HL Deb 15 November 1945 vol 137 cc981-94

5.12 p.m.

Committee resumed:

[The LORD STANMORE in the Chair.]

Clause 2 [Power to make Defence Regulations for controlling prices]:

LORD RANKEILLOUR moved, in Subsection (1), after "description," to insert "excluding professional costs allowed by a recognized authority in the profession concerned." The noble Lord said: I beg to move the next Amendment which stands in my name.

Amendment moved— Page 2, line 42, after ("description") insert ("excluding professional costs allowed by a recognized authority in the profession concerned").—(Lord Rankeillour.)


I am sorry I cannot accept this Amendment. Where a profession ends and where the next category begins is very difficult to say. For that reason I think it would make the clause very complicated and difficult if we had any such provisions as this, "excluding professional costs allowed by a recognized authority in the profession concerned." There are very few professions, with the exception of the legal profession, in which it could be said that the amount of the costs allowed were allowed by a recognized authority in the profession concerned.


They may not be prescribed but they may, none the less, be allowed.


I can think of no profession to which that applies except the legal profession, although there may be some. It would be exceedingly difficult to draw a line between where a profession ended and another category began. I think the effect of this Amendment would be merely to lead to greater obscurity. I pin my faith—and I ask your Lordships to agree with me—to this. Before we can apply this power to any particular subject matter we shall have to bring in a subordinate instrument. If the subordinate instrument is wide enough to allow that to be done, that will be the opportunity to raise this point again, and I shall be surprised if your Lordships do not make use of that opportunity.


May I make a suggestion which I think may probably meet my noble friend Lord Rankeillour's Amendment? It is a suggestion which accords, I think, with the noble and learned Lord Chancellor's view of what the words "of any description" mean. I understood him to say a few minutes ago that the words "services of any description" have got to be collocated with the words in the preceding line which refer to the prices to be charged for goods of any description. If he could insert words which really produce a collocation between them as a matter of drafting, that would satisfy me and, I think, would satisfy my noble friend. In other words, it would satisfy me if something of this sort could be put in: or the charges to be made for services of any description in relation to 'the prices to be charged for such goods as aforesaid. What I personally so strongly object to are these words which are inserted in order to cover the price question, which is all important, and incidentally expenses, are so drafted that any charges, costs or remuneration of any sort wholly unconnected with prices can be the subject of such an order as that with which we are dealing. That is not intended, but why should not that be made clear by some words which I am sure could be accepted by the noble and learned Lord Chancellor before the Third Reading? That would satisfy me, and I venture to think it would satisfy the opinion of the Committee as to what is right in the circumstances of the case.


May I add to my previous remarks, bearing in mind what the noble Viscount has said? Take, for instance, laundry charges. There, there is no question of a sale of goods. It is obvious that we might have to have power to control laundry charges. Another illustration was given in another place. That illustration related to funeral costs, to the scale of fees payable to what I think are called, in America, morticians. It was said that they were very much too high at the present time. That is another illustration and that has nothing to do with the sale of goods. Therefore I could not limit the description of "services" or tie it up too closely with the sale of goods. I have given two illustrations but many more might be given of services of various descriptions that we might have to control. When we do come to control them we shall control them by means of a subordinate instrument which will come before your Lordships.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.19 p.m.


Now we come to a matter on which the noble and learned Lord Chancellor said last time he is most anxious to meet us. I propose, therefore, formally to move to add at the end of the clause the words: Provided that where an Order or Regulation is in general terms, the powers there-under shall only be exercised by an instrument under this subsection dealing with the specific matters in respect of which the power is to be exercised. I can put the point very shortly because I dealt with it last time, when the Lord Chancellor said he had great sympathy with the point of view and would do his best to meet it. It is this. We know now that the order or Regulation has to be taken in very general terms, because the Government do not know whether or not they may require in altered circumstances to use those powers. They have to have them before February 24, or they could not use them at all. My proposal, to which I have tried to give effect in the words which I am proposing, and with which I think your Lordships were in agreement on the last occasion, is that when the Government knew that they had a case which they could justify to the House they should come to the House with an Order or Regulation or instrument, or whatever be the right term, justifying what they were proposing to do in the way of control or regulation, and we should then be able to pass that, or to reject it if we thought that the case was not made out, on facts which would be before us. If the Government were acting reasonably, we should probably all agree that the Regulation was necessary. Certainly if they pursue a course of action of the general tenor indicated by the noble and learned Lord Chancellor that would be the case. We say, however, that they should not ask us to authorize action by them at some time in the future by producing to us an order or instrument which gave them general powers of which at the time they could not justify the use, but of which all that they could say was that they might need those powers later.

If I understood the Lord Chancellor aright, when this broad Regulation, which must be passed before February 24, is produced, it will be drawn in very wide terms, but will itself provide that the powers under it shall be exercised only by a separate instrument, which will be produced to both Houses of Parliament and lie before them as and when the occasion arises which in the opinion of the Government necessitates the exercise of those powers. I appreciate that a distinction is drawn between orders which affect only a single firm, and which are really directions to a particular firm to do a particular thing, and general orders which will control prices or charges, or concern any of the broad forms of control which are laid down here. As I understand it, it is intended that every instrument which is not of a specific nature affecting a particular firm will be brought before us, and will be brought before us at a time when the Government are prepared to justify the action which they think that it is then necessary to take. That is a tremendous advance.

If I have rightly understood the position, and if it is correct that the Regulation itself, which will lie here, will only enable the Government to act through instruments produced as and when tie Government think that they can make out a case—if, that is, I have rightly interpreted the statement which the Lord Chancellor made—then I suggest that tile right thing to do is to put similar words into the clause of the Bill which authorizes the making of that Regulation. That would be the natural and proper course. If power is given, and if the power is to be limited or is to be exercised in a particular way, then the common procedure is that that should be laid down in the section which confers the power. I think that I have made the case clear to the Committee. I think we shall be giving effect to what the Government as well as we wish to do, and to what the Lord Chancellor says is the intention of the Government.

Amendment moved— Page 3, line 2, at end insert the said proviso.—(Viscount Swinton.)


Let me give an illustration of the sort of way in which a Regulation brought into being by an Order in Council under Clause 2 would work. Let us take one of the existing Regulations. The most formidable Regulation of all, giving general powers of control, is, I think, Regulation 55. It is in these terms: A competent authority, so far as appears to that authority to be necessary…by order provide "— and then there is set out a whole catalogue of things which may be by order provided. It goes on: and may be made so as to apply either to persons or undertakings generally or to any particular person or undertaking or class of persons or undertakings, and either to the whole or to any part of any undertaking… Heaven forbid that your Lordships should be troubled by the orders referring to particular undertakings. They are legion, and it would be impossible to keep any effective check on them.

It is very important, however, to draw a clear distinction, between an order applied to an individual, which may be a very drastic order and may tell him to do all sorts of things—it may tell him the, prices which he should charge, and so on—and an order which is to be of general application. Therefore the Committee will see that we have put in Clause 4 of this Bill, in line 26, the words: to be a statutory rule within the meaning of the said section and to be of the nature of a public Act because it is those Regulations that we desire to lay, and we do not desire to lay or contemplate laying any Regulation which is not of the nature of a public Act. That was the principle on which this scheme was drawn, and I hope that the Committee will realize that I do not mean to depart from that at all. I am glad that I am under an obligation to lay all these orders, so long as they are of the nature of a public Act.

If it comes to a question of discussion, it may not be easy to draw a hard-and-fast line as to whether something is or is not of the nature of a public Act, and then in the last resort it is a matter for the Treasury, with the concurrence pf the Lord Chancellor and of the Speaker of the House of Commons, to decide. So far as I am concerned, if it is proper for me to say so, I should always vote for taking the step which involved laying it before your Lordships' House, because I think that that is a very useful democratic check; but I do not think that the phrase used in the Amendment moved by the noble Viscount is either necessary or quite satisfactory. If I have got, as I have, in Clause 4, machinery applying to these orders under Clause 2, so that I have all my machinery in Clause 4 which will apply to these orders under Clause 2, I think that that is sufficient, and I do not like the words of the Amendment, "Provided that where an order or Regulation is in general terms…" I do not quite know what that means. If it simply means the distinction which I am trying to draw between that which is of the nature of a public Act and that which is not, I have already got that in Clause 4;


I can make that perfectly clear. I am not a skilled draftsman, like the Lord Chancellor; it is a long time since I turned my hand to it. But I am quite clear what I mean, and I think that both the Lord Chancellor and I mean the same thing. By "general terms" I meant a Regulation giving a broad power over a wide range, which can be exercised at any time in the future. The assurance which I want—and I think it is the assurance which the Lord Chancellor wishes to give to the Committee—is as to both matter and time. It is not only that every instrument which is in the nature of a public Act shall be laid—I appreciate that—.but as to time, that it shall be laid at that time when the Government wish to act upon it and feel that they can make out a case for acting upon it. I did understand that that was what the Lord Chancellor had in mind. I am not in the least wedded to any particular form of words, and I think that the Committee would accept the assurance that the Regulation when it comes before us will itself provide that action under it which cannot be justified at the time will be taken by instrument and that that instrument will be produced to us when the Government can make a case.


That assurance I can give for that is plainly my understanding of the matter. But let us have this clear. My assurance relates to those orders which are the nature of public General Acts, but does not relate to an order, however general it may be in its terms, which relates to an individual. It would be quite impossible to lay the latter class of orders but the former class, that is to say orders partaking of the nature of public General Acts, we shall lay. For instance, supposing we are going to use our powers under a Regulation to control the charges for laundering, we shall bring in a subordinate instrument which will set out that we intend to apply our power for that purpose. That instrument would be laid and your Lordships would have power to deal with it.


At the time when it was proposed to take action.


At the time it is laid. But I frankly confess that there would remain this weakness. I want to be open and to put my cards on the table. Having got my Regulation at the time when it was necessary, it would stay, and your Lordships would have no control after that, except of course by vote of censure or statement in the House or something of that sort. Having, I hope, expressed myself plainly, I am glad to give the noble Viscount the assurance for which he has asked.


My noble friend Viscount Swinton will no doubt intimate whether or not he is satisfied with what has been said. Personally, I feel it right to say that I think we should be satisfied with the assurance given, and that we are all very grateful to the Lord Chancellor. But before we pass from this, would he excuse me if I ask a cognate question, which was asked first of all by Lord Rankeillour? We are proceeding on this basis, that though the Regulations—I am using the words carefully—must be made before February 24 next, they will continue to have what is really statutory effect for five years. That is plainly the basis on which we are proceeding. Whether it is politic or not is a question which I am not now discussing. That is a very considerable departure—is it not? —from the ordinary arrangement, because, if you have a temporary Act—your original Emergency Powers Act lasted for twelve months—and you make Regulations under it, if the Emergency Powers Act expires the Regulations expire too. That is to say, if the legislative power expires things done under it drop. That, I quite appreciate, is not the scheme now aimed at. I think that it would be useful if the Lord Chancellor, in a couple of sentences, pointed out how the result he desires to secure is attained by this Bill. I am not criticizing, but I think it is a rather difficult point of construction.

If I might attempt it myself, suppose it is because you have got on page 2, at line 7, these words: he may by Order in Council direct that the Regulations shall have effect by virtue of this Act whether or not it is for the time being necessary or expedient for the purposes for which it was made. Stopping there for the moment, I suppose the argument is that because the Act itself—as stated in Clause 8 (is it not?)— is to last for five years; therefore the Regulation, though it must be made before February 24 next, will continue also to operate for five years. Is the Lord Chancellor quite sure that that is the way it would be regarded? I mean regarded when it came to be construed judicially. If you look at Clause 1, subsection (1), you will see the words which I have just read. Might it not be supposed that the purpose for which the provision is made about having effect "by virtue of this Act" is not that the Regulation is to last for five years, but that it is to be a good Regulation notwithstanding that it is not one which, in the first place, was made for what I may call war purposes but is a Regulation which by virtue cf this Act is authorized because it is necessary or expedient for these new purposes that have appeared, as it were, immediately after the war?

I ask this without desiring to be in any way critical. But it does seem to me that it is rather what lawyers call a pregnant construction to say that the phrase "by virtue of this Act" has, as it were, this double effect. In the first place it plainly does this: it makes sure that the Regulation is a good Regulation when it is made, notwithstanding that it is not for the time being necessary or expedient for the purposes of carrying on the war protecting ourselves from persons of enemy associations and the like. That, of course, would not carry the point. It has got to be read as having, at the same time, the second meaning, that it is going to be good for five years though the Regulation itself cannot be made after 24th February next. Of course, I appreciate that you may look at Clause 8 anti say: "But that says that the Act is to endure for five years," and there are some things which plainly last for five years in virtue of that provision—for instance, Clause 6, which perhaps I may call, without giving offence, the State Trading clause. Manifestly, the power therein outlined lasts for five years because the Statute says so.

But I must say that I do not want to chop logic about this matter. I appreciate what the Government want to do. What I am asking the Lord Chancellor is this. Is he quite certain that by putting in these words in subsection (1), there will follow the curious and unusual result that although the Regulation must be made before February 24.—because that is the date when the Emergency Powers Acts are going to cease to be law —nevertheless the effect is to make the Regulation good and operative for five years. As I have said, I put this with a view to being helpful and not in the least with the idea of being critical.


Will the Lord Chancellor allow me to say that I feel that the matter which Viscount Simon has raised is one of considerable substance? I am not, however, willing at the present time to express any opinion as to what the result of any litigation in this connexion might be.


We do not wish to trouble your Lordships with this point at any undue length. We can debate it at some other time, perhaps. May I say to the noble and learned Viscount, Lord Simon, that I think regard should be had also to Clause 5, subsection (2)? The noble Viscount will see that that contains this passage: If the principal Acts expire while this Act is in force— (a) the provisions of those Acts, except the provisions specified in the Second Schedule to this Act, shall, notwithstanding their expiry for all other purposes, continue to apply (so far as applicable) while this Act is in force to any Defence Regulation having effect by virtue of this Act… That I think is the answer.


I am much obliged to the Lord Chancellor and in view of the very clear undertaking he has given, I think that, although the words will not be in the Bill, his undertaking has really covered the point which I made last time. I beg to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 to 5 agreed to.

Clause 6:

Application of powers of Minister of Supply.

6.—(1) For the purposes of the Ministry of Supply Act, 1949 (which confers powers on the Minister to acquire, produce or dispose of articles required for the public service and to, exercise certain other powers in relation to such articles) the expression" articles required for the public service" shall include any supplies which the Minister of Supply considers it necessary or expedient to maintain, control or regulate for any of the purposes specified in subsection (1) of Section one of this Act, and the expression "works required for the public service" shall be construed accordingly.

5.41 p.m.

THE LORD CHANCELLOR moved, in subsection (1), to substitute "is satisfied that it is" for "considers it." The noble and learned Lord said: This Amendment I again owe to the suggestion of the noble Viscount, Lord Maugham. We want to get something rather more definite than the word "considers" and he suggested that we might put in the words "is satisfied." Let me just say this. I take this view very strongly. Where a matter is, by words such as these, taken out of the control of the Court and put into the control of the Minister, it behoves the Minister to consider the matter very seriously and very carefully, all the more because he cannot be challenged by the Courts. Therefore, I am quite prepared to accept the words which impose a still more important obligation upon him. He has not got to look at it casually. He really has got to be satisfied, and for that reason I am putting down in my own name the first part of the Amendment which the noble Viscount suggested. I beg to move.

Amendment moved— Page 5, line 44, leave out ("considers it") and insert ("is satisfied that it is).—(The Lord Chancellor.)


I have only to thank the Lord Chancellor for accepting my suggestion.

On Question, Amendment agreed to.

5.43 p.m.

VISCOUNT MAUGHAM moved, in subsection (r), to leave out "or expedient." The noble Viscount said: On the last occasion I raised the question whether the words "or expedient" should not be omitted. I have thought it over very carefully, and I still ask the Lord Chancellor to consider this further. What does one mean when one says that a Minister in making such an order as we are concerned with, is to act if he is satisfied that it is right? How do we alter it by saying that he is satisfied that it is necessary or expedient? To be necessary means, I take it, a thing which is, having regard to the public interest, a right and obvious thing to do, or at any rate a necessary thing to do for that purpose. The addition of the words "or expedient" seems to me to leave open the power to the Minister to say, "Well, I think it is expedient." It may he for a political reason; it may be for a purely Party reason. It is something not necessary but what the Minister may deem to be expedient. I think it is highly dangerous to insert such words as we have got in Clause 6.

Having considered the real meaning of the word "expedient," I am inclined to press my Amendment. It has been said that the word occurs in other places in the Bill but in those other places t think it is justifiable. There may he a number of cases in which the Minister may take action not merely because it is necessary but because it is expedient to do so. It may be some question of persons or the particular circumstances of a case. He may not be satisfied in the least that it is necessary; but he thinks, on the whole, that it is expedient. I confess that I do not see the need for the word "expedient" here. I can see that there are things which the Minister might think necessary in the sense that he wanted to make an exploratory investigation, to make an experiment or to do something quite tentative.

I should be content to make the words in this clause read: "shall include any supplies which the Minister of Supply is satisfied that it is necessary to maintain, etc., for any of the purposes specified in subsection (1) of Section one of this Act, including any supplies of an experimental or trial nature or character." So that if the Minister only wants to test something without being able to say that he is satisfied that it is necessary, let the words go in and let hip have a chance by means of a trial as to whether his actions should include the acquisition, production, or disposal of articles which may, or may not, be necessary and about which he is not quite sure. That I should be perfectly willing to accept, but if the words are left as they are, the position is that if the Minister were challenged in a Court of Law the person concerned would have to establish that he was acting in bad faith. That, I venture to think, is unreasonable, and I ask the Lord Chancellor, before definitely refusing to accept the Amendment, to accept the addition which I have suggested and which I think gives the Minister everything which he can properly require.

Amendment moved— Page 5, lines 44 and 45, leave out ("or expedient").—(Viscount Maugham.)


I am afraid I cannot accept this Amendment. I promised to look into it last time but I indicated that I thought that there would be difficulty here and the reason is the one which the noble Viscount has given. I do not see the advantage of adding the additional words in endeavouring to overcome the difficulty. Let me tell you the present purposes. The Minister of Supply is intending to make housing components and of course we need every single one we can get. He is also going to deal with medical supplies for the populations of Europe. In the nature of things there will be, or there may be, a considerable amount of experimental work on these things. You will have to try out something. It will be rather a new idea. It looks good and it seems promising and the Minister addresses his mind to it. I have already said that the Minister has to look at this matter very solemnly. He has to ask himself, "Can I honestly say that this is necessary?" There must be many cases Where a Minister, if he is an honest man—I am going to assume Ministers are honest man, because if he is a dishonest man it does riot matter whether you have "necessary," "expedient," or any other word—would find it difficult to say, "I am satisfied that this is necessary."

On the other hand, he might well say, "I am satisfied that it is expedient. I think it may save a great deal of time or money "—or whatever you will" and I want to go in for it."But he cannot say, "I think it is necessary." The added words which the noble Viscount suggests, have, to my mind, the effect, first of all, of confining yourself to "necessary" and then, by means of a sort of set of words, striking out al necessity—the very essence of it—and saying, in fact, "providing always it is good enough if it is expedient." I venture, with the greatest respect, to suggest to the noble Viscount that: the words necessary or "expedient" are a better way of achieving the result I desire than confining myself to the word "necessary" and then having an enlarging clause which really does away with the essential idea of the word "necessary." For that reason I am very sorry I am unable to accept the Amendment.


I am obliged to the noble and learned Lord for the way in which he has dealt with the matter. I am sure he has done his best to be fair about it, but I cannot agree that the inclusion of the words which I suggested at the end, would have the effect of diminishing the word "necessary," or the purposes of the clause. However, the responsibility is rather in his hands, and, as he has taken that view, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Remaining clauses agreed to.

Schedules agreed to.