggestions. My hon. Friend has pointed out that it is normal practice for the affirmative procedure to be used where Statutes are to be amended. He has great knowledge in this sphere and is the Chairman of the Select Committee on Statutory Instruments.
I do not want to hold up the proceedings, but I hope that the hon. and learned Gentleman will be able to satisfy my hon. Friend. The precedent of the Foreign Service Act, 1943, seems especially apt in this respect, because the Bill seeks to carry out proposals of a similar nature to those reforms in the foreign service.
As far as I can see, there would be no question of delay in the procedure which my hon. Friend proposed. Rather, the procedure might be quicker in this House if his suggestion were accepted.
§ Mr. MacDermot
I am sure it is the wish of hon. Members that I should persuade the hon. Member for Crosby (Mr. Graham Page) on these matters, if for no other reason than that, as the hon. Member for Moray and Nairn (Mr. G. Campbell) said, he is the Chairman of the Select Committee which is charged by the House to concern itself with these matters and to report on them to the House.
I would, of course, accept, as the hon. Gentleman does, the opinion of Sir Alan Ellis, which was quoted with approval 1230 by the Select Committee on Delegated Legislation in 1953, as to the guide lines at least of the proper exercise of the affirmative procedure. He suggested, in effect, that there were three categories of delegated legislation which it was better to deal with by the affirmative procedure. First, powers which, when exercised, would substantially affect the provisions of an Act of Parliament. Secondly, powers to impose financial charges, such as Purchase Tax Orders. Thirdly, skeleton powers where the parent Act simply fixes the purposes and leaves the whole substance of the law to be dealt with by subordinate legislation. There are, of course, a number of other miscellaneous cases of special importance, but, in so far as it is possible to extract general principles, I think that those are the three generally accepted ones.
In Civil and Diplomatic Service superannuations there already exists a high degree of Parliamentary control. I think that this is a relevant matter for the House to bear in mind. There are many other superannuation schemes under delegated legislation which are not under statutory control to anything like the same extent as Civil Service superannuation, though in some of the schemes in the nationalised industries and the Health Service there is far less Parliamentary control.
The Bill is an example of the extent to which Parliament has deemed it right that it should supervise closely the superannuation for the Civil Service, but at the same time provision is being made in the Bill for the subordinate detail to be dealt with by Statutory Instruments whenever this is practicable and consistent with the general principles of Parliamentary control.
The object is to save Parliamentary time and enable minor modifications to be made quickly. This is in line with the views of the Royal Commission on the Civil Service, and my hon. Friend the Member for Gateshead, West (Mr. Randall) referred to this matter during the Second Reading debate, urging that the Treasury should be bolder and make greater use of delegated legislation in this field. I certainly welcomed his remarks on that occasion and promised to consider carefully any proposals that might be put forward in that direction.
1231 Against this background, I can only suggest that these Amendments would be a retrograde step. When examined carefully it will be seen that these powers do not fall within the first or, indeed, any of Sir Alan Ellis's three categories. Dealing first with the first Amendment, I should point out that subsection (2) is not the wide-ranging provisions which the hon. Member for Crosby thought. It gives power to amend the provisions of an Act of Parliament, but it would not do so in a substantive way, still less in a substantial way.
I agree with the hon. Member: my first reading of the subsection led me to think that it conferred the rather wide powers which he suggested, but I have taken advice on the matter, from those far better qualified than I, and I am assured that in fact the power is a very narrow one. It empowers the Treasury to amend old legislation which refers in terms to the Foreign Service. The Foreign Service ceased to exist on 1st January of this year, and thereafter references to it in any legislation will be meaningless. We have taken the opportunity, in the First Schedule, to amend references to the Foreign Service in all previous legislation which our diligent researches have been able to unearth, but it is human to err, and we realise that there may be odd provisions tucked away which we have failed to discover which still contain references to the Foreign Service.
We cannot confine the amending power under the subsection to a power to substitute for a reference to "Foreign Service" a reference to the new "Diplomatic Service", because it may not be quite as simple as that. It may be necessary to amend in a slightly more complicated way. All that is intended—and I am assured all that there would be power to do under the subsection—is to amend legislation having regard to the establishment of Her Majesty's Diplomatic Service, and that only an Amendment which was consequential upon that change would be intra vires within these regulations.
If the House can accept that it will probably agree that these would become something in the nature of procedural Amendments, and not a substantive 1232 matter of legislation requiring the affirmative procedure.
§ Mr. Graham Page
I am satisfied about what the hon. and learned Gentleman has said about the Foreign Service, but the Clause goes on to refer toan office, rank or grade in the civil service …which seems to be a very wide phrase.
§ Mr. MacDermot
Yes, but again, although it refers to an office, rank or grade in the Civil Service, only changes which areexpedient having regard to the establishment of Her Majesty's diplomatic service of to any reorganisation of the grades of that servicewill give any power to legislate under this subsection. There would not be power to make wider changes relating to the superannuation legislation for the Civil Service which were not consequent upon the establishment of Her Majesty's Diplomatic Service. I will check this point, but I think I am right in saying that this is a case of the greater including the lesser, that the Diplomatic Service forms part of the Civil Service.
With regard to the point on retrospection, here again one wants to watch carefully any power in subordinate legislation to make retrospective legislation. I think, however, that it is clear that the effect, though formally retrospective, would be wholly beneficial. What it does is to enable the Treasury to provide that any reference to the Foreign Service becomes a reference to the Diplomatic Service from the moment that that Foreign Service ceases to exist. If there is to be a power to make amendments of this kind, it must be retrospective to the date on which the Diplomatic Service was established. I think that the case for retrospection here is self-evident; it is a provision which should be preserved, and cannot give rise to any fears. On the point which the hon. Member for Crosby interjected a moment ago, I understand that the position is that High Commissioners in the Commonwealth are in the Civil Service. That is the reason for the wider reference.
Turning to the second of the Amendments, I must say that, here again, any necessary Statutory Instrument would be purely consequential in nature. Clause 2(1) provides for gratuities for 1233 members of the secretarial branch of the Diplomatic Service, and Clause 3(3) provides for special conditions to apply on the compulsory early retirement of members of the Service in grades outside Grades 1 to 8. The particular organisation of the Service which these references reflect may have to be altered in the light of experience. The purpose, therefore, of Clause 4(4) is to enable the references to be altered to fit any reorganisation which the Secretary of State may decide upon, without the need to amend the Act. I should emphasise that reorganisation itself would not require Parliamentary sanction. The Dower in Clause 4(4) is deliberately restricted to the modification of references to grades. It does not provide for any modification of the benefits payable or of the conditions attaching thereto. Again, therefore, I think that it is fair to say that this cannot be regarded as a Provision which enables legislation to be amended in any substantive way.
The effect of the third Amendment would be to oblige rules made under Clause 6 to be made under the affirmative procedure. I must concede at once that the power to make rules under Clause 6 is certainly a wide one, but public office legislation is pre-eminently a suitable field for the delegation of Parliamentary authority. As far back as 1892, the provision was made for public office rules to be dealt with under the negative procedure, although in one case—I think in 1909—the affirmative procedure was used. The object of the public office provisions is, in itself, simply to provide, for those concerned, superannuation benefits which are as nearly as possible equivalent to what they would have earned if their whole career had been spent in one public office, the Civil Service. But the provisions have to be highly technical in order to achieve this object, because of the multiplicity of the Superannuation Act provisions which have to be applied to varying kinds of career.
Both of these considerations suggest that Parliamentary time should not be taken up in considering subordinate legislation. All that the Instruments made under this power would do is to reproduce as nearly as possible for persons in public offices the provisions of 1234 the Superannuation Act, which Parliament has already considered in the legislation and decided to be appropriate.
It is not a case, therefore, of falling within Sir Alan Ellis's third category of skeleton powers, and the substance of the law to be applied by the subordinate legislation would be law which had already been approved by Parliament and embodied in the Superannuation Act. I agree at once that the wording of the Clause is widely drafted, but I am assured that wide drafting was necessary in order to permit the provision of benefits corresponding to the Act in widely differing circumstances, and to allow public office superannuation to keep pace with any changes in the Act in the future. But I am very willing to give an undertaking on behalf of the Government to ensure that public office superannuation neither outstrips nor, except where this is unavoidable, falls short of Civil Service superannuation proper. This is in the Government's own interest as an employer as well as in the interests of their employees.
The House will remember that there is also this provision in Clause 6 (5):If the application of the rules in force under this section would put a particular individual in a position less advantageous than that in which he would have been if the rules did not apply in relation to him, they shall not be so applied.That is an additional safeguard in the Act.
I hope that, after this explanation and this assurance, the hon. Member will be satisfied that these are proper matters to be dealt with by the negative procedure and that he will not press the Amendment.
§ Mr. Graham Page
I am very satisfied with the hon. Member's explanation of the position with respect to my second Amendment—in page 4, line 37—and with respect to my third Amendment—in Clause 6—and even if you were to permit me to move them, Mr. Deputy-Speaker, I should not wish to do so. I am not satisfied about the first Amendment, dealing with Clause 4(2). I think that these powers are far too wide for the Treasury. Under the circumstances, I shall not withdraw the Amendment but shall allow it to be negatived.
§ Amendment negatived.1235
§ Mr. Graham Page
I beg to move, in page 4, line 41, to leave out from "reorganisation" to the end of line 45.
This is a short point and I am sure that the Financial Secretary can explain it quickly. The Amendment deals with the lines of the subsection which read,and if any question arises whether a person at any time was a member of Her Majesty's diplomatic service, or of the Secretarial Branch or of any other grade or grades, that question shall be determined by the Secretary of State, and his decision shall be final.This is somewhat peremptory for the employees. Surely this is a question of fact. Why should the diplomat and secretary be prevented from going before the normal appeals tribunal set up for those in the Service? Why should there be this final decision by the Secretary of State? The Amendment proposes to leave those lines out and therefore to leave the diplomat and the secretary the ordinary procedure of the appeals tribunal in the Service.
§ 11.15 p.m.
§ Mr. MacDermot
If I were feeling in a Machiavellian mood I should accept this Amendment, because I can assure the hon. Gentleman that its effect would be precisely nothing. The provision which it proposes should be omitted from the Bill is declaratory and is included for the sake of greater clarity. Let me explain what the object and purpose is.
The need for this provision arises from the fact that there will continue to be staff employed in both the Foreign Office and the Commonwealth Relations Office who are not members of the Diplomatic Services; for example, home service messengers and United Kingdom based copy typists. The words it is proposed should be left out are primarily inserted, as I have said, for the sake of clarity. The power of decision reserved to the Secretary of State already attaches to any Minister in charge of a Public Department, and there is no appeal against his decisions in the courts. Nor does this position affect the ability of the staff associations to make representations to the Secretary of State about the form his final decision on any matter should take in any individual case.
There is no relevant appeals tribunal and superannuation is not subject to arbitration. So whether this provision stands or not, any such representations 1236 which were made would be carefully considered, although, of course, the decision of the Secretary of State would be final.
The result, therefore, is that the Amendment does not have any practical effect, but the House will agree, I think, that it is preferable that the words should remain in the Bill so that there is the virtue of letting the staff know where it stands.
§ Mr. Graham Page
I am grateful for the hon. and learned Gentleman's estimation of my Amendment, and I beg to ask leave to withdraw it.
§ Amendment, by leave, withdrawn.