VISITING FORCES (BRITISH COMMONWEALTH) BILL. [H.L.] (Hansard, 2 November 1932)

THE LORD CHAIRMAN
My Lords, there are no Amendments on the Paper, but the noble Viscount, Lord Bertie of Thame, has handed in a manuscript Amendment. The noble Viscount proposes to move to insert, after Clause 7, the following new clause: (8) Before any Order-in-Council under this Act adapting or modifying this Act or any other enactment is submitted to His Majesty in Council a draft thereof shall be laid before both Houses of Parliament for a period of not less than fourteen days during the Session of Parliament and if either House before the expiration of that period presents an address to His Majesty against the draft or any part thereof no further proceedings shall be taken thereon, but without prejudice to the making of any new draft order.

§ VISCOUNT BERTIE OF THAME
As your Lordships will remember the Donoughmore Committee issued its Report as lately as April of this year. In face of the recommendations of that Committee, which I will read to your Lordships, you will see what His Majesty's Government now propose to do. On page 65 of the Report I find that the third recommendation of the Committee reads as follows: The use of the so-called 'Henry VIII Clause,' conferring power on a Minister to modify the provisions of Acts of Parliament (hitherto limited to such amendments as may appear two him to be necessary for the 970 purpose of bringing the Statute into operation) should be abandoned in all but the most exceptional cases, and should not be permitted by Parliament except upon special grounds stated in the Ministerial Memorandum attached to the Bill. Their fourth recommendation reads: The 'Henry VIII clause' should
(a) never be used except for the solo purpose of bringing an Act into operation;

(b) be subject to a time limit of one year from the passing of the Act."
Then, on page 25 of the Report, the Committee say: Statutory Orders-in-Council are made in virtue of, and in accordance with powers expressly delegated by Act of Parliament. They are a much larger and constantly growing class. Prerogative Orders-in-Council, not being delegated legislation at all, are wholly outside our reference. Statutory Orders-in-Council, on the other hand, are in all aspects delegated legislation. They are instruments of greater dignity than Departmental orders, regulations, rules and so forth, but in principle and for our purposes do not differ from them. If your Lordships will look at Clause 2 (3) and at Clauses 4 and 5 of this Bill, you will see that provision is made for the making of Orders-in-Council not only adapting, modifying and excluding the provisions of this Bill itself but also the provisions of other Bills which deal with the Home Forces. I quite realise that the procedure in this case must be by Order-in-Council, as it affects His Majesty's Forces, and that makes it difficult to propose Amendments reserving due control to Parliament without causing delay in bringing them into effect. In cases where the Minister has power to make Orders of course it is quite usual to give either House of Parliament power within a limited period to annul the Order. Although it is, as the Donoughmore Committee said, in effect an exercise of a power by a Minister, an Order-in-Council is actually made by His Majesty in Council, and I am loth even to appear to interfere with the Royal Prerogative, as I am sure the majority of your Lordships would be loth to do, although there are precedents for doing it. One is in the Air Navigation Act, 1920, Section 17. I do not think I need read it. That is a precedent which I think is a bad one.
On the other hand, in the Territorial and Reserve Forces Act, 1907, there is a 971 precedent which my Amendment follows. Section 16 of that Act reads: Before any Order-in-Council is made under this Act providing for preliminary training or extending the period of annual training the draft thereof shall be laid before each House of Parliament for a period of not less than forty days during the Session of Parliament, and, if either of those Houses before the expiration of those forty days presents an Address to His Majesty against the draft or any part thereof, no further proceedings shall be taken, without prejudice to the making of a new draft Order. I have been in communication with my noble friend Earl Stanhope, and I understand that there are difficulties in the way of accepting my Amendment, which I have no doubt he will be able to explain to your Lordships better than I can. The reason I have handed in this Amendment in manuscript is that, knowing that my noble friend is not prepared to accept the Amendment, I was loth to put the country to the expense of printing and circulating it. At the same time I did not think it right to let this point pass, because if no comment were made upon it at all it might be treated in the future as an unchallenged precedent. I should be much obliged if my noble friend Earl Stanhope, or perhaps the noble and learned Viscount the Leader of the House, could give your Lordships some idea of what steps the Government propose to take to carry out the recommendations of the Donoughmore Committee. I beg to move.

§ THE UNDER-SECRETARY OF STATE FOR WAR (EARL STANHOPE)
The noble Viscount was good enough to tell me he was going to raise this point, so that I have been able to look into the matter. I must remind the noble Viscount that this Bill deals entirely with the military Forces of the Crown and, as I told your Lordships on Second Reading, it is introduced in consequence of the Statute of Westminster. I ask your Lordships to realise what would happen if the Committee accepted the noble Viscount's Amendment. The sole reason why Orders-in-Council may be required and why modifications of the Act may be necessary is to enable the legislation of the Dominions applying to their own Forces to be brought into line with our own legislation applying to those Forces when 972 they are in this country or in a Colony or in a mandated territory. If we laid all such Orders-in-Council before Parliament it would enable the legislation of the Dominions in relation to their own Forces to be criticised in the Imperial Parliament. It would be even more serious than that, because, as I told your Lordships on Second Reading, this Bill has been drafted as a model for other legislation to be passed by the Dominion Parliaments in order that reciprocal legislation in the Dominions should be on exactly the same lines as the legislation before the House this afternoon. The Dominions have agreed to the form of the Bill and if we now change it they would say that we had changed it without consulting them.
They would also say that when an Order-in-Council came before a Dominion Parliament, dealing possibly with Forces from this country or from another Dominion, then that Dominion Parliament would also be enabled to criticise the legislation of another Dominion. That is exactly what we have been endeavouring to avoid in all the legislation which has been passed since the Statute of Westminster. Your Lordships will realise, therefore, that I had no alternative but to tell the noble Viscount that it was quite impossible for the Government to accept his Amendment. I think he is rather making a mountain out of a mole hill, if he will allow me to say so, because the modifications that are necessary are obviously purely verbal.

§ VISCOUNT BERTIE OF THAME
Then why does not the Bill say so? If the Bill said they were purely verbal I should be quite satisfied.

§ EARL STANHOPE
There is always a question as to what is purely verbal and to put into an Act of Parliament that a thing is verbal obviously makes difficulties. It is obvious from the whole framing of the Bill that the Bill is merely to bring Dominion legislation affecting their own Forces into such a state that it will be recognised by the Courts in this country, and that when an officer of a Dominion Force takes action, as may be necessary, with one in that Dominion Force, that action should be recognised as legal in this country. Obviously there might be small alterations in the wording of our Army Act to bring it into 973 line for the Dominion Forces and that would be, from the point of view of the Bill, a purely verbal alteration, but it might be a question of principle in regard to the Army Act. To get a form of words to enable us to put in the Bill exactly all that might be required would make the Bill voluminous and it would be by no means certain then that we had covered all the points. It is for this reason that the Bill is drafted as it is. It does not refer to the principle raised in the Donoughmore Report, but if the noble Viscount had gone further into that Report he would have found that legislation affecting the Forces of the Crown is referred to—on pages 11 and 12 in regard to the Army and on page 12 in regard to the Navy. With regard to the Henry VIII Clause, as it is called, that was to extend the powers contained in a Bill, whereas in this particular case the powers would be quite small and purely verbal and therefore of no real importance. I hope for the reasons I have given your Lordships will decide not to accept the noble Viscount's Amendment.

§ THE EARL OF HALSBURY
There is only one point to which I wish to refer. The noble Viscount had the courage to mention the Air Navigation Act, 1920, but he had not the temerity to quote it. He said be did not like it and I do not wonder. That Act is very much in one way the same as this in that it is to deal with this country and other countries. What is said there is that: Any Order-in-Council made under this Act shall be laid before each House of Parliament forthwith, and, if an Address is presented to His Majesty by either House of Parliament within the next subsequent twenty-one days on which that House has sat next after any such Order is laid before it praying that the Order or any provision thereof may be annulled, His Majesty in Council may annul the Order or provision. There is no suggestion in the Air Navigation Act of anything put forward or dealt with by the Donoughmore Committee. It is recognised that when dealing with these things like armed forces as between ourselves and the Dominions, and in air navigation as between ourselves and other countries, we cannot insist on having an absolute Resolution by both Houses. It must be done by Order-in-Council and, though in the Air Navigation Act it says that either House may pray His Majesty, there is no power to 974 alter the Order. I should have thought the Amendment would undoubtedly be wrong in this case.