NATIONAL FIRE SERVICES REGULATIONS (INDEMNITY) BILL. (Hansard, 2 August 1944)

§ THE LORD CHANCELLOR
My Lords, this is an interesting Bill and it deals with a very unusual situation. The Bill was carried through all its stages in the House of Commons yesterday and I shall invite your Lordships to carry it through all its stages here to-day. In 1941 the Fire Services of Great Britain were reorganized and improved. Before that, as your Lordships will know, the Fire Services were a local service and even the splendid London Brigade was a local service. There were smaller and much smaller fire brigades all over the country which up till 1941 performed the most useful and necessary services which have been universally approved. Then, instead of the Fire Services being provided by the local authorities, there came about a unification and a co-ordination so that we had a National Fire Service, with its own pay, its own pensions and its own penalties.
I pause for a moment to .remind your Lordships that it is to that united Fire Service after it was unified in the latter half of 1941 that we owe it that London has not been burned to the ground by the Germans. It was of course a tremendous piece of work to organize this service on national lines. It involved all sorts of arrangements with the local authorities as 84 well as with the personnel and also required new apparatus. But it was done and we all know it has been done most successfully. There was only one thing about it that was not done successfully and that is that the Minister of the Crown who sits in the Commons, whose business it was to lay the regulations on the tables of both Houses of Parliament, failed to do so. The explanation I believe is that two different sections of the Department each thought the other had done it, but the fact is it never was done. That raises undoubtedly a very serious constitutional situation.
Your Lordships are well aware that this practice which we follow in certain cases of making rules and regulations which constitute delegated legislation takes two forms that are different. In some cases, the provision in the Statute is that we give power to the appropriate Minister to make regulations to work out the scheme, but that these regulations shall be laid on the Tables of both Houses of Parliament and then will provide that unless both Houses within so many days carry a Resolution approving the proposed Regulations they shall have no validity at all. That is called the affirmative method. It calls for an affirmative Resolution and the regulations never have any effect from the beginning until the specified period has elapsed and the appropriate affirmative Resolution has been carried which adopts them. They do not operate at all in the period of incubation when they are put on the Table; are not part of the Act of Parliament; they only get life and vigour from the fact that an affirmative Resolution is passed in both Houses. There is a second method used in many cases, which is the negative method. There the Act of Parliament gives power to the Secretary of State to draw up these regulations and it is provided that they are operative as law from the moment that he makes and signs them. They are law while still in his office. They are law when they are put on the Table of the House and they continue to be law and pass into the law of the country unless within 28 days one or other of the Houses carries a Resolution to make them invalid.
The regulations concerning the National Fire Service are a case in which the negative procedure was to be adopted. That is to say, that the Secretary of State was authorized by the Statute of 1941 to 85 make these regulations. They instantly came into force and they did in fact constitute the system by which the National Fire Service was set up. Unfortunately, they were never laid on the Table of the House and nobody had the opportunity therefore of moving their nullification. Their validity depends on the fact that they were made. As soon as this mistake was discovered—and it was a very grave mistake—the Home Office laid these regulations on the table in both House; on July 26. Your Lordships may not be conscious of it but theoretically they lie upon that Table now. If your Lordships look at the third recital of the Bill you will see that that was done on July 26. The Bill says: … whereas by reason of inadvertence the regulations specified … were not laid before either House of Parliament until the twenty-sixth day of July, nineteen hundred and forty-four. … As some of the regulations were made in 1941 and some in 1942 and, I think, in 1943, obviously that is a lapse of a very serious character, and no doubt your Lordships will take that view, as it was taken in another place.
As for the Borne Secretary himself he presented himself in a very abundant white sheet. He acknowledged fully how grave was the error for which he must take full constitutional responsibility and he apologized with great sincerity. He did the only thing he could do and asked for an Act of Indemnity. If your Lordships look at the first clause of the Bill, you will see that it is accurately drawn for the purpose of giving indemnity. It says: The Secretary of State is hereby freed, discharged and indemnified from and against all consequences whatsoever, if any, incurred or to be incurred by him by reason of the said failure to lay before Parliament the regulations specified in the Schedule of this Act as soon as may be after they were made. … I stop there for a moment. I do not feel much doubt myself that if a Secretary of State fails to fulfil the duty which is laid upon him by the Statute—namely, of laying the regulations—he does commit a serious fault which I should apprehend might be the subject of proceedings as a Common Law misdemeanour. It is a breach of the duty Parliament laid upon him. The law exists among other things to punish breaches of duty unless they are forgiven. This part of the clause which I have quoted is to give Parlia- 86 mentary forgiveness and absolution to the Secretary of State for this most unfortunate error.
A second thing is also necessary and the clause goes on to say: and those regulations shall be deemed to have been duly laid before Parliament in accordance with the requirements of the Statute under which they were made. The point is this. The regulations were laid on the table on July 26. By the Emergency Powers legislation passed at the beginning of the war, there is provision for 28 days Parliamentary time within which they may be objected to. The effect of the clause is that they are to be treated as though they were duly laid "as soon as may be," although in fact they were not laid until July 26, 1944. There will still be the necessary 28 days during which anyone in either House can raise objection. That period will go on until after the Parliamentary Recess because it is 28 sitting days. That, therefore, cures the error in the sense that the offence is given absolution, and opportunity is given for objection to be taken if anybody desires. I cannot think that anyone will do so because it so happens that these regulations have been the subject of several most important discussions in another place.- Nobody objected and noticed during those discussions that the regulations had not been laid. It would appear that this is a case in which no particular harm was done.
I have said that the modern practice is for Parliament to insert in a Statute provision for delegated legislation. This is not the occasion to discuss that matter at large but it may be of interest to your Lordships to be informed that research goes to show that whether the method be good or bad, it is not merely a modern method. It is a method which has been adopted by Parliament for the last four hundred years. It has been approved of as a way by which Parliament may authorize general principles and the main structure of the Bill while leaving regulations with statutory effect to be made by an indicated Department. The circumstance which caused such legislation to come under popular and Parliamentary suspicion was the continuance of what was called D.O.R.A. after the end of the last war. We all remember that there was a great deal of warm and strong feeling that this was being kept up longer than it ought to be. But I must respectfully inform 87 your Lordships that it is not true to say that this is a new method, because it has been employed without objection by Parliament for hundreds of years.
This Bill is certainly one of a most unusual character and your Lordships may feel that you have had an interesting day in taking part in its passage into law. I ask first of all, from the House of Lords, in the most sincere terms for forgiveness of the error which has been made, for the error is a breach which affects both Houses. The Ministry is one, so I as well as my colleagues on the Front Bench must join in that appeal to your mercy. Fortunately, as I pointed out, it is not the case that in this instance any harm was done, for nobody wanted to object. On the contrary, everybody was satisfied with the arrangements made. What has happened has been just an accident.
In the second place, I ask your Lordships to carry this Bill, in which we indemnify the Secretary of State, and in which we also provide that, although in fact regulations have just been laid, they are treated as laid under the terms of the original Act, "as soon as may be" and there will be 28 Parliamentary days within which anybody who objects to the Fire Service or any of the provisions in the fire regulations may move either House of Parliament.

§ LORD ADDISON
My Lords, we are indebted to the noble and learned Viscount for his exposition of this Bill which, I think, creates misgivings in the minds of many of us. Some of us who at different times have been responsible for regulations have to congratulate ourselves that we ourselves did not commit a similar offence—or, perhaps, on the fact that we were not found out. There is one matter which the noble and learned Viscount, quite inadvertently, I am sure, overlooked. I refer to the "Blitz" in London in 1940 and 1941, when very great fires took place. These occurred in fact before these regulations were drawn up, and I am sure he would join with us in saying what a tremendous debt we owe to the splendid Fire Service of London before it was incorporated in the National Service. I think that our gratitude should be expressed for that, while at the same time we are fully 88 appreciative of the value of these regulations and of the National Fire Service which has been brought into existence.
As to the other comments of the noble and learned Viscount I think the question is quite properly raised whether some other departmental or Parliamentary procedure might not be devised with regard to these negative regulations—I think they are called negative because they do not require an affirmative Resolution in Parliament, and there are some thousands of them taking them all together. Ought not some kind of automatic check to be devised which will secure that oversights of this kind do not in fact occur in future? We can, of course, understand how it has occurred, and I am sure we are all ready to recognize that these regulations have conferred an immense boon on the community. We would all wish, therefore, that this Act of Indemnity should be passed. But this episode brings into light the necessity for devising, if possible, some scheme of departmental or Parliamentary procedure which will automatically prevent the recurrence of accidents of this kind. As for the rest, I can only say that we on these Benches concur in what the noble and learned Viscount said.

§ VISCOUNT SAMUEL
My Lords, I have no doubt that your Lordships will pass this Bill which is obviously a necessary measure. It is a piece of retrospective legislation, and that always needs careful scrutiny and adequate justification. It declares that these regulations which ought to have been laid upon the Tables of both Houses, but which were not so laid, shall be deemed to have been laid. That word "deemed" is very dangerous, and I have animadverted upon it on a previous occasion, but here I think its use is legitimate. As the Lord Chancellor has just said, it is highly improbable that any citizen can be damnified or that any injustice to him can have been caused by virtue of the fact that this lapse has occurred and the regulations were not laid.
The Home Secretary and Minister of Home Security has made in another place what the noble and learned Viscount has described as a very full and ample apology. Many of your Lordships whom I see sitting around me to-day in this House have served in the House of Commons, and they will agree with me that there 89 is nothing which that House enjoys so much as what is called a full and frank apology. Any Minister or private Member whose credit is declining has only to do something wrong, and to confess his fault and throw himself on the indulgence of the House to be raised to the highest point of popularity. I suppose it is on the principle that there is more joy in Heaven over one sinner that repenteth, than over ninety and nine just men that need no repentance.
The Home Secretary has been busily engaged, and very effectively engaged, in protecting the houses of the nation from destruction by fire, and he has not noticed this fire smouldering in his own house. It has now burst into this Parliamentary conflagration and he emerges from what may be termed his Morrison shelter in order to make this apology and to receive the indulgence and even, apparently, the approval of the House of Commons. Both the Lord Chancellor and I have had the privilege of serving at the head of the Home Office. I for one, and I am sure he also, always regarded it as a particularly efficient Department. I have been in and about various Departments of State for a considerable number of years, and I always looked upon the Home Office, from the point of view of the technique of administration, as an exceedingly efficient Department. It is depressing to an ex-Home Secretary to find even this temporary slur cast upon its prestige. This lapse, as it has been called, is a very multitudinous one, for it occurred nineteen times over a period of three years. The Home Office would, I am sure, regard the culprit as an habitual offender if it had to deal with other people similarly guilty in other walks of life. However, the lapse will, I think, be forgiven although it ought not to be forgotten.
What is important is to devise some means to ensure that similar unhappy events may be safeguarded against in the future. The duty, of laying upon the Table of the Houses of Parliament regulations that are made, is a step which is taken not in the service of the various Departments but in restraint of those Departments. It is designed to check their actions and yet it is left to the Departments themselves to see that the prescribed course is taken. Ought it not to be for Parliament itself to keep some watch upon the Departments? Quis custodiet ipsos custodes? If those who are charged with this duty do 90 not do it what remedy is there? I would suggest, as the noble Lord who has just spoken has suggested, that we should consider whether some amendment in the present machinery has not been proved by this event to be necessary. The Government, we know, have under consideration a comprehensive measure dealing with all these questions relating to statutory rules and regulations. Perhaps, in that connexion, they might take this present situation into account and it might possibly be found convenient for a register of Statutes to be kept specifying which require regulations to be made, and which procedure is to be adopted in the case of these regulations.
When regulations are made by any Government Department under any Statute, it should be the function of some Parliamentary official to collate these regulations with the register and to see that the proper procedure is being adopted. It is already the practice for all these regulations and rules to be sent to the Editor of the Revised Statutes, and it would be a simple matter to require that in each case they should be sent forward to an officer in the Bills Offices in the House of Commons and House of Lords to see that the necessary procedure has been adopted. I merely throw that out as a suggestion for consideration by those who have this matter now under review, and in the meantime I would join with others in expressing the hope that your Lordships will give a Second Reading to this Bill.

§ THE LORD CHANCELLOR
My Lords, I am deeply grateful to my noble friends Lord Addison and Lord Samuel for the manner in which they have approached this unfortunate event. On one point only I should like to add an observation, suggested by something just said by my noble friend Lord Samuel. I can assure him, and I can assure the House, that those of us in the Government who have been concerned in trying to put this matter right are very much alive to the necessity of considering whether there could not be some further check of an automatic kind which would prevent such an incident recurring. It is, of course, quite accidental; nobody means to do it; it only gets the Department into trouble. It is not, however, very satisfactory to have a situation in which the original Act of Parliament says that the regulations, having been made by the Secre- 91 tary of State, must be laid and be the target of attack, and to find that they are made and are law, but that there has been no opportunity of challenging them, as was intended.
It may be that the right instrument to use is not a Ministerial instrument, for the reason which the noble Viscount, Lord Samuel, has given. The remedy is probably more of a Parliamentary character. I may perhaps say that in the last few days those of us who have been particularly concerned in this matter—the Home Secretary, the Attorney-General, myself- and one or two others—have been considering various ways in which this particular hole might be effectively stopped. I do not think there is any doubt that as a result of this consideration the matter will come up again in a more general form, and we shall have to see what can be done. In the meantime, I thank my noble friend very much for the interesting suggestion which he has made, which will be considered along with some other suggestions already put forward.