MINISTERS OF THE CROWN (TRANSFER OF FUNCTIONS) BILL (Hansard, 19 February 1946)

§ THE LORD CHANCELLOR (LORD JOWITT)
My Lords, this Bill which is now to be read a second time, is a machinery Bill with two main objects—first to "tidy up" on a permanent basis the position of the Departments temporarily created during the war under emergency legislation, and second, to introduce for the future a little more elasticity in the Government's powers to adapt from time to time their executive machinery to suit their administrative needs. The second purpose is dealt with in the first three clauses. Under the present law a function which is conferred on a particular Minister by Statute—and of course nearly all statutory functions are conferred on particular Ministers and not on the Government at large—can be transferred to another Minister only by full-dress amending legislation. Clause 1 (1) of the Bill enables such transfers to be effected in future by Orders in Council which, under the provisions of the Bill, will be subject to Negative Resolution procedure.
Of course, a great many functions of Ministers do not rest upon Statute at all, but are derived from the Prerogative of 682 the Crown, as the source of executive power. Such functions can already be freely redistributed by administrative action and the Bill makes no difference to those matters at all; it deals only with those functions which are regulated by Statute or statutory instrument.
Clause 1 (2) enables Orders in Council to be made dissolving Government Departments and redistributing the functions of the Ministers in charge of them—another process which at the present time would require normal full-dress legislation. Orders in Council of that kind will, however, under the Bill require Affirmative Resolutions of both Houses of Parliament. Clause 2 of the Bill enables the titles of Ministers to be changed by Orders in Council, and that provision will be subject to Negative Resolution. The other parts of the first three clauses contain the necessary consequential and supplementary provisions. I would point out that the order-making powers which these clauses confer are limited in scope. They do not enable any new Ministry or new function to be created. They merely provide a simpler procedure—still subject, of course, to Parliamentary discussion and control—for redistributing powers which Parliament has already conferred and for discontinuing Ministries which Parliament has already authorized but which in the process of time have become redundant.
The later clauses of the Bill deal with particular Ministries. During the war ten Ministries were created on a temporary basis under the Ministers of the Crown (Emergency Appointments) Act, 1939—if we exclude the Ministry of Shipping which afterwards became merged in the Ministry of War Transport. Of these ten, two, that is to say, the Ministry of Works and the Ministry of Fuel and Power, were at a later date put on a regular footing by ordinary legislation. Three of the others, Home Security, Economic Warfare, and Production, have already ceased to exist. The Government have announced their intention of letting the Ministry of Information disappear also. The Ministry of Aircraft Production will be dealt with by an order under Clause 1 (2) of this Bill, and the Minister's functions transferred to the Minister of Supply. The Government's intention to fuse these two Ministries has already been announced and was of course foreshadowed 683 by the appointment of the same right honourable gentleman to hold both Ministerial Offices.
That leaves only three of the original ten Ministries and they are all particularly mentioned in this Bill. Clause 4 and the First Schedule make the Ministry of Food a permanent Department. The decision to do that was announced last November, and I may add that recent events have shown all too clearly that the end of our food problem is by no means in sight. The Ministry of Labour and National Service is not, of course, an entirely new Department. It is the old Ministry of Labour with its functions considerably extended. Clause 5 of this Bill provides that the Ministry shall continue as at present until it is discontinued by order under the Bill, despite the disappearance of the powers under which it was brought into being in 1939.
There remains the Ministry of War Transport. This, of course, is not new, since it comprises the old Ministry of Transport. The intention here is to discontinue the Ministry of War Transport and transfer all the Minister's functions to the Minister of Transport. No such Minister is at present appointed, though there is, of course, permanent statutory authority for his appointment; but His Majesty will be advised to fill this vacant post before the Minister of War Transport disappears.
If I may hazard a guess, very likely we shall find that the Prime Minister's choice will fall on the holder of the disappearing office. One result of this process will be that the Minister of Transport will be charged with those merchant shipping functions which the Minister of War Transport has been discharging and which belonged before the war to the Board of Trade; but the original Ministry of Transport Act of 1919 is not formally suitable in some respects for a Minister with these extended functions, and Clause 6 of the Bill and the Second Schedule make the necessary adjustments. This Bill, therefore, clears the way for repeal of the Ministers of the Crown (Emergency Appointments) Act, 1939, since it saves all that still needs saving of what was done under its temporary authority. There is already power to repeal that Act by Order in Council and it will be exercised shortly after this Bill becomes law.
Clause 7 deals not with a temporary 684 but with a permanent Department, the Department of Overseas Trade. The Prime Minister announced on December 17 last that this Department was to be abolished as a separate entity. This w.11 be done by Order under Clause 1 (2) of this Bill, and Clause 7 is necessary for technical reasons in relation to the Imperial Institute and because some adjustments to Statutes are required which are rather outside the scope with which Orders in Council under the Bill are designed to deal.
The Bill is a modest one, and deliberately so. It has been very carefully framed, so as not to enable the Executive to do by Order things which in peacetime ought to be subject to the full rigour of our legislative procedure—such, for example, as the creation of a new ministerial department. But, within its limits, it is likely to be extremely useful. Whatever Government may be in power, it is right that they should be able to make swift adaptations in the executive machinery at their disposal and not find that executive efficiency is subject to the exigencies of a crowded legislative programme. I hope your Lordships will give this Bill a Second Reading. I do not think it is controversial. It received its Second Reading in the House of Commons without a Division, and I commend it to your Lordships. I beg to move.

§ VISCOUNT SIMON
My Lords, the House will be very grateful to the Lord Chancellor for explaining so clearly the technical operation of the various clauses of this Bill. I agree with him that the Bill is not controversial in the sense that it raises some great topic of dispute; though I myself do not think that a Bill of this kind, especially as it is a permanent measure (not a measure which contains a clause limiting it to the period prescribed) is, because of great legislative pressure, necessarily to be welcomed. After all, if Parliament—what I think my noble and learned friend calls the full rigour of Parliament — is employed for creating a new Ministry and for defining the powers and duties of the Minister, it does not seem to me anything out of the way that, if you are going to alter those powers or duties or put them elsewhere, 685 an Act of Parliament is the proper way to do it. This is, it is true, a machinery Bill, but the way the machine works is to put in the hands of the Executive, partly on the ground of Parliamentary pressure and want of time, that which has hitherto been in the hands of Parliament; and I am bound to say I regret it when that becomes necessary.
It is quite true that these matters are subject to Parliamentary check in the sense that there would be an opportunity for a Negative Resolution, as it is called, in the case of a transfer of powers, and I think an Affirmative Resolution if we were going to abolish a Ministry altogether. Well, that is the least that can be done. But the fact is that this is another instance of the substitution of Executive decisions for ordinary Parliamentary process (which is openly justified, and perhaps rightly so, because of the pressure of the present legislative programme) by which the Government proposes to make a permanent change in our constitutional machinery. Of course, the fact is—and it is probably inevitable—that under modern conditions the number of Ministries and of Ministers has greatly grown, and I can quite understand the attraction to a Government and to a Prime Minister of being able to transfer a portion of the powers from one Ministry to another instead of having to ask for ordinary Parliamentary authority.
One or two figures have been taken out which I venture to quote to the House. In 1914 the number of Ministers in this country (and I am including Under-Secretaries and Whips) was 52. In 1939 it was 67. At the present moment, and under the present dispensation, it is 81. I have not included the Parliamentary Private Secretaries, of course. That would greatly increase the number. I agree that one must in this complicated world increase the number of Ministers, but it does seem to me that, if we were able to get back to normal times, one ought not to treat the substitution of an Executive decision by means of an Order in Council for Parliamentary enactments modifying previous Parliamentary enactments as a matter of very small consequence—though, no doubt, it is a matter of very considerable convenience. If you take Ministers of Cabinet rank, as it is called, and leave out the Under-Secretaries, and so on, in 1914 there were 25. In 1939 there were 31. At this moment I believe there are 36. 686 I entirely agree with the Lord Chancellor that there is some comfort to be derived from the fact that, whatever is done under this Bill by Order in Council, you cannot create a new Ministry. That, at least, is still left to Parliament to enact.
We ought to be grateful for this small mercy. The old plan, of course, was that if a Minister did not discharge his powers satisfactorily, well, it might be that the Prime Minister got rid of a Minister, but there is another way of playing puss in the corner, and that is to transfer the job and keep the Minister; and it may be that there will be instances where that is a very suitable thing to do. I wonder whether the Lord Chancellor was quite right, with great respect to him, when he said, as I thought he did, that in the first subsection of the first clause the only Minister referred to is a Minister created by Statute. I thought my noble and learned friend said so. The reason I doubt it is because at the end of the Bill there is a definition of "Minister of the Crown," and it says it includes the Treasury and the Admiralty. So far as I recall, neither the Treasury nor the Admiralty was created by Statute; and though I quite appreciate that, where you have what one may call a Common Law Ministry, the extent of the things that it does are not necessarily determined by Statute, inasmuch as their transfer involves both methods—puss in the corner means two corners—I suppose the idea is that though those Common Law Ministers might have additional powers, or it may be smaller powers, at the other end of the chain you might very likely come across what I may call a statutory Ministry. There it is.
I myself do not profess—and I think many others will agree with me—to think that this change is in itself admirable. I do not think that it is an improvement in our constitutional arrangements that there should be additional power in the Executive to group functions in different departments just as they like, subject, of course, to the Resolution in cases at any rate where in the first instance Parliament has deliberately defined what those functions are. One could easily give ridiculous illustrations, but there is no value in taking extreme and improbable instances. On the other hand, while I myself think it would have been much better to make this a temporary measure, which was strongly urged by the Opposition in the House of Com- 687 mons but was resisted, I certainly do not urge your Lordships to spend a long time in opposing the present Bill.
There is, I think the Lord Chancellor will agree, one change which will have to be made in the Bill, and that is at the top of page 3, in Clause 3, subsection (2). That subsection provides that if an Order in Council has been made under the Act, if either House within a period of 40 days, beginning with the day on which a copy thereof is laid before it, resolves that the Order in Council be annulled, it shall thenceforth become void. That is the exact position to which my noble friend Lord Llewellin took such effective objection on the Statutory Instruments Bill, and, as the result of his efforts and the good will of the noble Lord on the Woolsack, a change has been made in that Bill, both on constitutional and on practical grounds. I take it that the Government will propose a corresponding change in this Bill.

§ THE LORD CHANCELLOR
May I say that that certainly will be so. The explanation is that when this Bill was before another place Lord Llewellin's suggestion had not gone through.
May I add one other remark in regard to the other point which the noble and learned Viscount raised. Clause 1 of the Bill deals with functions created and assigned by Statute. It does not matter whether the Minister to whom those functions are assigned is created by Statute or by Prerogative.

§ VISCOUNT SIMON
I quite agree with the noble Lord's observations. The fact is that this is not the first but the second time in which the legislative acumen of the House of Commons has had to be corrected.

§ LORD CALVERLEY
The House of Correction!

THE MARQUESS OF READING
My Lords, on behalf of the noble Lords who sit on these Benches, I only want to say that, subject to the important considerations which the noble and learned Viscount has explained, we are disposed to extend a Second Reading to this Bill, adding that it is none the less acceptable because it permits a decrease and forbids the increase in the number of existing 688 Ministers. From that point of view we hope it is efficiently designed and will be generously employed, adding again only one specific remark: that we shall take considerable satisfying on the point that where there are two Under-Secretaries in any one Department as a result of the arrangements arrived at in wartime there is a good case for the continuation of that system now that something remotely approaching peace is at hand.