HC Deb 02 November 1966 vol 735 cc470-80

4.0 p.m.

Mr. Humphrey Atkins (Merton and Morden)

I beg to move, in page 3, line 25, to leave out from beginning to 'a' in line 31.

For hundreds of years Parliament has maintained a very close watch over the Army. This probably began at the time of the Commonwealth, when the Army became extremely unpopular and Parliament determined that never should the Army be in a position to exert undue power or to terrorise the country. When the Air Force came into being, very much the same procedure was followed. Parliament keeps a close watch over the affairs of the Air Force as it does over the Army. The watch is rather less close over the Royal Navy. I suppose that this is because there is no example in history of the Royal Navy or any other Navy being used as an instrument of tyranny. Nevertheless, the watch kept by Parliament over the Navy is stricter than that which is kept over civilian servants of the Crown.

Briefly, the control which Parliament exercises is, first, control of numbers and, secondly, control over the power given to the Defence Council to exercise discipline. Every year we have to vote sums of money for the Armed Services. Alone among Government Departments, we vote the numbers of men that may be maintained in either. As for discipline, the Army and the Air Force Acts, which originally lasted only for one year but now last for five years and have to be continued by continuation Orders every year, provide controls over the power to exercise discipline.

By this Clause the Government propose slightly to diminish the control exercised by Parliament over the affairs of the Armed Forces. Until now, the terms of enlistment and conditions of service of persons in the Army and Royal Air Force have been laid down by Act of Parliament and can be altered only by Act of Parliament. The Royal Navy is in a slightly different position in that it has more freedom to alter its terms of enlistment and conditions of service, but not complete freedom. Parliament has always taken a very close interest in these matters. To illustrate my point I need go no further back than the last occasion when a Bill of this sort was before the House.

Many hon. Members will remember this very Committee sitting five years ago when considering what was then the Army and Air Force Bill. The proceedings of that Committee took place on 2nd May, 1961, and 26th June, 1961, and occupied a total of almost 18 hours of discussion. Fifty Amendments were put down and discussed, and in that period of time no less than eight hours—182 columns of HANSARD—and 23 Amendments were devoted to discussions concerning the terms of enlistment and conditions of service. This shows that Parliament always has concerned itself very closely with these matters, and no doubt always will.

The Bill will replace this system, by which terms of enlistment and conditions of service are governed by Act of Parliament, by empowering the Defence Council to alter them by Regulations. It was reasonable to expect—I certainly did—that when this proposition was put forward the Government would advance powerful reasons why they should take this power, for the first time ever. We looked forward to evidence being given to the Select Committee in support of this case.

Written evidence was given and witnesses were examined by the Select Committee, but the evidence for this change was pretty thin. It boiled down to this: the Government and the expert witnesses had two reasons for suggesting this change. First, they said that it would be easier for the Defence Council, and, secondly, that it would be quicker for the Defence Council. They gave examples of the delays that they had experienced in the past when trying to alter terms of enlistment or conditions of service.

The first reason can be dismissed very quickly. It is always easier for Government Departments to do what they like without coming to Parliament for permission. No doubt every Government Department would like to be able to do so. But Parliament is there to make sure that Government Departments do not do things that this House does not want them to do, so we need not pay much attention to the first reason.

The second reason, that it is quicker, has a good deal more weight, even though only slender evidence was put forward in support of it. It can be appreciated that conditions may easily arise where it is desired to alter the terms of enlistment, and so on, and to have to wait for five years could mean that the Army or the Royal Air Force would miss an opportunity to recruit the new people which they urgently needed.

The Select Committee came to the conclusion that, on the whole, this suggestion was reasonable, and in its Report it said: Your Committee believe that flexibility and speed in effecting changes in enlistment rules and conditions of service are required in present day conditions if maximum recruitment is to take place. My hon. Friends and I do not dissent from that view. We think that under present day conditions it is a reasonable requirement, and we are prepared to surrender part of the power that we now have. We are, however, particularly concerned that the maximum control should remain in the hands of the House consistent with this belief. This is the reason for the Amendment.

As it stands, Clause 2(4) provides for Regulations being made by Statutory Instruments of two sorts. Where the Statutory Instrument repeals or amends an Act of Parliament a draft of it has to be laid before Parliament. Where it does not, the Regulations come into force at once and are subject to annulment by the House within the 40-day period.

The Amendment seeks to ensure that all Statutory Instruments made by the Defence Council under the Clause are laid in draft. We first considered whether we should not suggest that the Statutory Instrument should be subject to the affirmative Resolution procedure and thus require the affirmative vote of Parliament before coming into force, but we decided against that because an argument would have been advanced against it that it merely consumed Parliamentary time even when the Regulations were not objected to. We therefore suggest that all these Statutory Instruments should be laid in draft form and come into force after 40 days if Parliament has not in the meantime passed a Resolution that no further action should be taken on them.

The reason for this provision will be readily understood. If Regulations are made and laid before the House, subject to annulment, they come into force at once. It may well be that, not 40 days, but a much longer period will elapse before they can be debated in the House and then annulled.

Regulations might be made even at the beginning of September, when there would be no time to debate them until well into November. If the House said that it thought that the Regulations should not be made, the Government of the day would immediately reply, "It will be very difficult to change them now, because they have been in force for over two months and a large number of people have been recruited on those terms. Therefore, we cannot alter them."

We believe that although, strictly speaking, the procedure is the same in the House—that is to say, one can only approve or disapprove of the Regulations in total, and cannot amend them—it gives a better opportunity in the House to amend Regulations which the House does not like if they are laid in draft. In that case, we would all have an opportunity of seeing them and forming our views upon them before they come into force.

All of us would accept that it is easier to change something which has not begun than it is to change something which has been in force for some time. That the Government recognise this is shown by the provision that, where Regulations amend or repeal Acts of Parliament, this procedure shall be followed.

I can think of only two reasons which the Government might give for rejecting this proposal. First, they may say that all the earlier Statutory Instruments will be in this first category, as they will all amend or repeal Acts of Parliament and that, therefore, we need not worry. This is probably true, and I have no doubt that all the earlier Instruments will be in that category, but as time goes on this will be less and less true. Subsequent Regulations will tend more and more to amend Regulations rather than Acts and will, therefore, follow the second procedure.

The Government might also argue that our proposal involves a delay of 40 days. So it does, but I do not believe that this argument should be taken too seriously. After all, until now, when the Army and the Air Force have wanted to change these matters, they have had to wait not 40 days but anything up to five years and an improvement from five years' to 40 days' delay is not too bad. They could perfectly well wait for 40 days.

I do not believe that the Under-Secretary of State for Defence for the Royal Air Force will be able to advance powerful reasons for saying that a delay of 40 days will seriously affect Army or Air Force recruiting. This is a most reasonable Amendment. It preserves the maximum Parliamentary control consistent with the granting to the Government of the increased flexibility which they seek. I hope that they will accept it.

4.15 p.m.

The Under-Secretary of State for Defence for the Royal Air Force (Mr. Merlyn Rees)

Some time ago, the right hon. Member for Wolverhampton, South-West (Mr. Powell) said that about nine-tenths of the business in the House was non-controversial, in a broad political sense. Whether or not that figure is correct, the Bill and the Clause which we are discussing comes into this category. All of us are concerned to improve the disciplinary causes of the three Armed Services. I say this because I should like to thank the hon. Member for Merton and Morden (Mr. Humphrey Atkins) for having given me full notice of this point and also of many similar points which he wishes to raise later.

It is true that Clause 2 breaks new ground, to the extent that it empowers the Defence Council to make Regulations about terms of enlistment which, traditionally, in the past were laid down in the annual or, more recently, in the quinquennial, Army and Air Force Acts. The need for this was fully explained to the House on 13th December last year, when the Bill received its first Second Reading, by my right hon. Friend the then Minister of Defence for the Army, and was enlarged on in the evidence to the Select Committee.

This is, in general, that modern conditions require us to have a more flexible and speedy procedure for altering terms of enlistment than we had in the past if we are not to lose many recruiting opportunities. Certainly, now and for many years past—the practice will grow in the future—industry loses no opportunity to adapt the inducements which it offers to the circumstances of the day. We must be ready to do the same if we are not to lose much-needed recruits.

This point was accepted, as the hon. Gentleman said, by the Select Committee, who said: Your Committee believe that flexibility and speed in effecting changes in enlistment rules and conditions of service are required in present-day conditions if maximum recruitment is to take place. They also accept that Parliament's rights are safeguarded by the requirement (in subsection 4)"— the Amendment to which we are now discussing— of the annulment (or in certain cases laying in draft) procedure.…Your Committee have therefore agreed to Clause 2 of the Bill. The House will have the opportunity to judge the merits of any regulations which the Defence Council may make in due course. It might be convenient if I say something in explanation of the annulment and laying in draft procedures, as these are crucial to the argument. Regulations subject to the annulment procedure must be laid before both Houses of Parliament after being made as Statutory Instruments, but before coming into operation. They must contain a date saying when the Regulations are to commence, which may be the same as, or later—but not earlier than—that at which copies were laid before both Houses.

Within 40 days from the date on which copies were laid, either House may resolve that an Address be presented to Her Majesty praying that the Instrument be annulled. When that is done, no proceedings may be taken thereafter under the Instrument and an Order in Council would have to be made revoking it. It is true, however, that this would be without prejudice to anything done under the Instrument before the date of the Resolution to annul it.

The laying in draft procedure differs in this respect. Where Regulations have to be made under this procedure, the Statutory Instrument may not be made, and, therefore, the Regulations cannot take effect until 40 days after they have been laid. The House will be aware that the 40-day procedure does not take into account days when Parliament is dissolved or prorogued or has adjourned for more than four days.

With those basic facts in mind, I now turn to the Amendment. I would like to say, first, what the Amendment does not do. It does not require alterations to terms or enlistment to be made by Statute instead of by Regulation. Nor does it require such Regulations, as has been pointed out, to be subject to the affirmative Resolution of both Houses of Parliament. Thus, it is clear that the Opposition have accepted the need for a speedier and more flexible procedure for altering terms of enlistment.

The only effect of the Amendment is to impose a delay of at least 40 days on all Regulations laid under Clause 2. We accept that, in the special case of the existing enactments, this delay is necessary. It is, of course, incomparably less than would be required by the full legislative process. We do not, however, consider that there is a case for similar treatment of ordinary, day-to-day Regulations dealing with details of conditions of service within the terms of the enactments.

Occasions could arise on which the delay implicit in the Amendment could have quite undesirable consequences and at best it would serve little useful purpose. For example, acceptance of the Amendment would delay the introduction of a Naval recruit's right to purchase his discharge, to which the Select Committee referred in paragraph 7 of its Report, and on which the Regulations are being prepared.

These are not of profound Parliamentary importance. They will come to the eye of the House and, if the House so desires, the matter will be discussed. It is not being taken from the purview of the House.

It is misleading to suggest that as we have struggled on in the past with the requirement to alter terms of enlistment only every five years we should easily be able to accept a mere 40 days' delay. In the first place, in the past when there were annual Army and Air Force Acts we had to wait a year only: this was very inconvenient but not nearly as serious as the present delay of up to five years.

Secondly, and more important, I must stress that 40 days is the minimum period of delay: if a Recess intervened the delay could be very much longer. Thus, if we wished to alter terms of enlistment in July, we could find ourselves faced with a delay of nearly four months before they could take effect, if the Regulations had to be laid in daft: this could prevent us from making alterations in enlistment terms which we thought were needed to attract school-leavers into the Services until most of them had found other forms of employment. We are, therefore:, satisfied that the balance of advantage lies very clearly with Clause 2 as it is at present drafted.

I make another point which I think an important one. It may not be generally realised that to a considerable extent Clause 2 actually extends Parliamentary control. Regulations dealing with the greater part of the Royal Navy's terms of enlistment are at present made without any reference to Parliament whatever, and have been for many years. The Army and the Royal Air Force have always been entrusted with Regulation-making powers in parts of this field without reference back to Parliament at all. For example, in 1962 under Section 3(1) of the Army and Air Force Act, 1961, the Army Council without reference to Parliament amended the Regular Army Enlistment and Service Regulations to take away the four-year break point from some classes of future Army recruits and to give a three-year break point to certain similar classes of future Army recruits. Under Clause 2 of the Bill, all these Regulation powers must be exercised by a Statutory Instrument. Thus, in this important respect Parliamentary control will be extended.

It is not the desire of the Government to take away powers from this House, but it is felt—and the Select Committee felt—that the time has come for many minor changes which take place, and which should take place from time to time, to be made more easily. We are in a world where, despite talk both in this House and elsewhere of recessions, and so on, we have full employment and there is a quite different situation from that before the war. Firms are going into the schools, there is recruitment of young people in their twenties. The back pages of the Sunday newspapers give an example of the new sort of rôle in which we live. In these circumstances, there should be more flexibility.

This House will still have ultimate control and the Government consider that this change is vital to the Armed Forces. For these reasons, I recommend the Committee to reject the proposed Amendment.

Mr. J. Enoch Powell (Wolverhampton, South-West)

The reply by the Under-Secretary was characteristically courteous, but, nevertheless, in its ultimate conclusion, disappointing. I recognise the point he has made, that over part of the field the Bill as it stands does introduce Parliamentary control where it did not exist before, but of course those Regulations which will be of most interest to the House refer to areas where Parliamentary control of a severer kind has already existed.

There is, as the hon. Gentleman said, no disposition on this side of the Committee to query the desirability of using some form of Regulation-making power to deal with the matters set out in the first subsection, but I cannot think that very serious weight attaches to his objection about the loss of a minimum period of 40 days. Where for the first time legislative control is being taken away it seems trivial to say that a minimum delay of 40 days, assuming that the Government so contrived that they laid the draft at an inconvenient time for the House, is a very serious objection.

This is a difficulty which with sensible administration could easily be avoided, but there is a difficulty in which the Government and subsequent Governments will find themselves if they do not accept this Amendment, for in the matters of detail—importance, but detail—with which many of these Regulations will deal there will be scope for representations. There will be scope even after all the trouble which is given in the Department in working out Regulations. There will be scope for views, for pressures and for change of mind on this or that matter on the Government's part. However, as the Bill stands so far as concerns paragraph (a), they would have no means of amending a Regulation, however much they might desire to do so, without withdrawing it and making a new one. There is a strong inhibition on any Government against the procedure of withdrawing a Regulation they have just made and admitting that they have had second thoughts and then making a new regulation.

This difficulty does not arise if the draft procedure proposed by my hon. Friend the Member for Merton and Morden (Mr. Humphrey Atkins) applies. One of the chief witnesses in the Select Committee. Mr. Davies, a member of the departmental working party, has something of interest to say on this point. On Question No. 46, in the Minutes of Evidence, when dealing with the point when Parliament might wish to amend a regulation whether it was in draft or already made, Mr. Davies said: If Parliament expressed the view that a regulation ought to be changed, the Minister would withdraw it. That is the embarrassing and rather difficult case I have mentioned. Mr. Davies went on: If it were a draft there would be no difficulty about that. A fresh draft would then be laid before Parliament with appropriate changes. I seriously suggest as a matter of administrative convenience which may inure to the benefit of any hon. Member for all I know, that there would be a great advantage in the Government coming before Parliament with draft Regulations on these subjects. If the Regulation had been already made—this was the telling point made by my hon. Friend—immediately it was made and had come into force, which, as the Under Secretary said, could be on the same day, people would start to be enlisted under the new conditions. The argument against then withdrawing and replacing the Regulation by an amended Regulation would be overwhelmingly strong.

So we might have the absurd position that both sides of the House might think that a mistake had been made and both sides wished that the regulation had been drawn somewhat differently, but by practical considerations they would be stopped from putting it right. That is a very real case which could occur in practice.

There is here a point of importance which goes beyond this Bill and applies to a great deal of the legislation which increasingly is passing through this House. My hon. Friend pointed out that although the earlier Regulations would tend to have the draft procedure safeguard because they would be amending statutes, with the progress of time they would be regulations replacing Regulations, and, therefore, this safeguard would fall away. This, I believe, is an erosion of Parliamentary function about which we have to be very vigilant: in the first stages safeguards are available—the Bill says that if a statute is altered by Regulation there should be this or that safeguard—but this safeguard works once only. Once the Statute has been amended something which, in the past, required to be done by Statute can forever in future be done by Regulation without any of the initial safeguards.

It will occur to your, Sir Eric, that this is by no means the only case in recent legislation where the power to do by Regulation what hitherto has been done by Statute has been introduced under cover of safeguards in the first instance, which will thereafter disappear.

On all these grounds, I think it fortunate that this is not the last stage of the Bill and that the Government will have the opportunity to reconsider the balance of advantage in this matter. It is a balance of advantage which is not on one side of the House or the other. It is a balance of advantage where there are considerations from the point of view of this Administration or any Administration. I hope that before the Bill passes beyond the reach of amendment, the Government will, with a fresh mind, reconsider this point in the light of what my hon. Friend said and the arguments I have further adduced.

Amendment negatived.

Clause ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.