§ Order for Second Reading read.
§ 11.22 p.m.
§ The Solicitor-General (Sir Dingle Foot)
I beg to move, That the Bill be now read a Second time.
This Bill goes a little further than the normal Consolidation Bill. Therefore there is one matter to which I think I should invite the attention of the House. If the House will look at the Long Title of the Bill it will see that this is described as:An Act to consolidate the National Insurance Acts 1946 and 1964, certain provisions made by statutory instrument thereunder, and certain related enactments.That is why I say that it goes a little further than the Consolidation Bills with which we are concerned later this evening.
I have to invite the attention of the House—and it is only right that I should do so—to the Report of the Joint Committee, which said:The Committee are of the opinion that the Bill, as amended, is pure consolidation and represents the existing law.They go on to say:The Committee are further of the opinion that there is a point to which the attention of Parliament ought to be drawn, vizt., whether it is desirable to incorporate existing statutory instruments into a consolidating Act having regard to the fact that these instruments are subject to a different form of parliamentary supervision than Acts of Parliament, and that the right to challenge the validity of an instrument may not survive its transformation into one of the provisions of a consolidating Act.This was discussed at some length in another place, and although, as yet, there has been no challenge here, I think it is right to call the attention of the House to that expression of opinion by the Committee. We are dealing here with a very unusual legislative state of affairs. 626 Some years ago there were three Acts of Parliament which covered, to some extent, the same ground. There was the Family Allowances Act, the National Insurance (Industrial Injuries) Act and the National Insurance Act. I do not want to go into many technicalities, but since then we have had the National Insurance Act, 1959, and there is a provision under which the Regulations made under that Act apply to the Family Allowances Acts. Therefore, we are dealing with this rather complex legislative state of affairs.
In those circumstances, and since we are dealing with a great many Statutory Instruments, which hon. Members will find set out in Schedule 12 of the Bill now before the House, it has been necessary, if we were to achieve any worthwhile measure of consolidation, to consolidate not merely the statutory provisions applying to National Insurance, but also the provisions of the subsidiary legislation as well. The House will appreciate that Regulations made in pursuance of a Statute are as much a part of the law as is the Statute itself. There are these differences, that Regulations have to be laid. Sometimes they have merely to be laid, sometimes they have to be laid subject to the affirmative or negative procedure in this House. There is also the difference that a Regulation is always open to challenge by the courts on the grounds that it is ultra vires, beyond the powers which Parliament intended to confer upon the Minister concerned.
There is no exact precedent where there has been quite so much subsidiary legislation to be embodied, and, in the unique circumstances, it has been thought right to make the particular provision which hon. Members will find in Clause 116 of the Bill. That refers in subsection (1) to the Regulations specified in Schedule 12, and then provides in subsection (2):Notwithstanding the reproduction of the regulations aforesaid as provisions of this Act, any question as to the validity of those provisions may be determined as though they were contained in regulations made under the powers under which the regulations they reproduce were respectively made.What that means is that, although we are embodying the Regulations in a Statute, nevertheless we preserve the right of anyone who feels aggrieved and wishes to challenge the validity of those Regulations to go to court and say that they are ultra vires the Act as originally passed. 627 I hope that the House will accept that it is a most exceptional provision. It is designed to preserve the rights of the subject in respect of any Regulation which now is embodied in Statutory form.
I have said that it is not purely a consolidation Bill in the ordinary sense. Nevertheless, it does consolidate a very important part of our law. The work of consolidating our Statute law, which I think everyone welcomes, is going rapidly forward. There are a number of consolidation measures which follow and for which the approval of the House will be invited in, I hope, a very short time. But, as I say, because of the particular passage that I have read in the Report of the Committee, I feel that I am bound to draw those matters to the attention of the House.
§ 11.27 p.m.
§ Mr. Graham Page (Crosby)
I have taken the precaution of having beside me the Ruling of Mr. Speaker as to how far we can go in the discussion of consolidation Bills, and I will endeavour to keep well within it.
The Bill has some very considerable difficulties which the hon. and learned Gentleman has described to the House. He has read the Third Report of the Joint Committee which dealt with the Bill, and they have drawn the attention of the House very clearly to the fact that it is not a consolidation Bill in the sense that it consolidates previous Statutes but is a consolidation Bill in the sense that it includes within it the consolidation of Statutory Instruments.
It is common knowledge to the House that Statutory Instruments themselves are frequently consolidated into one consolidating Statutory Instrument, but the introduction of them by promotion, as it were, from Statutory Instrument law to Statute law is quite a novel idea, as was said many times in the course of the evidence given to the Joint Committee.
The Clauses which thus embody Statutory Instruments are some of the most important Clauses of the Bill. Clause 12 deals with the recovery by an employer of an insured person's flat-rate contributions; Clause 40, the increase of benefit for children, so far as subsections (1) and (2) are concerned; Clause 43, the increase of benefit for adult dependants; 628 Clause 49, the disqualification for or suspension of benefit; a very substantial part of Part IV, which deals with the determination of certain questions by the Minister and the determination of certain matters by insurance officers, local tribunals or the Commissioners; Clause 77, the constitution of local tribunals; Clause 95, the recovery of contributions on prosecutions under the Act; and finally Clause 97, which provides certain decisions are to be conclusive for the purpose of proceedings under the Act. These are important parts of this consolidating Measure. They are parts which previously were contained within Statutory Instruments and are now converted into Clauses of a Bill.
If I might comment further on the importance of these, Clause 40(1), for example, which has previously a Statutory Instrument, deals with the increase of benefit for children. It states:Subject to subsections (5) and (6) of this section and to sections 41(4) and 42 of this Act, the weekly rate of unemployment benefit, sickness benefit, a maternity allowance, a retirement pension or a widow's allowance shall, for any period for which the beneficiary has a family which includes a child or children, be increased in respect of that child or each respectively of those children by the appropriate amount specified in relation to the benefit in question in column 3, 4 or 5 of Schedule 3 to this Act.This is one of the most vitally important things of the whole system of National Insurance. Previously, it was included in a Ministerial Order, which had the flexibility of being able to be altered from time to time. Because, however, these Statutory Instruments are now included in a consolidation Bill, we in this House are precluded from discussing their merits or substance.
It would have been all very well had they been put in a normal Bill, which could have been debated in this House before they were promoted from Statutory Instrument law to statute law. This part of the law might well have become law, however, without any debate in this House. It might have become law by being embodied in a Statutory Instrument subject only to negative procedure and no Prayer might have been made against that Statutory Instrument at the time. So that at no time might the merits of these Clauses have been debated in this House, and yet they can become law in this form.
629 To promote these Statutory Instruments to the status of statute law, as is done by the Bill, raises several constitutional problems. Promoting them in a way in which they cannot be debated seems to be something like Parliamentary trickery. The normal method would have been to put them into an ordinary Bill and then for the House to decide whether they were subjects which it wished should remain flexible in Ministerial Order form or whether they should be converted into permanent law. If that ordinary Bill were passed by the House, then would follow the stage to incorporate it in a consolidation Bill.
This method has come about because in 1946 there was lack of Parliamentary time in passing the National Insurance Bill and a great deal of it was left to Ministerial Order. That is not unknown, whatever Government may be in office. An enabling Act may leave a great deal to be done by Statutory Instrument. When that is done, however, the Regulations are flexible and can be amended from time to time by further order. Furthermore, those Regulations can be challenged in the courts as being ultra vires. It can be questioned whether the Minister had power to make the Regulations.
To overcome the first of those points in this consolidation Bill, I notice that whenever the hitherto Statutory Instrument law is introduced into the Bill, power has been reserved to the Minister to alter it. We are used to that in Bills of this nature and I cannot seriously complain that the Minister is reserving power to alter the Act, except, perhaps, that it should be done by affirmative procedure rather than by negative procedure. But that is quite a normal process, and to that extent it has preserved the existing law. These Clauses have remained to some extent flexible by preserving to the Minister the right to alter them by Order.
But to overcome the second point, that if these were still Orders the courts could question whether it was within the power of the Minister to make them, there is this entirely novel device of Clause 116 which the Solicitor-General has mentioned as being a most exceptional provision. It is a most exceptional provision. It means that for the first time in the history of Parliament the courts can say 630 that some section of an Act is ultra vires. This is a new constitutional point. We are driven to this what I might call constitutional abortion by the device of consolidating Statutes and Statutory Instruments.
On the merits of the contents of the Statutory Instruments, that may be the right thing to do. It may be correct at this stage to make those permanent. I am precluded in this debate from discussing the merits of these Clauses. My complaint is that this is being done without precedent, and it is a bad thing. The Government cannot do it in the normal way of putting these Statutory Instruments into a normal Bill because their programme is overloaded as it is, and they would not have time to put this normal Bill through. We all want to hasten consolidation, but not at the expense of the rights of this House to debate Clauses which are to become law.
If this kind of consolidation becomes popular with any Government, there is a danger that it may be used for the wrong purpose altogether. What more easy than for a Government in a hurry to enact something, to pass an enabling Act, leaving most of the meat of the Act to Ministerial Order, then putting the Orders through, perhaps with the negative procedure, so that they may never be debated in this House, and then putting those Orders into a consolidation Bill? This is a simple way of forcing law on to the Statute Book without proper debate in this House.
In another place it was pleaded, rather as the Solicitor-General pleaded today, that this was unique, that no other case like this had ever come up before. It was pleaded that the National Insurance Act was unique, and therefore a unique form of consolidation had to be undertaken. If that is the case, I ask the Solicitor-General to give the House two undertakings. First, that he will see that new Statutory Orders are initiated to make a report on this to the House from the Joint Committee essential. In this case the Joint Committee has properly reported this to the House, and that is why we are able to consider it, and why it has been drawn to our attention. I hope that we can make it an obligation on any Joint Committee to report to the House if this effort is tried again.
631 Secondly, if we are to consolidate in this form, that a Bill will be brought in as quickly as possible to remove Clause 116 from this consolidation Bill. This will enable the House to consider whether it wishes the courts to have power to declare that sections of an Act of Parliament are ultra vires. In short, it will give the House an opportunity to consider whether it is right that the contents of Statutory Instruments should be embodied permanently in a consolidation Act.
If the hon. and learned Gentleman would give us an assurance that it is the intention to bring in a Bill eventually to eliminate Clause 116, this novel and entirely unconstitutional provision, we should feel satisfied to let this consolidation Bill go through. As a consolidation Measure, it is admirable. If I may offer congratulations humbly to the Joint Committee, the Parliamentary draftsmen and the Parliamentary Counsel, from the point of view of consolidating the law, it is brilliant. But from the point of view of setting a bad precedent for the future and producing an extraordinary constitutional position in Clause 116, it ought to be opposed.
§ 11.40 p.m.
§ Sir Herbert Butcher (Holland with Boston)
There is a matter concerned with the Bill on which I should like to seek your guidance, Mr. Speaker, because I doubt whether the Preamble to the Bill is in itself correct. The Preamble says that its purpose is:… to consolidate the National Insurance Acts 1946 to 1964, certain provisions made by statutory instrument thereunder, and certain related enactments.As the Solicitor-General has indicated, the provisions go considerably further than that, but the introduction of Clause 116 in which subsection (2) appears, which, as he properly explained, is introduced for that purpose. I suggest that, because of the introduction of Clause 116 into the Bill, the Preamble is, in itself, wrong, and the right Preamble is the one which appears in Erskine May on page 554, namely, "to consolidate and amend" the law dealing with these matters. This is an important point, Mr. Speaker, because you and your predecessors have given considerable Rulings about what may and may not be discussed on consolidation Bills.
632 But if the Preamble were drawn in a different manner from that to which I referred in Erskine May, I believe that when the Bill had received its Second Reading, it might be capable of being amended in the way indicated by my hon. Friend. This is a technical point, which I find it difficult, as a layman, to make, but, if the Preamble is out of order, it appears to me that there might be a case for withdrawing the Bill.
§ Mr. Speaker
This is obviously troublesome, because of some element of novelty. The idea of consolidating into one statute law part of which is contained in Statutory Instruments is not a novelty, but the extent of it here is. As the hon. Member for Crosby (Mr. Graham Page) said, the second subsection of Clause 116 is, as far as I know, a complete novelty. I cannot accede to the hon. Member's argument, for this reason. Here the Joint Committee is working under a Statute which is concerned solely with pure consolidation. They have certified to us by their report that this is pure consolidation, and, pursuing that argument, it seems that the second subsection—I did not hear the Solicitor-General's argument—is precisely to secure that result, namely, that the Bill, as it is presented to us, is pure consolidation, without amendment, because it preserves the existing right which exists under the existing law. That is why I cannot go with the hon. Gentleman about his argument.
§ Sir H. Butcher
I am grateful to you, Mr. Speaker, and I would not dream of disputing your Ruling in any way, except, if I may, to stress the point made by my hon. Friend the Member for Crosby, that this is something quite unusual, in providing by this consolidation that the courts can challenge an Act of Parliament. It seems an unusual departure from our common law.
§ Mr. Speaker
I follow that part of the hon. Gentleman's argument. That is an argument about which, constitutionally, his remedy is to vote against the Second Reading of the Bill. But in so far as the hon. Gentleman addressed a point of order to me, I do not think that his last point touches it, and the answer which I gave holds.
§ Sir H. Butcher
The alternative appears to be between, on the one hand, asking 633 the Solicitor-General for an assurance that proper steps will be taken to see that this sort of thing does not occur again and that this will be put right and, on the other, opposing the Second Reading of the Bill so that it may be brought forward in a different form.
§ 11.46 p.m.
§ Mr. Forbes Hendry (Aberdeenshire, West)
I thoroughly welcome the Bill as a brilliant exercise in consolidating a difficult part of the law. I also welcome the consolidation into the Bill of the Statutory Instruments which have been passed over many years and which appear to have worked well. I congratulate the Solicitor-General on this device.
At the same time, I am somewhat concerned about Clause 116(2) in that it appears to infringe the sovereign powers of Parliament because, by this proposed enactment, it seems that Parliament is denying its sovereignty in that it is allowing the courts to question the validity of an Act.
These Statutory Instruments were made from time to time on the authority of various Acts of Parliament. Whether they went through by the affirmative or negative procedure seems to be a matter of little importance. Once they were approved by Parliament, or laid upon the Table for the appropriate time, they had all the force of enactments. It may be that while they were Statutory Instruments the courts had the power to discuss whether they were intra vires or ultra vires, but once they are contained in an Act, consolidating or not, it seems that they have all the force and effect of an Act.
Since Clause 116 (2) appears to be in some way denying the sovereignty of Parliament, I urge the Solicitor-General to consider whether this is desirable in future. I thoroughly agree with the incorporation of Statutory Instruments in an Act, but is this the right way to do it? I agree with my hon. Friend's suggestion that a Measure should be introduced at the earliest possible moment to get rid of that subsection, which appears to be wholly undesirable. I also agree that serious consideration should be given to the method of dealing with consolidating Bills in future which contain provisions of this sort.
§ 11.49 p.m.
§ Sir Rolf Dudley Williams (Exeter)
All hon. Members will be grateful to the Solicitor-General for the courteous way in which he explained what lies behind this consolidation Measure.
I do not go all the way with my hon. Friend the Member for Crosby (Mr. Graham Page) when he said that he would like to see Clause 116 removed from the Bill. It is important, as the Solicitor-General pointed out, that the Clause should remain so that people have the right to go to the courts if the Orders to which reference is made in the 12th Schedule were ultra vires by the Minister concerned. However, I hope that the Solicitor-General will consider introducing a Bill to regularise the position in the way my hon. Friend the Member for Crosby described, although I urge him not to remove Clause 116 from the Bill unless the power is given to the individual to question the validity of the Regulations.
This is a complicated Measure and few hon. Members fully understand it. Is the Solicitor-General satisfied that the various Statutory Instruments referred to in Schedule 12 are not Statutory Instruments scheduled only to run for a limited period? If they were scheduled to run only for a limited period, in Clause 116 something to that effect should be made clear. If they are to be permanent I see no reason for them to be covered by the Clause. I should like to have an assurance that none of these Regulations were made for a limited period only.
§ 11.51 p.m.
§ The Solicitor-General
I speak again by leave of the House to answer points made by hon. Members opposite. I gather that the Bill is generally welcome to all hon. Members. I think the hon. Member for Aberdeenshire, West (Mr. Hendry) said it was a most valuable Measure of consolidation. With that I think we would all agree.
The hon. Member for Crosby (Mr. Graham Page) said quite correctly that this Bill embodies the idea of statutory instruments being promoted into statutory form. He said that that was a novel idea. It is not entirely novel. There are certain precedents. There was the Agricultural Wages Act, 1948, and a similar Act 635 for Scotland in 1949, both of which included certain Sections which owed their origin to Regulations and those Regulations were embodied in the Statutes. I freely admit that this Measure goes somewhat further in that direction than those earlier Statutes, but, even supposing that this is a novel idea, I suggest that it is a very good idea. The hon. Member and I have had to struggle with Statutory Instruments and Regulations throughout our professional lives. I think he would agree that it is sometimes thoroughly vexatious to have to find law in a Statute and then in the various instruments made in pursuance of the statute. It is far better, not only for the legal profession but also for the general public, to be able to find the whole law on a subject in one instrument, preferably in one statute.
§ Mr. Graham Page
I go all the way with the Solicitor-General on this. My complaint is on their being inserted in a consolidation Bill which the House cannot debate on its merits. If they were inserted in an ordinary Bill it would be all right.
§ The Solicitor-General
I think the hon. Member would agree so far that when we have, as here, a very considerable body of law which has been built up over the years partly by Statutes which have been passed through Parliament in the ordinary way and partly by Statutory Instruments made in pursuance of those Statutes, and those subordinate Instruments have been in force for a considerable time, it is an admirable thing if we can embody it all in one statute so that it is not necessary first to look at the Act of Parliament and then at the various Regulations which from time to time have been made there-under.
The hon. Member went on to say that we are embodying in this Statute certain Regulations which have not been debated in the sense that we have had a Second Reading, Committee stage and the rest, but all these Regulations could have been debated if anyone had wished to do so. I do not say that all, but most were subject to the negative procedure and, if not, they could have been raised in this House. All these Regulations have been in force for a considerable time. No one has taken any opportunity to challenge them and 636 no one so far as I know has objected to them in any way.
§ Mr. Robert Cooke (Bristol, West)
Suppose that the House had taken advantage of every occasion, how many hours would that have taken?
§ The Solicitor-General
I cannot answer that. I am saying that we have Regulations the existence of which is well-known to hon. Members and to those concerned outside the House. It frequently happens that Regulations are challenged. I have challenged them myself and I am sure that the hon. Member has challenged them also. But these Regulations either have not been challenged at all or else they have survived Parliamentary challenge, which means that they have been approved by one or other House of Parliament. Therefore we have this considerable body of the law which has been in existence over a considerable period of time and which we are consolidating in a single statute.
The whole objection taken has been taken to Clause 116, that is the provision which I have said already is without precedent, as far as I know, enabling these particular provisions to be challenged in a court. It seems to me to be a wholly desirable provision. We are not derogating in any way from the sovereignty of Parliament. We are merely providing in a Statute that certain provisions shall be open to challenge in a court. If we do not insert this provision it will mean that we shall be taking away from any person who may be aggrieved by these Regulations the extremely valuable right, which he has at present, and that when we are dealing in any form with delegated legislation it should be open to any citizen to go to court and say that it is going outside the intentions of Parliament and is exceeding the powers which Parliament intended to confer.
This right of access to the courts when one is dealing with subordinate legislation is one of the safeguards of the liberty of the subject. When, in the phrase used by the hon. Member for Crosby, we are promoting subordinate legislation into Statute law it is desirable, if we are not to derogate the rights of the subject, that we should put this right into the law. This is why the Clause is put in the Bill. We 637 may never have to repeat it, but I say that it is a salutary provision which the House should approve.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the whole House.—[Mr. Howie.]
§ Committee Tomorrow.