HL Deb 18 December 1947 vol 153 cc332-52

CVI. When any notification has been received by the Lord Chancellor, drawing attention to the fact that copies of any statutory instrument have yet to be laid before Parliament, and explaining why such copies have not been so laid before the instrument came into operation, the Lord Chancellor shall thereupon acquaint the House therewith."

The noble Viscount said, My Lords, in moving the Motion standing in my name, I would point out that the first Amendment—to insert, after the word "the," where it occurs for the second time in Standing Order No. CIV, the words "Office of the"—is a slight Amendment to which I hope your Lordships will agree. As to the proposed new Standing Orders I have departed from my usual practice in providing myself with a considered and prepared statement, which I hope your Lordships will allow me to read, as this is a highly technical subject and beyond my ordinary scope.

The object of the Standing Orders is to provide machinery for the working of the Statutory Instruments Act, 1946, which comes into force on January 1,1948. The main purpose of the Act is to ensure better Parliamentary control over subordinate legislation, and this is achieved by requiring that, in normal circumstances, such legislation must be laid before Parliament before it becomes operative. There must, however, be occasions when it is essential for the machinery of government to bring into operation delegated legislation at 'times when Parliament is not sitting. This is met by the proviso to Section 4 of the Act, which provides that in cases where subordinate legislation is required to come into operation before it is laid before Parliament, notification should be made to the Lord Chancellor and the Speaker.

The effect of the Standing Orders is to reduce as far as possible these periods by providing that during the existence of a Parliament statutory instruments can be deemed for all purposes to be laid before Parliament if deposited in the Offices of the two Houses. The proposed new Standing Orders, by modifying to a certain extent the use of this proviso, do not in fact change the real intention of the Act. The Standing Orders provide that your Lordships will have intimation of the presentation of these instruments when the House is not sitting, whereas under the existing procedure you would not receive this intimation until the House had mot again. The House of Commons have passed similar Standing Orders, and it is therefore very desirable that your Lordships; should take the step we propose this afternoon in order to maintain the necessary co-ordination in the procedure of the two Houses. This is a highly technical subject, and my noble and learned friend on the Woolsack has kindly undertaken to reply to any questions your Lordships may wish to put to the Government on these Standing Orders.

Moved, That the following Amendment to Standing Order No. CIV and new Standing Orders be made in the Standing Orders of the House:

Standing Order No. CIV, line 4, after the second ("the") insert ("Office of the").

After Standing Order No. CIV insert the said new Standing Orders: Statutory Instruments and Notifications.—(Viscount Addison.)

2.9 p.m.

Viscount SIMON

My Lords, I have no doubt that the arrangement which has been made between the noble Viscount the Leader of the House and the noble and learned Viscount on the Woolsack is a great relief to Lord Addison, and I would be far from doubting the ingenuity with which the Lord Chancellor may hereafter seek to explain what I agree is a technical and complicated matter. There is, however, one thing which I very ouch regret, but which I am sure is not the fault of the noble Viscount. He told us perfectly frankly that he was reading from a document with which he had been provided. That document omits altogether to state one of the essential things in the Act of Parliament. I am sure that my noble friend, not having looked into this matter more than he can have been expected to do, is not aware—

Viscount ADDISON

May I say that I have looked into the matter with great pains and at great length?

Viscount SIMON

If that is so, then I am all the more surprised, and the noble Viscount must therefore be conscious of the fact that he has entirely omitted a provision inserted by Parliament in the Statutory Instruments Act, 1946. I would venture, briefly, to restate this. It will not differ from what my noble friend has said as regards the first part, but it will differ very substantially as regards the second part. The Statutory Instruments Act, 1946, as some of us recall, was passed by general consent and was intended to be a code for dealing, in the future, with the proper Parliamentary treatment of these instruments which are, of course, made by Ministers. They are not made by Parliament at all in the first instance and are in fact Executive legislation.

I have never in this House, or outside, denied that in times of great difficulty some such regulations may be required, although I regret the bulk which they have attained. As my noble friend said, the main provision of Section 4 is that where any statutory instrument is made and is required to be laid before Parliament, it shall be laid in a particular way— A copy of the instrument shall be laid before each House of Parliament and, subject as hereinafter provided, shall be so laid before the instrument comes into operation. The noble Viscount, Lord Addison, stated that perfectly correctly. But there is, as he says, a proviso, which is for the case where it is essential that such a piece of Executive legislation should be made and come into force when the House is not sitting. It cannot be disputed that to lay a Paper before the House means of course to lay it theoretically on the Table—but only to lay it when the House is sitting. There is an exception concerning Command Papers, but that is dealt with by a special Standing Order. You cannot lay a Paper except when the House is sitting.

The proviso therefore is this—and I call attention to words which I thought were accidentally, but which I now gather were deliberately, omitted from the statement of the Leader of the House: Provided that if it is essential that any such instrument should come into operation before copies can be so laid as aforesaid, the instrument may be made so as to come into operation before it has been so laid. It can come into operation immediately. Suppose you had discovered some new trick of the black market and you needed a new regulation forthwith, Ministers could make a regulation to meet that special case. The proviso goes on: and where any statutory instrument comes into operation before it is laid before Parliament, notification shall forthwith be sent to the Lord Chancellor and to the Speaker of the House of Commons drawing attention to the fact that copies of the instrument have yet to be laid before Parliament and explaining why such copies were not so laid before the instrument came into operation. If the noble Viscount will just look at the Paper he has read, he will see that it omits altogether any reference to the words that I have read. If indeed a case did arise where it was essential that an Executive law should be made when Parliament was not sitting—when you would have a wholly exceptional state of things—it was to be referred to the Lord Chancellor, drawing attention to the fact that the instrument had not yet been made and explaining to the Lord Chancellor why such copies were not so laid before the instrument came into operation.

Viscount ADDISON

It does not affect that.

Viscount SIMON

I am not complaining about what the noble Lord read, but he did not read those words at all. I am pointing out that by Act of Parliament—and Standing Orders cannot alter an Act of Parliament—a statutory instrument of this sort, if indeed it is essential that it should be brought into force when Parliament is not sitting, has to be sent to the noble Viscount on the Woolsack with an explanation of why such copies were not so laid. Presumably, when Parliament resumed he would say, in effect, "I have to inform your Lordships that while the House has not been sitting, such and such an instrument has been made and has been brought into force, and this is the explanation which the Minister gives as to why it was really necessary to pursue what on the face of it was an undesirable course"—for it is undesirable. Anyone who cares anything for ordinary British liberty will see that it is undesirable. It is bad enough that we must live in times in which many of the legal penalties and requirements are brought about not by Act of Parliament directly, but by these subordinate Orders. But in order that it should be made quite clear that the making of such Orders when the House was not sitting was limited to cases which were quite essential, the Statute provides that there must be a written explanation—though it is true it does not say explicitly that the explanation should be in writing—from the Minister as to why such copies were not so laid before they came into force.

The Standing Order which is now put by the Government before your Lordships' House is of course a matter of internal regulation. We are simply governing ourselves by making rules of procedure. The fact that these do not correspond with some Standing Order in another place has nothing to do with the matter. There are quite a lot of Standing Orders that do not so correspond. The question, therefore, is first, whether or not you can make a Standing Order which amounts to an amendment or repeals a portion of an existing Act of Parliament. The second question is whether, if such a thing were possible, it would in the circumstances be right or wise to do it. As the noble and learned Viscount, the Lord Chancellor, is going to undertake any reply, I put this to him as a simple question: Is it in dispute when I venture to say that no Standing Order of this House can alter or amend an Act of Parliament, or get rid of a condition which the Act of Parliament imposes? If we agree about that, as of course we do, it is obvious that the Minister must explain why such copies were not so made before the instrument came into operation.

The noble Viscount the Leader of the House did not, in fact, I think, read the Standing Order. We will excuse him for that, for it is rather technical. But what the Standing Order does is this: it says that whether this House is sitting or not, whether we are dispersed for the vacation or not, one of these instruments is to be deemed to be laid because it is sent to the Clerk of Parliaments, who will then put into motion machinery for sending a copy to the noble Lord who is taking his holiday in the Channel Islands, to another noble Lord who is resting in Scotland, and another who is somewhere else; whereas the whole point about these matters is that you should have the document laid when the House is sitting, because it is by gathering together that members of the House can consider whether they ought at once to pray. It is quite a different thing to say: "Oh, well, the Clerk of Parliaments will send a copy through the post." I think I know what happens to some of these House of Lords documents when they arrive on one's breakfast table during the vacation.

I say without fear of contradiction at all that this Standing Order as framed, in saying that the Order shall be deemed to have been made by that process when in fact it is not laid at all, is cancelling the proviso which was carefully inserted in Section 4 of the Statutory Instruments Act, 1946, and is rendering it superfluous and unnecessary for the Minister to give any explanation at all. It is not a matter about which one need beat the air, but it has a certain importance. We shall all agree that we do not want to see the Executive's power to make regulations increase. We all recognize that the object of Parliament in putting in this proviso was that Ministers should not attempt to do these things when Parliament was not sitting; and that if they felt it was really essential to do, them then, they must be prepared to justify their action. The Standing Order repeals that provision and relieves Ministers from offering any such explanation, and pro tanto makes the road easier for these Orders to be made at times which are undesirable. On those grounds, without wishing at all to be merely technical, for I am simply thinking of what is really for the good of the House, I submit that this Standing Order ought not to be made.

2.21 p.m.

The Marquess of READING

My Lords, may I add a very few words in support of the objection taken by the noble and learned Viscount? We have had in the past unfortunate experiences of attempts to alter by Statutory Rules and Orders provisions of an actual Statute. One would have hoped that that practice had been abandoned, but now we are getting a certain variation of: hat regrettable practice, in an attempt, as it seems to me, to alter the provisions of the Statute not by a Statutory Rule and Order but by a Standing Order of this House, which is perhaps an even more objectionable form of dealing with the situation. One may assume that there was good reason for the provision inserted in the Act that a Minister should be under a duty to make some report to Parliament in cases of emergency where he had had to issue an Order whilst Parliament was not sitting. If it had no value, there was no object in putting it into the Statute; but it was placed in the Statute and, therefore, it must be assumed that Parliament attached importance to it.

Now it is sought by this Standing Order to enable the Minister to dispense with the obligation which was laid upon him by Statute and not to furnish this House with the information which Parliament considered that both Houses should have where this emergency procedure was resorted to. With great respect, surely that cannot be right. It cannot be right that it should be placed in the hands of the Minister to discard a responsibility laid upon him, to deprive Parliament of the information which it is entitled by Statute (and a very recent Statute) to receive. To say that the objects of the Statute are fulfilled merely by the procedure of laying a document upon the Table with no explanation of any kind, I confess seems to me a matter which, however technical it may be in form, has very real substance in fact. I hope that your Lordships will not allow this matter to go through without very closely examining the situation, which seems to me very really to affect the powers and the possibilities of the proper functioning of your Lordships' House.

2.24 p.m.


My Lords, may I first of all attempt to clear away the small matters about which I think there will be no controversy? The first proposal is that Standing Order No. CIV be amended by putting in the words "Office of the Clerk of the Parliaments" instead of "the Clerk of the Parlaments."

Viscount SIMON

I have no objection.


Perhaps I ought to have put them separately, because I am sure that we all agree with that purely drafting Amendment. I do not suppose either that there will be any objection to the new proposed Standing Order No. CVI. The Statutory Instruments Act, as your Lordships will remember, states in the proviso of subsection (4) that notification is to be sent to the Lord Chancellor of certain facts, of which it is obviously the duty of the Lord Chancellor to acquaint the House. This is merely stating how and in what manner a Lord Chancellor is to acquaint the House; I should imagine that there will be no controversy whatsoever as to that.

The point to which remarks have really been addressed is the new Standing Order CV. May I say, in answer to the questions of the noble and learned Viscount who spoke first and of the noble Marquess who spoke afterwards, that it is quite obvious that you cannot, by a Standing Order of this House, alter the requirements of an Act of Parliament. That is too plain. The controversy, therefore, seems to be whether or not the proposed new Standing Order docs alter the requirements of an Act of Parliament, for, if so, it would be quite invalid.

The position at the present time is this. I think I am right, but I may easily be wrong, and if so, I am sure your Lordships will correct me. The requirements of this House as to laying of documents when the House is sitting, are, I think, these: You hand in the necessary paper or document, let me say for the sake of argument, on Wednesday. On Thursday it appears in the Minutes and then, it having appeared in the Minutes on the Thursday, it relates back to the Wednesday, and you treat it as if it was laid on the Wednesday. Your Lordships will observe that to complete the laying on the Wednesday you have to have it in the Minutes of the Thursday. I believe I am right in saying that that is the present position. Standing Order CV is drafted on the assumption, which I believe to be correct, that it is for each House to say for itself and to provide by its Standing Orders what constitutes "laying." There is no definition of "laying" in the Act or anywhere else, but, if the Courts had to determine what did constitute "laying" an Order, they would, in my submission to your Lordships—I am not being dogmatic about this; I am stating what my own view is after careful consideration—at once say: "What are the requirements of the House? If we are going to be asked to determine whether an Order is laid or not, we shall want to know what the domestic requirements of the House are as to laying."

At the present time, the Statutory Instruments Act does not operate, and the requirements of nearly all the Statutes are these. If you make an Order, which can come into force on any day you like, the Act requires "that the Order shall be laid as soon as may be thereafter." That is the existing law. At the present time, there is no machinery for laying except when the House is sitting, and, therefore, what is done to-day, and has been done for many years, is that you promulgate your Order, you can make it come into force straight away and then, as soon as the House meets again, you lay the Order in the way I have indicated. On January 1 next year, we get into the region of a new dispensation, and the relevant requirement is this: Where by this Act … any statutory instrument is required to be laid before Parliament after being made, a copy of the instrument shall be laid before each House of Parliament and, subject as hereinafter provided, shall be so laid before the instrument comes into operation. The basis on which this Standing Order has been drafted is this, that it is for each House as a matter of internal and domestic regulation to state what constitutes "laying." If the Courts had to determine whether an instrument had or had not been laid, they would inevitably turn to the domestic rules of either House to see whether those domestic rules had or had not been complied with. That I believe so far to be completely right. The fact that we are following the practice in another place has nothing to do with the point. I quite agree that our rules may differ from those of another place, which also are bound by the provisions of the Act of Parliament. They had very careful advice given by their experts, as I have, on this point, and without Division they passed the Standing Order, not precisely but in all substantial respects in the same form as ours. It is as well, I think, that we should in substance agree with them if we can, otherwise, of course, you have the odd result that the Standing Order would, in substance, be put on one side and you would always have to rely on the proviso.

I do not agree with the noble Viscount that the proviso becomes inoperative, or that we have, in effect, repealed it. It is quite true it will apply to a much narrower field. If we do not pass this Standing Order any regulation which is passed and becomes operative when the House is not sitting will have to be reported to the Lord Chancellor. The Ministers will have to state why they have not laid it, and the answer, of course, will be the simple one—because the House is not in session. The proviso will, therefore, extend to a very great many cases. I think it was intended by the framers of this legislation that the proviso should have a much narrower effect. It is possible—often, I suppose—that you may have an Order, in regard to financial matters which requires to be brought into operation at once whilst the House is sitting. Supposing that Order is propounded on the Wednesday and handed in on the Wednesday, but for the reasons I have given cannot be laid until the Thursday as things are to-day, in such a case as that I and the Speaker, in our respective spheres, have to deal with the matter.

As I have said—and I do not think it becomes plainer by being repeated—I maintain, and I invite your Lordships to take the view, that it is for this House, by its own regulations and as a matter of its own domestic internal arrangements, to say what constitutes laying. What we are proposing by this Order is that you can now lay whilst the House is not sitting. Your Lordships will remember, of course, that the forty days are forty days, broadly speaking, whilst the House is in session, so we are not interfering with that principle in the least. But I submit that it would be very much more convenient, if my view is right—and if my view is not right, the Standing Order would, of course, be quite nugatory—that we should follow the House of Commons in their procedure, and provide, as a matter of our own internal and domestic arrangements, how a Paper can be laid, and that a Paper can be laid even though the House is not in session. It is on that basis that this Order has been drafted.

Having given it the best consideration—and in fact there has been prolonged consideration with my experts who advise me—I have come to the conclusion that so to provide does not in any way violate the Act of Parliament. I believe that what constitutes "laying" is a matter for this House to decide for itself by its own regulations and its own Standing Orders. I suggest that it is very much more convenient, on the basis that that is right, that we should do it in this way, to bring ourselves into line with the House of Commons and make use of the proviso to cover a much narrower field than otherwise would be the case. If not, when the House is in session after the Summer Recess, I shall, I suppose, have to report a very large number of Orders to your Lordships. The alternative view is that these Papers would be lodged by sending them to the Office of the Clerk of the Parliaments. On the other hand particulars of these Orders would be sent to noble Lords, and they would have the fact that these Orders had been laid brought to their attention, so that they would have complete control over the whole matter. Of course, the fact that the Order had been laid there would not be an explanation of why it had not been laid before it came into operation, because on this hypothesis, it has been laid. The proviso says there shall be an explanation where "copies were not so laid before the instrument came into operation."

Viscount SIMON

I do not wish to interrupt the noble and learned Viscount, but I would like to put this to him. That is just the difficulty I feel. Under the Statute as it will be enacted there is in certain cases an obligation put upon he Minister to furnish an explanation. It is an obligation and not a discretion. The proviso says that in certain cases there shall be sent to the Lord Chancellor an explanation why such copies were not so laid. If you pass a Standing Order which says: "We are going to treat everything as being deemed to be laid any day of the year, it does not matter whether Parliament is sitting or not," then for the life of me, I do not see how there is any room for the proviso that the Minister shall explain why the copies have not been laid. The Minister's answer would be: "I see by your own Standing Orders, whether the Order is really laid or not, it is deemed to be laid." I do not think you can say a hen is deemed to have laid an egg if you have been given an artificial omelette. Once you do that the proviso has no mandatory or compulsory power at all, and therefore, with great respect to the noble and learned Viscount's sincerity, I, with equal sincerity, and with an equal desire to serve the House, do venture to point out to him that if you adopt this provision that in every case the thing is deemed to be laid, then there is no room for the mandatory provision that the Minister must in exceptional circumstances give an explanation.


It did not need a very long speech to convince me of that. If you are providing by your Standing Orders that the thing is deemed to be laid you cannot give an explanation as to why it has not been laid. The fact is that by our own domestic rules we have stated that a certain thing constitutes laying. But if we do that, and it does constitute laying, you cannot possibly give an explanation as to why the thing was not laid because ex hypothesi it has been laid. That is obvious to a child.

Viscount SIMON

The result is that the Minister is relieved of his obligation to explain. Is that obvious to a child?


Of course, the Minister is relieved of his obligation to explain why an Order has not been laid, if it has been laid. But it is not the fact that the proviso has nothing to bite upon. It is quite possible that whilst the House is sitting it may be necessary to bring an Order into force on the very day on which it is promulgated and, by the rules of the House at the present time, that cannot be done. In those circumstances, the Lord Chancellor and the Speaker respectively are under an obligation to explain to the House why the Order has been brought into operation before it has been laid.

The Marquess of SALISBURY

May I ask a question of the Lord Chancellor?

I quite understood when we had discussions on various subjects in August and September last, that an Order could come into effect as soon as made, but the Government were bound to lay it as soon as Parliament sat. But that did not prevent an Order coming into operation before that date, and that was the very reason, if your Lordships remember, why we decided to sit on September 9, so as to make it possible for us to consider such Orders as soon as possible after they had come into operation.


If I may say so, I think the noble Marquess is a little confused. That is under existing procedure, and with regard to that he is entirely right. You can make an Order come into operation at once. The obligation under the existing procedure is to lay it as soon as may be thereafter. What the noble Marquess said relates to August, of course, when we had that system. The noble Marquess will realize that as from January 1 next new procedure comes into force. It is with regard only to this new procedure that difficulty arises. I hope that I make myself plain to the noble Marquess. I am sure he realizes that we must distinguish between the past and future. With regard to the past, he is quite right. You could make an Order, but under existing rules you could not lay it until the House was sitting. The trouble arises under the new dispensation which comes into force as from January 1. There the rule is that this Order may not come into force until it has been laid, but there is a proviso and the proviso says that if it is necessary to bring an Order into force before it has been laid then you are to instruct the Lord Chancellor, to give him an intimation why it is that you wanted the Order to come into force before it has been laid. The Lord Chancellor, under proposed Standing Order CVI, has to inform the House as to what has happened.

There will be, in the future, whilst this House is sitting, I do not doubt, many occasions on which it is required, as in the old days, to give effect to an Order immediately it is made, and before it has been laid in the technical sense. In all those cases the existing proviso will have to operate. The problem is, shall the proviso operate through a much wider field, which I suggest is very inconvenient, when the House is not in Session at all, because, it may be, of the Slimmer Recess. Shall we avail ourselves of that procedure, or shall we by our own domestic rules make a rule to say that an Order is to be deemed to be laid even though the House is not in session if certain steps are taken? That is the basis on which these Orders are drafted. I believe these Orders do not conflict with the existing Act of Parliament.

I have suggested to your Lordships that we should follow, in principle, the procedure which the House of Commons have adopted for their provision. It really does not enable the Minister the least bit in the world to get out of an obligation to say why an Order is to come into force before it has been laid. Indeed, in the case given it would be so easy to do it, if you had an Order made whilst the Summer Recess was in progress, and the explanation was that it was necessary to bring it into operation before the House re-assembled, which might be a matter of some months. That is why we are suggesting, after very careful consideration, that we should by our own domestic legislation, that is by Standing Order, provide for the first time what constitutes "laying." There is no definition of "laying" in the Act. I submit this on the basis that it is for this House, by its own domestic rules and regulations, to decide what constitutes "laying," and for these reasons I submit that the new Standing Order which we are suggesting does not in any way conflict with the requirements of the Act of Parliament, should be adopted.

2.44 p.m.

The Marquess of SALISBURY

My Lords, perhaps it will meet the convenience of the House if I say a few words at this juncture. I would like to emphasize to noble Lords opposite that I do so in no controversial spirit. I think we are all anxious to ensure the same thing—that is, that the purpose of the Constitution and the dignity and efficiency of this House should be preserved. I have listened very carefully to what the Lord Chancellor has said—I have no doubt that we have all done so. As I think he himself stated, this is not merely a technical or legal point. It is a constitutional point which, though it may not seem to be very much in itself, enshrines within it a very considerable constitutional prin- ciple. I quite agree with the Lord Chancellor that if you look just at the Amendments suggested they seem very small and pretty harmless But even after listening to the noble and learned Viscount, the Lord Chancellor, I am driven to the conclusion—this is only a personal opinion of course—that this does involve modification of an existing Act of Parliament, the Statutory Instruments Act, of 1946.

That Act, as the Lord Chancellor quite rightly said, lays down certain procedure for statutory instruments and their treatment by Parliament, and it does make a special proviso for the convenience of the Executive, the necessary convenience of the Executive, at times when Parliament does not happen to be sitting. I think that that: is a very well balanced proposal. There is no doubt whatever of the purpose of it, but the effect of this Standing Order is to alter that procedure. The Lord Chancellor, I think, admitted that it-alters the procedure. I certainly would say that it does. It says, in effect, that something which had to be done previously shall be deemed to have been done if, in fact, something else is done. Action which had to be taken is now modified in a certain direction. It is a dangerous precedent in my view to alter an Act of Parliament, in however small a degree, by Standing Order.


Will the noble Marquess forgive me for interrupting? If this alters an Act of Parliament in the smallest degree, then of course it is invalid. My whole point is that it does not alter it at all. It merely defines what "laying" is. "Laying" is, we say. a matter for domestic definition.

The Marquess ok SALISBURY

I am coming to that if the Lord Chancellor will have patience with me. I have No Intention of evading the point. To us, another important principle appears also to be infringed by this proposal. It does appear to a certain extent to weaken the control of Parliament over the Executive. I know that the noble and learned Viscount the Lord Chancellor will not accept that, of course. I will explain. After all, the actual laying of an Order before this House has a symbolic significance. What it means is that Parliament insists, even in these days of delegated legislation, that the ultimate control shall rest with the two Horses to whom under the Constitution is entrusted the management of affairs in this country. It underlines the fact that the Executive is the servant of Parliament just as Parliament is itself the servant of the British people. If an instrument is to be merely deposited in the Office of the Clerk of the Parliaments, I submit that that symbolic significance is to a certain extent lost.

I am sorry that I was not present during the speech of the noble Viscount, the Leader of the House, but I understand from my noble friends here, that he dealt with this issue. There must, of course, be exceptional occasions when Orders must be made and brought into operation when Parliament is not sitting. We are not unreasonable about this; we know that the King's Government must be carried on, and that is a principle which is acepted by every Party. In that case it is clearly right that the Government should afterwards come to Parliament, lay such Orders as have been made, and explain why it was necessary to take this exceptional action when Parliament was not sitting. That is the essence of the control of Parliament over the Executive. If we abandon that I feel we shall be stepping on to a very slippery slope.

I now come to the matter with which the noble and learned Lord Chancellor has just been dealing—that of "laying." He says there has been no definition of "laying." I think we all know what it means—formally bringing a document before Parliament in the form and with the dignity which all these Orders are to placed before Parliament. "Form" is the important word. The very use of the words "assume to have been laid" means that there has been some alteration in that. It is not exactly the same as it was before. As the noble and learned Viscount, Lord Simon, said, a hen cannot be deemed to have laid an egg because an artificial omelette is produced. At any rate there is a certain difference from the rigidity of the former procedure.

The noble and learned Viscount, the Lord Chancellor, said it was for us in this House to decide what we meant by the word "lay" because this was a matter of Parliamentary procedure over which each House has its control. If it were put to me like that, I am bound to say I prefer the former definition to the Lord Chancellor's definition. He says it would be inconvenient to have to lay a very large number of Orders after the Recess and either he or his representative would have to make an explanation. Not convenient for whom? Your Lordships would not be inconvenienced. We should regard it as very desirable and possibly essential to have an explanation. The Lord Chancellor quite frankly suggested that if this new procedure is adopted the explanation would go by the board. It would be deemed to have been given, but in fact it would not have been given. I am quite certain I am not speaking to a hostile audience on the other side, because this is a serious consideration. If it were suggested, and it has not been seriously suggested, that we ought to do this because the House of Commons have done it, I do not think that would be constructive to most of us. There are many points in which our procedure differs and many in which we think ours rather better than theirs. We have always taken our own view as to dealing with the Constitution and I hope we shall always do so.

Having said all this, I come to what we shall do about this position. My initial reaction is that we ought to reject this Motion, but f do not want to do that bleakly, if some other course is possible. I think this is an important question which we ought to examine carefully and with an open mind on all sides of the House. I should like to put it to the Leader of the House: Would it not be practicable to send this Motion to one of those important technical expert Committees which we set up to assist us in the deliberations and affairs of this House and see whether they could not make a report to us? Of course that report will not bind us, but I think a report of that kind from experienced members of this House would be of value to us in coming to a final decision. I do not know whether there is any existing Committee competent to deal with this point. There is a Procedure and Standing Orders Committee but I understand that this matter comes outside the scope of that Committee. Would it not be possible to set up an ad hoc Committee to deal with this? Rather than to deal now with this issue, which to my mind is an important one and creates an important precedent, I think it would be a very much better plan to postpone the Motion for the moment, look into it with all the great wisdom and experience which your Lordships have on constitutional matters, hear the report of any body we may set up and further consider the matter later on. I put this suggestion before your Lordships in all seriousness.

2.53 p.m.

Viscount SAMUEL

My Lords, I rise to support the suggestion made by the noble Marquess. If this matter were carried to a Division this afternoon, of which there is No Intention, I feel sure a great many of your Lordships, and certainly I myself, would feel uncertain as to the right judgment to deliver. When eminent lawyers of the highest rank fundamentally disagree on matters of this kind, it is very difficult indeed for a House of laymen to adjudicate. It is much better for the matter to be referred for closer examination to some arbitral body, as you might say, which could give it the closest consideration.

For my own part, I have always been exceedingly suspicious of the word "deemed" whenever I see it in a Bill. It really means that what Parliament requires to be done but which is not being done shall be treated as if it had been done. We discussed that point at some length on a Bill which was debated some months or a year or two ago, in which the word "deemed" was peppered through the clauses. The provision that Parliament should require an explanation when regulations are made by a Government or a Minister during a Parliamentary Recess, was obviously designed to put some slight check on an easy recourse to that procedure during the three months of the Parliamentary Recess when a large number of important regulations could be made without Parliament being in Session and on the watch. In order to impose a certain degree of check, an explanation as to the necessity of these regulations was required to be made in every case. But now this proposed new Standing Order which is before us would in effect waive that requirement and the word "deemed" is being employed in order to by-pass it. For this reason it appears to me to be most advisable that the Government should agree that the matter should not be earned further to-day but should be referred to a competent Committee.

2.56 p.m.

Viscount ADDISON

My Lords, I am sure this is a matter of great Parliamentary importance. In reply to Viscount Simon, I would say that the particular points he raised were considered with great care with our legal advisers before that statement was made and I was assured that that obligation was not done away with. That was the reason why it was not mentioned in my statement. I assure him it was not done lightly. We spent a considerable time on it.

Viscount SIMON

That is why I feel a little uneasy about it.

Viscount ADDISON

That is a different matter. I have been making inquiry with the assistance of the Clerk of Parliaments and find that there is no existing Committee to which a matter of this kind could be referred. We cannot commit ourselves either to rejecting summarily an Order which should be made and operated upon if it is a proper Order, nor to doing anything which would in effect be contrary to an existing Act of Parliament—it would be null and void if we did. I do not object a bit to having the matter specially examined and I gladly respond to the suggestion of the noble Marquess.

Viscount SIMON

Is it not possible—it may prove to be the wisest course—to refer the matter to the body that is called the Standing Orders Committee with special authority to that body to deal with this particular matter, pro ianto to enlarge its authority?

Viscount ADDISON

I should have no objection to that if it were in order, but I have inquired into the point and the Standing Orders Committee is not competent. Standing Orders provide that the Committee should consider whether the Standing Orders of the House relating to Private Bills ought to be dispensed with. This matter does not concern the existing Committee although, of course, we could enlarge the scope. But I have another suggestion. I think this is not only a legal question but a Parliamentary question of great importance. We can deal with it more summarily, if the House will agree. I suggest that we should refer the matter to a special Committee and that the Committee should be composed of the Leaders of the three Parties, Viscount Simon and the Lord Chancellor. I understand that that would be a proper course. I therefore withdraw my original Motion, in order to move the appointment of this Committee.

3.0 p.m.

The Marquess of SALISBURY

My Lords, I am very grateful to the Leader of the House for his consideration and courtesy in this matter, about which we care a great deal. I am a little doubtful as to the proposed Committee, because this House is really ruled by what is known as the sense of the House. What that really means is that it is not merely ruled by the Front Bench—it never has been—but by distinguished and respected members in all parts of the-House. I would infinitely rather see a Committee containing some of the most respected and experienced Back Benchers. For this purpose I think a Committee of that nature would be more useful. I wonder whether even now it would not be possible to use one of the existing Committees for extending these Orders. After all, these Committees are of our own creation, and I should have thought that in an emergency we could extend the powers for a special purpose. I do not want to be difficult, but I know from past experience in the comparatively short time I have been in this House what an extraordinarily important part the Back Benchers can play in this House. I would be reluctant to cut them entirely out of the discussion on a question which affects us all.

Viscount ADDISON

The last thing I have in mind is to leave out the Back Benchers. I have been given to understand that some such suggestion as that would be acceptable. I do not mind in the least. I am quite prepared to move that it should be referred to a special Committee to examine and report, without naming anybody.

The Marquess of SALISBURY

I should again like to thank the noble Viscount the Leader of the House, very warmly for his conciliatory, accommodating and courteous behaviour on this occasion, as, indeed, always, and would say that we shall be very glad to fit in with the suggestion which he now makes.

Viscount ADDISON

I beg leave to withdraw the Motion now before the House.

Motion, by leave, withdrawn.

Viscount ADDISON

I beg to move that the subject matter of the proposed Standing Orders be referred to a Select Committee.

Moved, that a Select Committee be appointed to consider the Standing Orders proposed to be made relating to the Statutory Instruments Act, 1946, and report thereon to the House.—(Viscount Addison.)

On Question, Motion agreed to, and ordered accordingly.