§ 3.30 p.m.
§ Order of the Day for the Second Reading read.
THE MARQUESS OF READING
My Lords, I beg to move that this Bill be now read a Second time. As is implied by, I hope, its not too pretentious title, this Bill is concerned with an attempt to safeguard or to restore certain rights of the subject, and it is perhaps not inappropriate that the circumstances of its introduction should also point to a right—the right of the private member of either House of Parliament to initiate legislation, subject always to the power of the Government of the day to annex for its own purposes all the available time. I claim no personal credit for this Bill. In introducing it to your Lordships, I am acting merely as the mouthpiece of the Liberal Party, by whom it has been conceived, prepared, and sponsored. I hope that your Lordships, whatever your own party adherence may he, will at least acknowledge that, seeking as it does to safeguard the liberties of the individual, it is in conformity with a long and laudable tradition of Liberalism.
I should make it clear at this stage that this Bill is not intended as a mere demonstration, a feint attack, to be withdrawn at the first sign of opposition. It is our firm intention, as far as lies within our power, to press this Bill home, and all that we ask for it is that it shall be given a fair chance to find its way on its own merits on to the Statute Book. Why should we expect opposition to a Bill of this kind? After all, a Bill with this high mission, albeit within a modest field, must surely be assumed to command the eager support of any member of either House of Parliament of this country. Opinions, of course, nay vary as to the merits of some of the clauses contained in it, but those opinions can find expression upon the Committee stage. What we are dealing with to-day is a Second Read- 763 ing debate on the general principle of the Bill, and there is an underlying general principle to this Bill, for, however diverse may be the subject matter of its several clauses, they are, in fact, all strung upon the common thread of protection of the liberty of the individual.
The noble and learned Viscount who will later sit upon the Woolsack—I realize the circumstances which have prevented his being here at present—is, I gather, in due course to indicate the view of His Majesty's Government in regard to this Bill. During the period through which he has occupied his office he has introduced so many Bills to your Lordships in regard to which he has expressed every gradation of dislike, from neutrality to nausea, that I have some hopes that a Bill emanating from a different quarter of the House will receive his enthusiastic and unqualified blessing.
Those who were responsible for this Bill naturally hoped that it would receive a sympathetic welcome when it was published to the world, but I think that we were all profoundly surprised at the warmth and the width of the publicity accorded to it in the Press, both in London and throughout the country. I can testify from my own experience, from the number of letters that have rained upon me in an almost inconvenient flood, that there are still people in this country to whom liberty is not merely an abstract noun but a concrete way of life. It may be that some of those correspondents have even read too much into this Bill, but it is at least clear that they have seen in a Bill with this title and with these aims both a token and a tonic—a token that at last some move, however modest in its beginning, is being made towards emancipation from some of the restrictions and regimentations that beset us, and a tonic towards further effort in the same direction. Personal freedom had for so long been the current coin of life in this country that we had been apt perhaps to forget that currency may be slowly and stealthily withdrawn from circulation, that coinage may be debased without any very evident outward signs, and that it may even be deliberately counterfeited without immediate detection.
It is no part of my case to-day to allege any malign conspiracy on the part of any 764 one deliberately to attempt to overthrow the liberties of the subject. The process has been gradual, stealthy, haphazard, almost inadvertent, but unfortunately both insidious and menacing in its cumulative effect. The pace and the magnitude of events have in recent years been so tremendous that rights have been filched and liberties purloined almost without the notice of Parliament or the knowledge of the public. I fear that if it were possible to effect an insurance against thefts of that kind, the premium would be prohibitively high, for, from the ministerial and departmental point of view, there are obvious, if perilous, conveniences in being able to forge ahead without waiting for the sanction of Parliament or the intervention of the courts of law.
The earlier parts of this Bill are, therefore, directed, to the remedying of two evil tendencies: the growing usurpation by the Executive of the powers of Parliament, and the increasing exclusion of the courts of law from what is perhaps their supreme function—protecting the individual citizen against the excessive and illegitimate encroachments and abuses of authority. These tendencies are, unhappily, no new feature of our life. They have now been nurtured upon the special conditions of emergency obtaining throughout two long, arduous and fluctuating wars. But that is no reason why they should be indefinitely perpetuated without some attempt being made to curtail them within reasonable restraints.
Your Lordships will recall that as long ago as 1929 matters had already reached such a pass that it was found necessary to appoint a very strong and widely representative Committee on Ministers' powers. That Committee bears the name of the noble Earl, Lord Donoughmore, whose great services to it will be widely recognized; but he, I am sure, will be the first to admit that some portion of the credit for the Committee's Report should go to his successor as chairman, during the latter stages of its deliberations and the preparation of its Report, Sir Leslie Scott. That Committee, after careful consideration, issued its report in 1932, and that Report, like so many of its fellows, for a moment fluttered the dovecotes and thenceforward cluttered the pigeon-holes of Whitehall.
765 The earlier clauses of this Bill are designed to rescue and resuscitate some of the unanimous recommendations of that Committee—and I stress the word "unanimous," for it may not he unworthy of note on the Government Benches that amongst the members of that committee were the late Miss Ellen Wilkinson and Professor Laski. It is time that some effective step should at least be attempted to implement the Committee's Report. It is, I suggest, a duty we owe not only to the Committee, but to Parliament and to the country. Nobody, in view of the present congestion of business, would be so foolish as to suggest that you can entirely abolish the system of delegated legislation, but it can still be kept within bounds; for what started as an expedient has by now swollen and hardened into a system, but if it is indispensable it still need not be indiscriminate. That is one of the essential aspects of life and liberty to which this Bill is, in its early stages, directed. The less time Parliament has to check, sift, digest and revise this multifarious mass of ministerial decrees, the greater responsibility lies upon the courts of law to examine and to pronounce upon their validity, and if Parliament itself has no time to protect the subject then it might at least not throttle the attempts of the courts to extend that protection which becomes increasingly vital in proportion as the sphere of Government activity is enlarged.
In the Bill, itself, we have endeavoured, in view of the necessarily technical character of some of its provisions, to assist your Lordships by providing with it a covering memorandum in, I trust, intelligible terms, which I hope has not only been of value to your Lordships but will enable me to deal much more compendiously and concisely with the individual clauses to-day than might otherwise have been possible. The first clause of the Bill deals with the curious situation prevailing at the moment, that although you get this spate of orders, regulations and so forth issuing, there is at present no power in either House to amend. Either House can accept, either House can reject; but, however objectionable any member of either House may think any individual provision of one of these orders may be, there is no power to amend. You have either to reject it as a whole or to accept it as a whole. 766 That seems to us an inconvenient arrangement which could easily be rectified, and the object of the first clause of the Bill is to produce that rectification.
Clauses 2 to 5, as I have already said to your Lordships, are drawn from the recommendations of the Donoughmore Committee. The first deals with a matter which is of fundamental importance. Where a citizen of this country considers that, under one of these ministerial decrees, he is injured because the Minister has exceeded his powers and issued an order which is, in effect, ultra vires, that citizen may have recourse to the courts of law in order that they may consider and, if necessary, pronounce as ultra vires that decree, unless his ordinary right is fettered or removed by the provisions of the Statute, and it seems to us that there should be, at least for a limited period, the right in the citizen to summon the Minister or the Department before the courts and say, "I consider that a right of mine has been violated by this decree, and in violating it the Minister has acted beyond his power, and I appeal to the court to sustain my objection and declare it invalid." The point of the second clause is that that right of the subject is always to be preserved for a limited period, and that no Statute should contain a comprehensive clause which forbids any citizen to have recourse to the courts in regard to the particular provisions of that Statute.
The third clause deals with what is commonly known as the "Henry VIII Clause," so called, I think, on account of the constitutional rather than the conjugal aberrations of that Monarch. It is strange that such a clause should be found in any Act of Parliament of this country. It, in fact, gives to the Minister, after the Act has become law, the right on his own initiative to amend that Act, and sometimes even another Act, with out further recourse to Parliament. That in its unrestricted form, in our view, is constitutionally wrong, and it ought not to be possible to reproduce that clause in any future Bill.
The fourth clause again strives to support the right of the individual to have recourse to the judgment of the courts of law in any case where he considers that the Minister, acting not in any adminis- 767 trative, not in any discretionary, not in any quasi-judicial capacity, but in a purely judicial capacity, has given a decision which is wrong not on tact but on law. Is it really asking much that the Minister or a Department should, on a question of law, submit himself or themselves to the jurisdiction of the court, to decide whether or not the decision can stand? Clause 5 deals with a subject which has been in a good many people's minds and in a good many people's papers in the last few months. Let me remind your Lordships that this again is in accordance with the unanimous recommendation of the Donoughmore Committee. It seeks that where a Minister appoints a person to carry out on his behalf a departmental inquiry, the report of that inquiry shall in future be published, and then the Minister shall give his reasons for the action that he takes in the matter considered by the report.
§ VISCOUNT SIMON
I gather from the terms of the Bill that the inquiry itself will be a public inquiry.
THE MARQUESS OF READING
Certainly. I am much obliged to the noble and learned Viscount. It is directed, of course, to the type of public inquiry that is not only permitted but encouraged by many Acts of Parliament, and it is to that type of inquiry only that the clause is directed. Clause 6, I think, may well commend itself to all your Lordships, for it seeks to do a very simple but necessary thing. At the present moment, acting under powers largely derived from Defence Regulations, there is a not inconsiderable army of persons able, under authority given to them by a variety of Government Departments, to enter upon and to search private premises—powers far wider than are given to the presumably not irresponsible members of the police forces of the country. What this clause seeks to do is, I should have thought, modest and reasonable, and that is to bring these Department sleuths into line to a very large extent with the members of the police forces of the country, and to say that the same precautions which are enjoined in the interests of the subject before a member of the police force can enter upon premises and make search shall attach to any authority which is given to any inspector of a Government Department.
768 Clause 7 is of somewhat topical interest, having found its way into this Bill during the recent—I must not say fuel crisis; let me say, the recent somewhat strained situation in regard to the supply of coal. It was stated, in a short and rather belated discussion which took place one evening in your Lordships' House, that although the Government had, in fact, shown great restraint in not using the Defence Regulations in order temporarily to suspend or suppress various journals now in circulation, had they been so minded it was open to them to use the Defence Regulations for that purpose. This clause of the Bill seeks not to decide whether they had or have the power to suppress or to suspend publications under a Defence Regulation, but to say that whether they think they have it or whether they think they do not have it, in fact, it is much too dangerous a weapon to entrust to any Government and it should be taken away.
Clause 8 sets out a rather curious situation which seemed to us objectionable in principle. Marketing Boards have certain penal powers—powers to levy fines upon persons. They sit in London, but quite a number of people who pursue agriculture as their means of livelihood do not live in London. These Boards administer some form of law, but without any qualified legal assistance at their disposal of any kind so far as the hearing of complaints go. Yet they are empowered to exact very substantial sums from an offender by way of fines. What we say is, why should you bring these unfortunate people up to London for the purpose of going through this ordeal? Moreover, is it right that persons unbound by the law of evidence, and unsustained, or unencumbered as you might prefer to term it, by legal advice, should insist upon imposing these penalties themselves? What is the objection to these powers being exercised by the ordinary courts of summary jurisdiction of the country? In order to make that plain, we have inserted this clause in the Bill.
Clause 9 seeks merely to deal with the position of a public authority against which, under the existing law, an action must be commenced within a limited period of twelve months in England or six months in Scotland, whereas against an ordinary individual or company, not a public authority, normally there is a period of six years within which, an 769 action can be brought. We say—and again it does not seem unreasonable—that we can see no justification for this special privilege being accorded to a public authority, and that it should be brought into line with the ordinary individual and the normal company.. There is also a provision dealing with costs against such an authority.
Clause I0 deals with the Assistance Board; and I would say at once that, having included the Assistance Board within the scope of the Bill, we are not making any reflection either upon its efficiency or upon its humanity. As a question of principle, however, we maintain that, dealing as it does with one of the most important aspects of the life of the industrial population of this country, it should be more directly under Parliamentary control—that is, responsible to an actual Minister to a greater extent—than it is in the existing situation. With regard to this clause, I regret to say that we have been guilty of an anachronism; in referring to three Ministers to whom we suggest the Assistance Board should be responsible we have been so out of date as to omit to notice that in place of those three the Minister of National Insurance should be inserted. But steps can be taken between now and the Committee stage to rectify that error.
Clause II deals with what again may seem to your Lordships to be a small point, but which is, nevertheless, one of considerable substance and anxiety in industrial areas. The position now is that if a Court of Referees decide whether unemployed persons are or are not entitled to unemployment benefit, there may be an appeal to the umpire from that decision, but where the Court are unanimous in refusing leave to appeal, the individual claimant himself has no right of appeal. Then comes the curious situation that if that claimant happens to be a member of a trade union, the trade union may put forward the appeal on his behalf. What we say—and I should have thought that it would be commonly accepted—is that it is wrong, when every employed person is insured on the same basis, to say that one man may have a right of appeal in certain circumstances through his trade union, because he is a member of a union, and another man may have no appeal because he does not happen to belong to a union. It is not an attack on trade unions to make that 770 contention; it is merely an assertion of what I suggest is an ordinary, common right to justice of every individual man.
It may be that Clause 12 will be regarded as slightly controversial. It deals with a matter which has taken up a good deal of space in the Press in recent months and a good deal of attention on the part of the public. I do not propose to-day to argue the pros and cons of the doctrine of "the closed shop," a matter upon which your Lordships will have already reflected and come to a decision. I only want to say that, so far as I know, a little while ago, when this was an acute day-to-day issue, there was no pronouncement by the Government saying, "We approve the principle of the closed shop.'" So far as my recollection goes, they sail (perhaps rightly): "This is a matter for the trade unions to discuss and decide an internal and domestic topic," and were content to preserve their attitude of what may perhaps be called alarmed neutrality.
On the face of it the last clause deals with a small point, but is has gained in importance from the fact that the Act at which it is directed has, by virtue of recent legislation considered by your Lordships, now been extended to cover the case of those Poles in this country who are subject to Polish military law. The point of it is to declare even this to be a small encroachment upon a long-established and precious doctrine, that any man in this country who considers himself to be illegally confined may, under the procedure of a writ of habeas corpus, be brought before the courts of this country to decide whether or not his incarceration is justified. I suggest we should be slow indeed in allowing any invasion of that right; and I have all the more hope that your Lordships will agree to accept the clause, as now submitted in this Bill, from the fact that it accords (I think in almost exact terms) with an Amendment moved by Sir Stafford Cripps when the Bill was before another place, and vigorously insisted upon by him at that time. I hope this will commend it at least to the members of the Government when they come to consider the matter anew.
Such, in a condensed form and in as brief an outline as I have been capable of giving your Lordships, are the principles behind and the provisions of this Bill 771 which I now commend to you. A great Irish orator in the great days of oratory once said:The condition upon which God hath given liberty to man is eternal vigilance, which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.Let us admit that in these past years our vigilance in this respect has in some measure been culpably relaxed. But here in this Bill is an opportunity—a first opportunity, and a modest one—to reinforce and to reassert our observance of that condition, and thus to show ourselves worthy to receive and to retain that incomparable gift.
§ Moved, That the Bill be now read 2a.— (The Marquess of Reading.)
§ House adjourned during pleasure and resumed by the Lord Chancellor.
§ 4.9 P.m.
§ LORD RUSHCLIFFE
My Lords, I think your Lordships are indebted to the noble Marquess for having introduced this Bill, and if it goes to a Division I shall most certainly support it. There was nothing in the whole course of his observations with which I more cordially agreed than what he said with regard to the increasing tendency of modern legislation to deprive aggrieved persons from access to the courts, and I believe that is a process which affects most harshly perhaps the poorest and most defenceless of our people. At this stage there is only one point on the Bill itself which I desire to make, and it is with regard to Clause I0, the side note of which is Assistance Board. I need not read the clause; the noble Marquess has already referred to it.
In that clause the noble Marquess proposes substantially to alter the functions or powers of the Assistance Board. I was myself the Minister responsible for the Bill of 1933, which became the Act of 1934, setting up the Assistance Board. I have no doubt at all that this clause is misconceived, and it is based on a complete misapprehension of what are the functions of the Assistance Board and the way in which it works. I appreciate very much what the noble Marquess said as to the humanity and the sympathy of its administration. I was the first Chairman of the Assistance Board, and I am sure the noble Viscount, Lord Selby, will agree with me that we both appreciate what the 772 noble Marquess said with regard to its administration. The anachronism, to which he referred, is an obvious slip. It is the whole substance of Clause I0 to which I personally strongly object. This is obviously a Committee point, and I am not justified in taking up more of your Lordships' time at this moment in dealing with it in detail. However, when the Bill proceeds to Committee I shall be quite prepared to elaborate the reasons why I think the clause should be struck out of the Bill, and I shall move an Amendment to that effect.
§ 4.12 p.m.
§ LORD DUKESTON
My Lords, I crave the indulgence which I understand is customarily accorded to those who address your Lordships' House for the first time. I desire to speak with particular reference to Clause 12 of the Bill. I regret that I had to leave your Lordships' House when reference was being made to this particular clause, and that, as a result of leaving, all I really heard was that it was controversial. I suggest that it is very controversial. I am not sure whether, notwithstanding all that has been said about personal liberty, the motive underlying this clause is ethical or political. Its effect really is to raise once more the much-debated Section 6 of the Trade Disputes and Trade Unions Act, 1927. That would be the effect of putting this Clause 12 into operation. I want to say one or two things with regard to this clause, both as to principle and as to time.
We hear a great deal to-day with regard to personal rights and liberty, but in the very complex society in which we live these rights have to be balanced against certain obligations. Here there is a suggestion which, in effect, is to discriminate between 2,000,000 employed in the public services as against those who are employed in industry controlled by private enterprise. Why that differentiation? I awaited some explanation as to why there should be such discrimination against public servants, as opposed to the man employed in industry providing the same kind of service and in every way working under similar conditions. The effect of this clause would be, if I may use this illustration, that workpeople employed by a public utility waterworks undertaking could be proceeded against if they attempted to effect a closed shop, whereas a privately owned or company-owned 773 waterworks undertaking could come to an agreement with the negotiating trade union to apply those terms. I think we are entitled to ask, why the differentiation? What is there in the public services which justifies workpeople being discriminated against in that sense?
We know of these rather disturbing elements in industry. But, if I may say so, as one who has had some experience in handling them, we have had far less difficulty than might have been anticipated. We have had far fewer industrial disputes in this country than we had at the end of the First World War. I believe the correct arithmetic is that for every one day that we have lost in industrial disputes in the immediate post-war years there were six days lost in the years immediately following the First World War. We know of the bitterness which followed the passing of the 1927 Act, with particular application to this principle raised in Clause 12. We know how that was resented, and we know that the great trade unions of this country had made up their minds to use their influence to annul that particular part of the Act at the first possible oportunity. It was annulled in one of the first Acts of the new Government.
I suggest that in the experience that has followed there has been less friction in industry; there has been a wider area of accommodation between both sides of industry, and the trade unions, consequent upon that change in policy, have less and less come to regard themselves merely as works gate orators and recruiting officers for trade unionism, and have devoted their services to assist industry to overcome the economic difficulties which beset us at the moment. The effect of this clause would be to transfer those men from the posts which they occupy at present—and which I will attempt to sketch in a few moments—and return them to the works gates, to secure what is now being secured by easier and more peaceful methods than would be the result if this clause became law. Some noble Lords seem to assume that there is some form of tyranny in expecting those who are rarely, if ever, reluctant to hold out their hands to receive the benefits which accrue through trade unionism, to face some of the obligations.
It may be well if I briefly sketch what those obligations are. The trade union of which, up to a few months ago, I was 774 the General Secretary, is very deeply involved. I believe that at the moment that organization is attached to no fewer than fifty national joint industrial councils. Below that there is a wide range of regional and district councils, and below that again there are local councils numbered by the hundred. Those joint bodies, which were set up in 1919, immediately after the First World War, brought into the industrial life of this country a method of adjusting wage claims and industrial grievances which has brought untold benefit to everyone concerned with industry. The trade unionist leaders of my early days, if I may say so advisedly to this House, were victimized. They lost their employment; they moved from one job to another, only to be told to make out their time sheet and move on. I recall no great demand for the protection of those individuals; and those who to-day speak very profoundly of the sacredness of personal liberty, in those days appeared to have little or no regard for it.
I would not have referred to it had not the noble Marquess said that this was on the true lines of the policy of the Liberal Party. In the days to which I am now referring the Liberal Party were the dominant political influence in the country, and those who care to read the industrial history of 1906 right on to 1914 will know that that period was fraught with more industrial conflict, dispute and victimization than any other period in the history of our country. If Clause 12 is to be embodied in legislation which is to reach the Statute Book, I beg your Lordships to understand what the reaction of the trade unionists in this country is likely to be. I think it is necessary that that should be clearly understood. It is not altogether defined, either in the explanatory memorandum or in the Bill itself, what is to be regarded as a public authority. Now that the mines of the country are nationalized, are they to be regarded as a national authority or a public authority, and would the effect of this clause be imposed in that industry and all subsequent industries which are to come under national control? We are all the time widening the ambit of its effect, and that may be intended.
I am not at all concerned regarding certain people who may have either a religious or an ethical motive and, for some obscure reason that I fail to under- 775 stand, have some conscientious objection to becoming a trade unionist. That is not really the problem. I suggest to the noble Marquess that these words, which are supposed to protect the would-be trade unionist, may appear all right in law, but in actual practice employers do not walk up to an employee and say: "I do not like trade unionists, and you are sacked." It is done far more subtly than that, and those who take the trouble to read trade union rules will find that, because of the way in which these things are done, special provision has to be made. It is really no accident that in the trade union rule books of this country, almost without exception, you find victimization clauses, which mean that the fellow workers of those who are victimized have to maintain them when they are penalized. They are not penalized in the direct way, as is assumed in Clause 12; it is done by taking the first opportunity of some slight misdemeanour which would be overlooked by someone who was a trade unionist, but in this case the man finds himself outside the gates.
For the benefit of your Lordships' House, let me briefly explain, what this obligation of becoming a trade unionist really means. I find a great deal of misunderstanding about it. The basic contribution to the majority of the unions operating in the field of public service is in the region of 7d. per week. Of that amount, 3d. is payment to provide friendly benefits, funeral benefits for the man and his wife, and so on. The 4d. is expended in the building up of trade union negotiating machinery, in the maintenance of hundreds of trade union officials whose time is devoted to peaceful negotiation and who conduct themselves in that very necessary field to which so many people to-day pay some form of lip-service. All that this person who objects is coerced into doing is paying 7d. per week, out of which 4d. alone is devoted to this work of carrying on wage negotiations which do not affect only the 7,000,000 organized workers. It is within my experience that if a trade agreement affects 5,000 in a firm, in which only 3,000 are members of a trade union, the other 2,000 still line up at the pay office and take the pay packet which contains the increase. There is no differentiation there. There is no obligation placed upon any man to take an active part. 776 He may if he chooses, and if he does so he is welcome.
If it comes down to a matter of conscience, the numbers concerned are negligible and, so far as I know, no one in the trade union world would make a fuss about it. But this is opening the door to the break-away union, to the dissenting minority, and we are all aware of them. None of us is perfect, and every trade agreement arrived at is arrived at as a result of some give and take, some compromise. May we not, with advantage, remind ourselves that whenever this happens the cry goes forth from the Press and the platform: "Why do not the trade unions discipline their followers?" It is not so easy, when so many people are anxious to provide every method and means of escape for those who do not want to accept any obligation. That is the difficulty to-day. The leaders of the trade union movement are just as aware as any other section of the community of the economic difficulties through which we are passing. We know the limits within which we have to negotiate. Believe me, there is nothing more difficult than for a trade union leader to spend weeks or months travelling between the conference room and meetings of his own members, with the knowledge that these minority elements are making his work far more difficult than it need be. The purpose of this clause—or at all events its effect, whatever may be the underlying purpose—is to make the work of those men far more difficult even than it is at present.
We are all anxious to have as much personal liberty as circumstances permit. But surely life means that we have to accept certain obligations, restrictions and restraints. We cannot go out into the road and drive a car on the right hand side of the road and proclaim our right to do so on the grounds of personal liberty. We know that we shall sacrifice liberty if we behave in that way. Collective bargaining is the accepted principle of securing peace in industry. I think we are entitled to ask why Bills should be promoted which mean that a minority must carry the responsibility and, often when they have secured the maximum that the circumstances at the time of negotiations permit, see melt away those who, for selfish reasons, are prepared to take all the benefits but who accept none of the 777 obligations. That is not the way to ensure personal freedom.
Let me make this appeal to those who have framed this Clause 12. We do not want to revert to the industrial anarchy which existed in the years between the wars. We know how that embittered the life of the country. We have done a lot of building up since those days, and the relationship between the employers and the workers' representatives has never been more cordial in our history than it is now. I would have welcomed the opportunity of seeing someone from the employers' side, on the highest level, in your Lordships' House, and to have heard his opinions regarding Clause 12. I doubt very much whether those who are carrying responsibility on the employers' side have any more to say for this clause than those of us who are still active on the trade union side. I sincerely hope that whatever may come of the other clauses in this Bill, Clause 12 will not find acceptance and, in finding acceptance, restore the bitterness which followed the passing of the 1927 Act.
§ 4.35 P.m.
§ VISCOUNT SIMON
My Lords, in the tradition of this House, which I gladly follow, it is my privilege to tender to the noble Lord opposite our sincere congratulations on the first occasion on which he has intervened in our debates. I can assure him for myself, and I am sure for other noble Lords, that I do it with the most complete sincerity. As the noble Lord will find, this House contains a remarkably diverse collection of men of courage and honesty who on proper occasions try to put forward points of view which they believe to be for the benefit of the country; and I am quite sure that I can welcome the noble Lord's intervention as being offered to us in that spirit.
I will not at the moment say anything about the clause to which the noble Lord has addressed his attention. Hs speaks undoubtedly with great authority on such a subject, and we always like to listen to authority; but there was a single observation which he made which I venture, very respectfully, to ask him to reconsider. I do not think it is true historically that between the years 1906 and 1914 the Liberal Party, who were in office, could in any way be justly represented as having promoted industrial strife or made more difficult the situation of trade unions. One 778 of the first Acts of the Parliament of 1906 was the carrying of the Trade Disputes Act, and I do not think the noble Lord would want to have that altered. I remember it very well, because it was the first occasion on which I ever spoke in another place. That same afternoon Mr. Shackleton, who then spoke as the acknewlodged Labour leader, welcomed that Bill. In the same way, I do not think the noble Lord would be willing to forget that a few years later there was carried by that same Liberal Party an Act which secured a system of a minimum wage for the miners. Mr. Ramsay MacDonald and his friends voted for the Bill on the Second Reading but against it on the Third Reading. Whether or not that was wisely done is a matter which history will decide. But I really do not think—and I speak with some knowledge—that anyone who knew the facts would charge Asquith and his followers with acting in such a manner as to promote industrial strife.
§ LORD DUKESTON
I tried to convey that I was not dealing with the attitude of the Liberal Party towards labour legislation but was referring to the widespread victimization that was being carried out in the country at that time.
§ VISCOUNT SIMON
I am sure the noble Lord will agree that we cannot pursue the matter at this time, arid I am certain he spoke with every possible desire to be fair. The noble Lord has devoted himself to one clause of this Bill. It is in fact a clause which stands rather apart from the general subject of the Bill. I have no doubt that at a later stage there will be a great deal of discussion about Clause 12, and we shall expect the noble Lord and others to take part in that debate. In the same way, my noble friends who spoke before referred, I think, only to a particular clause, Clause I0. I may as well say that my own reactions to Clause to are very much the noble Lord's own, and I doubt the wisdom of making the Unemployment Assistance Board more directly answerable to the Minister of the day, whoever he is, than it is at present. But that again is a single clause.
What we have to do now is to decide whether or not we are going to give a Second Reading to this Bill as a whole, and that is perfectly consistent with the view being held, as I dare say it is held in many parts of the House, that this or that clause should not be included in the 779 Bill. Those who were present when the noble Marquess presented the case for his Bill as a whole—I will say nothing about these controversial clauses now—must, I think, have been impressed with the fact that the principle which he was seeking to express in the Bill is a principle which does appeal to a vast number of ordinary citizens of all Parties as being one to be emphasized. It is perfectly true, as was said just now by the noble Lord, that of course there must be, for the purposes of order and progress, restrictions upon absolute liberty—that is perfectly true. As the noble Lord said, a man who persists in driving on the wrong side of the road cannot claim to be exercising a reasonable liberty of the citizen. Any Parliament exists for the purpose very largely of determining within what limits it is necessary that the free choice of each citizen at each moment should be exercised. I could give hundreds and thoustands of illustrations, but I will not delay you.
I am certainly going to vote for the Second Reading of the Bill. There has been in recent years unquestionably a great increase in the extent to which direct Parliamentary control is delegated to subordinate bodies, whether to Ministers or to others. There must, of course, be such delegation. It is quite impossible that Parliament should personally, clause by clause, word by word, carry through the volumes which contain delegated authority; it is absolutely impossible. An Education Bill which contained every regulation of the Board of Education could not possibly be passed one word or one clause at a time, or put from the Chair and voted in both Houses—it could not be done. Not only could it not he done, but, if it could, it would he a very stupid and wooden way of proceeding, because within proper limits this method of delegated authority does give particular flexibility. You can alter your regulations in order to fit the case when the case becomes prominent, instead of having to pass a new Act of Parliament for that purpose.
Therefore I think it is most important that we should all recognize, as indeed the noble Marquess did, that there is no question at all of objecting to the process by which Parliament authorizes delegation —and a great deal of delegation—to the proper authorities under proper condi- 780 tions. The point, as I see it, and as I have always seen it, is this: you must, if you are fair and honest about it, admit that this method of delegated authority does involve a great danger. The danger is that under the authority so delegated you may have what are really a great number of extra Acts of Parliament, because they stand in the same condition as Acts of Parliament, some at least of which may go too far or may not be such as, on reflection, general public opinion would approve. Sometimes, indeed, they may be regulations which are actually obnoxious and recognized to be quite contrary to the public interest. The point is that you should have other safeguards in regard to these things—not that you should not have them but that you should have proper safeguards about them.
I am trying in this matter to speak without any sort of prejudice, for I am concerned about it merely as a citizen and as a man who is trying to contribute his own serious thought to what is a very important subject. I must say I do think undoubtedly that there is a grave danger of this power of delegated legislation being too freely given and too widely used. It seems a most extraordinary thing, for example, that you should find a Department making a regulation which cannot be challenged as to its legality in a court of law. There is a real protection, fundamental for all of us, no matter what our Parties are—a democratically elected Parliament, on the one hand, and an absolutely impartial administration of justice on the other. Those are the things upon which everything depends; and we have a warning before us. It is not enough to say: "Well, after all, we have General Elections every so many years. Is not that an effective security for public liberty? "It is a very important security, certainly, but, after all, Hitler had General Elections. It did not seem to make very much difference to the ordinary citizen, who had to endure the code of regulations that existed and were in force in Germany.
When I heard the noble Marquess just now begin his speech by saying that he was exercising the privilege that attaches to members of either House of Parliament of introducing a private Bill, I could not help remembering that, so far as another place is concerned, the privilege of an unofficial member to introduce a private 781 Bill or even to move a private Resolution has not existed since the present Government came into power. The reason is not new because they have such an enormous programme of business, but:, when I sometimes hear reproaches made because, it is said, the Opposition Party—the Conservative Party, if you like—is not able to do more than it has done in the last two years to stop this or to stop that, if you want to be fair you want to ask yourselves: "What is the extent of the opportunities they have had? "They have had no opportunity to introduce any Bill or any Resolution in another place. It is one of our advantages, at any rate, that we have that opportunity, and that is what was being taken advantage of by my noble and learned friend just now. I am very glad that he has taken it.
The trouble is, I think, that there are two rival conceptions growing up of what is the proper way in which democracy in this country should develop. I would not for a moment suggest that the noble Lords opposite or members of the Parties they are representing are not honestly seeking the democratic way of life. No doubt they are, every bit, just as I am. But there are two rival conceptions which are tending to grow up. The one conception, which I believe in, is that it is not merely necessary to have a General Election every four or five years, and discover where the majority of the popularly elected House reside, so that you may settle what is to be the Government, but that, whether a man is a member of a majority or of a minority, he should go on throughout the whole period exercising his full functions as a legislator, naturally under the handicap that he and his friends are only a minority and will very likely be voted down, but at least with the opportunity of pressing what he has to say by arguing his trouble as far as possible (I do not want to carry the point too far) without closure, though closure is necessary in modern democratic institutions like ours. That I think is the true conception that makes a man feel responsible for all the law of the country, whether the law is actually expressed in the form of a Statute or in this immense bundle of regulations (which is many, many times bigger than the Statute Book) every year.
That is one conception. The other conception—and I think, consciously or unconsciously, it is one that is rather widely supported from some quarters in this 782 country—is this. You have a General Election, conducted perfectly honestly, and you get a result. If you obtain—as was the case at the last election—a Socialist majority, then the principal function of the majority of the House of Commons is finished. They are there simply to register the decisions which have been reached by the Government of the day. Of course, closure becomes a very easy business then. It is merely a means of getting decisions sooner, rather than later. It means though, that people on whom responsibility rests are much more willing than they ought to be to acquiesce in this business of making rules by departmental regulations and ministerial regulations, than was the case under the old conception.
I very much hope that we shall give serious consideration to this dangerous tendency, and endeavour to check it before it is too late. Oherwise—though it sounds a very harsh thing to say it is actually what is happen —we really have, after every General Election, an aspect of a totalitarian system; and that is the last thing in the world that any set of people in this country want. I am certain that those who speak specially for Labour do not want it any more than the rest of us. If you provide that the Minister may draft his regulations as he thinks fit—more often of course it is a civil servant who drafts them—and then put great difficulties in the way of challenging their regularity (in some cases there are actually provisions that you shall not be allowed to bring it before the courts of law), I must say that if we pursue that road too far we tend to lose the two fundamental protections for the individual which we all want to preserve—the one being the real authority of Parliament, and the other the impartial administration of the law.
I have heard the noble and learned Viscount, the Lord Chancellor, who is now able to be here, tell us on more than one occasion how it goes against the grain for him to propose some particular measure, although he feels the times are so difficult as to necessitate it. I am sure he has said that sincerely. Though we have made a joke about it at the time, I understand perfectly the nature of the explanation that he gives. But more and more people in this country, ordinary quiet, decent people, are asking themselves: "Why have I to submit to this departmental 783 regulation, made by people I do not know, people to whom I have never been able to speak? When I write to my M.P. all he can reply is: 'Well, after all, that is under regulation which, in its turn has been authorized by Act of Parliament; and there is nothing more to be said.'" It seems to me a new method of administration in this country and a very dangerous one.
The reason I welcome this Bill upon its Second Reading, while reserving every right to consider what are particular arguments that may be used in respect of particular clauses, is that it is aimed at getting established, or re-established, safeguards for individual liberty which, as it seems to me, are slipping from us every week, and every month. It may well be that this is a service which we in this House can render. We have not, and we ought not to claim to have, the authority of a popularly elected Assembly. I have never considered that in that respect this House stands on a level of interference with the popularly elected House. It cannot be so in a democracy. But I do think that it is our business here to use. our powers in order to influence, so far as we can, by fair and independent argument, the course which the country is taking; and I feel that on this subject of delegated legislation we are passing quite beyond the bounds which it is wise for any thoughtful citizen to encourage.
After all, several clauses of this Bill are simply putting into legislative form the unanimous recommendations of this Committee on Ministers' Powers, of which my noble friend the Marquess of Reading spoke before the Lord Chancellor came in. I may be forgiven, perhaps, now that the Lord Chancellor is here, for reiterating something of what the noble Marquess has said. No one can look at this Report without being struck, in the first place, by the extraordinarily wide and authoritative character of the members of the Committee. If ever a Committee was fairly made up to represent all sorts of people, this was. Amongst its members were Professor Laski and Miss Ellen Wilkinson. There were also people like Sir Warren Fisher and Sir Claude Schuster, who are very great authorities on the subject of drawing up regulations and making subordinate rules. You find people of the breadth of mind of, let us say, the Earl of Donoughmore and Sir John Anderson 784 (who at that time was a public servant and had served all his life in Government Departments). You have people like Sir William Holdsworth, who knows the history of this sort of subject in our own country as well as, and probably better than, anybody else in the world.
It was an extraordinarily powerful body, and they were invited to consider what was the power that was exercised under delegated legislation and to report what safeguards were desirable or necessary. That was, in substance, the duty assigned to them. On that, after the most careful inquiry, they made a series of unanimous recommendations. You may find some of the most important of them embodied in Clauses 2, 3, 4 and 5 of this Bill. It seems to me wrong, therefore, to claim that we should not say: "At least, let us have this thing examined afresh in this House, clause by clause, in order that we may determine whether there is not some good ground for legislating in a direction which will provide more effective safeguards than now exist."
I sum up my remarks by saying that while I do not dispute that there has to be extensive delegation—I expect there will be more of it; indeed the Chancellor has told us that we must expect to have more of it than we had before—I still say it is a system which needs to be kept within bounds, and in respect of which we need very carefully considered safeguards. I believe a case can be made that, in many instances, a matter has gone further than it should, but for my part I am willing to wait and hear about that when we come to the clauses. All I would say for myself—and for the benefit of any friends of mine who may be interested in my view—is that, looking at the matter candidly and impartially, as I have done, I feel confident that this House ought to give this Bill a second reading.
§ 5.0 p.m.
§ LORD LAYTON
My Lords, I feel that in a sense I am not competent to speak on this Bill. It is a lawyers' Bill, and it is concerned with many technical matters on which I have no special experience. There is, indeed, only one clause on which I have very direct knowledge, and it is to this that I would refer. Besides being a collection of technicalities it is a Bill which raises the general issue of the relation between the State 785 and the individual, and the tendency for encroachments to be made by the State. I think most of us on these Benches—indeed, most members of this House—will agree that the functions of the State must increase, the area in which the action of the State impinges upon the freedom of the individual must be enlarged, and the need of delegated legislation must increase. But if that is so, stage by stage as these enormous measures enlarge the field of the State, it is necessary that Parliament should, by equal steps, watch all the time that the essential liberties of the citizen are not unduly restricted, and that opportunities for obtaining redress are preserved.
It seems to me that this Bill is not one which is in any sense hostile to the Labour Government. If it is hostile to the Labour Government, then it is hostile to all Governments. Quite a number of points raised in this Bill touch measures taken by the Conservative Government. All of us who have had experience of the working of Government Departments know how easy it is to adopt the easy course of taking slightly larger powers than are necessary. We have watched it time and again, and we cannot be too watchful of the preservation of the rights of the individual. I therefore hope very much, on quite general grounds and without reference to any particular clause, that this Bill will receive a Second Reading. There is anxiety in the country on this question of the rights of the individual citizen, and the mere knowledge that this House was examining a series of points in that regard would be extremely valuable, psychologically and from the public point of view.
I pass now to the only clause with which I am directly concerned. That is Clause 7, which deals with the freedom of the Press and the suppression of newspapers. That matter was debated in this House on February 27. I do not think there is any need to argue in general terms the case for the freedom of the Press; it was accepted in the course of that debate as common ground. But Clause 7 seems to be necessary to ensure that the freedom of publication is not left at the mercy of Departments or subject to departmental interference. I do not think that issue would have arisen but for the incident in February last. I do not propose to go over the whole of that story because it is well known, but certain things emerge 786 which illustrated in that particular sphere what is, in fact, a much more general issue—the uneasiness as to the exact concentration of authority, where it rests in Departments, and the strict limitation of departmental rights—which, I venture to suggest, in the case of the Press, is of really supreme importance.
There were three factors which emerged from that story. One was the confusion of authority between the Departments. The periodical Press, the newspapers, and the Rationing Committee were suddenly brought in contact with a new set of officials, and it was clear there was no actual close co-ordination between the acts of the Departments. During the critical week officials who had never before been in contact with the Press, dealt with this issue, whereas there existed in the Government a Department whose officials had been in constant touch with the Press for seven years, and had had one of its members sitting on the Rationing Committee continuously for that period of time. Suddenly, some other Department, which was quite out of touch, intervened, and there was confusion of authority.
Secondly, and this is even more important, the action taken showed that the Departments were exercising discrimination between certain publications. The periodicals were stopped and the newspapers were allowed to continue. The newspapers were included amongst the essential services. Shortly afterwards, the distinction was actually drawn between essential newspapers and unessential newspapers, a distinction, for example, which left the religious weeklies on the unessential side for a period, and papers of a general character, which had been administered by precisely the same Rationing Committee, on the essential side. The third point is that the suspension raised an issue and involved considerations of enormous weight, though the saving in fuel was of quite modest and almost negligible proportions, and one would have thought that that would encourage second thoughts on the part of the Ministry. The most curious feature of all was that in order to prevent competition between those periodicals which were suspended and those which were not, the ban was made in such a form that it excluded the production of periodicals, even though they consumed no fuel at all. That seemed to me to be a ludicrous 787 situation; certainly it seemed so to members of the Press.
At the time of the General Strike I was editor of the Economist, and I recall how first of all we scoured London for type, and then worked a hand press in order to produce the paper somehow. It was not until the Economist was 104 years old that its publication was suspended. The Press will find every means of appearing, if it is not absolutely prevented from so doing, and to stop all devices which enable the Press to appear, regardless of whether they consume fuel or not, seems to me to be an act which is very ominous, and an act which does not show a fitting regard to the limitation of the grounds on which official action can properly be taken. It was subsequently said in this House that the decision to impose the restriction on the Press was not taken formally on legal grounds, but was by way of an instruction which had no legal validity. It has also been said that a statutory regulation could have been issued.
Unfortunately I did not hear the noble Marquess who introduced this Bill. I hope that I am not repeating what he said. If it has not already been said, I should like to emphasize that the second of these points is surely open to question. The grounds on which a statutory regulation can be issued are contained in the Supplies and Services (Transitional Powers) Act, and it is doubtful whether any regulation under that Act could have been issued to impose a restriction on the Press. If that power exists, then surely it is perfectly clear that the case is made for Clause 7 of this Bill. It may be that the power does not exist. If it does, then let it be eradicated.
In conclusion, I should like to say that it may seem that I have rather unnecessarily laboured this issue for the freedom of the Press. I should like to put before your Lordships considerations which bear upon that question. The State to-day, inevitably, is doing a great deal to determine what the people of this country can read. Unfortunately for Great Britain, we have in this country none of the materials required for paper making. We must import either paper or pulp, which must take its place in the import programme. The Government to-day, in very large measure, are determining what is printed 788 in Britain. The import programme is, inevitably, one of the greatest restrictions on freedom to-day. It decides what we can eat, how we shall be clothed, and it is to a certain extent determining what we may read. The Government are not determining it in detail; they are determining it in bulk. The other day in another place figures were given showing that, under the paper distribution of 1946, the newspapers are consuming 29.7 per cent. of their prewar consumption; periodicals 29.3 per cent.; books, 85.7 per cent.; commercial and general printing, 66.7 per cent.; the building trade 140 per cent., and His Majesty's Stationery Office and Government Departments 177 per cent.
The Government must, of course, broadly decide the allocation of paper. They are subject to question, and the matter can be raised in Parliament. It is an issue clearly of very great importance as to what is available for educational purposes, for entertainment purposes and so forth. But within the broad categories, it is surely vital that it should not be open to a Department or a Minister to discriminate between what is essential and what is not. Therefore, I commend this clause to your Lordships as one which should be included in this Bill, and which is indeed vital from the point of view of the freedom of the Press. I sincerely hope that this Bill will receive from your Lordships' House a Second Reading.
§ 5.15 p.m.
§ LORD LUCAS OF CHILWORTH
My Lords, my intervention in this debate will be very brief. May I offer my apologies to the noble Viscount, Lord Samuel, who I hope will convey them to the noble Marquess who introduced this Bill, that I was unable to be present when the noble Marquess made his introductory speech. I warned him that public business would delay me, and I very much regret that I did not hear what I am sure was a very lucid explanation given in a most charming manner.
§ VISCOUNT SAMUEL
I am sure that the noble Marquess would desire to express similar regret in converse.
§ LORD LUCAS OF CHILWORTH
I was, however, pleased to be able to be in time to hear the maiden speech of my noble friend, Lord Dukeston, who I also regret is not here now. In the course of his speech, the noble Lord, Lord 789 Dukeston, said that he could have wished that an employer of the highest rank would support what he said from the trade union side. I can claim to speak as President of an employers' organization and also as chairman of a national joint industrial council; but modesty would prevent my claiming to be of the highest rank. I would endorse what the noble Lord, Lord Dukeston, said. In my view, industrial negotiations in this country would be carried on far more harmoniously, to the improvement of this country's industrial economy, if all employers were ranged in their respective associations and all the workers in their respective unions. My experience has been that it is the recalcitrant minority on both sides which cause the friction. Perhaps the noble Viscount, who is to wind up for the Party which introduced this Bill, would give me his attention for a moment. I would ask: Why differentiate between a public body and an ordinary employer? As an ordinary employer, I can negotiate with any union to employ whom I want to employ in my works. If I want a "closed shop," I have the liberty of negotiating with the unions to have a "closed shop." Why is a local authority not given the same freedom?
The clause to which I specifically wish to draw your Lordships' attention is Clause 8. I cannot commit the impropriety of dealing specifically with the subject matter of this clause, because at the present moment I happen to be the Chairman of an independent Committee which has been set up to inquire into the working of the Agricultural Marketing Acts, but the same restrictive practices to which this particular clause draws attention are legion and rampant in industry. The restrictive practices of trade associations infringe far more the rights of the subject than can those of a statutory authority under this particular provision. Why this differentiation? I can assure the noble Marquess, Lord Reading, that the price-fixing rings and the coercive trade associations have the economic life of quite a large section of industry in their grip. There is no need for me to tell noble Lords on these Benches al about it. Why are these restrictive practices left out of this Bill? Why this differentiation? Perhaps some explanation may be given.
790 I listened to the noble and learned Viscount, Lord Simon, with, if I may be allowed to say so, a sneaking sympathy for a measure of what he said. It seems to me that in this Bill, which deals with the preservation of the rights of the subject, extraneous matters are being brought in by way of illustration, and illustration alone. It the noble Marquess, Lord Reading, will lend his exceptional talents and ability to producing a Bill which will overcome some of the restrictive practices caused by trade associations, which have a stranglehold on British industry at the present time and are really restrictive of the right of the subject, I will be his most enthusiastic supporter.
§ 5.22 p.m.
§ VISCOUNT SAMUEL
My Lords, this Bill deals with matters which have been under discussion throughout the country for many years. It is now long since the former Lord Chief Justice, Lord Hewart, who used always to sit on these Benches, or the corresponding Benches in the old House in which we used to sit, wrote his book with the title of The New Despotism, which drew attention to the tendencies with which this Bill deals, and called for a change of policy. There has been no change of policy. The process that he condemned has been proceeding almost unchecked since those years. So the time has conic when this matter should be reviewed in general by Parliament, and this Bill is the means suggested for achieving that end. As the noble and learned Viscount, Lord Simon, said, there must, of course, be some form of devolution of a law-making authority. It is impossible for any Legislature, least of all a Legislature so heavily charged as ours with Imperial and foreign affairs, as well as with domestic legislation, to legislate in minute detail. If all the matters which are now dealt with by Orders in Council and regulations were to be included in Bills, our Bills would be excessively voluminous, and the attention given by Parliament to its work would be even more insufficient than it is now.
A democracy may fail, and in some Continental countries democracies have failed. That is certainly not because the principle of democracy is wrong. Nor in this country does democracy suffer from lack of interest or energy on the part of the electorate, or the honesty of the individual voter. But a democracy may fail because 791 its Legislature proves powerless to act; because things that the whole of the people recognize as needful to be done are not in fact done. A General Election is held and the people decide, and the Parliament elected fails to carry into effect the desires of the people, because the legislative machine itself is inefficient. A body politic may fail from a fatal disease which I do not think is found in the medical authorities; it may fail through congestion of the brain. That is a great danger against which a democracy should seek to guard. Indeed, we on these Benches (and it is the Liberal policy in general) are proposing not only legislation of this character, but are also advocating changes in the structure in the Government itself which would, to some extent, relieve congestion, and would enable varied and variegated business to be dealt with more rapidly. There must be Orders in Council, and there must be regulations. Our problem is how to secure that they shall not impair the essential supremacy of Parliament over Government Departments; and in matters of interpretation of what the Statute means, that they should not impair the authority of the Judicature. We hold, and have given reasons in advocating this Bill, that those two principles are, in fact, [...]fringed to-day in a number of particular [...]ses.
The Bill includes, I think, thirteen operative clauses. Four of those—only four out of the thirteen—have been mentioned to-day. One of them has been mentioned only in terms of praise and support by the noble Lord, Lord Layton, who is so familiar with all matters connected with the Press, and who strongly endorses the proposal in the relevant clause of this Bill. The other three have given rise to some criticism, and, indeed, to opposition. The noble Lord who has just sat down, Lord Lucas, referred to one clause relating to the Marketing Boards Act. He was not referring to the provisions in the clause itself but was saying that they were not sufficiently extensive. The noble Lord could not, indeed, refer to this particular clause, since he is himself the judge in an inquiry; the matters are not only sub judice, but he is himself the judex. So it would be surprising if he had either praised or dispraised this particular clause. But the noble Lord said it was not only the Marketing Boards which were given these 792 large powers, but that industry itself was guilty, if there is guilt, of similar excess of authority.
That is not a criticism of this clause, for, after all, this is a matter of Statute. What industry does on its own authority and through its own methods may require further regulation. In fact, many of us think that monopoly powers, and some of the price-fixing powers exercised by trade associations, and the like, do require careful investigation, and probably a considerable measure of control. We have said so on more than one occasion in this House, and, indeed, in various ways we continue to advocate such control. But here we are dealing with Acts of Parliament, and the way in which Parliament itself has infringed its own proper, general process of legislation, of requiring that matters of fact shall be determined by courts of law and that penalties shall be imposed by the magistrate and not by the members of a particular industry. I think that is sufficient answer to the noble Lord's objection.
The other two objections are those of the noble Lord, Lord Rushcliffe, who referred to the Public Assistance Board. When the Public Assistance Board was first set up, both the Liberal and Labour Parties urged the principle that the authority of Parliament ought not to be ousted, and that in general matters—not indeed day to day matters—in broad matters there ought to be adequate control by Parliament over all such bodies. They must be responsible to someone, and the question is whether that degree of authority is at present sufficient or not sufficient. As the noble Lord, Lord Rushcliffe, said, this is a Committee point and he did not therefore argue the merits. For that very good reason I shall not attempt to offer him a sufficient reply.
The other clause which has been brought under criticism is Clause 12, which was the subject of such an interesting maiden speech from the noble Lord, Lord Dukeston. Let me say at once that I agree with him, and my noble friends agree with him, in regarding the trade unions as an essential part of the working of our industrial and social system. Collective bargaining has been established as the correct method of control of matters relating to the conditions of employment, although indeed the State does quite rightly intervene to impose certain standards in many directions. The 793 trade unions are a necessary factor in collective bargaining. Further, we all recognize, especially in these days, the responsibility shown by the great trade unions, and the fact that they have been exercising an admirable influence over their members with a great sense of duty to the community at large. Such unhappy incidents as have occurred quite recently in various parts of the country are due to the flouting of their authority by irresponsible elements who have shown themselves in effect—although it may be that many of them are Socialists—antisocial.
I was surprised that the noble Lord went out of his way to go so far back as 1906, forty years ago, and to admonish the Liberal Government of that day for being indifferent to victimization. I was a member of that Government, as was the noble and learned Viscount, Lord Simon, and I do not know what he is referring to with regard to victimization. However, we will not go into those side alleys. But the fact remains, as the noble and learned Viscount said, that that was the Government which gave the trade unions their legal Charter in the Trade Disputes Act, and which passed the Coal Mines Act, 1919, which for the first time regulated male adult labour to a maximum of eight hours below ground, and who also established the principle of the minimum wage. All through that Government the trade union representatives in another place were consistent supporters of the Administration.
The noble Lord criticized this clause as being uncalled for. The kind of case which was especially in mind in drafting the clause in its relation to public authorities was that which took place in Willesden, and which will be fresh in the memories of noble Lords. There, the Borough Council issued notices of dismissal to certain medical officers and nurses, for the reason that they were not members of particular associations of their professions. There was an instant public outcry throughout the country, and the Borough Council withdrew from the position they had taken up. That was a very unfortunate incident; but suppose they had refused to withdraw, and suppose similar action had been taken by a great number of local authorities and other public bodies of the same kind. I do not think public opinion in this country would have 794 tolerated it, and undoubtedly such action would have been suppressed by legislation.
As to the terms and intention of this clause, that again is a matter to be considered in further detail, and the arguments which might be adduced by the noble Lord or his friends in that regard would, of course, be most carefully considered. We have not the least desire to hinder or hamper the legitimate activities of the trade unions, which are absolutely necessary to the interests of the working classes and which are in the main rightly directed in a manner valuable to the community as a whole. To take this case, and such cases do happen where a man is not a member of a particular trade union—he is a member of some other trade union, but the rule of the closed shop is applied in his industry. He consequently has to leave his employment, but before leaving his employment he applies to be admitted to the officially recognized trade union, and they refuse. There have not been many such cases, but there have been one or two mentioned in the Press. That man's livelihood is taken away. He cannot retain his employment at all, and there is no redress to the individual citizen for injustice of that kind. That is extending too far the control of organizations and inflicting sentences of a severity—such as taking away a man's livelihood—which should only be imposed as a penalty for some crime or offence by a properly constituted court of law.
Here in this House, members of all Parties are agreed that the essence of a democracy is that it should conduct its affairs by persuasion and not by force. The three main Parties—the Conservative, Labour and Liberal Parties—are all agreed on that, and in this country the only people to take a somewhat different attitude are the very small Parties on the extreme Right and extreme Left, each of them numbering perhaps not more than one in I,000 of the electorate. They are the Fascists on the one hand and the Communists on the other—the Communists who believe in a dictatorship of the proletariat, a totalitarian State of a single Party, and the suppression of certain actions of which they disapprove by means of force. But we, on the other hand, are all agreed m this House—and it is not a matter of Party division between us—that persuasion must be the only method of democracy, I am not dealing 795 with the commission of crimes when, of course, the penal law may have to be applied. But when you come to putting so much pressure on the individual that he is, in fact, compelled against his will to do certain things, even though formally he may have had some right of exemption, then you are not exercising physical force to compel his actions but you are applying economic force to such a degree that his essential human liberty is infringed.
When we were discussing "contracting-in" and "contracting-out" in this House I quoted—and I make no apology for quoting again—a letter of the late Lord Fisher, who said:Every man in this country is entitled to do what he wants to do, and if he doesn't he is very soon made to.There is some danger that that principle will be applied in practice, and that is the reason why some reconsideration of these matters is necessary. The trade unions all through their history have been the champions of freedom and the establishment of democracy, and in all economic matters they have striven for the freedom of the individual and have hitherto supported Parties and Bills in that direction. But it sometimes happens that when those who have been themselves oppressed are exercising complete power in their own hands, they may forget their own past history. We often find minorities in Europe very anxious to insist upon minority rights. When some treaty makes them a majority we sometimes find them to be almost as intolerant, or quite as intolerant, as those who oppressed them when previously they were a minority. In the history of religion we find only too often that those who have been persecuted, when they become the ecclesiastical authorities, may adopt methods of which they had the greatest cause to complain. It has been said that an ideal creates an institution—and then very often the institution stifles the ideal.
So, if I may humbly venture the advice, I would say this to my trade union friends. They are now exercising tremendous authority in the economic world, under laws passed not by themselves but passed in previous Parliaments authorizing them to exercise those powers. They should remember that there is always a danger of abuse of authority, and I hope they will not object, in Committee of this House 796 at all events, to considering questions of this kind; and, while we certainly do not wish in any way to hamper or hinder the legitimate uses of trade unions, that they will consider whether, if abuses are found to exist and real dangers are likely to occur, it might not be well to accept a remedy.
I have gone at some length into this particular clause because it raises large issues of principle and of controversy; but that also is a Committee point, and to-day we are discussing whether the Bill should have a Second Reading. We shall await with great interest the observations of the noble and learned Lord on the Woolsack as to whether this House, in his view, ought to give this Bill a Second Reading or not. Our Parliamentary system, built up through the centuries, has in its wisdom decided that legislation should be by stages, and that we should not attempt to decide at one and the same moment the important principles of a measure and the subordinate or particular points. We are at the first stage this afternoon. The consideration of the merits or demerits of each particular clause will devolve upon the Committee stage later. Therefore we on these Benches are glad to have the support of the noble Viscount and his friends around him on the Conservative Benches, and to know that they also are of opinion that this Bill should have a Second Reading. The Bill touches what is fundamentally the ultimate problem of democracy, which is how to combine progress with order and liberty with both.
§ 5.44 P.m.
§ VISCOUNT SWINTON
My Lords, I wish to intervene for only a moment or two, because the case for this Bill has been so clearly expounded by its introducer, and so well and fully discussed. I intervene only because if it should come to a vote—and frankly it is amazing to me that we should be invited to vote upon this measure, if indeed we are to be challenged on it—I should not wish to give a silent vote, though a vote I most certainly will give. I honestly am amazed that this Bill should not go through with universal assent and approval. I do not mean approval to every clause in it, or to every line in every clause. As the noble Marquess who introduced it and the noble Viscount who has just spoken have said, there are details in the Bill which are matters for Committee. There are one or two points on which I myself would 797 like to see the Bill amended, but what I am concerned with at the moment are the general principles enshrined in the Bill. I would have said that those principles are principles which have been axiomatic to all parties in a demoratic Parliament for a hundred years. It is amazing to me that they should be the subject matter of challenge.
What does it come to? That the subject should have his rights, within the law and before the law. I thought that that was what we in England have fought and striven for, for over three hundred years; and indeed for one hundred years it has been universally accepted. The noble and learned Viscount, the Lord Chancellor, himself introduced an admirable Bill the other day, the purpose of which was to give the subject the same rights against the State that any one subject has against another subject. What does it mean? That he has the right to go to the independent law courts of the country to have his case decided. I am not going to argue whether it is right or wrong that the power of the State should increase; but if it does increase, that right of the citizen becomes increasingly necessary.
But that should apply not merely to actions in contract or actions in tort; it should apply where a matter of law is concerned, where the Minister is seeking to say what the law is, and where the subject is challenging the Minister's right: challenging not on something which is properly made by Statute a matter of ministerial discretion, but where the issue is whether the Minister is acting within the legal powers which he alleges that the Statute has given him. That is not a matter for ministerial decision; it is a matter for the decision of the courts of this country; and the decision of the courts of this country, in what is purely a matter of law of that kind, should equally be binding upon the highest Minister of the Crown and on the lowest subject. What else is the meaning of the aphorism that we are all equal before the law? If we do not accept that we are all equal before the law, then the Minister is in a privileged position. Hundreds of years ago, whether they were kings or whether they were Ministers who tried to assert their position vis-à-vis the subject, they found that that was something which this country would not stand.
798 Then there is the matter of delegated legislation. Again I thought that this was common ground amongst us all. I have taken part in many debates on delegated legislation in this Parliament, and I have consistently said that I believed we must delegate by legislation. Nobody is challenging that. When we put forward Amendments—which the Government accepted—the noble and learned Viscount the Lord Chancellor was most reasonable, in his desire to meet us. The Amendments were designed to give effect to the principle that the power which is delegated should not be greater than the Minister desires to exercise for the particular function with which he is charged under that Bill. I thought that the clauses in the Bill would be accepted by all of us.
Now let me turn to the clause—I think it is Clause 6—which deals with the right of search. Nobody denies that if there is proper ground for inspecting—whether it be one of the great criminal offences which we all recognize as prescribed for all trine which has been committed, or whether it be one of these more particular offences which are created by the score by regulation month by month, if not week by week—it is right that there should be a power of search. The power of search should be the same in both cases. It should certainly not be an easier power and more irresponsible power of search for some administrative offence under a food regulation or a petrol regulation, or whatever it may be, or what, in popular parlance, is called a "snooping" inquiry. It should not be an easier and more irresponsible right of search for that than for one of the great crimes which by Statute or by Common Law have always been regarded as crimes in this country.
Surely, again, there should be equality before the law, and the right of search which must exist should exist equally and under proper safeguards. Here I have taken a few examples. However, I am going to say no more. To me, it is quite unintelligible that elementary and historical principles like these should be subject to challenge. If they are to be subject to challenge, then I have no doubt at all that most of us will find ourselves in the Division Lobbies.
§ 5.52 p.m.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I have been asked by your Lordships to express an opinion 799 as to how it would be right to vote on this occasion. I certainly know how I am going to vote. I shall without hesitation vote against the Second Reading of this Bill. I will tell your Lordships why. If this were a manifesto of doctrine or policy, I should find myself in favour of the broad general principle underlying it, and of almost every clause, except those few clauses at the end; but as I see it, there is all the difference between a manifesto and a Bill.
It is a thoroughly bad principle to dress up a manifesto as a Bill, and in that way to try to present a manifesto to the country in the guise of a Bill; for that is what is being done here. I very much regret it, and for this reason: it is idle to pretend that this House is as universally acclaimed as it ought to be. We have our enemies. Under the wise guidance of the Leader of the House, the Leader of the Opposition, and the Leader of the Liberal Party, I believe that we have been able, during this session of Parliament, to achieve a very useful role as a Council of State. I believe that people who look fairly at what we have done realize the fact that, although we are not a popularly elected Chamber, we fulfil a useful role. The more we can keep to that role and the less we get on to the political role, the better I am convinced it is, and I think it unfortunate that this particular topic—namely, that of the liberty of the subject—which I hope everybody in the country will do his best to maintain, should be made use of, as it is in this electoral manifesto.
A manifesto differs from a Bill mainly in this: that in a manifesto you proclaim broad general principles and you are not obliged to condescend to detail. In this Bill there are no details. I will go through some of these clauses and show your Lordships that the draftsman of this Bill has dealt with it by the simple expedient of leaving out all the difficult questions. The result is that you have a Bill which is ill-considered, ill-digested, and ill-drafted; and we are asked to give such a Bill as this a Second Reading! Let me start with Clause I, which is a very good illustration indeed. And, may I say, I entirely agree with the Leader of the Liberal Party; I believe the great problem of the day which this democratic country has to solve is how to get a true synthesis between a planned economy on the one 800 hand and the liberty of the individual on the other. I think that is the task before us and it is a task which will not be solved by slogans. It can only be solved by hard work and getting down to it.
We start with the question of delegated legislation. I believe that all thinking people agree that one of the great dangers of democracy is that our Parliamentary' machine may get so over-worked and so clogged with work that it will break down and therefore bring itself into discredit. That is one of our great dangers, and therefore we should all agree that we must have an adequate arrangement for delegated legislation. What is the concrete proposal? I am very sorry, as the noble Marquess knows, that circumstances over which I have no control made it impossible for me to be here during his speech. He may have referred to this point; I have heard no one else refer to it. How is it proposed to check this matter, for I agree that we must be vigilant? It is proposed that, when a statutory instrument is laid before Parliament, either House of Parliament may amend the said instrument and, if the other House agrees with the amendment, the instrument shall come into force subject to the amendment.
That has been thought of for years, but the difficulty has been this. Statutory instruments fall into three classes: first, there are Orders made and laid on the table of the House merely for information. The Act applies to those Orders and I cannot see any necessity to apply the Bill to them. With regard to negative approval, the Order comes into force unless there is a Prayer against it. The problem here which will have to be dealt with for a long time is: how can that be made to work in a Parliamentary system of two Houses? If you are dealing with a Bill, the Bill passes from one House; it is amended, and returned to this House; we send it back again and the two Houses agree on the Amendment. How can it work if one is dealing with an amendment which is the subject of Committee stage or Report stage and does not go back to the other House? That is a matter which has been discussed and argued for a very long time and nobody has found a solution. Here we have a slogan setting out a scheme without attempting to indicate the answer.
With regard to the affirmative rule, I 801 agree this is possible. It has been done in the case of the Government of India Act; a convention has in fact been worked out, and under that convention, given the good will of both Houses and the determination to make the scheme work, it is possible to do it, but that is only in the case of an affirmative resolution. I maintain that this scheme is quite impracticable, that it has not been thought out at all in the case of a negative resolution. All this, therefore, falls into the category of what I call a mere slogan.
I pass to Clause 2. The problem that arises here in this case is this. When you have provisions with a right of challenge which exists only for a certain period, is the Order made to come into force and have validity before the challenge, or is it only to come into force after the challenge has been dismissed? That is the problem and it is one which is well-known. I will not attempt to indicate what the answer should be, but this clause does not deal with it at all. I maintain that no reasonable draftsman, sitting down to draft a Bill on this topic, could possibly have left that matter so vague and uncertain. Moreover, surely it is rather odd to lay down a period of three months for instruments of all kinds. In the Housing Act, which was one of the Statutes which the Donoughmore Committee expressly put forward as carrying out their requirements, the period is six weeks. In the Foreign Marriage Act, I think, speaking from recollection, it was a great deal shorter. In some of the Acts which enable you to stop up a highway, if for example you want to build a house on that highway, the period, again, is shorter. Surely that is because it is necessary to reach finality at a very early date. I must say that it seems to me very odd that the same period of time should be proposed for all these cases.
Then, your Lordships will observe, the time can, apparently, be indefinitely postponed, because under subsection (2) the court may make an interim order for an indefinite period, during which time no one knows whether the instrument is or is not valid. It may be said that these are all Committee points. But points of this sort run through every clause of the Bill. I maintain that no Bill ought to be brought to your Lordships and offered in this half-baked fashion. In the case of Clause 3, it is said to be merely carrying 802 out the recommendations in the Donoughmore Report. I am not aware who was the draftsman but I presume he must have read the Donoughmore Report. This clause does not carry out what was recommended in that Report at all. It is far more drastic. The clause provides:Where by any Act any Minister or Department is empowered to amend or modify the provisions of the said Act or of any other Act or Acts, such power shall cease to be exercisable one year from the commencement of this Act.What the Donoughmore Committee recommended was that it should be for one year from the commencement of that Act or those Acts. This makes a fundamental difference, and it is regrettable that it is presented to your Lordships, in the explanatory memorandum, as though it were carrying out the recommendations of the Donoughmore Committee.
Then I come to the question of appeals —in Clause 4 of the Bill. I have discussed this matter with your Lordships before—we debated it on the National Insurance Bill. Let us see what is the difficulty here. I told your Lordships that I was satisfied from practical experience—and I am sure that I could satisfy any of your Lordships—that an attempt to mix up these two procedural methods, the tribunal method and the method of the courts, does not work. An illustration showing how badly it works, as I see it, is the case of the Pensions Appeal Tribunal. Your Lordships will remember how, after a great deal of work had been done by those tribunals, a case went to the High Court and was heard by the appointed Judge. You will recall that he gave a decision—I have no doubt that his decision was perfectly right—which affected previous cases. Thereupon I had to set up two new tribunals to re-investigate all the cases which had previously been decided. I observe that last week the Judge gave another decision, saying that all three of the Commissioners must be unanimous. I have not a shadow of doubt that I shall be asked to set up new tribunals to investigate again all the cases that have already been reinvestigated once. I can say quite definitely that this system does not work.
After I became Minister of National Insurance, one thing that impressed me enormously was that all the representatives of the trade unions and of the em- 803 ployers were anxious that this matter should be dealt with by the conventional method of tribunals, and should not go to the courts. That was the feeling on all sides. And yet although the whole matter has already been thrashed out, we now have—if I may say it with the greatest respect—a mere regurgitation of old and fallacious arguments on the subject put before us.
In the case of the next clause, Clause 5, the Donoughmore Committee were most careful in their Report to disclaim any such concrete suggestion as is there made. They said on page I06 of the Report:We do not wish to be misunderstood as recommending the adoption of any general rule that reports submitted by inspectors to their Ministers should be made available to the public. That is very far from our intention.Yet that is what is represented here as being the intention of the Donoughmore Committee.
§ VISCOUNT SIMON
I know that the noble and learned Viscount, the Lord Chancellor, would not wish for a moment to remain under a misapprehension. I have read the Report recently, and I think that the distinction was between a public inquiry and an ordinary report made by an inspector, or whoever it might be, to the Minister. It might quite well, of course, be suggested that that should not be published, but if there were a public inquiry, the Donoughmore Committee pointed out, I believe, that there was a great deal to be said for publication of the report. If I am wrong I apologize.
§ THE LORD CHANCELLOR
I think the noble and learned Viscount is wrong. My recollection is that they were dealing with judicial or quasi-judicial inquiries. I continue the passage that I was reading.Our recommendation is to be considered as limited to those cases where a public inquiry of a, judicial character has been prescribed by Parliament—Your Lordships will observe that the Clause is not limited to inquiries of a judicial character and it provides for any public inquiry. That is precisely what the Donoughmore Committee disclaimed. I venture to think that this is not a wise recommendation, and I believe it to be unwise for this reason. If the inspector's report to his minister has to be published he will not report in as free, open and can- 804 did a way as he otherwise would and you may have then what I think is the very undesirable practice of reports being sent with a covering letter which would not be published with the report. Although I think one might well consider in each case whether or not the report of a particular inquiry should be published, to say that in every case the Report—judicial or otherwise—should be published, would, in my view, be most unwise.
With regard to Clause 6 and the authority to enter buildings, I certainly believe in the doctrine that an Englishman's home is his castle. I have spoken to your Lordships often and I have endeavoured to show that I want to sustain and support the right of every individual to live his own life in his own way. But at the present time, with a very great difficulty about food, one must seek to harmonize these two principles. There is the danger, owing to a shortage of food, of a black market springing up. What are you going to do? I say that if this clause were to be passed in its present form it would be a charter for the black marketeers. Under this Bill you cannot, as you can to-day, authorize, say, a Ministry of Food inspector to go and inspect food establishments. You must first obtain your information. You then have to satisfy the person authorized to issue the warrant. I do not know whether you would need an affidavit. You then get a warrant. Can one really believe that by the time all these things had been done, the food would still be there? Moreover, you may have to state not only the building, but the part of the building in which you suspect the food to be. How could that be done? What this clause proposes would make it impossible to enforce the Food Regulations, and I say that, with the situation with which we are confronted at the present time, that would be a grave disaster.
Clause 7 deals with the suppression of publications. There is no express power under the Defence Regulations now in force to suspend a paper as such, but there is a power under Regulation 55 to prohibit the production of any article for the purpose of securing "a sufficiency of supplies essential to the well being of the community." That is to say, if there is an inadequate amount of paper the Government might have to decide for what purpose they are going to use the 805 paper, and, so far as that is concerned, they have the power under Regulation 55, and must continue to have that power. The noble Lord, Lord Layton, pointed out that it is a regrettable fact that we have a very limited amount of paper now, far less than we should like, and we have to allocate it as between newspapers, periodicals, books and school books. I am often tempted to think that we spend too much of it on rubbish, but then I quite realize that my ideas of rubbish may differ from those of other people. Therefore, I would be sorry if I or anyone else had to determine the matter on those grounds. We do determine the allocation of paper on the basis of previous usage. I have no doubt we make mistakes, and we are ready to admit mistakes. But the particular periodicals which were suspended recently were not dealt with under Regulation 55. The Order made was the result of an understanding reached with the Newsprint Supply Companies and the Periodical Proprietors' Association. There is no need for this clause because this power does not exist, except in so far as it exists in Regulation 55, and that Regulation, quite obviously, should be maintained.
THE MARQUESS OF READING
The noble Lord, Lord Chorley, said during that discussion that there was a Defence Regulation under which the suppression of those newspapers could have been enforced. Is that the Regulation to which the noble and learned Viscount, the Lord Chancellor, is now referring?
§ VISCOUNT SWINTON
This is rather important. The two Ministers have given completely different accounts, and I venture to intervene. It was a situation in which the producers of the periodicals were told they could not have fuel. I understood that, according to Lord Chorley, there was no power to do what was done. I understood that it was done without power, but that if the Government had done it in a different way it would have been legal.
§ THE LORD CHANCELLOR
I have not the statement of the noble Lord, Lord Chorley, but, knowing Lord Chorley as I do, I am perfectly certain he was accurate in what he said. I will now state what 806 I believe the position to be. I think I said it before and I gladly repeat it again. There is a Regulation 55 which confers the power to regulate or prevent the production of any article for the purpose of securing a sufficiency of supplies essential to the well-being of the community. That regulation exists, and I think we all agree that that regulation must exist. There is no other regulation, and the arrangements in this particular case were made as the result of an understanding reached with the Newsprint Supply Companies and the Periodical Proprietors' Association. Therefore, such a clause as we have before us is quite unnecessary. There is no regulation giving power save that which I have read out, and I think, by common consent, everybody who considers it would agree that that regulation and the power must remain.
§ LORD LAYTON
If I may speak, may I say, first of all, that there was no understanding with the Newsprint Supply Companies., I think that has been stated in the Press on behalf of the Newsprint Supply Companies. The Rationing Committee did, in fact, notify the Press in regard to the stoppage of certain weekly newspapers—notified it as a Post Office, indicating that the decision was purely that of the Ministry of Fuel and Power, and that the Newsprint Supply Companies took no responsibility whatever for suppression. The point I wish to make in reply to the comments of the noble and learned Viscount, the Lord Chancellor, is that the power which he says is essential is not essential, and the power of suppression which discriminates between newspapers is not really necessary for regulation purposes. If the Government in this particular case had approached the Press and said we must economize to the extent of x per cent. of fuel, we should have found a way of doing it within the industry itself, without suppressing any specific group of newspapers.
§ THE LORD CHANCELLOR
I gladly accept what the noble Lord says, because he knows more about it than I do. But with regard to the regulations, I think I am in as good a position to assert what regulations there are as he is. In my view that regulation—which we passed here not very long ago—is one which is plainly necessary, in view of our present difficulties and the difficulties we 807 may have. With regard to the Newsprint Supply Companies, if the noble Lord says that the position is as he stated, I am perfectly certain he is right, and I withdraw what I said.
The next clause deals with the marketing schemes. Here again, if ever there were a question on which one has to proceed rather carefully, this is one. Let us remember the Inquiry presided over (if I remember aright) by Lord Falmouth. I think he reported in 1938, and the Report recommended that these schemes should continue. At the present moment this matter is again being considered by the noble Lord, Lord Lucas; yet whilst it is sub judice, and before the noble Lord has made his Report, this clause is put into the Bill. I think that it is most extraordinary, and, except on the basis of its being a slogan, I should have thought the noble Marquess might have waited (if only as a matter of courtesy) until the noble Lord, Lord Lucas, had reported and brought the whole matter under review.
I pass to consider the next clause, Clause 9. This, too, was the subject of a Report of a very strong Committee—the Law Reform Committee—in, I think, 1936. I am speaking without notes, and your Lordships will forgive me if I am wrong in my dates. The present state of the law accords with what that Committee recommended. I think there is certainly a case for doing something here. That is my own view. But it seems to me that the proposal in this Bill is on the worst possible lines. Is it not much more sensible to reduce the six years which applies to the individual—and which I think is too long, at any rate, for some classes of cases—to a shorter period, instead of increasing the time for public authorities to six years? I think that a great many people would say there was force in that contention. With regard to the second half of Clause 9, the draftsman's enthusiasm must have run away with him. It starts: "In any successful action against a public authority …" I presume that means "In any unsuccessful action." Perhaps the noble Marquess would enlighten us in due course; because, as it is, I think it makes no sense.
With regard to Clause I, the noble Marquess had already recalled the fact that he, or the draftsman, has forgotten that for the last two years there has been a 808 Minister of National Insurance, and that makes me think that I might here indulge in a little criticism and suggest that this particular clause was dragged out of some rather dusty pigeon-hole. With regard to Clause II, we discussed this matter so recently—in the National Insurance Act, 1946—that I do not want to go into it again. I come to Clause 12 I have on previous occasions expressed my views on this subject pretty strongly, and owing to the fact that the noble Lord, Lord Duke-stone, in, if I may say so, a very happy maiden speech, dealt with the matter so faithfully and forcibly, I will merely content myself by saying "Ditto" to everything he said.
I now come to Clause 13. Really, I am astounded at this clause. It is quite true that the Visiting Forces Act was introduced in 1932. Some very eminent persons—Sir Stafford Cripps was one of them, and there were many others—took the view that the clause was wrong. The controversy was this. By convention, by the comity of nations, when you have troops of a foreign Power—for instance, troops of the United States of America—in this country you would not, with regard to those troops, who come here at your invitation, think of exercising the power of habeas corpus. That is understood. The Canadians, in the year 1932, were asking that the same concession should be granted to them, and opinions differed. The Visiting Forces Act has been in force since 1932. Is it really proposed now by the Liberal Party, after these powers have been in force for fifteen years, and having regard to what Canada has done for us and the magnificent record of the Canadian Forces that we should now remove from Canada the right which she has had for fifteen years to be the judge in her own cause? I can imagine nothing which would be more likely to bring about controversy than to try at this stage to repeal the concession which was made in 1932, and no longer extend to Canada the concession which she then wanted, a concession which, in the course of this war, she surely showed she had not abused at all. That again is a slogan. That again is something drawn out of the pigeon-hole without any thought.
Therefore, I say for my own part I shall vote against the Second Reading of the Bill for the reasons I have given. This Bill deals with a vast and unrelated sub- 809 ject matter. There are thirteen clauses which deal with wholly different topics, and ever since the Walrus and the Carpenter walked together on the sands there have not been more things talked about in one short period. But I suggest that if you want to introduce a Bill for the better government of the country and to bring in every single subject you like, no matter how unrelated those subjects may be, this is not the way to do it. I care—and I believe your Lordships in all quarters of the House care— about the liberty of the subject, and want to harmonize the liberty of the subject with the developments of the day. As I said before, it can be done quietly by mature consideration of each of the particular difficulties involved. It will not be done by sky-writing of this sort.
§ 6.28 p.m.
THE MARQUESS OF READING
My Lords, the noble and learned Viscount on the Woolsack, gratifyingly enough, referred in the last two or three sentences of his speech to the principle of this Bill, which is what I thought we were discussing on Second Reading debate. The rest of his speech, I confess—if I had not known he would not pick up the wrong brief—made me think for the moment that he had anticipated the Second Reading, and
§ Resolved in the affirmative, and Bill read 2a accordingly, and committed to a810
§ had picked up his. Committee stage brief instead of his Second Reading brief. He talked about this being a manifesto, and not a Bill. What have we been doing for the past months except translating manifestoes into Bills?
§ The Party opposite have had the advantage of having the Government draftsmen behind them to help them, while we have had to do the best with the resources at our disposal. The noble and learned Viscount made a number of criticisms of individual clauses of this Bill. In fact, I do not think he excepted a single clause from his displeasure. I do not want to refer again to the fact that that is for Committee stage. But I do want to rebut his last allegation that there is no connecting link between the several clauses of this Bill. We believe, not as a Party slogan, not merely as a political manifesto—and not only we on these Benches, but others of your Lordships believe—that it is time something was done to try at least to put into operation once more some effort at emancipation from our present discontents.
§ On Question, Whether the Bill be read 2a?
§ Their Lordships divided: Contents, 37; Not-Contents, 19.809
|Reading, M.||Swinton, V.||Layton, L.|
|Willingdon, M.||Wimborne, V. [Teller]||Lloyd, L.|
|Beatty, E.||Beveridge, L.||Moynihan, L.|
|Fortescue, E.||Braye, L.||O'Hagan, L.|
|Gainsborough, E.||Cawley, L.||Rea, L.|
|Iddesleigh, E.||Cherwell, L.||Rennell, L.|
|Lucan, E.||Craigmyle, L.||Rochdale, L.|
|Perth, E.||De L'Isle and Dudley, L.||Rushcliffe, L.|
|Ypres, E.||Elgin, L. (E. Elgin and KinCardine)||Sinha, L.|
|Mersey, V. [Teller.]||Hatherton, L.||Stanmore, L.|
|Samuel, V.||Hawke, L.||Teynham, L.|
|Simon. V.||Howard of Glossop, L.|
|Jowitt. V. (L. Chancellor.)||Darwen, L.||Lucas of Chilworth, L.|
|Dukeston, L.||Morrison, L.|
|Huntingdon, E.||Hare, L.(E. Listowel.)||Nathan, L.|
|Henderson, L.[Teller]||Pakenham, L.|
|Addison, V.||Holden, L.||Piercy, L.|
|Hall, V.||Inman, L.||Shepherd, L.|
|Kershaw, L.||Strabolgi, L.|
§ Committee of the Whole House.