Clause 46.—(COMMISSIONERS' POWER TO MAKE BYELAWS.) (Hansard, 22 February 1967)

§ Mr. Graham Page

I beg to move Amendment No. 5, in page 33, line 21, to leave out from 'be' to end of line 23, and to insert: 'subject to section 6(1) of the Statutory Instruments Act 1946 and shall be made by statutory instrument of which a draft shall have been laid before Parliament'. This is really the rewriting of a subsection of Clause 46. As it stands in the Bill, it reads: Byelaws under this section shall be made by statutory instrument and a draft of a statutory instrument containing any such bye-laws shall be laid before Parliament. In considering this, the Joint Committee had to choose between two forms of procedure for Statutory Instruments to come before the House. Its desire was to bring Statutory Instruments under this consolidation Measure within a normal procedure under the Statutory Instruments Act, 1946, and the nearest procedure under that Act to that stated in the old Forestry Acts was under Section 6(1) of the Statutory Instruments Act.

That procedure is that a draft of the Order is laid before the House, and it may be made an Order by the Minister if it is not annulled by either House of Parliament within 40 days. As it stands, the subsection does not mention anything about the possibility of the House annulling the byelaws. It is worded almost exactly the same as the normal Clause in a Bill which provides for a Statutory Instrument to be laid before Parliament and then no procedure to take place on it at all. If the intention of the draftsman of a Bill is that a Statutory Instrument shall be laid before Parliament and that there shall be no procedure on a Prayer against it, the words that he uses are … shall be laid before Parliament. If there is to be a Parliamentary procedure by means of a Prayer within 40 days of the Instrument or the draft being used, then normally he so states in the Clause. To draw attention to the right of any Member of the House to pray against byelaws under this subsection, the Amendment refers specifically to 1915 Section 6(1) of the Statutory Instruments Act, 1946. Hon. Members would then know that, when the draft was laid, there was a right to pray against it within the 40 days, and, if no one took that opportunity, the Minister would be entitled to make the Order.

As the Bill now stands, the wording gives no clue as to the procedure to be applied to these draft byelaws. In fact, it misleads by using the sort of words which are used in an Act of Parliament when it is intended that Parliament shall have no further procedure than seeing a Statutory Instrument, it being laid before Parliament, and nothing more. In many cases these words appear in Statutes. We have Statutory Instruments laid before the House but no further procedure can be taken on them. If further procedure is to be taken, it is so stated in the Clause. My Amendment would draw attention to that matter by referring the reader to Section 6(1) of the 1946 Act.

§ The Solicitor-General

The hon. Member for Crosby (Mr. Graham Page) raised this point on Second Reading. I undertook to consider it, and, having done so, I must advise the House that the Amendment is unnecessary and, I submit, undesirable.

As the hon. Gentleman said, Section 6(1) of the Statutory Instruments Act, 1946, covers every case where a draft of a Statutory Instrument is laid before Parliament, but the Act does not prohibit the making of the Instrument without the approval of Parliament. It provides that, in the case of an Order in Council, the draft shall not be submitted to Her Majesty in Council, and in any other case the Statutory Instrument shall not be made, until after the expiration of 40 days beginning with the day on which a copy of the draft is laid before each House of Parliament or, if such copies are laid on different days, beginning with the later of the two days.

During that period, either House may resolve that the draft be not submitted to Her Majesty or that the Instrument be not made. This covers every case, and it certainly covers the Clause with which we are here concerned under which the Statutory Instrument must be laid before Parliament.

1916 On Second Reading, the hon. Gentleman said that it was general practice to insert some such words as he now proposes. I am advised that that is wrong. This matter has not been spelt out in legislation since 1946. Indeed, in every case where we have had a provision of this kind the Measure has been in this form, and it has not been thought necessary to put in specific words of the kind now proposed.

If we were to accept the Amendment, not only would we be including a provision which is quite unnecessary, but we might create a doubt as to the position under other legislation since 1946 providing for the laying of drafts before Parliament. For those reasons, I advise the House to reject the Amendment.