HL Deb 17 April 1951 vol 171 cc312-26

3.14 p.m.

Order of the Day for the Second Reading read.


My Lords, I am almost ashamed to think of how much of your Lordships' time I have taken in discussing Bills of this sort, and of the comments that I have made on the distinction between powers and purposes, and the like, extending over very many years. Your Lordships will remember that in the original Emergency Powers (Defence) Act, 1939, His Majesty —which, of course, means his Ministers —was given power to make such Regulations as appear to him to be necessary or expedient for securing the public safety, the defence of the realm and certain other purposes. Therefore, no court has jurisdiction to question them, so long as the Minister can honestly say that a particular Regulation is, in his opinion, necessary for one of these purposes. Therefore, it is necessary always to distinguish between the powers comprised in the Regulation and the purposes for which Regulations can be made. The emphasis in 1939 was on the prosecution of the war that was then raging, and the defence of the realm. But in 1945 the war was over and, by common consent, we had to continue certain of the existing Regulations—there was no power to make new Regulations—and obviously the purpose was a different one. In the Act of 1945 the purpose may be summarised as follows: to secure a sufficiency of essential supplies and services to the wellbeing of the community; to facilitate demobilisation; to facilitate readjustment of industry; and to assist the relief of suffering. Those purposes indicate the sort of problems that confronted us after the war.

Then came the year 1947, when the scene had changed again, when we were battling with the dollar problem and trying to close the dollar gap. We then passed the Act of 1947, again altering the purposes. There, they were for promoting the productivity of industry; the fostering and directing of exports; and generally for ensuring that the whole resources of the community were used in a manner best calculated to serve the interests of the community. That Act asked for very wide powers indeed. Speaking for myself, I feel no doubt that had one of the Ministers come to me—because this matter is not challengeable in the courts—with regard to any Regulation which we had passed, and said: "Do you think I am justified in promulgating this Regulation?", I should have said: "Well, if you think that this is making use of the resources of the community in a manner best calculated to serve their interests, I think you are perfectly entitled to do it." But, of course, I concede that, just because these powers are not challengeable in the courts, the Minister, in making them, ought to be especially careful to see that he is exercising his powers in a way which accords not only with the letter but with the spirit of the Act.

Now, unfortunately and unhappily, we are again in a new position. What we have to do now is to see that this country is armed as quickly as may be to put her in the position to resist aggression, in the hope and belief that by so doing we stand the best chance of preventing a war. We must reorientate our point of view. Therefore I feel it right, lest we should be accused of using powers which are wearing a little thin, that we should restate with emphasis the purposes which the Minister may now have in mind, not in promulgating new Regulations but in using the existing Regulations. That, my Lords, is this Bill. The Bill makes it plain that those Defence Regulations which are continued in force by the Act of 1945 can be used for purposes which are set out in Clause 1. Let me here state that we had a good deal of controversy at the time about whether we should have our five years. We got our five years, but the five years ran out, and your Lordships will remember that we recently had from this House an Address asking that the powers should be renewed. They are now on a yearly basis, and they come to an end on December 10 of this year. Therefore I am not to-day asking for anything at all after December 10 of this year, when it will be necessary, if these powers are to be used, to pass a new Act or to present a new Address.

This Bill illlustrates the distinction between purposes and powers, because the second part of the Bill confers a temporary power to stop up highways passing through or near defence establishments where the stopping-up is urgently necessary for defence purposes. That power is not one of the powers that exist to-day. Whereas the first part of the Bill deals with the purposes to which the existing powers may be put, the second part of the Bill deals with new powers. From a strictly legal point of view, the Bill is not required for the great majority of the measures which will have to be taken under emergency powers for defence purposes. The Supplies and Services Acts of 1945 and 1947 are drawn in wide terms and give very wide powers, though there are one or two matters with which we might have to deal and which I shall indicate shortly, where I think some clarification is desirable.

When in October last your Lordships agreed to present Addresses seeking the renewal of emergency powers for a further period of twelve months, I made it clear that among the reasons which made it necessary to continue emergency powers in force for a further period were the needs of the rearmament programme. I referred to the fact that not only would land already requisitioned have in many cases to be retained, but that further land might have to be requisitioned in order that new airfields could be built and new training areas provided. I made that statement on the basis, which I do not think can seriously be challenged, that the needs of defence could be met within the framework of the existing powers. Therefore, our reason for bringing this Bill before Parliament is constitutional rather than legal.

Since the renewal of emergency powers last autumn for a further period of one year, the world situation has brought defence needs more and more to the front, and a stage has been reached at which we feel it is desirable to secure Parliamentary sanction for the use of emergency powers for defence purposes. Defence and rearmament were not among the main purposes contemplated by Parliament when the Supplies and Services Acts of 1945 and 1947 were passed, even though we used language wide enough to include defence. Indeed, in 1945 defence purposes, under that specific description, were dropped when the Emergency Powers (Defence) Acts were allowed to expire. The emphasis in 1945 was on the transition from war to peace and the economic needs of the transitional period. Then in 1947, when more drastic controls had to be imposed for the purpose of increasing exports and reducing imports, we passed the Supplies and Services (Extended Purposes) Act, 1947. Now, when once again it is necessary to bend our energies to the task of rearmament, it may be necessary to reimpose economic controls which have lapsed, and the supplies and services departments may have to requisition land and buildings.

We could do nearly everything under the existing provisions of the Supplies and Services Acts, but, as I have indicated, we take the view that we ought to obtain express Parliamentary approval for what we are about to do, and not depend on Acts of Parliament which were primarily directed at a different state of affairs. Your Lordships may say—and I should agree—that it is indeed unfortunate that these emergency powers should have to be used, first, for the demobilisation of the Armed Forces after the end of the last war, and for all the economic problems of the period of demobilisation, then for the economic rehabilitation of the country and now, finally, for the building up again of adequate defences to face a threatening world situation. All these different purposes, for which these emergency powers have had to be used, are strange bedfellows when you look at them as they appear in successive Acts and Bills, but this merely epitomises the history of the last six years when the hopes which we formed in the hour of victory in 1945 have been dashed or, at any rate, postponed for a time.

The matters in respect of which we felt it desirable on legal grounds to seek the fresh powers contained in the Bill are as follows. One concerns the possible requisitioning of ships in connection with United Nations operations. The language of the 1945 and 1947 Acts is wide enough, in my view, to cover the general building up of the defence services, on the ground that such services are essential to the wellbeing of the community, or that the use of the resources of the community is calculated to serve the interests of the community. But these phrases are not very apt when it comes to the use of requisitioning powers for a specific military operation under the aegis of the United Nations in a remote part of the world. Such a use of the powers is hardly part of the general process of controlling the use of our economic resources with which the Acts are concerned. The necessity for these powers has not arisen as yet. Let me make that quite plain. The Minister of Transport has so far been able to charter all the ships he wants for Korea, but circumstances might arise in the future in which requisitioning powers would have to be used if the necessary shipping space were to be secured or, at any rate, secured at rates which were not wholly exorbitant. We think it a matter of ordinary prudence to be prepared to deal with this situation if it should arise in the future.

The other strictly legal difficulty with which we are faced concerns the use of emergency powers to prevent Communist countries receiving supplies which might be of great value to them. If we need the supplies urgently ourselves the existing powers would suffice, but if the primary motive is to deny the supplies to other countries rather than to secure them for ourselves, it hardly falls within the powers conferred by the existing Act. Your Lordships will see that paragraph (b) of Clause 1 of the Bill expressly covers this point. I do not think I need give a detailed description of the emergency powers to which the Bill relates. We covered the ground fairly thoroughly in the debate in October last on the renewal of powers for a further year. I should, however, like to refer briefly to two matters—labour controls and requisitioning powers.

The present Bill would enlarge the field within which labour controls could be employed. As I explained in the debate on the Address on November 2 last, the Government have never contemplated that any permanent legislation continuing in existence the essential economic controls should include any provision for the direction of labour. In regard to the present temporary powers, while Defence Regulation 58A will be kept in existence and may be used for certain limited purposes, no further use will be made of the powers given by that Regulation, either to direct men and women to perform specified services or to require them to remain in specified employment, unless an immediate attack on this country is anticipated. If, for any other reason, such powers are deemed to be necessary, legislation will be introduced to deal with it.

Now a word or two about the use of requisitioning powers. There will have to be some requisitioning of land and buildings for the Service Departments and for defence production, and possibly also for the accommodation and storage requirements of the Service and civil Departments. We shall, therefore, have to make more use than recently of certain Defence Regulations—namely, Regulations 50, 51 and 85. The Service Departments will also have to make some use of Defence Regulation 52 to obtain training rights over new areas. Where the requisitioning of land is contemplated, the civilian Departments concerned are consulted. These consultations will continue, though we have been endeavouring to work out a procedure which will ensure that the machinery acts sufficiently speedily in urgent cases.

Before I leave the main provision of the Bill, there is one other matter which I should mention. The provision in Clause 1 (1) that Supplies and Services Acts are to be deemed always to have included the new purposes is not intended to render legal past acts of the Government. The Government have not exceeded their powers. The words are required because the Bill itself, by expressly making defence one of the purposes for which Defence Regulations can be used, inevitably throws some doubt on the validity of the use of Defence Regulations in the past for this purpose. Subsection (2) of Clause 1 reproduces a provision which was inserted in the Supplies and Services (Extended Purposes) Act, 1947. I frankly doubt whether newspapers need this statutory protection, but as it was included in the Act of 1947 we thought it well to reproduce it here lest anybody should argue that it had been impliedly repealed.

So much for the purposes. Now I come to the powers. In Clause 2 we are asking for the extension of our powers. We really have tried to dispense with Defence Regulations when they no longer appeared to be required; and, of course, a Regulation once revoked cannot be revived. The Sup-plies and Services Acts all relate to an existing body of Defence Regulations which is pruned from time to time and gradually reduced in volume and which cannot be increased. There are no powers for anything corresponding to government by decree. We dispensed with the powers about roads. There was a wartime Regulation—Regulation 16—which empowered a competent authority to close roads for defence establishments and factories. It was a necessary part of the machinery for the rapid extension of defence facilities, especially airfields. After the war it was thought and hoped that the Regulation would no longer be required for the fresh closing of roads near defence establishments, and it was narrowed to deal only with the closing of roads in connection with opencast coal working and the construction of generating stations. We now find ourselves in a situation in which it is obviously necessary to extend airfields and enlarge other defence establishments. Requisitioning powers in respect of land and buildings, and the powers to do work on land, are still in full force, but there is no emerfency procedure for the closing of roads. Under the ordinary peace-time procedure for stopping up highways under the High-ways Act, 1835, or the Town and Country' Planning Act, 1947, there may be delay in the extension of airfields for six or even nine months. Already there have been cases in which the extension of runways at airfields required urgently have been delayed because of the necessity for lengthy procedure for stopping up a road passing over or near the proposed extension.

As there is no procedure for reviving part of a Defence Regulation which has expired, it is necessary to obtain statutory authority for an expeditious procedure for the closing of a highway. We have, reluctantly, to recognise the need for bringing back this power in time of peace. We have done what we can to make the clause as acceptable as possible to all interests concerned. As I have said, the power is temporary in character, and will come to an end when the Supplies and Services Act, 1945, expires—which will be on December 10 next, unless Parliament decides to extend these powers further. It falls on the Minister of Trans-port and not on the Service Departments to exercise this power, and the Minister can exercise the power only if he is satisfied that the closing of a road is urgently required for defence reasons. He has to give twenty-one days notice before making the order. This will enable local authorities and other interested parties to notify the Minister of any objection to his proposal, but will not, of course, give time for a formal inquiry. The second part of the clause provides a procedure for the permanent stopping up of a highway which has been temporarily closed, and for the provision of a permanent alternative route if that is necessary. There is no corresponding provision in Defence Regulation 16. The procedure is that provided by the Town and Country Planning Act, 1947, and gives protection for the interests of the public and of statutory undertakers. Where it is clear that the stopping up of a highway will be permanent, the Minister of Trans-port will apply the Town and Country Planning Act code procedure, and this will enable the Minister to provide permanent alternative facilities, including an alternative highway constructed at the expense of the Service or other Department responsible for the work necessitating the closure of the road. We have looked carefully into the question of the powers which we shall require for the defence programme. We believe that with the enlargement of the purposes for which the Defence Regulation might be required —these are set out in Clause 1 of this Bill—together with the power to close roads for defence establishments, which is contained in Clause 2, we shall have all the power we need to deal with the tasks which lie ahead. We will endeavour to implement the defence programme whilst at the same time striving to carry on the work of economic recovery in which we have been engaged since the end of the war. No one on either side of the House unduly likes this type of legislation, but I think your Lordships will agree with me that, unhappily, in the circumstances in which we find ourselves it is necessary that we should introduce this Bill. I confidently rely upon your Lordships to give it a Second Reading. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a. —(The Lord Chancellor.)

3.35 p.m.


My Lords, before I come to the substance of this Bill, I should like to say a word of thanks to those responsible for what I believe, in technical circles, is called the format of the Bill which has been put forward for our consideration. I am glad to see that on this occasion we have been provided with an explanatory memorandum. As your Lordships—or, at any rate, those of your Lordships who have been in another place—know, although that is the universal practice there it has never up to now, I think, been generally accepted (I do not know why) in this House. It is obviously for the convenience of us all, and I hope that what has now started will become a general and enduring practice.

To turn to the Bill itself, I do not propose to speak at any great length. On the face of it, and after what the Lord Chancellor has said, it seems to be comparatively innocuous. As I understand it, one of the main purposes of this measure is to get the Government out of possible embarrassments caused by their own past actions. They hope they have not been guilty of any moral turpitude, or even illegality, in their interpretation of existing legislation. But they are not quite certain; they are not absolutely comfortable. The last thing they wish, as the Lord Chancellor made clear, is that their character and rectitude in this matter should be in the slightest degree impugned. They want to be ultra-respectable, and so they introduce a new Bill for the purpose of clarifying the position and giving them powers which they hope they already possess.

If they will forgive my saying so, I cannot help feeling that, from a purely constitutional point of view, Bills of this kind, though they may sometimes be necessary, are not a very happy device, because they tend to launch Parliament on a rather slippery slope. If the Government are uncertain whether or not they have certain powers, it may well be that by the new legislation they are in fact extending those powers. Indeed, I gather from what the Lord Chancellor said this afternoon that that is true even of this Bill, though only to a very limited degree and for a special purpose. Moreover, I should have thought that it was in any case a little alarming that the Government who introduced the original legislation are themselves not quite certain what powers they have under that legislation. I should have thought that that situation showed clearly the potential dangers which are inherent in vast extensions of the powers of the Executive to govern by Regulation, which has been such a feature of our national administration since the war.

I am sure that noble Lords opposite will understand if we on this side of the House feel bound to view such measures with a very wary eye, especially where controls are concerned. I do not for one moment say that it is possible at the present time to do without any controls. As I understand, controls are like tariffs: sometimes they are necessary, sometimes they are not. But most of us who sit in this House—and I should have thought that this applied to noble Lords opposite as much as to us on this side—wish to lay down certain general lines for our own guidance in dealing with such administrative devices as controls. First, they should be as few as are necessary for the welfare of the community; and, secondly, they must be under the constant review of Parliament. Parliament should never give a blank cheque to the Executive which might tend to take such matters permanently out of the purview of the representatives of the people. That, as I see it, is the essence of Parliamentary democracy. I am sure it is the principle which will always actuate us in this House and, I hope, in another place also. To put it in one sentence, the control of Parliament must always override all other controls.

Having said that, I would add that, fortunately, in the present case I do not think such fundamental issues arise. For one thing, as the Lord Chancellor has explained to us this afternoon, the duration of this Bill is not unlimited. It is limited, as I understand it, to the period of the main Act, the Supplies and Services Act, 1947, of which, in effect, this is only an interpretation; and that period, I understand from what the Lord Chancellor said to us this afternoon, comes to an end in December of this year. When, if ever, the Government decide to continue or to perpetuate that main Act, no doubt very important issues will arise which will need the most earnest consideration of us all. Meantime, however, I do not think we need disturb ourselves too much over the measure which we are discussing this afternoon. Moreover, the limited purpose to which this measure is directed is one, I should have thought, which must be viewed with sympathy by us all. It aims at easing the task of the Government in making the necessary provisions for national defence, and after all that is common ground among us all. Clearly, in the situation in which this country is placed to-day, urgent measures of this kind must not be held up.

I was rather amused to see that when the present Foreign Secretary, as Lord President of the Council, introduced this Bill in another place, he said, or indicated with some horror, that without it the Government might have to go through all the delays and complications of the Town and Country Planning Act, which he clearly thought would be intolerable. We who are private citizens have to go almost daily through all the inconveniences and frustrations which are involved in that measure, and we can only sympathise with the Government in this respect. I hope that the relaxation which they are now claiming for themselves will soon be extended to private citizens, and I hope, too, that Government Departments, and especially the Service Departments, will use with moderation the powers which we are now giving to them. If I may be forgiven for saying so, they were apt to be both autocratic and even arrogant in their dealings with private citizens during the days of the war. I hope, in particular, that some instructions will be given to the officers who will be in charge of administering these Regulations that, where they are taking over land or property of either owners or occupiers, they shall do those people the courtesy of telling them beforehand what they are going to do.

The other day I had to take up with a Service Department the case of a man who found out that his land was being taken only because of the fact that a neighbouring labourer was engaged upon the construction of a new camp. Before that moment he had been told nothing about where this camp was being put, or even that there was going to be a camp at all. I think that is an intolerable intrusion upon the liberty of the individual. If land or buildings are necessary for the defence of the country, of course they must be made available; but courtesy should be observed in these matters. Having said that, I think it is common ground among us all that unnecessary delays in perfecting our defences should be avoided, and I am sure that we can all face this special limited purpose with some slight elasticity in the application of our principles.

The question of whether we may find it necessary to suggest any Amendments to this Bill is, of course, one which we shall have to consider before the Committee stage. As your Lordships know, an Amendment was introduced in another place to make certain that this measure would not legalise the direction of labour, which I think would be regarded in all parts of the House as an intolerable intrusion upon civic liberty in peace time. But, as the Lord Chancellor has told us this afternoon, the Minister of Labour in another place made it perfectly clear that that is not the Government's intention. As I understood what was said —I may not have the words quite correctly, but I should like to repeat them— it is not the intention of the Government to make further use of powers given under Regulation 58A, either to direct men or women to perform specified services, or to require them to remain in specified employment, unless and until an immediate attack on the country is anticipated. I gather that the Minister of Labour added (and I am sure it would be repeated by the noble and learned Viscount) that if for any other reason such powers were deemed to be necessary, legislation to obtain them would be introduced. In view of that categorical pledge, I hardly think it will be necessary for us in this House to press the matter further, though I have no doubt that the tabling of that Amendment by the Opposition in another place performed a valuable function in enabling the Government to make so clear a statement on the question.

Then, my Lords, there is the retrospective aspect of the Bill, upon which I do not think the Lord Chancellor said very much. I suppose that we all hate retrospective legislation, and our instinct is to oppose it whenever it appears. The question in this case appears to me to be whether the Government are taking new powers retrospectively, or merely making certain that they have the old powers which they thought they had. I think the noble and learned Viscount has already made the position fairly clear. He holds that they are not claiming new powers; that they intend only to act under existing Regulations, and wish merely to interpret the purposes to which those Regulations can be moved. I should have thought that was all right. Perhaps the noble and learned Viscount will allow us to consider the matter a little further before the Committee stage but, broadly speaking, I am certain that we shall all agree that this particular Bill is not open to great objection. Its main purpose of building up our national defences is one which we should all approve, and we on these Benches do not intend to oppose the Second Reading.

3.47 p.m.


My Lords, if I may, with the leave of the House, briefly reply to the noble Marquess, I do not find myself in any opposition to what he has said. As has often been said, the price of liberty is eternal vigilance, and I think it is the duty of all quarters of this House to scan these measures with great care to see that the Executive are not trying to get some new powers without disclosing them quite frankly to the House. Your Lordships know me well enough to know that if there were any such intention I should most certainly point it out to your Lordships. But there is no such intention at all. Apart from Clause 2 about the stopping up of roads, which is a very small point, we are not asking for any new powers here. We simply make it plain that we are making use of the powers which we already possess for the purpose of what I may broadly call defence and building up our defences.

The only retrospective element about it is this. I am frightened that if a Bill is introduced making it plain that in future these powers may be used for defence purposes, it may lead to the argument that before this had been done it was not legitimate to use them for defence purposes, and the mere fact that this Bill was passed might lead to this argument. I have no doubt in my own mind that every single power we have used is fully justified under the existing powers. The only case in which I feel the powers could be questioned is, as I have said before, if it were thought necessary to requisition tonnage for the Korean war. I think it is a little doubtful whether that could properly be done. Be it observed that the power is there, but I doubt whether the purpose for which it would be sought to exercise the power was one really contemplated. Therefore, I think we ought to come to Parliament and tell them that. The other purpose about which I am a little doubtful is whether we should be entitled to prevent potential enemies from getting valuable goods which we ourselves do not require. There again, I think we ought to come to Parliament and make it quite plain that that is one of the purposes.

I am only too glad that the noble Marquess should have ample opportunity for looking at this matter. If he wants to move any Amendment at a later stage of the Bill he is fully entitled to do so, and I will gladly assist, so far as I can, by explaining the very complicated nature of this Bill, which deals with a topic on which we have spent so much time in the past. As the noble Marquess has said, this is really an innocuous Bill, but I think it is right that we should come to the House to make it perfectly plain that we ask to be allowed to use our existing powers—and no more than our existing powers—for the new purposes which, unhappily, have emerged all too clearly. For that reason, I ask your Lordships to support this Bill.

On Question, Bill read 2a, and committed to a Committee of the Whole House.

House adjourned at ten minutes before four o'clock.