STATUTORY ORDERS (SPECIAL PROCEDURE) BILL. (Hansard, 22 November 1945)

§ THE LORD CHANCELLOR (LORD JOWITT)

My Lords, I beg to move that this Bill be now read a second time. As has already been said, this is a highly complicated and technical Bill. The only thing that I think can be said about it is that it is not controversial. At least, in the other place there were no Divisions. But I think I might usefully occupy your Lordships' time for a few minutes if I try to explain the principles of the Bill, and the reasons for its introduction.

Those of us in the Coalition Government who had anything to do with the schemes for reconstruction came to the conclusion that we must see that the Parliamentary machine was capable of dealing with the mass of reconstruction proposals that were likely to come before it. I think the true friend of Parliamentary proceedings is not the man who thinks they ought to remain absolutely unchanged, but the man who thinks we must move with the times, so long as essential Parliamentary control is in all respects preserved. The first intimation given to the public by the Coalition Government was in the White Paper on the National Water Policy published in April, 1944, where it was stated, on page 8: In connexion with water undertakings the normal method for such a review has been in the past the familiar 'Provisional Order' procedure. The question whether some modified system might be devised is a matter which is closely bound up with the procedure of Parliament and has to be considered in a context wider than that of water legislation. For that reason, it would be out of place to embody any detailed proposals in the present Paper. It is quite obvious, if I may use an analogy, that if the State, instead of being content merely to act as referee and to blow the whistle when the player gets offside, wishes to come down into the arena and take part in the game, the State must see to it that it is sufficiently nimble-footed to take its part in the game with the other players. For that reason, we have to see whether our procedure is sufficiently up to date.

Accordingly, in the month of June, 1944, Mr. Winston Churchill, the then Prime Minister, explained his intentions. Your Lordships will forgive me for reading what he said, because I think the 1151 description he gave of what we propose to do is as clear and as concise as any I have been able to find. After talking about water rights, and then saying that the proposal was to relate, not only to water rights, but also td other reconstruction legislation, he said: For these Orders the procedure by way of Provisional Order Confirmation Bill, with its numerous stages, is unduly cumbrous in view of the urgency of the reconstruction period. On the other hand, if the Orders were merely laid before Parliament subject to annulment by a Resolution moved by a Member, there would be no room for the entertainment of objections from private interests affected, objections which would often be based on evidence of a technical character. Accordingly the Government have under consideration a proposal upon which they will wish in due course to take the sense of Parliament, for a fresh system of Parliamentary review of Orders combining certain features of each of the present systems …. Orders made subject to such new procedure would, after any local inquiry or other preliminary proceeding required by the relevant Statute, be laid before both Houses of Parliament for a stated period, during which objection could be taken thereto either by negative Resolution moved by a Member of the House or by petition. It would not, however, be open to petitioners, as it is on a Provisional Order Confirmation Bill, to petition against the main purpose of the Order. If any petitions were duly presented, the Order would stand referred to a Select Committee, which would normally be a joint committee of both Houses; the petitioners would be entitled to appear and he heard upon the particular matters raised by their petitions, and the committee would have power to amend the Order. The Order would thus normally be disposed of either within the original period for which it is laid or, if opposed in detail by private interests, after one Parliamentary stage. In two exceptional cases further proceedings would be required; namely: (1) If the Government found it necessary to ask Parliament to reconsider Amendments made by the Joint Committee on the Order, and (2) where for special reasons it was desired that an Order should be considered by separate Committees of the Houses. In these cases the situation would have to be met by the introduction of a Bill to which the Order would be scheduled, but the passage of such a Bill could be accelerated by the elimination of all except essential stages … And then he adds: These proposals have not yet been worked out in full but it is intended to put a detailed scheme before Parliament as soon as possible. The Government contemplate that the new system should in due course replace the present system of Provisional Order Confirmation Bills. Before that answer was given, of course, a good deal of work had been 1152 done on this matter, and the real credit for this Bill—I think those associated with me in the last Government would all agree—should go to Sir David Maxwell Fyfe, who gave unsparingly of his time to work out the details of the Bill. On March 28, 1945, the Bill was presented to the House of Commons.

Now may I ask your Lordships to consider for a moment the various ways in which Ministerial Orders can come before the Houses of Parliament. In the first place, there is sometimes a mere provision that the Order of the Minister be made. Parliament has no check at all, no control. That, I suppose, is done simply so that Parliament may be informed of what the Minister has done. Then there is the procedure whereby the Minister makes an Order, and in order that it may become law it requires an affirmative Resolution in both Houses of Parliament. In your Lordships' House that is known as a Special Order and you, unlike another place, have special Standing Orders dealing with what are called Special Orders. We do not intend to touch that or interfere with it in any way. Then, more commonly in modern legislation, you get the requirement not of an affirmative Resolution but of a negative Resolution. The Minister makes an Order and the Order stands unless within a specified time either House opposes it. That, equally, we do not propose to touch by this legislation.

But there is a fourth method, and that is by the Provisional Order procedure. The Provisional Order machinery was started, I think, almost exactly 100 years ago; and if I may just trace through, in the broadest outline, the steps of Provisional Order procedure, they are as follows. In the first place, a local inquiry is held. That is very valuable and very useful because it enables people to know all the facts and hear the arguments, but of course that is not any sort of Parliamentary control. When the local inquiry has been held, if the Minister is minded to go on with the Order he introduces a Provisional Order Confirmation Bill and schedules the particular Order to that Bill. Now that Bill is technically a Public Bill but, by long tradition in both Houses, it is very exceptional for such a Bill to be debated on Second Reading in either House. What happens is that either House sends it to a Committee upstairs, and on the Committee upstairs 1153 there takes place what is really a Second Reading debate. The promoter of the Bill has, in the technical phrase, to "prove his preamble," and the Committee, if they are satisfied that the preamble has been proved, then, and only then, go on to consider the various clause points. So that Committee is really dealing with the objections to the main purposes of the Bill as well as Amendments to the clauses.

If I may reveal a secret of the Bar, may I tell you that in my young days I often used to be instructed to go before these Committees on clause points. You received your brief before you knew whether the preamble was going to be proved or not. It used to be very satisfactory, after you had been briefed, to find the preamble was not proved, so that you never had to do anything for your money!

As soon as the Provisional Order passes another place in that way it can come to your Lordships, it goes upstairs in the same way, and you have the third forensic proceeding, where you have maps, blackboards and all the rest, with expert witnesses and counsel. So you have first of all the preliminary inquiry, then the proceedings upstairs in another place, then the proceedings upstairs in the Lords, and then, if you get over all those hurdles, the Provisional Order becomes law. But not unnaturally it takes a good deal of time and costs a good deal of money. The average time for an opposed Order is eight months, but I have known Orders take very much longer than that to get through.

Compare that with its forensic procedure, on the one hand, with the Special Order procedure. In the Special Order procedure there are no forensic proceedings at all. The Order comes before each House, each House has to pass an affirmative Resolution and you have, as is natural on the floor of the House, a Second Reading debate. In a Second Reading debate, you cannot, of course, go into all the details, as you can in forensic proceedings. It is often the case that these Provisional Orders can be disposed of on Second Reading. For instance, under the Town and Country Planning Act there is power to make Provisional Orders with regard to the siting of some of the London railways. Suppose a question arose as to whether Charing Cross Station or Cannon Street Station were to be moved 1154 somewhere else; that is a matter on which almost every Member of each House would have strong views, and we should none of us be satisfied to have that matter determined for us by a Committee upstairs. We should want to express our own views and then for it to go to a Committee upstairs to settle the clause points, to see that individual interests were properly protected. What we propose to do under this procedure is to try to combine the good features of both the Special Orders and the Provisional Orders.

In the first place, let me say to what Orders the procedure provided for in this Bill applies, or will apply if it becomes an Act. It applies to Orders made under the Town and Country Planning Act, 1944, the Town and Country Planning (Scotland) Act, 1945, the Water Act, 1945, and the Local Government (Boundary Commission) Act, 1945. It will apply to future Acts if the Acts include a power to make Orders and provide that such Orders shall be subject to special Parliamentary procedure. With regard to previous Statutes, the provisions of this Bill can be applied if each House passes the necessary affirmative Resolution.

In the Bill as introduced in the Coalition Government, there was a five-year period. The Bill provided that it was not to be applied to past Acts of Parliament until five years had elapsed. But knowing that your Lordships do not like the five-year period, I hope we shall receive some credit for having omitted that provision, and, in consequence, so long as your Lordships pass the necessary affirmative Resolution—because you have complete Parliamentary control—the Bill can be applied to existing Acts of Parliament.

What is to be done under the machinery which the Bill contemplates? First of all, you have got to have your local inquiry; that is to say, to see that the requirements of what is called the Empowering Statute are satisfied. If there is no requirement in the Empowering Statute, then the provisions of the First Schedule apply. If your Lordships will look at that, you will see there is adequate protection there. When those preliminaries have been carried out, the Minister has to certify that the necessary steps have been taken. After that has been done, the Order has to lie on the Table for a period of fourteen days, during which 1155 petitions against the Order can be presented. At the end of that period, the petitions are referred to the Chairmen, that is to say the Lord Chairman in our House and the Chairman of Ways and Means in the Commons, who then have to perform this task; they have to differentiate between those petitions which are petitions of general objection and those which are petitions for amendment. That is a distinction between what we used to call a Second Reading point and a Committee point—between one which negatives the main purpose of the Bill and one which is an amendment.

Then they report under which category the petitions fall. Petitions of amendment go to the Committee upstairs. We propose a Joint Committee of both Houses which will effect a very considerable saving of time. Petitions of general objection will normally be disposed of on the floor of the House, but either House will have the power to say: "We do not think we know quite enough about this Order to make up our minds whether we shall allow it or not. That being so, albeit that the petition is a petition of general objection, we shall send it to the Joint Committee in order that the Committee may discuss it and that we may have the advantage of their report after the forensic procedure has taken place."

That is, roughly speaking, the scheme of the Bill. I am afraid this is very technical. It may happen, of course, that the Joint Committee may amend the Bill. If the Minister is prepared to accept the amendment, the Order, as amended, then becomes effective. If the Minister is not prepared to accept the amendment, he can cause the Order to be submitted to Parliament for further consideration by means of a Bill, which will be treated as a Bill which has passed through the Committee stage in both Houses, so that either House, on the Report or Third Reading stage, will be able to decide whether they prefer the view of the Joint Committee or that of the Minister. There may be occasions (with which I do not think I need trouble your Lordships at this stage), where a Bill has to start in the first House again and go through its Second Reading in order that it may be sent to the Committee. Another advantage is this. Under this Bill we shall be able to take advantage of the whole time that Parliament is sitting. As your Lordships know, 1156 under the Provisional Order procedure, Bills must be submitted before Whitsunday and unless that is done the rest of the year is not available.

There are four points on which we claim the Bill merits consideration. First of all, the removal of the delay caused by the season of the year; secondly, the division by trusted officers of the House (the Lord Chairman here and the Chairman of Ways and Means in another place) into the two categories, petitions of general objection and petitions for amendment; thirdly, the disposal of the petition of general objection on the floor of the House; and finally (one of the greatest advantages of all), we shall have the machinery of a Joint Committee of both Houses instead of having a Committee first of all of the Commons and then possibly of the Lords, involving considerable extra delay and expense.

That is the broad outline of what I readily agree is a very complicated measure. Its passage through the Commons was, on the whole, friendly and favourable. Certain Amendments were suggested there which were accepted. At no stage of its career in the Commons did this Bill have to go through any Division. I commend this Bill to your Lordships as an experiment—it frankly is that—which, in the opinion of those who have given a great deal of time and thought to it and who have considerable knowledge of the subject, is well worth trying. I beg to move that this Bill be cow read a second time.