HL Deb 07 February 1946 vol 139 cc327-44

5.44 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD STANMORE in the Chair.]

Clause 1 agreed to.

LORD ADDINGTON moved to insert the following new clause after Clause 1:

Notice of and representation respecting statutory instruments.

"—(1) At least forty days before the making of any statutory instrument, notice of the proposal to make the statutory instrument, and of the place where copies of the draft statutory instrument may be obtained, shall be published in the London Gazette.

(2) During those forty days any person may obtain copies of such draft statutory; instrument on payment of not exceeding one shilling, and any representations or suggestions made in writing by a person interested to the Minister responsible for making confirming or approving the statutory instrument shall be taken into consideration by him before finally settling Dm same, and on the expiration of those forty days the instrument may be made, either as originally drawn or as amended by the Minister."

The noble Lord said: This deals with a point I raised on the Second Reading of the Bill. The statutory instruments will affect the lives of many of our people and once they are made nobody who is affected under them has an opportunity of approaching, as they can in an ordinary Bill, either representatives in another place or those in your Lordships' House and have amendments made to meet the particular difficulties of their case. The principle I am anxious to urge is that there should be provided in the Bill adequate provision for prior consultation with all those who may be interested, or think themselves interested, before the statutory instrument is actually made. I do not think this is a Party or political question, and it has, I believe, the interest of the ordinary folk of our land as well as of those who have to administer those particular Orders. I think it has the support of the Law Society and the Association of Municipal Corporations. Possibly the wording may not be the best, and I am quite prepared to accept suggestions made by the noble Viscount, Lord Bertie. The first is a verbal one; the second does concern a more substantial point in that it provides that the Minister should not be able to alter a Bill so that it is substantially different between the time notice is first given and when the Order is finally made. All I am concerned with is to establish the principle. I beg to move.

Amendment moved— After Clause 1, insert the said new clause.—(Lord Addington.)

THE LORD CHAIRMAN

As the noble Lord has intimated that he accepts the proposed Amendments to his Amendment standing on the paper in the name of Viscount Bertie I will put his amendment in the following form: .—(1) At least forty days before the making of any statutory instrument, notice of the proposal to make the statutory instrument, and of the place where copies of the draft statutory instrument may be obtained, shall be published in the London Gazette. (2) During those forty days any person may obtain copies of such draft statutory instrument on payment of a sum not exceeding one shilling, and any representations or suggestions made in writing by a parson interested to the Minister responsible for making confirming or approving the statutory instrument shall be taken into consideration by him before finally settling the same, and on the expiration of those forty days the instrument may be made, either as originally drawn or as amended in accordance only with any such representations or suggestions by the Minister.

THE LORD CHANCELLOR

I am sorry I cannot accept this Amendment. This matter has rather an interesting history and When the noble Lord said that the Law Society was supporting the Amendment I wondered if it was a sense of filial piety which made them still support it, and whether possibly the fact of the Association of Municipal Corporations supporting it means that there is some link between the Law Society and the Association. The history is this. In 1891 the Law Society were disturbed about the promulgation of Rules of Court, either County Court or High Court, being made without proper consultation with the Law Society.

Two very eminent solicitors of the day, who, if my recollection is correct, sat on different sides of the House, sought to bring in a private Bill in 1891. Originally it was confined to-the question of Rules of Court but the Government of the day would not have any Bill confined to Rules of Court and wanted to extend it. However, it did not meet with success then, and in '1893 it was introduced again by the same people and it was then confined entirely to Rules of Court. 'The Government altered it, and, after very considerable alterations in this House, it became the Rules Publication Act which we now know.

That Act provides that Rules have to be laid 40 days before they become effective, and they have to be published in the London. Gazette so that representations may be made by the public. Section 1 of the Act does not apply to Scotland. Since the institution of Northern Ireland, it has never applied to Northern Ireland. It does not, for some reason, apply to certain Government Departments, and, although I am speaking subject to recollection, as I have not got the Act here, it does not apply to the Local Government Board as it was then; it does not apply to the Post Office; it does not apply to the Revenue Department; it does not apply to the Board of Agriculture in certain orders and there are certain other exceptions. I have tried to find some common principle or to find out what the history of these exceptions was and I am quite unable to do so. In the net result, as time has passed, it has been found more and inure that Statutes which have been passed, instead of relying on the code, expressly provide that the code shall not apply. I asked the draftsman to look up the last eight years. He looked up the eight years ending 1934, and I warn your Lordships, as this was done late last night, it can only be as rough check, but, it is the sort of test to apply. Of the Bills in respect to which the Rules Publication Act would apply, in 45 cases Section 1 of that Act was expressly excluded. The Act was left to apply in only twenty-seven Statutes, so it has become more honoured in the breach than in the observance.

By a strange irony of fate, so far as the original intention of the Law Society is concerned, it does not apply to County Court rules, because County Court rules do not have to be laid, and Section 1 of the Rules Publication Act of 1893 does not apply to rules which have not to be laid, and it does not apply to rules of the High Court, because there is an express' provision in Section 99 of the Supreme Court of judicature Act, 1925, excluding the section. The reason is that it has been found by experience that a very much, better way of dealing with proposed rules is to ask the organizations concerned to meet you-for consultation and to ask their opinion, rather than publish the rules in the Gazette and wait for representations to be made I think there is real substance in this. During the time when a Government Department are discussing draft rules, which are merely on paper—they are not in any way crystallized or fixed—they have meetings with representatives of all parties concerned, and they are perfectly free to alter the rules. Once the rules are promulgated and published in the Gazette the tendency is for a Departmental view to become crystallized. Your Lordships probably know enough about Departments to know this, that once a Departmental view becomes set it is rather difficult to move it.

Therefore, what we have done is this. We have now departed in the great majority of cases from the machinery of the Rules Publication Act. We no longer promulgate the regulations or rules in the Gazette and wait for representations to be made. We go to the trade or the interest concerned and deal with it by getting them round the table, hearing what they have to say, and then drafting the rules after obtaining their views. I believe 'that is the better way and I think it would be a pity to go back to the old procedure. The very expert Committee, which was set up in the time of the last Government considered this question very carefully, and came to the conclusion quite definitely to leave out Section 1 of the Rules Publication Act. When this came before the House of Commons, although the point had been mentioned during the Second Reading, and some authorities, the Law Society, and the Association of Municipal Corporations, had sent round to members, when the Bill came before the Committee in that House, although it was considered by great experts, including many members of the scrutinizing Committee, this point was not advocated at all. I believe, my Lords, it is very much better to do what we have done in this Bill, and to content ourselves with this. Under Section 4 we say, "subject as hereinafter provided, a copy of the instrument shall be laid before each House of Parliament before the instrument comes into operation." You couple that with the new Clause 3, which provides that if anybody is prosecuted for a breach of one of the regulations, it shall be a defence to him if he can show it has not been published, or rather it is for the prosecution to show that it was brought to his notice before he can be guilty of a breach of these regulations. I would, therefore, venture to hope that the noble Lord will agree we are taking the better and more modern course.

There is a question now being debated to-day in the House of Commons, the question of national insurance. Where one is dealing with insurance funds, which affect a very large number of people, your Lordships will see that a Bill now before the Commons contains a clause—I think it is Clause 76—which sets out a machinery of its own, but very much like Section 1 of the Rules Publication Act machinery. And, of course, it is always possible in those cases, where the matter is one of such wide interest that cannot be dealt with properly by meeting sectional representatives, to insert in the Bill machinery, as is being done in the National Insurance Bill, to provide for wide consultation. For these reasons I am afraid we cannot accept the Amendment.

5.52 p.m.

LORD BALFOUR OF BURLEIGH

I hesitate very, much to intervene in a matter which is quite clearly really one for a lawyer rather than for a layman, but for reasons which I am going to endeavour to give to your Lordships, I for one am not entirely convinced by the very excellent case which the noble and learned Lord has made. Of course, I quite agree, what we have got to do is not to go back to the Rules Publication Act, 1893. That, as we know, had a great many loopholes. There was the dodge of Provisional Orders which Government Departments are fond of making, and the Provisional Order remains for ever, and so on. Consequently the Rules Publication Act really does not help us very much, but I do not think the object of my noble friend is really to go back to the Rules Publication Act 1893. It is to try and get back to the principle that the subjects are entitled to prior notice before legislation affecting them is made.

The noble and learned Lord has told us that the practice of getting the trade organizations or the other bodies round the table and consulting them is the one which in the public interest is best. I am not wholly convinced that that is so. If I may mention to your Lordships an incident in my own personal experience, when the Coal Act was going through your Lordships' House a year or two ago, the people who were mainly consulted was a body called the Mine Owners' Committee. The Mine Owners' Committee consisted very largely of large royalty owners who for many years had enjoyed coal royalties. There was a very small class of people who owned coal which was proven but undeveloped. These people have never had royalties to any extent at all. Their interests were tremendously affected because they were owners of the coal of the future. In particular, in my own case, it was the great Scottish coalfield, where the coal was at such a depth that at that time it could hardly be developed. My interest—I mention my own personal case because it has a bearing on the matter—was very different from the interest of people who had enjoyed for many years royalties on developed and worked coal. That is an instance to show that the trade organization or body of people are not the only people to be consulted, and unless the prior notice suggested by this Amendment is given, I do not quite see how the ordinary man is necessarily to get his information.

Nor do I see that the insertion of this Amendment would prevent the Department following the procedure which the noble and learned Lord advocated, which is to draft rules after ascertaining the view of the people concerned. I should have thought that could have been done and at the same time this principle, which all your Lordships know to be of vital importance, that there should be antecedent publicity before laws are made, re-established. Now-a-days, with the complicated machinery and the tremendous number of statutory instruments which are going to go on pouring forth—I think it is estimated at two or three a day for every working day of Parliament—this principle of prior notice is tremendously important.

I fully recognize that during the continuance of the emergency and until things get back to normal, some Orders—Food Orders, for instance—will have to be made without the prior notice this Amendment would demand, and some provision for that sort: of thing would have to be inserted, but my noble friend and I did not think it was our business to suggest the things the Government would have to put in if they accepted the Amendment; they are quite capable of doing that themselves. I hope the noble and learned Lord will agree that the principle that there should be antecedent publicity before legislation is passed affecting the ordinary life of the subject should be returned to and should be observed, and I hope my noble friend will not be too easily satisfied by the explanation of the noble and learned Lord.

LORD ADDINGTON

I am very grateful, both to the noble and learned Lord for his explanation, and to my noble friend for the support he has given me. I should have liked the principle established in the Bill itself. It is entirely at the choice of the Department concerned, both as to whether they consult and with whom they have the consultation. I very much regret that principle cannot be established, but I should like it to have consideration. However, I am not prepared to press the matter.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clauses 2 and 3 agreed to.

6.5 p.m.

Clause 4 [Statutory Instruments which are required to be laid before Parliament]:

THE LORD CHANCELLOR moved, in subsection (1), after "Parliament," to insert "after being made." The noble and learned Lord said This Amendment is a drafting one.

Amendment moved— Page 2, line 30, after ("Parliament") insert ("after being made")—(The Lord Chancellor.)

On question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5:

Statutory Instruments which are subject to annulment by resolution of either House of Parliament.

5.—(1) Where by this Act or any Act passed after the commencement of: his Act, it is provided that any statutory instrument shall be subject to annulment by resolution of either House of Parliament, the instrument shall be laid before Parliament end the provisions of the last foregoing section shall apply thereto accordingly, and if either House, within the period of forty days beginning with the day on which a copy thereof is laid before it, resolves that the instrument be annulled it shall thenceforth become void but without prejudice to the validity of anything previously done thereunder or to the making of a new statutory instrument.

(2) Where any Act passed before the date of the commencement of: his Act contains provisions requiring that any Order in Council or other document made in exercise of any power conferred by that or any other Act shall be laid before Parliament after being made and shall not come into force or shall cease to be in force or may be annulled, as the case may be, if within a specified period either House presents an address to His Majesty or passes a resolution to that effect, then, subject to the provisions of any Order in Council made under this Act, any statutory instrument made in exercise of the said power shall by virtue of this Act be subject to annulment by resolution of either House of Parliament and the provisions of the last foregoing subsection shall apply thereto accordingly in substitution for any such provisions as aforesaid contained in the Act passed before the said date.

THE LORD CHANCELLOR

The next Amendment, again, a drafting Amendment.

Amendment moved— Page 3, line 21, after the second ("Parliament") insert ("after being made").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, in subsection (2), to leave out the words "not come into force or shall." The noble and learned Lord said: This really goes with the next Amendment on clause 7. Since this Bill passed through its stages in the House of Commons, we have passed a Statutory Orders (Special Procedure) Act which has recently received the Royal Assent. The effect of that is that there are certain instruments which will come both under that Act and under this Bill, and it is very desirable that there should not be confusion about the matter. The object of these Amendments is to make it plain that if an instrument comes under the Statutory Orders (Special Procedure) Act, it should be to that Act, and that Act alone, that we should look to see whether it is regular and in order; and it shall not come under this Bill.

Amendment moved— Page 3, line 33, leave out ("not come into force or shall").—(The Lord Chancellor.)

On Question, Amendment agreed to.

LORD LLEWELLIN moved, at the end of subsection (2), to insert: Provided that where the Statutory Instrument is an order in Council its annulment shall be brought about by a Resolution adopting a prayer to His Majesty submitting that the order be annulled.

The noble Lord said: In this Bill we are doing one or two things which are, if I may suggest it, somewhat unusual. First, in Clause 1, we bracket Orders in Council with what I may term Ministerial Orders, and call both "Statutory Instruments," and then in Clause 5 (1) we make provision that: Where by this Act or any Act passed after the commencement of this Act, it is provided that any statutory instrument shall be subject to annulment by resolution of either House of Parliament, the instrument shall be laid before Parliament and the provisions of the last foregoing section shall apply thereto accordingly, and if either House, within the period of forty days beginning with the day on which a copy thereof is laid before it, resolves that the instrument be annulled, it shall thenceforth become void & We make a similar provision in the next paragraph for Acts of Parliament passed before the passing of this Act. Thus this Bill attempts to have Orders in Council made in one way and rendered void in a completely different way. They are made as in the old way, by His Majesty himself in Council—a number of us, in the course of our time, have attended Council and heard the Orders approved in Council with His Majesty present. But this Bill will mean that in future they are not annulled in the way that they are made; they are annulled in quite a different way. The old way was for one of the Houses of Parliament to pray His Majesty that he would be pleased to annul the 'Order in Council, upon which, in the normal course, a Council meeting was held and the Order no doubt was annulled or amended in some such way as Parliament indicated in its wishes. Now, I think constitutionally we should do far better to keep the old practice, and that is the object of my Amendment. But I am not merely basing this on constitutional propriety; I am basing it on what I think is practical common sense.

If you annul an Order in a different way from that in which it is made, the announcement of the annulment does not appear in the same set of papers. Therefore anybody who keeps a record of Orders in Council, as records must be kept in the law libraries and elsewhere in the Courts, has no similar record of what takes place in either House of Parliament. It seems to me that it is quite impracticable that these librarians and others in the Law Courts, in solicitors' offices and other places should have to search not only through Orders in Council, one of which in a series would repeal one beforehand, but should also have to search through the proceedings of each House of Parliament to see whether by any chance that House had annulled the Order.

Nor in these days may sufficient notice be given of the annulment of the Order. It may well take place quite late at night in either House of Parliament. Certainly the other House at midnight might pass such a Resolution and it would never get into the papers because they would all have gone to press, and therefore no notice whatever of the annulment of the Order would appear, not only to the people affected by it but to the people administering it. One of these Orders in Council having a criminal penalty attaching to it might well be repealed and a police constable or other official whose duty it was to enforce the law might well arrest somebody under that Order in Council, only to be told afterwards "You did it on Thursday morning, but did not you know that at twelve o'clock on Wednesday night the House of Commons passed a Motion annulling the Order?" That may be thought to be straining the point, but I do not think it is; it might happen.

I am not very much wedded to the words I put down but I do believe it is right that the Order should be annulled by the same process by which it is made, that is to say, so that if it is an Order in Council which is in question there is a subsequent Order in Council repealing it. That would keep our law in a tidy state. Quite frankly, I do not think my Amendment is very well drafted. It is extremely difficult to draft it except by way of a proviso, because otherwise I would have to go right back and take Orders in Council separate from Ministerial Orders right through. I believe it will be in accordance with constitutional procedure that if His Majesty has made an Order in Council it should be repealed by His Majesty in Council, and I also believe it is for practical convenience that that should take place. I believe it is a substantial point, and a practical point, and if the Lord Chancellor to-clay cannot accept my actual words I would ask him to consider whether he cannot do something to meet it at a further stage.

Amendment moved— Page 3, line 43, at end insert (" Provided that where the Statutory Instrument is an Order in Council its annulment shall be brought about by a Resolution adopting a Prayer to His Majesty submitting that the Order he annulled ')—(Lord Llewellin.)

6.12 p.m.

THE: LORD CHANCELLOR

I have some measure of sympathy with the noble Lord and I am glad to see that the profession of law which he used to adorn has still obviously got a hold on him. His excellence as a constitutional lawyer is beyond question, but when he came to his technical arguments it seemed to me that they applied just as well to Ministerial orders as to Orders in Council, and his Amendment of course only touches Orders in Council. I do not pretend that this is a matter which has not been very seriously considered by highly expert people. The difficulty attending upon it first of all became manifest, I think, at a time when King George V happened to be in the South of France. This formula, which is the politer formula and that used in other days, involves that before an Order in Council can be annulled it is necessary for an Address to be presented, that is, the Lords with White Staves have actually to present it to His Majesty. On that occasion His Majesty was abroad and real difficulties arose in consequence. When the Emergency Powers ('Defence) Act of 1939 was being passed at the beginning of the war [this very question was carefully considered and it was thought better to establish a new form, that is-to say, what I may call an automatic annulment on the Motion being passed. That has been followed almost invariably in the war-time legislation.

LORD LLEWELLIN

Has it ever happened that either House has passed a Motion of annulment?

THE LORD CHANCELLOR

No. It is an odd thing that the Houses do not seem to have realized what they have done, but the Scrutinizing Committee have now woken up to it. Wherever the members of the House of Commons have wished to contest a Defence Regulation they have moved an Address to His Majesty praying that tic regulation be annulled, and that was apparently done on the advice of the officers of the House. A highly ingenious Scrutinizing Committee have now realized that that was all wrong and that they had been carrying on that old procedure, not realizing that by their modern legislation they had invented a new procedure. I am told that some of the members of that committee consider the practice should be abandoned in the future, so what the future holds in store in that respect I do not know. The fact is, however, that ever since the passing of the Emergency Powers (Defence) Act in 1939, in all our wartime legislation there has been provision for automatic annulment.

This matter came before a highly expert committee under Sir David Maxwell-Fyfe. This was one of the precise matters they considered and they came the conclusion that the right way in which to draft this Bill was the way in which it is drafted to-day, that is to say, not providing for the politer form which the noble Lord asked for, and a form well appropriate in the more spacious days we used to have. Therefore, I cannot pretend that the matter has not been considered, and under those circumstances it is not for me to go back to a form which has really been abandoned since the beginning of the war.

VISCOUNT SAMUEL

The noble Lord, Lord Llewellin, in his argument has raised a point of great constitutional interest, and one which, I think, deserves some further consideration both by your Lordships House and by the Government. The reason given for making this alteration does not seem to me in itself to be a very conclusive one, namely, that the Sovereign may be absent abroad at a time when some urgent matter needs attention and the provisions of this Act, if modified in the manner desired by the noble Lord, might involve delay. Surely that may be remedied by some ad hoc change of procedure. There are various powers exercisable in the absence of the Sovereign by other authority and this might well be included in those powers.

The power of the Crown to make laws or regulations having the force of law is of very ancient origin. The preamble to this Bill now in your Lordships hands recites the usual formula: "Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled." Consequently, it is the Sovereign who actually makes the laws and the signature of the Crown to a particular Act of Parliament confers upon it a validity which until that moment it does not possess.

Similarly, the power to make an Order in Council is of very ancient origin and is now exercised, as it has always been exercised, by the Sovereign in person. In fact the Privy Council is a more ancient organ of the Constitution even than your Lordships House or the House of Commons. The Sovereign in person makes a particular Order in Council in the presence of a quorum of the councillors and that has the force of law. Now, under this provision, a Resolution of either House may annul that. It does seem to me that the noble Lord who has moved this Amendment has a very strong case with this particular proposal, which it might be held is not consonant with the dignity of the Crown, or indeed of the Privy Council. As one of the most senior members of the Privy Council—I regret to claim that melancholy privilege, having been a member now for nearly forty years—it does appear to me that this particular change should require greater consideration. Indeed, I am not sure that it ought not to be necessary that the consent of the Crown should be signified to an Amendment to a law of this kind before it is passed by the Houses of Parliament.

We all know that the matter is one of form rather than of substance. There is no question of the Crown misusing its powers or of any check being imposed by Parliament. But the form is not unimportant, and it is essential to my mind that the position should be safeguarded. When the Sovereign personally has made an Order in Council, with the consent of the Council, some similar procedure should be required for its annulment rather than a mere Resolution. It is not even a question of a joint Resolution of the two Houses, but of one House only, and it can have this constitutional effect. In these circumstances I submit that the Lord Chancellor might give some further consideration to this matter before the Bill reaches the House at a later stage.

VISCOUNT SIMON

I think this does merit some further consideration. I do not doubt that it has already received a great deal of attention, but I am not sure that the matters which have been brought to the notice of your Lordships from this side of the House have been materially considered. With all respect to the Lord Chancellor, I understood him to use the expression "a wrong procedure," meaning apparently a wrong procedure to ask for an Order in Council to annul what has been originally imposed by an Order in Council. Let me refer your Lordships to the Emergency Laws (Transitional Provisions) Bill which was before the House a few days ago. In that Bill the first clause provides for the temporary continuation of emergency laws, it proposes to continue them for two years, but it goes on to say this—and I want to know whether the Lord Chancellor thinks that this is a wrong procedure: Provided that His Majesty may at any time by Order in Council revoke any such Defence Regulation either in whole or in part. There is no reference here to any provision for a Resolution by either House. There is a great deal to be said for a search of the files of Orders in Council in order to ascertain whether in fact there has been an Order in Council which cancels a previous one. The search perhaps could most conveniently be made in Hansard, either in volume form or in loose parts, in order to find out the answer to the question as to whether a particular Order in Council continues. I think that the value of an Order in Council has been somewhat minimized in recent years. Of course, if His Majesty were to go to Canada or to any of the Dominions we should not be held up until he came back. It would be a simple matter for his nomination of the next in succession to act for him. I recall that King Edward VII when Prince of Wales presided at a Council which declared the neutrality of this country in some war which had then broken out, and that a learned treatise was written by a foreign lawyer, who did not understand our Constitution, stating that this was an example of how Queen Victoria had conferred upon her son important Royal functions even in her lifetime. Of course, the whole thing is a pure formality. I am speaking with the greatest sincerity on this matter, and with no desire to raise controversy, but I do most respectfully submit to the Lord Chancellor that he might look into this matter again.

THE LORD CHANCELLOR

Certainly, I will look at it again. The last thing I want to be guilty of is any discourtesy towards the Sovereign, and if there is any question I will certainly look into it again. If I used the phrase "a wrong form" to which the noble and learned Viscount has called attention, I did not intend it quite in the way in which he suggests. It is not a question of wrong form; the real question is as to which is the better form, the substance not: being disputed between us at all. I do not think, if I may say so to the noble and learned Viscount, that this matter has anything to do with the next Bill down for consideration, the Emergency Laws (Transitional Provisions) Bill. Sufficient unto the day be the evil thereof. But I will certainly look into the question again.

LORD LLEWELLIN

I am very much obliged to the Lord Chancellor. I do feel that the point is one of substance. I should like to see not only an Order in Council, annulled by another Order in Council but also a Ministerial Order revoked by the Minister immediately after one of these Resolutions has passed through the Houses of Parliament. The task of terminating the matter ought to be performed by the same person or body which made the thing originally, so that those in the country may know about it and not just depend upon its publication in the Press. It should have the proper publication which it is right that every Order should receive, and an order which cancels another should have the same importance as the first.

THE LORD CHANCELLOR

May I call attention to Clause 14 of the next Bill [the Emergency Laws (Transitional Provisions) Bill] which reads as follows: Any Order in Council made under this Part of this Act shall be laid before Parliament as soon as may be after it is made, and if either House of Parliament within the period of forty days beginning with the day on which any such Order in Council is laid before it, resolves that it be annulled, it shall cease to have effect. … That has been the modern practice ever since the outbreak of the war, but I will look at it and see what can be done. Frankly, I had not given much time to considering this matter myself. I know it was considered before. It must be understood that I am not making any promise; I am only saying that I will consult my advisers and see what can be done.

LORD LLEWELLIN

I think that what was necessary for war-time in this connexion is not necessary now, nor should it be regarded as a final feature of the Constitution. We ought. I consider, to tidy this up and put it in the way I have suggested. I am much obliged to the noble and learned Lord Chancellor for the assurance which he has given, and on that I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Clause 7:

Supplementary provisions as to ss. 3, 4 and 5.

7.—(1) In reckoning For the purposes of either of the last two foregoing sections any period of forty days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(2) In relation to any instrument required by any Act, whether passed before or after the commencement of this Act, to be laid before the House of Commons only, the provisions of the last three foregoing sections shall have effect as if references to that House were therein substituted for references to Parliament and for references to either House and each House thereof.

6.20 p.m.

THE LORD CHANCELLOR moved, at the end of subsection (2) to insert: (3) The provisions of Sections four and five of this Act shall not apply to any statutory instrument being an order which is subject to special Parliamentary procedure or to any other instrument which is required to be laid before Parliament, or before the House of Commons, for any period before it comes into operation.

The noble and learned Lord said: I beg to move the Amendment which stands on the Order Paper in my name. The effect of it is that the provisions of sections four and five of this Act shall not apply to any statutory instrument to which special Parliamentary procedure applies. That is a point which we have had under consideration before.

Amendment moved— Page 4, line 37, at end insert the said new subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8:

Regulations.

8.—(1) The Treasury may, with the concurrence of the Lord Chancellor and the Speaker of the House of Commons, by statutory instrument make regulations for the purposes of this Act, and such regulations may, in particular:

  1. (a) provide for the different treatment of instruments which are of the nature of a public Act, and of those which are of the nature of a local and personal or private Act;
  2. (b) make provision as to the numbering, printing, and publication of statutory instruments;
  3. (c) provide with respect to any classes or descriptions of statutory instrument that they shall be exempt from the requirement of being printed and of being sold by the King's printer of Acts of Parliament, or from either of those requirements;
  4. (d) determine the classes of cases in which the exercise of a statutory power by any rule-making authority constitutes or does not constitute the making of such a statutory rule as is referred to in subsection (2) of Section one of this Act, and provide for the exclusion from that subsection of any such classes;
  5. (e) provide for the determination by a person or persons nominated by the Lord Chancellor and the Speaker of the House of Commons of any question—
    1. (i) as to the numbering, printing, or publication of any statutory instrument or class or description of such instruments:
    2. (ii) whether any statutory instrument or class or description of such instruments is, under the regulations, exempt from any such requirement as is mentioned in paragraph (c) of this subsection:
    3. (iii) whether any statutory instrument or class or description of such instruments is in the nature of a public Act or of a local and personal or private Act:
    4. (iv) whether the exercise of any power conferred by an Act passed before the commencement of this Act is or is not the exercise of a power to make a statutory rule.

(2) Every statutory instrument made under this Section shall be subject to annulment by resolution of either House of Parliament.

THE LORD CHANCELLOR moved, at the end of paragraph (b) of subsection (1), to insert: including provision for postponing the numbering of any such instrument, which does not take effect until it has been approved by Parliament, or by the House of Commons, until the instrument has been so approved.

The noble and learned Lord said: This is really a little more than drafting. We have power to make regulations about numbering, and if a regulation comes in which does not take effect until it has been approved, we had better, I think, postpone the numbering until the numbering has afterwards been approved. I beg to move.

Amendment moved— Page 4, line 46, at end, insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, in paragraph (c) of subsection (1), after "exempt," to insert "either altogether or to such extent as may be determined by or under the regulations." The noble and learned Lord said: This is mere drafting. I beg to move.

Amendment moved— Page 5, line 2, after ("exempt") insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, in paragraph (e) (ii) of subsection (1), alter "whether" to insert "or to what extent." The noble and learned Lord said: This, too, is drafting. I beg to move.

Amendment moved— Page 5, line 18, after ("whether") insert ("or to what extent").—(The Lord Chancellor).

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 agreed to.

Clause 10:

Commencement of Act.

(2) The Order in Council made under this section shall be laid before Parliament.

THE LORD CHANCELLOR moved, at the end of subsection (2), to insert "after being made." The noble and learned Lord said: This is a drafting Amendment. I beg to move.

Amendment moved— Page 6, line 17, at end, insert ("after being made.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 10, as amended, agreed to.

Remaining Clause agreed to.