STATUTORY INSTRUMENTS BILL. (Hansard, 29 January 1946)

§ THE LORD CHANCELLOR (LORD JOWITT)
My Lords, I beg to move that this Bill be now read a second time. Whether we like it or not, we are living in an age when there is bound to be a great deal of what is called subordinate legislation, that is to say, rules and so on made under Acts of Parliament. For my part I take the view that it behaves us to see that we have the proper machinery to secure that Parliamentary control is effective, and that by the present machinery, machinery which is either by a negative Resolution or an affirmative Resolution, Parliament keeps a really adequate measure of control over subordinate legislation. This matter came up for consideration in the days of the Coalition Government, in connexion with the failure to lay the National Fire Service Regulations before Parliament, in the words which then were prevalent, "as soon as may be." At about the same time a Committee called the Select Committee on Statutory Rules and Orders, which was generally known as the Scrutinizing Committee had been considering the question of Parliamentary Control over Statutory Rules. This Committee published a Special Report in October, 1944, to which the Government gave very considerable 11 attention. A Bill was drafted but it was never actually introduced into either House of Parliament, either in the days of the Coalition or of the Caretaker Government. It is that Bill, which was substantially altered and modified to meet with the wishes of the Opposition as expressed during the Committee stage in another place, that I now introduce.
The long title of the Bill is: An Act to repeal the Rules Publication Act, 1893, and to make further provision as to the instruments by which statutory powers to make orders, rules, regulations and other subordinate legislation are exercised. As the date indicates, it is some fifty years since the Rules Publication Act was passed, and it is high time that it came up for review. The present Bill does not reproduce Sections 1 and 2 of that Act. It does reproduce, with modifications and improvements, so much of the Act as relates to the publication of statutory rules. Section 1 of the Act of 1893 provides for what was called "antecedent publicity". At least forty days before certain statutory rules were made an advance notice had to be published in the Gazette. There was an exception enabling provisional rules to be made in urgent cases without such previous notice. These were provisional rules, not to be confused with provisional orders. This procedure applied to England, but not to Scotland—and Scotland, I may add, got on very well without it. It did not apply to any rules made by the Local Government Board, now the Ministry of Health, nor to rules made by the Board of Trade or the Treasury.
We think that that provision is quite obsolete to-day, having regard to the modern practice of discussion with trades associations and so on and the association of local government authorities who were, I think, concerned about this point. Although the Bill was closely canvassed in another place, no one, I think—and the Committee contained a great many experts—suggested that we should maintain this provision of the Act of 1893. I gather—and indeed I have had notification—that one of your Lordships is rather disturbed about this matter and all I will say now is that this is a matter which we can look into when the Committee stage is reached.
The Bill is primarily a Bill to bring up to date the rules of publication, but, of course, it has other provisions. In the 12 first place it deals with the question of terminology, winch has given rise to a good deal of confusion. In place of statutory rules, orders and so on, we propose to call them "statutory instruments." It may not be a very happy phrase, but I certainly think that it is a happier one than "chosen instruments" of which we have heard a good deal in another connexion. In future, all that will be necessary to bring into play the operation of this Bill is to provide in your Statute that subordinate legislation is to be by means of statutory instruments. Then the Bill reproduces, in Clauses 2, 7 and 12, the provisions of the Rules Publication Act relating to the publication of statutory rules, so as to secure that all these instruments are readily available to members of the public and to those who have occasion to use them. We have added something which is new in Clause 3, something which was not in the Bill as it was prepared in the Coalition days, in order to clarify the law on the subject of criminal liability for offences committed at a time when the relevant document had not been published. That is a provision which I think will meet with general approval. In substance, if a man is accused of an offence at a time before the printer has produced a copy of the regulation, you can only bring home the offence to him if you can prove affirmatively that he had knowledge by reason of reading the newspapers or listening to the wireless, or something of that kind, of the enactment of the legislation in question.
The machinery of Parliamentary control over statutory instruments is improved in two respects. First of all the Bill improves, in respect of instruments required to be laid before Parliament, on that time-honoured phrase, "as soon as may be." What "as soon as may be" means, frankly, I do not know. We do away with that very vague language, and your Lordships will see that Clause 4 of the Bill provides that an instrument is to be laid before it comes into operation. To that there is a proviso that if it is essential that the instrument should come into operation before copies can be laid, then the Lord Chancellor and the Speaker in the House of Commons are to be notified, so that they can take the appropriate steps to bring the matter to the notice of their respective Houses. Clauses 5 to 7 deal with another of the Committee's 13 recommendations by providing for a standard period of forty days, discounting prorogations, dissolutions or adjournments of both Houses for more than four days, within which a negative Resolution may be moved. Existing legislation contains a variety of periods, sometimes twenty or twenty-one and sometimes forty days, and there are varying periods in between. The effect of these provisions will be to shorten and simplify the drafting of future statutory provisions conferring power to legislate by subordinate legislation. It will be enough in the future to provide that the power is to be exercised by statutory instrument and that the instrument shall be laid before Parliament. I do not suggest that this is a Bill of the greatest importance but it does contain modest improvements and I think that it is a useful measure. I commend it to your Lordships and I hope you will give it a Second Reading. I beg to move.

§ LORD LLEWELLIN
My Lords, I think that we are all grateful to the noble and learned Lord on the Woolsack for the explanation he has given us of this measure. I am one of those who was, perhaps, responsible in a period of some twenty months for as many regulations as any other man when I occupied the position of Minister of Food, but I am one of those who inherently dislikes legislating by statutory rule and order. I must say that during my tenure of that office I myself was very careful to look at all the statutory orders we made before they were issued because I believe that you cannot have it done too far down the line. I was rather horrified—the Press announcement may be wrong—to see that although an order made by the Director General of Ordnance Factories applying to Royal Ordnance Factories (presumably he was empowered to do so by the then Minister of Supply), was revoked, a large number of workmen at Woolwich Arsenal were prosecuted for breach of an order which had ceased to exist. A number of them were fined and I believe that at least two were, unfortunately, sent to prison. Now, quite rightly, the Home Secretary is making ex-gratia payments to these people and having the fines refunded to others.
14 But that does show, I think very vividly, the dangers you are running into if you have too much legislation, not by Act of Parliament, but by these Orders in Council, because Courts cannot, with great respect to the noble and learned Law Lords I see in this House and to the Lord Chancellor, keep pace with the mass of statutory rules and orders issued from Government Departments. Counsel and solicitors certainly cannot either. They are not brought to the notice of the Courts and unfortunately we get cases of that kind. The sooner we can get back to doing the greater part of our legislation by actual Act of Parliament which has been locked at word by word by both Houses of Parliament, by which we get the necessary publication in the Press, the better the country will be served and the better I shall be pleased.
In regard to this particular Bill it is obviously necessary for a time—at any rate it will be for a Ministry like the Ministry of Food to go on from time to time, especially with its Price Control Orders, not bringing them, of course, before Parliament each time; for example, with an Order for the control of the price of onions which ought not to occupy the time or attention of Parliament. So long as that kind of order is necessary so long of course we shall have to have some of these orders, and more, perhaps, than many of us would like. I think this Bill makes provision for consolidation on this matter and for clarifying the procedure. There are, however, one or two matters which it may well be necessary, having looked further at this Bill, to bring to the attention of the House at later stages in the proceedings.
For myself I cannot quite understand how the proviso in Clause 4 can go hand in hand with Clause 3 (2) because the proviso in Clause 4 says that provided that if it is essential that any such instrument should come into operation before copies thereof can be laid before the Houses of Parliament, the instrument may be made so as to come into operation before it has been so laid. If it is impossible to get it printed and laid before the Houses of Parliament, I do not see how it can be very effective from the point of view of enforcement because if that has happened surely the wretched subject who may have offended against it may have a good "get-out," as I 15 think he should have, under Clause 3 (2) to which the noble and learned Lord Chancellor has referred. Some points, such as that it might well be advisable to look into at a later stage, but at this stage, so far as I and those who immediately sit with me are concerned, we certainly shall not oppose the Second Reading of this Bill.

THE MARQUESS OF READING
My Lords, this is an unattractive form of legislation but I think we ought to realize that under present conditions it has probably got to be resorted to. At the same time I should like to draw the attention of the noble Lord on the Woolsack to one point. The tendency has grown up in recent years, side by side with the tendency to increase the number of orders, to include a provision that they shall not be susceptible of consideration by the Courts. The obvious way to get rid of that objectionable paragraph is not to put it in, but you cannot always guard against that and I should like the noble Lord to consider whether it would be possible to put it not in a negative form, but in a positive form in this Bill, and to say that all orders made shall, if necessary, be subject to the consideration of the Courts of Law and that they shall not escape by the device of inserting what I regard as objectionable words.

§ LORD ADDINGTON
My Lords, I have a very few remarks to make but I should like to refer to a point already touched upon by the Lord Chancellor. These statutory instruments have grown in number very considerably during the war and it is clear, I think, that the numbers will continue to grow in the future owing to pressure of business before Parliament. It is, therefore, I suggest, extremely important that they should be as practical as possible for those who have the task of carrying them into effect and also as helpful as possible for those whose lives are going to be affected by them. Conditions do differ very greatly in the country and among different classes of people. It is also important to note, as has been observed, that these orders once made cannot be amended as other Bills can before this House and the other House. So that I would suggest 16 we should follow the principle that before the proposed instrument is made all persons likely to be affected by it shall have the fullest possible opportunity of ascertaining the terms of the order and of making representations to the authority concerned and having those representations considered.
It is important that this principle should be embodied in the Bill itself, although I am very well aware of the fact that Government Departments do, at any rate, consult some of those concerned, hut, if it is in the Bill, it is a protection for everybody. So I would ask that at the Committee stage a new clause should be inserted to provide that notice of the proposal of the statutory instrument shall be published either in the London Gazette or in such other way as the Department concerned may consider necessary, to bring it to the notice of the persons concerned for a prescribed period before the instrument itself is actually made, and that during that period any person affected by the draft instrument may obtain copies of it and make representations to the Government Department for consideration before its terms are finally settled. This, as the noble Lord, the Lord Chancellor, has pointed out, does restore in effect the provisions of subsections (1) and (2) of the Rules of Publication Act, 1893, which itself is repealed by Clause 12 of this Bill. I would add that these suggestions have the support both of the Association of Municipal Corporations and of the Law Society.

§ LORD BALFOUR OF BURLEIGH
My Lords, my noble friend Lord Arlington has saved me from the necessity of explaining a point to your Lordships which I was going to make, because he has put it with great clarity and I hope it will receive the benevolent attention of the Lord Chancellor. I only want to add this: My noble friend in his concluding remarks mentioned the Association of Municipal Corporations as being interested in this matter. I have also had a letter to say that the Council of the Law Society entirely supports the view of the Association of Municipal Corporations. I think it must appeal to all your Lordships that there should be antecedent publicity for legislation and I hope the noble Lord will see his way to amend the Bill when we come to the Committee stage.

§ VISCOUNT MAUGHAM
My Lords, I should like to say I support the noble Lords who have just addressed your Lordships on this particular point.