§ The Secretary of State for Scotland (Mr. William Ross)
I must ask the indulgence of the House to make a statement about the Teaching Council (Scotland) Act, 1965 (Amendment of Constitution of the Council) Order, 1969, which has just been laid before the House. This Order extended the period of office of the existing General Teaching Council for Scotland from four years to four years and six months.
I informed the House on 6th March, 1969, that I proposed to make the Order so as to give time for the completion of the review of the constitution and functions of the council that I was putting in hand.
I made the Order on 21st April, 1969, and it came into operation on 30th April.
270 It was made under paragraph 6 of Schedule 1 to the Teaching Council (Scotland) Act, 1965, and, by virtue of Section 14(2) of that Act read in conjunction with Sections 4(1) and 5(1) of the Statutory Instruments Act, 1946, it should have been laid before both Houses of Parliament after it was made and before it came into operation.
It has recently been discovered that the requirement to lay the Order in that way was not complied with. I am advised that the failure to lay the Order did not prevent it from having full legal effect from the date of coming into operation specified in the Order. Failure to lay at the proper time was, however, a serious matter and I ask the House to accept my apologies for it.
Hon. Members may recall that in November, 1967, following a recommendation of the Select Committee on Procedure in that year, this House resolved that all Statutory Instruments should be submitted to the Select Committee on Statutory Instruments whether or not they were required to be laid before the House. This Instrument was accordingly sent to the Select Committee on 9th May.
The failure to lay the Instrument was noticed when my Department was preparing the further Order required to give effect to the decisions regarding the constitution and functions of the council that I announced on 21st January. I shall shortly be making this further Order and laying it before both Houses.
I should make it clear that it is, of course, open to hon. Members to put down a Motion in the usual way for the annulment of the Order made in April, 1969, which, as I have said, has today been laid before the House.
§ Mr. Gordon Campbell
We on this side of the House of course accept the Secretary of State's apology, while agreeing that this is a serious matter. The right hon. Gentleman made clear that this discourtesy to the House was not intended. Is it not surprising, however, that this should have been overlooked, since the subject of the Teaching Council has been continuously before the Government over the past two years?
§ Mr. Ross
I entirely agree and I regret that this matter was overlooked. It is one of those things. There are so many 271 hurdles which should have prevented this that it is surprising it was overlooked from start to finish. I believe that the hon. Member for Glasgow, Cathcart (Mr. Edward M. Taylor) asked a Question on 27th June about it and it was not even spotted then.
§ Mr. Grimond
While, of course, we all accept the Secretary of State's apology, may I ask him to clear up two points? I understand that he was bound to lay the Order under Statute, yet he said that it did not affect its legal standing. Does this mean that the legal effect of Orders is irrelevant, or that reconsideration by the House is irrelevant to the legal effect of Orders?
The right hon. Gentleman also suggests that the House can still annul the Order, but has not the time in which we could annul it come to an end, and what would be the effect if we did?
§ Mr. Ross
I have laid the Order. The original Teaching Council would have gone on until 31st January, 1970, but the House extended it for six months to allow for the election of the new council following the reorganisation I had put in hand as long as about a year ago.
On the question about the legality of the Order, the view has been taken by the Law Officers, both when the Bill which became the Statutory Instruments Act was before the House and subsequently, that it was not the intention that the laying of an Order should be a condition precedent to its coming into operation; and the present Lord Advocate shares that view.
Of course, from the point of view of the House, by not doing this I denied an opportunity for hon. Members to pray against the Order. That is the serious part. It so happens that this was something which generally the House was agreed about, but I thought it only right to apologise to the House.
§ Mr. Bruce-Gardyne
While we all accept the Secretary of State's explanation, is it not necessary that the question 272 of the legality of the Order should be looked into rather further? As the right hon. Gentleman rightly pointed out, we have had no opportunity to pray against this Order and there are some aspects of this problem which are highly contentious. It seems unsatisfactory that although we did not have an opportunity to pray against it, the Order should have carried legality, none the less.
Mr. Edward M. Taylor
Does the Secretary of State agree that according to Erskine May the last time that this happened was at a time of grave national crisis in 1944, in respect of fire Orders made in 1941? On that occasion an indemnity Bill had to be put before the House to indemnify the Secretary of State against the consequences.
Erskine May says:The subsequent indemnity Act saved the Secretary of State from the consequences of the failure to lay and deemed the Regulations to have been laid but did not purport to declare their validity.'Does this rule not completely conflict with the advice which the right hon. Gentleman has been given by the Lord Advocate?
§ Mr. Ross
I can only give the hon. Member and the House the advice given by the Law Officers at the time when the principal Act on which the laying depends—the Statutory Instruments Act —was going through the House and the further advice received from the Lord Advocate in respect of this case.
The hon. Member referred to one particular case, but there have been a number of cases from 1941, in 1962 and 1963. The way in which they were dealt with generally related to the circumstances of each particular case.