LAYING OF DOCUMENTS BEFORE PARLIAMENT (INTERPRETATION) BILL, [H.L.] (Hansard, 14 July 1948)

§ THE LORD CHANCELLOR: (VISCOUNT JOWITT)

My Lords, I must apologise for having to return to this difficult and, I must confess, troublesome matter. Your Lordships may like to be reminded of the position before the Statutory Instruments Act came into force. Our practice in this House with regard to the laying of instruments was this. They had to be laid as soon as convenient; the instrument might come into effect before it was laid; and, if the House was not sitting, what happened was that the instrument was made and came into effect, and thereafter, when the House was sitting again, the instrument was laid before it. We have not hitherto allowed the laying of instruments when the House was not sitting. That is historically correct, I think.

When the Statutory Instruments Act was passed—it came into effect on January 1, 1948—we had to promulgate new Standing Orders in regard to it. The broad conception of the Statutory Instruments Act was that, as a rule, instruments should be laid before they came into effect. The question arose of how we should provide for this matter in our Standing Orders, and it was proposed in the Standing Orders that we should provide for a form of laying which we had not hitherto had—that is, a form of laying when the House was not in Session by delivering the document to the Office of the Clerk of Parliaments. In another place, when such a Standing Order was put forward, it was accepted, and I think there was no criticism of it. But when in December last we propounded our Standing Orders here, grave doubt was expressed as to whether we had any right to make such a Standing Order. The mere fact that they have made such an Order in another place is no reason why we should make such an Order here.

Everybody concedes, of course, that one cannot modify the provisions of an Act of Parliament by a Standing Order: that is manifest. And the real problem was: Are we modifying, altering or quail- 860 fying the provisions of the Act of Parliament by the Standing Orders which we proposed? I personally took the view that we were merely expounding what we meant by "laying" and that if, for instance, the Courts had to interpret what was the "laying" of a document, they would turn to your Lordships' House and say: "What is the current practice for which you provide?" On the other hand, it was quite true to say that the Act had to be read in the light of the exception, and there was an exception which provided that in certain cases documents might come into force before they were laid. The noble and learned Viscount, Lord Simon, expressed a view which was different from mine, and it was obvious that this was a matter of considerable controversy. Your Lordships may remember that we finally decided to refer the matter to a Select Committee and in due course, if and when this Bill passes its Third Reading, I must put a Motion on the Paper to discharge the Select Committee.

Without going into secrets into which I should not go, I may tell your Lordships that there is a remarkable difference of legal opinion on this question. The officials of your Lordships' House differ from the officials of another place; and that eminently respectable body of men, the Parliamentary Counsel, are divided in two about this matter—each, no doubt, maintaining with no little heat his own opinion. And I myself have had the misfortune to differ from some of those from whom I ought not to differ. So I think it is obvious that there is some room for difference of opinion about this matter. Who is right and who is wrong is a point which, perhaps, we shall never be able to resolve; but the object of this Bill is to resolve the doubt for us. It is undesirable that there should be a doubt about this sort of matter. It is undesirable that the practice of one House should differ from the practice of another House. It is certainly desirable that peace should be restored to the Parliamentary draftsmen's dovecot. Therefore, I introduce this Bill.

I shall invite your Lordships to pass hereafter Standing Orders which will be substantially in the form of the Standing Orders which we discussed previously. The substance of the Bill is to make it plain that we can, without breach of any 861 Act of Parliament, pass those Standing Orders. The effect of this Bill, if it becomes an Act, will be to enable us to make Standing Orders providing for laying, notwithstanding that the House is not in Session. I believe that to be a desirable thing to do. I agree that the position has not hitherto been impossible, because there is a proviso which requires a notification to be given to the Speaker or to the Lord Chancellor, as the case may be, of the fact that an Order has come into effect before it has been laid. But suppose that we did not pass these Standing Orders, that a Recess came and that, during that Recess, several statutory instruments were made. When the House reassembled, I should have to read out to your Lordships the list of the Statutory Orders which had been made, and I should give this explanation as to why they had not been laid. The explanation would be that the House was not in Session. I do not think that anybody would gain very much therefrom. So we considered that it was desirable to be able to make these Standing Orders. I had the advantage of the advice be the noble Viscount the Leader of the House, and I discussed it with the noble Marquess the Leader of the Opposition. The noble and learned Viscount, Lord Simon, and the noble Viscount, Lord Samuel, were good enough to join our consultations and, on the whole, we considered, that probably the best course to adopt was to introduce this Bill. I am sorry that we have had this difficulty about the Statutory Instruments Act. But, whilst not being enthusiastic about the Bill, we think that in view of the difficulty which we have come up against, this is the right course to adopt. If I may do so, I should like to advise your Lordships that the interests of the House would best be served by passing a Bill on these lines.

There is one other matter I might mention. The Statutory Instruments Act did not contemplate—perhaps it did not like to contemplate—the possibility of a vacancy in the office of Lord Chancellor. Even Lord Chancellors wear out, or, for various reasons, leave office, and that also happens to Speakers. We have taken the opportunity, whilst dealing with this matter, of providing for what is to happen whilst there is a vacancy in the office of Lord Chancellor or Speaker.

862 That is the substance of this Bill. I have indicated that if and when it passes its Third Reading, I shall put down upon the Order Paper a Motion asking that the Select Committee which now becomes unnecessary shall be discharged. I beg to move.

§ VISCOUNT SIMON

My Lords, if I may say so, the noble and learned Viscount the Lord Chancellor has given a perfectly fair and clear account of this storm in a teacup. It seems to me that the course which he now proposes to take is entirely justified. I hope that any who may have been inclined to agree with me upon the earlier occasion will agree with me now, that we should accept the proposal made in this Bill. It is never worth while going back upon disputes but, so that we may be clear about what was involved, may I say that our difficulty was simply this? Of course, nobody would suggest—the noble and learned Viscount, the Lord Chancellor, himself stated this clearly last December—that a Standing Order adopted by this House, which is a matter of internal regulation, could in itself contradict an Act of Parliament. Of course, it could not. The question, which I think everybody will agree was troublesome, was whether possibly the Standing Order, without some amendment of the Statute Hook, would not have been a nullity, because, according to one view, the Standing Order was not consistent with the Act of Parliament.

I thought that a court which had to decide that would construe the Statutory Instruments Act, 1946, when it used the word "laying" by inquiring—and I dare say by taking evidence—as to what was the meaning of "laying" a document at the time when the Statutory Instruments Act was passed. I cannot imagine that a court would do anything else. If that were so, it seemed to me that the court were likely to say: "Whatever Standing Order you pass, we say that anything you do when the House is not sitting is wrong. It is not laying, according to the Statute." However, we need not go into than. I am relieved to know that the view which I expressed seems to have created some division of opinion in the Parliamentary Counsel's Office. If that is so, I am more 863 than rewarded. The real reward is that we can now, by common consent, agree to pass this measure, which will have more force than a Standing Order for it will be an Act of Parliament. I would almost have thought that it would be more appropriately described as an "Act to amend the Statutory Instruments Act, 1946"; but never mind about that now. It has the same result.

The only other thing I wish to say is this. What we are doing here does not really decide the question as to what Standing Order we should make. I think it only fair to say, an the presence of the noble Viscount the Leader of the House—because he was good enough to confer with some of us—that while I am sorry that we should make a Standing Order in the form now suggested (and I think it tends to give rather more power to the executive and less power to the House), I do not think we ought to keep up this controversy. Therefore, when on a subsequent day it is proposed that we should move a Standing Order in this sort of form—I do not know if it is any comfort to the noble Viscount the Leader of the House to know this—I shall not raise any objection to it. There is a great deal to be said for getting a scheme in this House which is more or less like the scheme which has been adopted in another place. I can quite see the inconvenience of having Standing Orders that differ.

There is one thing in the Standing Order which is really of value. I am sure that the intention of Parliament, when it carried the Act of 1946, was that, if a Minister found it essential—I am referring to the language of the proviso—that a statutory instrument should be made when Parliament was not sitting, there should at any rate be some machinery or process by which the Members of the House should have a chance of knowing about it; it should not just be put in a pigeon-hole. I note with pleasure that it is proposed that there should be some intimation—or so I understand.

However, that is all for the future. In effect, the present proposal meets everything that I said because, instead of trying to decide by Standing Order the course to be adopted, it is to be done by the authority of an Act of Parliament. An Act of Parliament nobody can gainsay. There is no court in our country that will 864 ever seek to discuss the question whether or not an Act of Parliament is valid. From the point of view of the Judges, any Act of Parliament is valid. The noble and learned Viscount the Lord Chancellor has dealt with the matter with great candour and with his usual clearness, and I think his conclusion is one which the House ought unanimously to accept.