POWER TO PROHIBIT MOVEMENT OF ARMS AND AMMUNITION. (Hansard, 15 May 1968)

§ Mr. Graham Page (Crosby)
I want to ask questions about Clause 6, on the ground that it does not seem to be in conformity with the existing law. I think that I am in order in doing so, judging from page 553 of Erskine May which deals, of course, with Amendments. I am dealing with the Question, "That the Clause stand part of the Bill," which I think must be on the same principle. Erskine May says: An amendment which seeks to bring the bill into conformity with the existing law, if the chairman is satisfied that the bill, as drafted, would effect an alteration in the law is in order.

§ The Chairman
In the interests of order, I should say that the hon. Member has put down Amendments to this Clause which were not selected, because I am satisfied that the Bill as drafted does not effect an alteration in the law. Neverthe- 1358 less, it is open to him to ask a limited question on the Question, "That the Clause stand part of the Bill."

§ Mr. Page
I am much obliged, Sir Eric.
The question is this. A Statutory Instrument is referred to in Clause 6(3) and a Statutory Instrument, of course, is delegated legislation made under a statutory power. As such, it can be questioned in the courts and repealed by the Minister who made it. It can be questioned in the courts on the grounds of ultra vires, that it is outside the powers given to the Minister under the enabling Statute. But if its consent is embodied in Statute, as I suggest it is in Clause 6(3) in respect of the Stautory Instrument there mentioned, then the content is converted into Statute law and is no longer questionable in the courts or repealable by the Minister under some other Statutory Instrument.
This was recognised, if I may quote precedent for it, in the National Insurance Act of 1965, which itself embodied Statutory Instruments but included a Clause preserving the right of questioning the validity of the Statutory Instruments in the courts and of repealing them if the Minister saw fit or amending them by other Statutory Instruments. Clause 6(3), particularly paragraph (b), mentions an Order under Acts which are repealed by this Measure. An Order is specifically mentioned in the margin and it is evidently intended that subsection (3)(b) should refer specifically to that Order and to no other.
By doing so, it makes that Order in future unquestionable in the courts and unalterable by the Minister by any further Order or other Statutory Instrument. To that extent, it seems to alter the law. Perhaps the Solicitor-General can explain the reasons for including this Order in that form.

§ The Solicitor-General (Sir Arthur Irvine)
The hon. Member for Crosby (Mr. Graham Page) raised points on this matter on Second Reading, and I have been glad to look into them since then. The reference in the margin to the Statutory Rule and Order 1922, No. 1263, proves to be, as I said on Second Reading, a mere matter of reference. The 1922 Order made under the powers conferred by Section 9 of the Firearms Act, 1920, 1359 is now valid. It is a valid Order and will remain so, I understand, until and unless it is revoked by a subsequent Order by virtue of Clause 6(4). On that view of the matter I invite the Committee to form the opinion that the character and content and legal effect of the Statutory Instrument is not altered in these circumstances and in this context by its incorporation in the Bill. I think that is right. I think the position about this Order remains the same and so remains unless and until there is a variation or revocation by virtue of subsection (4) of the Clause.

§ Mr. Graham Page
I am gratified by the fact that the Solicitor-General does not intend to embody an Order in the Bill so as to make it Statute law, but I question what he said about subsection (4), which refers to, An order under this section. Subsection (3) refers in paragraph (b) to an order made under section 9 of the Firearms Act 1920. Later in that same paragraph it refers, by the words at the end, to "and this section". So there is some distinction between an Order made under the old Act and an Order made under this Clause. It seems that subsection (4) applies only 1360 to an Order made under this Clause and would not therefore enable the Minister to revoke or amend an Order under Section 9 of the Firearms Act, 1920.
I would have been happy if subsection (4) said, "any of the Orders mentioned in this Section", but it does not go so far as that. It seems faulty in drafting in that respect.

§ The Solicitor-General
I suggest that on a correct construction of this Clause subsection (4) is not to be regarded as confined in its application to paragraph (a) in the previous subsection.