OTHER DEFENCE REGULATIONS

HL Deb 02 December 1952 vol 179 cc640-82

Regulations seventeen E and twenty of the Defence (Administration of Justice) Regulations, 1940.

Parts I, II and III, Regulations twenty-five A, twenty-six, twenty-eight A, twenty-nine and thirty, and Schedules I, II and VI of the Defence (Agriculture and Fisheries) Regulations, 1939.

Parts I and II and Schedule I of the Defence (Agriculture and Fisheries) (Northern Ireland) Regulations, 1940.

Regulations one and six of the Defence (Armed Forces) Regulations, 1939.

Regulation one and paragraphs (4) to (10) of Regulation five of the Defence (Burial, Inquests and Registration of Deaths) Regulations, 1942.

Regulations one and two and paragraphs (3), (4) and (5) of Regulation three of the Defence (Patents, Trade Marks, etc.) Regulations, 1941.

The whole of the Defence (Sale of Food) Regulations, 1943.

The Defence (Trading with the Enemy) Regulations, 1940, except Regulations eight and nine thereof.—(The Lord Chancellor.)

LORD MILNER OF LEEDS moved, as an Amendment to that part of the Schedule headed "Defence (General) Regulations, 1939," to leave out "Regulation sixteen (Stopping up or diversion of highways for purposes of open-cast coal)."The noble Lord said: My Lords. I am sure the House is grateful to the Lord Chancellor for putting the position so succinctly, but the Lord Chancellor did not tell us why in another place there had been no Amendments to these regulations. I am not altogether clear whether it was because they were not discussed or not moved, or whether it was because they were defeated—although we are not, in strictness, concerned with that.

THE LORD CHANCELLOR

Some were moved and some were not.

LORD MILNER OF LEEDS

Thank you. I am not really concerned with what occurred in another place. As I move the first of the Amendments in my name, your Lordships will appreciate that noble Lords on this side of the House desire to give the House the opportunity of expressing an opinion upon the desirability of revoking or allowing to expire many more of these regulations than have in fact been revoked or allowed to expire during the past year. Your Lordships are aware that the Government have stated that some review has taken place but, in our submission, that review has been quite inadequate. There are a number of regulations, possibly many hundreds of them, which might well be dispensed with.

I venture just to pick out one or two examples of regulations which I propose should be omitted from the regulations which, under this Emergency Laws (Miscellaneous Provisions) procedure, would otherwise continue for a further year. In doing so, I hope that I may have the support of many of your Lordships who, I am sure, in past years must have inveighed against the continuance of so many of these regulations in peace time. The first Amendment that I move is to leave out Regulation sixteen, which relates to the Stopping up or diversion of highways for purposes of open-cast coal and so on. That regulation which is to be found at page 5 of the Defence Regulations gives power to the Minister of Fuel and Power, if he considers it necessary for the purpose of working open-cast coal or constructing or extending an electricity generating station to provide for the stopping up or diversion of any highway et cetera. In my submission, there are already ample powers under the ordinary law to deal with the question of highways. We have the Highways Acts, many of which have existed for many years, under which highways can be diverted and closed. Then we have the Town and Country Planning Act, 1947, in which new powers are given to divert highways. Therefore, in my submission, this regulation, confined as it is to the diversion of highways for these two purposes alone—open-cast coal working and the construction of power stations—is quite unnecessary. In any event, whilst one hopes that the question of open-cast coal working may not be with us for many more years, I think it is clear that the construction or extension of power stations must be with us for a very long time indeed. Therefore, if this regulation is necessary and if its purpose is not covered by the Highways Acts or any of the other statutory provisions, in my submission the Government should have included it amongst those regulations which it is desired to make permanent.

This is precisely one of those cases, which many of us have had in mind. The slightest inquiry, entered upon with a desire to get rid of as many of these regulations as possible, would have shown either that this particular regulation was unnecessary, because there are already existing powers; or, if, by any chance, it was necessary, that it was one of those regulations which ought to be put into permanent form. Therefore, I respectfully suggest to your Lordships that, unless it can be shown that the Government have not already got these powers elsewhere, or they can justify their continuance as a temporary measure and not make them permanent, your Lordships should insist on their deletion. I beg to move.

Amendment moved— Line 2, leave out "Regulation sixteen (Stopping up or diversion of highways for purposes of open-cast coal)."—(Lord Milner of Leeds.)

LORD OGMORE

My Lords, I should like briefly to support my noble friend in the Amendment that he has proposed to your Lordships. The noble and learned Lord, the Lord Chancellor, on Second Reading gave what I thought was the most clear exposition I have ever heard of this tortuous and tangled subject, and certainly I am sure that it has helped your Lordships very considerably to understand it. What he did, I think, make clear was the original purpose of these regulations, and he gave us the history of the subject. I have looked up some of the Acts and it certainly seems to me that, in the beginning, the period for which the Acts were to continue was for the period of emergency. The emergency is defined; in fact it is supposed to be brought to an end by provisions under Section 11 of the original Act. I am not sure whether the emergency has ever been brought to an end. Perhaps the Lord Chancellor could advise us upon that. At all events, it was certainly intended as a war-time emergency. Your Lordships may say that certain of these powers are necessary owing to the cold war in which we are still engaged. That may be so—I am not arguing against that. It may well be that we are still engaged in a cold war, and that some of these powers are necessary. But I venture to suggest that the regulation to which my noble friend has drawn attention can have no application whatsoever to the cold war.

I give an example of the sort of case which is dealt with by Regulation 16. If one of your Lordships should own a piece of land adjoining another piece of land required for open-cast working or for the erection or construction of an electricity-generating station, the Minister can, of his own free will, without asking anybody, and without anybody's authority, prohibit the right of way over that land. Under our law, if a right of way is to be discontinued, in the ordinary circumstances a very intricate and laborious procedure has to be gone through. The matter has to go to quarter sessions. I have had experience of some of these cases. Plans have to be produced, and surveyors have to be called as witnesses. All sorts of ancient gentlemen are usually in court—deaf, sometimes almost dumb—to give evidence as to what has happened during their lifetime; and then a series of witnesses have to be called to show why it is necessary that the right of way should be discontinued. By continuing this regulation to-day your Lordships will in fact be enabling a Minister to do away with that safeguard which English law has provided, and will enable the Minister to discontinue a right of way, not over the land which he wants for his purpose (I am not arguing about that) but over land adjoining the open-cast working or the electricity-generating station. I suggest that this sort of regulation was far from the mind of Parliament when it passed the original Act, and I would also say that it is equally far from making any contribution whatsoever to the cold war in Korea. I suggest that this is the sort of regulation that the Government might well consider dropping into the limbo of the regulations which have already been discarded. For that reason, I would strongly support the Amendment moved by my noble friend.

2.58 p.m.

EARL JOWITT

My Lords, may I say one word, because I had something to do with these regulations at the earliest stage? I do not suppose my noble friend will carry his objection to a Division. All the same, I think there is something which needs to be said—and I do not suppose that I am speaking any more for this side of the House than for the other side in this matter. I do not doubt at all that, in origin, these regulations, or something like them, were absolutely necessary. Neither, speaking for myself, do I doubt that something very like them is necessary at the present time, and will be necessary for a long time. But I think we have to consider each of these regulations on its merits. I think noble Lords on all sides of the House will want to know what is the position about this particular regulation which we have taken for a test. Of course, it is not as if there were not power under the existing law to stop up highways. The procedure for stopping up highways may be cumbrous—perhaps too cumbrous; it may be too expensive, too tiresome. If so, is there not a case for looking at our procedure under the established law, to try to simplify that?

What we are doing here, in place of the procedure under the existing law, which may be too cumbrous, is to give the Minister of Fuel and Power absolute authority to make an order. Though he is a very reasonable person and, I am sure, he would not do so, he can, without asking anybody, without giving anybody a chance to protest, without any of the safeguards provided by the existing law, simply stop up the highway. As I say, I do not suppose for a moment that we shall divide on this matter to-day, but if it is raised in another year's time we shall want to know whether the right course is not to try to simplify the general law of the land, if that is too cumbrous, and whether it is right that we should go on passing these things almost as a matter of course, year in and year out. This short and summary method may or may not be necessary—I do not know. If it is necessary, and is likely to continue to be necessary, I think there is something to be said for putting it in a permanent piece of legislation.

One other matter to which I should like to refer is this. If regulations are continued in something like an Expiring Laws Continuance Bill, Amendments can be moved on each particular matter. The noble and learned Lord on the Woolsack, by his courtesy and the suggestions he has made, has facilitated in every way he can the moving of Amendments to any of these regulations. But we are in an odd position. We are virtually having the Committee stage before we have the Second Reading. I do not see how we can, get over that. When we have finished our Committee stage we shall then go on to have a Second Reading. It might well be better that in future we should proceed in a different way; that we should take each of the regulations which we are seeking to extend for a year and virtually ask, on the analogy of a Committee stage, "That this regulation stand part." We should deal with them one by one. That is an idea which I feel might well be worth exploring as an alternative to what we are doing to-day. I hope that the noble and learned Lord who sits on the Woolsack will be able to say something about that. We have let him off lightly; there are only some five Amendments on the Order Paper. I hope that the Lord Chancellor will tell us what the existing law is and why he cannot rely on the existing law, and whether the right solution may not be that the existing law should be simplified, in order to provide safeguards for the lieges who may be very much upset—as I have been myself—by the closing of a highway. In my own case, the closing of a highway made access to my house in a certain area very difficult. I think there ought to be some procedure by which anyone who is affected will have the right to protest, and I hope that the Lord Chancellor will deal with that aspect of the matter when he replies.

3.3 p.m.

LORD CALVERLEY

My Lords, fortunately what we are discussing is, shall I say, a non-Party matter. We are here this afternoon to try to protect the rights of the ordinary citizen. I myself have had to go with another magistrate (there must always be two) to visit the spot concerned when an application has been made to close what is a right of way. This has been one of our most cherished rights. We had to part with it, along with other things, during the time and period of emergency, but I think we can now go back to what, for lack of a better term, I will call the common law—that is, that if any authority, private or public, wishes to close a right of way, for good or bad reasons, that person, authority or persons must make application to the local court of summary jurisdiction, and two magistrates must visit the place to see what is actually happening. And, as has already been mentioned this afternoon, maps have to be produced and so forth. Also, we usually insist on an alternative right of way. When all these requirements have been satisfied we put our signatures to a statement that this has been brought before the notice of the local court. There has to be a fairly large number of advertisements in the local Press setting out that so-and-so, or a public authority, wishes to close a certain path or road. The procedure, as my noble friend Lord Ogmore has told your Lordships, is that this matter goes to quarter sessions, and the recorder has to decide whether a case has been made out. The recorder, as I have found during the past generations when I have been in court, has been loath to do anything to deprive the citizen of his right of way. I think it is high time that we should get rid of this regulation and go back to the old usage—it extends back over centuries I should imagine—and act, as is our duty in this House, as the custodians of the rights and liberties of the ordinary citizen. And that is what I am pleading for this afternoon.

3.6 p.m.

LORD CHORLEY

My Lords, the noble Lord who has just resumed his seat touched on a very important point in connection with this matter, and I hope your Lordships will allow me, for a minute or two, to support and emphasise what he has said in pointing out that under existing law—apart from this Defence Regulation—when it is proposed to stop up and divert a highway, magistrates usually insist on an alternative route. My impression is that, under the Highways Act, it is not a question of "usually," and that the Highways Act in fact requires that, before a highway can be stopped up or diverted, an alternative route must be provided. I suggest to your Lordships that this is a very important matter in respect of which the ordinary law of the land is infinitely superior to the emergency law established by these regulations. As I understand it (I hope the noble and learned Lord on the Woolsack will correct me if I am wrong), under the Defence Regulation which your Lordships are being asked to extend for another year, it is perfectly possible to stop up a highway—a highway, it may be, of considerable use to the citizens of this country—without providing any sort of alternative whatever. That is certainly a very serious power to entrust to a Minister. It is one which we may well entrust to him under conditions of war but which certainly should not be continued indefinitely. So I hope that the noble and learned Lord on the Woolsack will be able to tell your Lordships that this power is not going to be continued very much longer.

3.8 p.m.

VISCOUNT SAMUEL

My Lords, this discussion this afternoon indicates, I venture to say, how profoundly unsatisfactory is the procedure of your Lordships' House for dealing with matters of this kind. I do not know whether any of your Lordships feels that he is really in a position to pass an intelligent judgment upon the particular question now before the House—namely, the merits of the law and regulations relating to the diversion or stoppage of highways. We have here on the Order Paper to-day no fewer than twenty-four subjects listed, six of which happen to have drawn the attention of the noble Lord, Lord Milner, or the noble Lord, Lord Wise, and the House is being asked to pass judgment upon the merits of these different questions. It is an impossible duty.

The noble and learned Earl, Lord Jowitt, said that, in effect, we were taking the Committee stage before the Second Reading. But we are doing more than that. We are attempting to deal in a Committee stage with some twenty different subjects and to pass resolutions on six of them expressing the opinion of your Lordships' House on matters relating to the diversion of highways; the entry upon, and inspection of, land; the use of force in entering premises; wheat and land drainage; the Sugar Industry Act, and certain emergency enactments relating to legal powers. How is it possible for any House of Parliament in one afternoon to give its mind to, and to reach valid decisions on, such a variety of subjects? For my part, I should not be prepared to attempt to do so on any one of these questions. I submit again to your Lordships, as I did in the general debate a few days ago, that what is needed is an entire change in the procedure of both Houses of Parliament in dealing with the Parliamentary control of delegated legislation. I ventured to suggest then that there should be a Joint Select Committee, or a Select Committee in each House, to go into this matter thoroughly and devise a better procedure. The other place has resolved that they will appoint a Select Committee, and I trust that, when the matter comes up again in general terms before your Lordships' House, we may take the same course, because the procedure we are adopting to-day is obviously quite unsuitable. It really is a travesty of Parliamentary procedure.

3.11 p.m.

VISCOUNT SIMON

My Lords, there is a feature about this Regulation, Regulation 16 of the Defence (General) Regulations, 1939, which we are now asked to continue for another year to which I feel I should drawn attention. When I look at Regulation 16, I find that it offends against a view which has been approved by many who have considered this subject of delegated legislation, in that it confers upon the Minister a power to decide that something should be done because he considers it necessary. If a regulation says that the Minister, "if he thinks it necessary," may do so-and-so then evidently the matter depends entirely upon the Minister's judgment, or perhaps on that of his Department. There is no conceivable possibility of challenging the decision: what the Minister says goes. The provision in the regulation, which I will read to the House, is this: The Minister of Fuel and Power, if he considers it necessary to do so for the purpose of working open-cast coal or constructing or extending an electricity generating station, may by order provide for the stopping up or diversion of any highway or for prohibiting or restricting the exercise of any right of way over any land used or approved for use for this purpose or of any land adjoining such land. It follows from applying those words that if the Minister is advised by his Department that a certain piece of land adjoining an electricity generating station should be the subject of an order, and if the Minister makes an order stopping up the right of way over that adjoining land, there is no possibility of challenging the order. Parliamentary control and judicial control become farcical. I speak with the greatest respect for Ministers, past, present and future, but is not the making of a regulation conferring this administrative power on a Minister an offence against the view which we have often supported in this House—the view that we should not deliberately continue a regulation which gives to a Departmental Minister power to stop up a right of way on a piece of adjoining land, his action, if he chooses to do it, being completely unchallengeable in any court of law?

In discussions on this difficult matter there have always been two kinds of regulations which it has been generally agreed should be scrutinised. One is a regulation which makes it possible for a Minister himself to make the law, without reference to any court at all. The other is a regulation which provides that there should be no appeal from the Minister to a court. Those are the two broad criticisms which in times past have been addressed to the subject matter of regulation-making, and that is what is meant by the concern which some of us feel at this spread of purely administrative law. Therefore, I ask the question: is it right that we should continue for another year the effect of this regulation, without any attempt to provide that the order of the Minister should be open to challenge; that we should simply say, "Order it if you like. In any event, we do not expect there will be any remedy to the people who are interested in using the footpath. You ordered it and it is exactly what you choose."? There is no sense in people protesting in the Donoughmore Report against regulations of that sort if we are going to continue the system in this form for another year. I thought it was common ground that we desire to see the Judiciary and not the Executive control questions of public right. And here is a public right, the right of every hiker to walk along a path or land which adjoins the working of open-cast coal or an electricity generating station. If we accept this regulation, it means that we are continuing to say that it is quite right for the Minister to do this for another year. I submit that the right course is to take these regulations back and for the Government to consider how they are going to preserve the public right.

It has been pointed out that there is machinery by which it can be decided whether or not a public footpath should be stopped up. Like the noble and learned Earl opposite, in the days of my youth I appeared before quarter sessions on the question of stopping up various footpaths. I do not think it is a very elaborate process. The magistrates have to decide, but they do so judicially and hear what has to be said for such a proposal and what has to be said against it. But this is a provision which says that the Hikers' Association and the people who believe in walking are to have no rights in the matter, and the Minister, if he considers it necessary, may stop up any footpath whatever, That is the real question that has arisen on this proposal to extend this regulation on these terms for another year. I submit to the noble and learned Lord the Lord Chancellor that it would be very much better if we did not extend for another year any regulation which places a Minister in the position of the Judiciary or the Legislature and which leaves him power, by his ipse dixit, to shut up any footpath whenever and wherever he likes.

3.19 p.m.

THE LORD CHANCELLOR

My Lords, for one who is as zealous as I am that the liberties of the subject should be restored so far as possible, nothing could be a better omen than the speeches I have heard from the Opposition Benches this afternoon. For six and a half years this regulation, which is now challenged, has been advocated by those who, I am glad to see, now protest against its continuance. We are all in favour—and I said this before, when I opened the debate—at any rate in this House, of getting rid of these regulations as soon as we can. We submitted them to a close review. We got rid of a great many of them and I told your Lordships that I hoped that in the near future we should get rid of others, some of them, indeed, being embodied in permanent legislation. With regard to this one, we came to the conclusion that we must ask your Lordships that it should be allowed to continue for another year. This particular regulation was the subject of prolonged debate in another place. An Amendment was moved that it should not be allowed to continue and, if my recollection serves me, that Amendment was withdrawn after discussion. It was not, I think, one of those which was pressed to a Division. I regret it, but I am not in a position to tell your Lordships that we find it possible to dispense with this regulation for the time being. It is only a temporary regulation, and therefore it may well be—though I do not think it is very likely—that it is one of those which it may be possible to get rid of in the course of this year. That will be a matter of our constant preoccupation, both in regard to this regulation and in regard to all the regulations which are continued under this Motion.

May I turn for a moment to the more general aspects of the case which the noble Viscount, Lord Samuel, and the noble Viscount, Lord Simon, raised? It is quite true that this question is deeply woven up with the question generally of delegated legislation. I remember that, when I was replying on the debate we held a short time ago, I told your Lordships that in another place my right honourable friend the Secretary of State was proposing a Committee of Inquiry into the whole subject of delegated legislation. It was not at that time clear whether it was to be a Joint Select Committee or a Select Committee of the House of Commons. I think it now appears from what I have seen—although I do not speak with authority—that it is to be a Select Committee of the House of Commons which will deal with the matter. I do not know whether that has been made public. I think it has, and I venture to think that that is likely to be the case. I am sorry that the noble Marquess the Leader of the House is away—his public duties call him elsewhere—but I think he has already been in communication with the noble and learned Earl who leads the Opposition, and also the noble Viscount, Lord Samuel, to see whether we cannot have a similar inquiry in this House. Therefore, I venture to hope that not only the question of delegated legislation as a whole, but the questions in particular which arise out of this form of delegated legislation, will be the subject at an early date of discussion between both sides of the House, both sides alike being anxious to deal with the matter and to obtain a larger measure of Parliamentary control over delegated legislation as a whole and this particular delegated legislation specifically. Therefore, I hope that the noble Viscount, Lord Samuel, and the noble Viscount, Lord Simon, will not expect me to pursue that matter further to-day. Indeed, I think it would be rather presumptuous of me to do so when those who are so much more familiar with it than I are about to embark upon its consideration.

EARL JOWITT

I do not think the noble Marquess the Leader of the House has consulted me about this matter. I do not know whether he has consulted the noble Viscount, Lord Samuel, but I am perfectly certain that he would do so if I approached him. I will certainly take steps to approach the noble Marquess to find out whether he is willing to do something on those lines.

THE LORD CHANCELLOR

I am quite sure that the noble Marquess who leads the House will not dissent from this. He was only waiting to see what course was taken in another place; whether there was to be a Joint Select Committee or a Select Committee of the House of Commons to deal with the matter so far as it affected that House. I am quite sure that if he has not already done so, he is about to approach the noble and learned Earl. Therefore, I hope that I may be allowed not to deal with that aspect of the matter.

I come now to the question why we find it necessary to ask for the continuance of this particular legislation for one year. It is very simple. In the emergency which still exists—an emergency due not to a cold war; for indeed I was surprised to hear that word used when I think of the far from cold war upon which our young men are embarked in distant Korea—consisting of active war upon a considerable scale, and in the emergency which is further created by the grave economic position in which we still rest, we require that open-cast working of coal should proceed with the utmost urgency and speed. Now it is asked: "Why cannot you make use of your powers at Common Law or under existing Statutes to stop a highway?" It is true that there are existing powers. There are powers under the Highways Act to stop a highway; there are powers under the Town and Country Planning Act, and there are powers under the Mineral Workings Act. But all those powers impose a delay which, in the emergency, cannot be brooked.

If I may say so, the noble and learned Earl who leads the Opposition put his finger upon the exact point. It might be that if the existing powers were less cumbrous, if they admitted of less delay, it would be possible to use the existing powers, and it may be that it is possible to reform those powers. I am grateful to the noble and learned Earl for that suggestion, and it will certainly be looked into. But, as matters stand, it will certainly take four months, it will probably take six months, and it may very well take a year or more, under the existing law apart from the regulations, before a highway—it may even be only a small foot-path—can be stopped. It is for that reason that this regulation is still necessary for the adequate working of opencast coal. The Department calculates that it might well be that we should lose several months of production, and although any estimate must be a guess, it might be that if we had not these powers we should lose three million tons of coal in the ensuing twelve months. That is the reason why we think it necessary to retain this power.

Let me assure your Lordships that this power, though it is one operated if the Minister of Fuel thinks it necessary, is a power exercised only after consultation with the proper authorities. It is exercised after the fullest consultation with the Ministry of Agriculture where farming interests are involved, and after consultation with the Ministry of Housing and Local Government and local authorities where other than farming interests are involved. Although, of course, those consultations will take some little time, they will by no means take the time which is required by the procedure under the existing Acts. That is why we think it necessary to retain this power for another year, and that is why, on behalf of Her Majesty's Government, I could not invite the House to accept the Amendment which the noble Lord, Lord Milner, bas moved.

With regard to what the noble Viscount, Lord Simon, said, it is, of course, a common feature of these regulations that something is done upon the authority of the Minister. That is not a peculiarity of this regulation. The words "if it is necessary" add nothing and detract nothing from the power or from the words "the Minister may" do something. In neither the one case nor the other is it open to the challenge of the courts. The question is whether it is intra vires or ultra vires: that is the matter which the court has to consider, and the words in this connection "if it is necessary" add and detract nothing. To sum up, the answer is really this. In the present circumstances the country has the utmost need—let nobody be in doubt of that —of increased output from both the pits and the open-cast sites. In our view—and it is one which is come to after careful deliberation—the abolition of Defence Regulation 16, without the adoption of any alternative procedure under the Highway Act, the Mineral Working Act or the Town and Country Planning Act, would involve considerable delay in arranging for the working of open-cast coal. The result of that might be a loss running up to three million tons a year. It is for that reason, and with the assurance that I am sure I can give your Lordships that this power, like other powers, will be used only after most careful consideration, that I must resist this Amendment.

3.29 p.m.

LORD MILNER OF LEEDS

My Lords, may I first thank my noble friends and the two noble Viscounts who have been good enough to support this Amendment in such strong terms? I thought the Lord Chancellor was perhaps a little unkind in endeavouring to attach some little responsibility to myself for what might or might not have been agreed to during the past six and a half years. He will appreciate that in my, at that time, neutral position I insisted upon the independence of the Chair, an insistence which did not commend itself to the members of the present Government who were then in Opposition. But that is by the way. I was not altogether clear about what the Lord Chancellor said as to the relationship between the right to divert a highway in respect of the working of open-cast coal and the hot war in Korea. I thought, if the Lord Chancellor will allow me to say so, that his justification for these regulations was very thin and gave me the impression that the matter had not been closely gone into; otherwise the regulation would have been done away with.

However the Lord Chancellor has now, as I understand it, given a definite assurance that these matters are going to be reviewed most meticulously by a Joint Select Committee, or, at any rate, a Committee of the other House; and that, secondly, this particular power will not be put into force except under considerable pressure and after every consideration has been given.

THE LORD CHANCELLOR

I am sorry to interrupt the noble Lord, but I did not use the words "under considerable pressure." I said "after careful consideration." The word "pressure" certainly did not enter into my speech.

LORD MILNER OF LEEDS

May I put it in another way—"unless circumstances make it absolutely necessary "?

THE LORD CHANCELLOR

I prefer the words I used.

LORD MILNER OF LEEDS

Then "after the fullest possible consideration." Following the valuable discussion we have had, and the assurance given by the noble and learned Lord, I will, with your Lordships' permission, withdraw my Amendment.

Amendment, by leave, withdrawn.

3.33 p.m.

LORD MILNER OF LEEDS moved to omit "Regulation eighty-five (Entry upon, and inspection of, land)." The noble Lord said: My Lords, Regulation 85 is an extremely wide regulation. The regulation which your Lordships have been discussing during the last half-hour confers a comparatively narrow power, but this, as I say, confers an extremely wide one. Regulation 85 provides that: Any person authorised by a competent authority may, on producing, if so required, some duly authenticated document showing his authority—

1. (a) enter on any land for the purpose of exercising any of the powers conferred by or under any of these Regulations;
2. (b) enter on any land and inspect the land and any article thereon for the purpose of determining whether, and, if so, in what manner, any of those powers are to be exercised in relation to the land or that article ",

and so on. Then the regulation goes on to say: Provided that admission to any building or part of a building which is occupied shall not be demanded as of right unless twenty-four hours' notice of the intended entry has been served on the occupier, or authority to enter without such notice has been given by the competent authority on the ground of urgent necessity in the public interest and the document of authority contains a statement to that effect. Then paragraph (2) says: A competent authority may, to such extent and subject to such restrictions as it thinks proper, delegate its functions under paragraph (1) of this Regulation to any specified persons or class of persons. Noble Lords will, I am sure, appreciate the tremendous width of that Regulation. First, any person authorised by a competent authority may authorise any other person to enter on any land. One of my noble friends says, who or what is a competent authority? For that, one has to refer to Regulation 49 which says: For the purposes of any of the Regulations contained in this Part of these Regulations, not being a Regulation which otherwise specially provides, any of the following Ministers or authorities shall be a competent authority, that is to say, a Secretary of State, the Admiralty, the Board of Trade, the Board of Education, the Minister of Fuel and Power, the Minister of Agriculture and Fisheries, the Minister of Health, the Minister of Transport, the Minister of Production, the Minister of Supply, the Minister of Food, the Minister of Aircraft Production, the Postmaster General and the Minister of Works. The competent authority may be one of the five Secretaries of State or any of these Departments; and any one of them may authorise any person. It is not necessary that that person should be an official in that Department. Authority can be given to enter upon land either for the purpose of exercising the powers of this regulation or for the purpose of inspecting the land and determining whether any of those powers shall be exercised or not.

Furthermore, that competent authority may delegate its functions. There is a Latin maxim: "Delegatus non potest delegare." This, in law, I suppose, forbids such delegation; but here, any of these competent authorities whose names I have read may delegate their functions to any other person or class of persons; and this other person or class of persons can, in turn, delegate the exercise of these powers to another person. These powers, as I have said, are tremendously wide. The authorised person can enter on any land, not merely for the purpose of carrying out the regulations but to have a look at the land, with a view to inspection, and seeing whether the powers should be exercised at all. It is true, my Lords, that that person is to be under an obligation to produce, if so required, "some duly authenticated document." What are duly authenticated documents? Are they documents authenticated by a notary public or a commissioner of oaths, or what? In my submission this regulation illustrates the tremendous extent of the authority given under these regulations. The action might be quite right, and one with which we would all agree in time of war, but nowadays it is surely unnecessary. There are powers under other Statutes to enter upon land for specific purposes, but this regulation is quite unnecessary; it cannot have anything to do nowadays with cold war or hot war. It is unnecessary because, first, there are adequate powers under other Statutes, and secondly, if an emergency did require it land owners would be only too happy to allow a duly authorised person to enter upon their land for some national purpose. In my submission there is no justification for this order. I beg to move.

Amendment moved— Line 14, leave out "Regulation eighty-five (Entry upon, and inspection of, land)."—(Lord Milner of Leeds.)

3.43 p.m.

LORD OGMORE

My Lords, I desire to support my noble friend Lord Milner in this Amendment. He has explained its object and there is no need for me to go over the ground again. But there are one or two points I desire to stress. The important point is that at this stage of our history a "competent authority "—and the "competent authority" consists of quite a number of Ministers—can delegate to any specified persons or class of persons very wide powers indeed. It is bad enough having Ministers with the power to permit entry on land and, in certain cases, on buildings; but to allow specified classes of persons, such as sanitary inspectors or agricultural inspectors, or ministers of religion, presumably, or anyone else who the Minister decides ought to have this power to have it, without any question or any appeal, is a monstrous thing in any Act or regulations at this stage. It is no good my noble friends opposite saying, "Well, you did it." Very likely we did, but our first duty at the present time is to consider these matters de novo. When one is a member of a Government one does not necessarily agree with everything the Government does. No Minister in a Government ever did agree with everything the Government did, and I am quite sure that my noble friend Lord Milner did not necessarily agree with everything that I as a Minister did.

Another point is this. Admission to land or buildings is granted on production of an authenticated document. This, in certain circumstances, can give admission to a dwelling-house or a place which a person occupies. Normally there has to be twenty-four hours' notice where it is intended to enter an occupied building or part of a building; but where there is urgent necessity, even this small safeguard is removed and persons of the class I have already referred to can issue an authenticated document permitting entry at once into an occupied building. Today, as has been mentioned in your Lordships' House before, many people are frightened, even in the day-time, when strangers call at their house, because of the attacks of which we read daily on quite helpless people. Here we have cases where a class of unspecified persons can call at a house and wave a piece of paper in front of some elderly man or women and ask for admittance. That elderly man—or it may be a woman—may refuse to let them in, and I should not blame him; but in that case he may be liable for refusing admission. I suggest that at this stage in our history this sort of permission, given in these wide terms, not only to Ministers but to persons whom they may authorise, is something which Parliament should consider very carefully. That is why I strongly support my noble friend Lord Milner in this Amendment, and I hope that this particular regulation may be rejected. I hope that the Government will put before us some different sort of regulation which will retain proper safeguards, if any safeguards are needed to meet this set of circumstances.

3.47 p.m.

LORD BALFOUR OF INCHRYE

My Lords, we are getting into a very peculiar position, arising from the speech of the noble Lord, Lord Ogmore, who has just sat down. I do not think he can meet the case simply by saying, "You did it." We are faced with the spectacle of Opposition members repudiating what they themselves did year by year.

LORD OGMORE

What I said was that that was not an argument; it is no argument on the merits of the case to say, "You did it." It is a good debating point.

LORD BALFOUR OF INCHRYE

It may not be an argument, but it is an extraordinary explanation. We have heard one noble Lord, Lord Milner, defend himself in regard to these regulations by saying that in another place he occupied a detached position. I can sympathise with his anguish at seeing his colleagues year after year passing regulations which he so much disliked. Then we have had the even more peculiar position of Lord Ogmore, who was a Minister in the then Government, saying that he himself disliked the regulations intensely. It is an extraordinary position to hear an attack on the late Government for things which were done collectively, year after year, by the Socialist Party. Perhaps I may remind the noble Lord, Lord Ogmore, of Lord Melbourne's famous saying, "If we do not hang together we shall all hang separately."

3.50 p.m.

LORD SILKIN

My Lords, I do not think we ought to allow this particular red herring to interfere with the discussion. The Government must take responsibility for these regulations. They are their regulations to-day. The noble and learned Lord the Lord Chancellor can, if he pleases, make a debating point of the fact that they were submitted in earlier years. Of course, he is not responsible for that, but he has a definite responsibility for the submission of these regulations to-day and has to answer for them. It is really no answer to say: "You submitted them every year before that," especially when noble Lords opposite in every year attacked us for doing so. I think that they have to justify this particular regulation, and I would ask the noble and learned Lord to do so. Here again, as in regard to the previous regulation, there are adequate powers of entry, when they are needed, under the various Statutes and under Common Law. It is for Her Majesty's Government to say why these special powers of entry are needed at the present time. It may be that the noble and learned Lord has a very good explanation of why these additional powers of entry are needed to-day. If so, I hope he will say so and tell us what are these special reasons, and not seek to justify them by the fact that we introduced similar regulations for six and a half years.

LORD CALVERLEY

My Lords, I should not have intervened if the noble and learned Lord on the Woolsack had not been so mildly provocative when he referred to our being in office for six and a half years. I will not stray into the history of the last Amendment now. The noble Lord, Lord Balfour of Inchrye, was even more provocative, and he was responsible for interfering with the liberty of the subject wherever there was an aerodrome. The sensible citizen said: "Well, we are all in one team—even the Member for the Isle of Thanet" (as the noble Lord then was) "and we accept it."

Then we come to 1945. Noble Lords opposite talk about a crisis. There was certainly a crisis in those days. I wish the noble and learned Lord on the Woolsack could tell us how many regulations the wicked Labour Government rescinded during those six and a half years. I do not know whether he can tell us. If he has it there as a source of information, I should be glad to know about it. This is not a matter for making Party points. When the noble Lord, Lord Balfour of Inchrye, makes them they do sound a bit foolish, except when he is on a platform or when he is talking to the Primrose League. The point is that the average man and woman living in a cottage house, as many of us have had to do for most of our lives, will be glad when only the gas man can come in to check the meter. That should be the noble ideal of the Lord Chancellor. I resume my seat hoping for any words of comfort that the Lord Chancellor can give to this House and also to the householder who does not want anybody to enter his house except the gas meter man and the insurance man.

EARL JOWITT

My Lords, I am tempted to rise to my feet by certain observations made by a certain noble Lord which I thought were deplorable, irrelevant and altogther ill-conditioned.

LORD BALFOUR OF INCHRYE

I thank the noble and learned Earl.

EARL JOWITT

I should have thought that everybody realised that, as year follows year, it becomes each time more difficult to make a case for these regulations. If it was a perfectly unanswerable case five years ago, it is a hopelessly bad case to-day. So far as the noble Lord is concerned, he used always to attack us for these regulations in the past, and now that we are getting further away from the great emergency he is supporting their continuance. A more utterly irrelevant or confused attitude I have never heard before, nor do I expect to hear again. However, let me pass that by, treating it merely as a matter of amusement, as I do. I suggest that this regulation needs a great deal of justifying to-day. It is a far-reaching piece of legislation. It enables anybody to enter on any land"— that, of course, means "buildings"— …for the purpose of determining whether, and, if so, in what manner, any of those powers are to be exercised in relation to the land or buildings. It is quite true that, as a general rule, you have to give notice, but not if the "competent authority" gives authority—by the way, it is by no means certain who the "competent authority" is. It is defined at least twice in Part IV of these regulations in different words. Is the Treasury one of the "competent authorities"? We find in Part IV "the Treasury"—whatever the Treasury may be. I am not quite sure that I should know "the Treasury" if I saw it walking on my land. Who is the Treasury? Is it the Chancellor of the Exchequer? Is it the Prime Minister? I want to know who the Treasury is. Is it the Chief Whip? I do not know. Or is it a combination of all these people together? In some of the regulations the Treasury is said to be part of the competent authority. In another regulation in the same Part, the Treasury is left out. Can the Treasury (whatever it is) come into my house and exercise all these powers? That I regard as a serious matter. That is one difficulty I have.

They are most far-reaching powers. Why do we need them now? For what purpose are they necessary? The Government were boasting the other day about cutting down the number of people who might enter a house. Here you are giving carte blanche to any one of a dozen Ministers, or anybody to whom they delegate their powers, to send somebody else round to a house to see whether it is needed for any of the powers existing under the Defence of the Realm Act. If the unfortunate householder wants to know what that person is doing, he is met with the sort of verbiage which we find in paragraph (c) here. "I can come," says the man, "for 'any of the purposes specified in subsection (1) of the Supplies and Services (Transitional Powers) Act, 1945, or of powers conferred by or under Regulation fifty-one or Regulation sixty-two of these Regulations.'" Surely you might set out what the powers are? What is the unfortunate householder to do if, at dead of night, somebody comes and rings the bell and says that he has come under the provisions of "subsection (1) of the Supplies and Services (Transitional Powers) Act," as amended? Set it out and tell us.

In the days of the war I used to farm. I remember seeing a man digging up a gate and a post on my farm. There was some spring wheat there. So I went up to him and said: "Hello! What are you doing?" He said: "I am instructed to dig up this gate." So I said: "Well, who instructed you?" He gave me the name of somebody of whom I had never heard before: he had never approached me at all. I asked: "What are you digging it up for?" "Because I have been told to dig it up," he replied. I said "Don't you know what is going to happen?", and he answered: "Yes. Some tanks are coming into this field to-night." I said: "That is all right." He dug it up and the tanks duly came into the field, with a number of charming officers who lived in tents. They absolutely smashed up that wheat field. They paid compensation. I claimed generous compensation and I received it. I could have put them into an adjoining field where they would not have had to pay any compensation at all. It seemed to me an appalling waste of money which could have been avoided if there had been some provision for consulting the farmer first.

That might have been all right in the Year of Grace 1943, or some such time. But this is much later, and even if there is a hot war going on in Korea, is that any reason why people should behave like that nowadays? My Lords, I suggest that the Lord Chancellor has now to make a case for continuing this regulation which has tremendous powers, whereby, without a "By your leave," or anything of that sort, anybody who is sent can come on to a person's land or into his house, in order to consider whether, for any of the purposes of these regulations (and their number is legion), he wants to use the land or the house. I wait with interest to find out how the Lord Chancellor is going to justify this regulation at this time.

VISCOUNT HUDSON

My Lords, surely the brief answer to the noble and learned Earl is this: for many years after 1945 a number of us sat in another place and listened to representatives of the Party that he honours asking, not that these powers should be reviewed from year to year but that they should be made permanent.

VISCOUNT PORTMAN

My Lords, I should like to intevene just for one moment, in order to answer the noble and learned Earl's question, who represents the Treasury? I suggest to him that it is Customs and Excise. If you read your newspapers, you read of garages containing cars which are found to carry watches and other things of dubious origin. I believe that is the chief occasion upon which the Treasury enters property. The only other thing about which I should like to remind the noble Earl is the question of crisis. I do not know that we are quite so far away from crisis as he would like to make out. I would remind him of the columns that have been appearing in The Times and the Daily Telegraph in the past two or three days, concerning the visit of General Eisenhower to Korea, the seriousness of the situation in French Indo-China, and the possibilities of further aid being necessary in that direction. However, I will not dwell any further to-day on those matters, which may become very important later on. I should like to pass now to the general situation in regard to these emergency regulations. In the past two years I have been astounded at the number of regulations that have appeared on the Papers for renewal, but they now seem to be disappearing. I am very pleased to see that there are comparatively few left, and I feel that Her Majesty's present Government have made a review. We have had sufficient assurance that they are being carefully considered, and I feel that to attack the Government unduly for what, in a year's time, may be something quite negligible, is rather a waste of time.

4.4 p.m.

THE LORD CHANCELLOR

My Lords, it is with the greatest regret, after the arguments that we have heard from both sides of the House, that I am unable to accept on behalf of Her Majesty's Government, the Amendment which has now been moved. We have heard a number of disarming speeches from noble Lords now in Opposition. I must confess that it rather surprised me to hear some of them. After all, in the year 1952, this regulation is what it was in the years 1951 and 1950, and in the preceding years. The noble and learned Earl, Lord Jowitt, had brought acutely to his mind the nature of the regulation, and the powers which it exercises; and, with all that, I must assume that he took no steps to persuade his colleagues in the Government that the regulation ought to be revoked. On the contrary, I remember quite well with what eloquence he urged in 1950 that these were regulations which were required to be renewed. I go further back, to 1945, when, if I may say so, I was even more impartial and almost as innocent politically as the noble Lord, Lord Milner, when I heard it urged that it was necessary to renew them for five years, and not for one year only.

I do not want to draw a herring across the trail, or anything of that kind, or to score a debating point; but surely it is not a fact that can be ignored that, for all these years, noble Lords opposite, with the responsibilities which lay upon them, thought it necessary that these regulations should be renewed. Yet they now get up and say that these are regulations for which there is no justification, and use language which would appear to suggest that there never was any justification. One observation that fell from the noble and learned Earl, Lord Jowitt, did, indeed, astonish me. It is this: that as we go on, year by year, these regulations become more and more unnecessary. There are, I believe, many regulations which do become unnecessary. But just consider this, pray. The burden of rearmament was put upon this country, estimated by those who preceded us at £4,700 million. A large part of that sum was for the acquisition of land for the erection of factories and so on. That was a new burden, and it is in connection with that power, in particular, that Regulation 85 is needed. What is the use of having power under a regulation which has not been attacked and which has been accepted by everybody in this House, namely, the power to requisition land, if you have not got power to go upon the land to see whether you require to requisition it? The present need for Regulation 85 (I agree that it is cast in wide terms) is to enable Departments to inspect land to see whether they need to requisition it, for the purpose, I repeat, of the present emergency.

The regulation has been examined in detail, and all sorts of dreadful consequences are suggested to be possible as ensuing from its terms. My Lords, I have never heard of the old lady who was frightened and barred her door to the inspector who came to see whether it was desirable to requisition the land or anything of that kind. Is that not a little fanciful?

SEVERAL NOBLE LORDS: No.

THE LORD CHANCELLOR

It may be that there has been such a case. At any rate, I can only say that, so far as my knowledge goes (I will make further inquiries)there has been no case where, in the exercise of Regulation 85, that sort of consequence has ensued. I do not really think that there has been any such case; if there has, it will certainly be looked into.

With regard to the words of the regulation, I need hardly assure your Lordships that every word that has been said will be carefully considered when we come to review this regulation again. I say with all sincerity (I am not making a Party point) that your Lordships' views are of the utmost value. If dose of your Lordships who have hitherto thought it necessary that a regulation in these particular words should be continued year after year now say that such things are not necessary, then that must carry a great weight with the Departments for whom I am responsible to-day. Therefore, I can assure your Lordships that what you say will be considered and will have the greatest weight paid to it. But, having said that, I cannot, I fear, assent to the view that we can dispense with this regulation for the time being. Therefore, I must ask your Lordships to resist this Amendment.

On Question, Amendment negatived.

4.10 p.m.

LORD MILNER OF LEEDS moved to omit "Regulation eighty-nine (Use of force in entering premises)." The noble Lord said: My Lords, Regulation 89 provides, quite shortly, that: Where by virtue of any of these Regulations, a person has any power to enter premises he may use such force as is reasonably necessary for the purpose of exercising that power. This illustrates how these regulations grow. They begin as simple regulations, relating solely to war time or to the defence of the Realm, and they are then extended to all sorts of purposes. They are kept in force in peace time; authority is given, or may be given, to all sorts and conditions of people, and that authority can be delegated by a regulation such as this. Wherever the power to enter premises is given, then "such force as is reasonably necessary" may be used. In my submission, again, this power is quite unnecessary in the year 1952. The ordinary legal way, as I understand it, of obtaining permission to enter is by going to a magistrate and obtaining a search warrant, or something of that sort. That is quite a speedy process—I should imagine at least as speedy as obtaining the various documents required in these regulations, duly authenticated and given by a competent authority. I submit that this regulation is quite unnecessary, and that the ordinary process of the law should be sufficient. Your Lordships, I hope, may think it right to exclude this regulation from those which it is proposed to continue. I beg to move.

Amendment moved— Line 26, leave out "Regulation eighty-nine (Use of force in entering premises)."—(Lord Milner of Leeds.)

LORD OGMORE

My Lords, I should like once more to support my noble friend. I must say that I have been most surprised to note that no single word has been said from the Benches opposite in support of the preceding Amendments. I hope that on this one we shall have some support from noble Lords on the other side of the House, because, although some play has been made with the fact that for years we continued these regulations when we were in power, nothing has been said—or not much has been said—of the fact that for years noble Lords, now sitting opposite, when they sat on this side of the House attacked with great vehemence regulations of this kind. Indeed, in fighting the General Election, one of the planks of their platform was the slogan, "Set the people free." Noble Lords, the Prime Minister and others who are now Ministers, stumped up and down the country informing people that if only they would return them to power these various regulations and so on would immediately dissolve into thin air; that no one would be forced to permit a person to enter upon his land or premises, and, if he objected, risk getting a blow in the eye—because this is, in fact, what this regulation may amount to; that is the logical end of the procedure we have been considering up to now.

If your Lordships followed what I said on the last Amendment, you will remember that I instanced a case of an elderly man or woman suddenly approached, maybe by night, maybe by day, at their house by a person waving a piece of paper in front of them (they having had no previous notice whatsoever of his coming) and demanding admission. In these days, as I have suggested, it is a matter of great reluctance in many parts of the country—and not many miles from where your Lordships are now sitting—for people to open their doors to strangers. I have recently heard from representatives of local authorities of London boroughs that officials are having great difficulty in obtaining admission to houses to read gas meters, because the occupiers in many instances are frightened and will not let them in. Under this particular regulation, some elderly man or woman who objects to a person entering his or her premises, that person having arrived without any previous notice at the front door, or the side door or the back door, with a piece of paper, may be involved in serious consequences. The piece of paper may not help them in any way. It may be that they cannot read, or perhaps they have not got their glasses. And even if they had their glasses, it might well be they would not understand what was on the piece of paper presented to them.

Suppose they say to the person who seeks admission, "No you cannot come in." What could then happen under this regulation is that the Government inspector could thrust open the door and, in fact, brush the poor old lady or gentleman on one side—if necessary spin them round like a teetotum. In fact, he might cause injury, and in any event would undoubtedly cause a considerable amount of shock. And nothing can happen to such a man. This is almost as bad as the case of the dragoons of Louis XIV. Nothing can happen to such an individual. The subject is entirely prevented from suing such a person for damages because, under this regulation, by Ministerial edict such a person can enter a dwelling-house or a place where people reside and can use what is called "reasonable force." What is force which is "reasonably necessary"? Who decides what force is reasonably necessary? The amount of force which seems reasonably necessary to the person who uses it is often very different from the amount regarded as reasonably necessary by the person upon whom such force is used. There is frequently a great deal of difference between the point of view of the person using force and the person who suffers from the use of that force.

I suggest that, whatever may have happened in the past, it is not consistent with the past professions of noble Lords opposite to allow a regulation such as this to remain upon the Statute Book. I suggest that noble Lords on the other side of the House should join with us on this side in making a very strong request to Her Majesty's Government to reconsider this regulation. I must say, also, that I am surprised that no noble Lords on the Liberal Benches have joined with us in some of the protests which we have made to-day. Except for one general observation from the noble Viscount who leads the Liberal Party, which was not, it seemed to me, very appropriate to the subject under discussion—it was more a remark of a general nature than an observation on the particular Amendment before the House—we have not heard one word from the Liberals to-day.

4.18 p.m.

LORD REA

My Lords, may I say, in the absence of my noble Leader, who has had to leave your Lordships' House, that I thought at the time that his remarks were distinctly relevant? And I still do. Lord Samuel suggested that it is inappropriate that any expression of opinion should be given on such a wide range of subjects as are before us to-day without noble Lords having been given adequate notice, and time to study them in detail. That, I submit, is perfectly true and relevant. What the noble Lord and his friends are saying has, in principle, my full sympathy; but if matters should go to a Division on these specific points, I feel—and it may be that my friends would be of the same mind—that I should certainly abstain from going into the Division Lobbies.

LORD OGMORE

I do not quite follow the logic of that remark. The sort of friend who prefers sitting on the fence to following one into battle is not the sort to whom one usually attaches very great weight. I am not suggesting that the noble Viscount's remarks were in any way unnecessary—in fact I agree with what he said. All I said was that he did not address himself to the Amendment before the House; nor has any Liberal Peer subsequently. May I say, too, that these Amendments have been on the Order Paper for a very much greater time than many matters are on the Order Paper before they are discussed in your Lordships' House? On Thursday there are the Second Readings of two Bills which I regard as important; but no notice has yet been put on the Order Paper in respect of these Bills, though I know it is the Government's intention to move the Second Reading of these Bills on Thursday. I do not object to that, but your Lordships will have only twenty-four hours' notice; yet with regard to these regulations your Lordships have had a month. If the Liberal Party cannot make up their minds on the right of entry into premises after one month's notice, I do not know how much time they are going to take to make up their minds about anything. I should have thought that this regulation was one about which your Lordships did not need time to make up your minds. It is a regulation which we should not allow in these days to the Government, their Ministers, accessories or undefined classes of persons. I think that even the Liberal Party might have made up their minds on this. I support my noble friend Lord Milner, and I hope your Lordships will support him in his plea.

THE LORD CHANCELLOR

My Lords, with the latter part of Lord Ogmore's observations I have no concern. Whether or not the Liberal Party should have taken a larger part in this debate is not for me to say. With regard to the burden of the noble Lord's speech, I wonder whether he would tell me—perhaps not now, for he would hardly dare to do so, but on another occasion—when he first read this regulation which arouses his present fierce antagonism. It is a regulation which has continued year after year, yet according to the noble Lord it leaps to the eye in any free country. Really, that sort of argument ought not to carry much weight with your Lordships.

Let me say that I find myself in great sympathy with the noble Lord, Lord Ogmore, in this matter. I will go so far as to say that, for my part, I shall make the strongest representations to see, not, indeed, that the regulation shall not pass, because I am not at liberty to accept an Amendment, but whether it can be reviewed with the intention of revoking it if that is possible. Let me make it plain that I am asking your Lordships to allow this regulation to continue, but I shall do what I can personally to invite those who are interested to see whether it can be dispensed with. It may be that there are considerations which will make it impossible to do so. I make no promises and give no undertakings. But I have a great deal of sympathy with what has been said with regard to this regulation, particularly as I believe it has never been used and probably nobody knows that it is held in terrorem by a highly competent authority. As the noble Lord says, there is a logical sequence from the power of requisition to the power of entry and inspection and, if people do not allow officials to enter to see whether land should be requisitioned, to deciding that force will be necessary. That is the logical sequence, but we are not always logical. However, it may be possible—I shall say no more—that it will be dispensed with. I promise the House that I will see whether anything can be done. I do not know whether the noble Lord, Lord Milner of Leeds, would be willing to withdraw his Amendment.

LORD MILNER OF LEEDS

My Lords, if the noble and learned Lord the Lord Chancellor would be good enough to say that he will inform the House of the result of that review, which I presume may take place in the next month or two—

THE LORD CHANCELLOR

I cannot promise anything.

LORD MILNER OF LEEDS

If the noble and learned Lord will be good enough to inform us of the result, we shall be grateful. In these circumstances, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD WISE

had given notice of his intention to move four Amendments to that part of the Schedule headed "Other Defence Regulations," to leave out Parts II and III and Schedules I and II of the Defence (Agriculture and Fisheries) Regulations, 1939. The noble Lord said: My Lords, with your Lordships' approval, I think it would be better if I dealt with all my Amendments together, because they are wrapped up together, and I think this would save a good deal of time. In view of what the noble and learned Lord who sits on the Woolsack has just said, I hope that what I have to say will also find favour. I hope that there will not be much difference of opinion on either side of the House in regard to these regulations. I am much encouraged by what the Lord Chancellor said on November 20, when we were discussing these matters generally. After referring to the fact that they had been before Her Majesty's Government over the past year and had received careful review, the noble and learned Lord said that the Government had certain possibilities in mind. He continued (OFFICIAL REPORT, Vol. 179, Col. 450): The first of them was that we might find that some of these powers could be relinquished altogether before there was any question of their having to be reviewed. That sentence encourages me to hope that the regulations which I desire should be revoked may be revoked within a reasonable period of time.

The first Amendment refers to Part II of the Defence (Agriculture and Fisheries) Regulations, 1939, which deal with the bacon industry. If I may be permitted to read out short extracts of Part II, I think your Lordships will agree with me that this general regulation could be set aside without any harm being done to anybody. Clause 3 reads: So long as this Part of these Regulations remains in force, and subject to the provisions thereof, the provisions of the Bacon Industry Acts, 1938 and 1939, set out in the First Schedule thereto shall not have effect,… The provisions of the Bacon Industries Acts are set out in the First Schedule, and the whole of the 1939 Act is suspended.

Under this regulation the Bacon Development Board is kept in force. That Board is a tiny one, consisting of three members. I do not know whether the Parliamentary Secretary to the Ministry of Agriculture and Fisheries is to reply to what I have to say, but he may be able to tell us what this Board does and, in plain language, what is the use of keeping the Board in existence. The Board is composed of at least three members, one member appointed by the Minister, one member nominated by the Pigs Marketing Board—which I believe is also non-existent at the present time—and one member nominated by the Bacon Marketing Board, which is also non-existent. It seems to me that here we have a Board which is nominated from other Boards which have no functions at the present time, and since 1939 have in effect been almost dead. As far as I can see, the main function of this particular Board, apart altogether from dealing with very trifling matters such as letting rooms and parts of their offices and conducting certain researches at the request of the Minister, is the appointment of an emergency committee which, I believe, can be the three members of the Board themselves. That particular emergency committee has very small powers indeed, if any at all. A certain remuneration is set out for members of the emergency committee, and they have to report to the Development Board once a year. But there is no obligation on anybody to submit that report to the Minister, and, from what I have said, I think your Lordships will agree that here is a case where we might reasonably cut the provision regarding this particular Board from the Defence Regulations.

I think it is also established that, during the last year at any rate, there has been a desire on the part both of the Ministry of Agriculture and of other organisations to set into operation at an appropriate time new marketing boards. Now these marketing boards—the Pigs Marketing Board and the Bacon Marketing Board—commenced to operate as long ago as 1933, and since 1939 no operation in particular has been conducted by those Boards or by the Bacon Development Board. I suggest to your Lordships that, in the course of the next year or two, certain suggestions will be brought forward for the setting up of marketing boards in the agricultural industry which will be far in advance of the old boards as we knew them in the years gone by. I think it can be put on record that the Bacon Marketing Board, at any rate, was not a success, or was very little success. Those boards are kept in being by Part II of this regulation.

Part III, to which I refer in my next Amendment, deals with the livestock industry, and I might read again from the first clause governing those Regulations, which is Clause 11 in Part III: So long as this Part of these Regulations remains in force, and subject to the provisions thereof, the provisions of the Livestock Industry Act, 1937, set out in the Second Schedule hereto, and the Cattle Subsidy Scheme approved under Part II of that Act, shall not have effect. … Under this provision practically the whole of the Livestock Industry Act, 1937, has been suspended, and there is no function which is undertaken at the present time by the Livestock Commission or the Livestock Advisory Committee. Clause 12 in Part III says: The Livestock Commission established under section one of the said Act (hereinafter referred to as 'the Commission') and the Livestock Advisory Committee established under section three thereof shall cease to exercise any functions, and the offices of the members thereof respectively shall be vacated. … Now it seems to me, in all sweet reasonableness, that these particular Defence Regulations should be revoked, and when the time comes for the establishment of new marketing boards or new livestock commissions or committees, in the light of present circumstances we might start de novo. The matter was referred to in another place in an all-night Sitting last week, and Amendments were proposed and, by leave, withdrawn. I want to go further than that, and suggest to Her Majesty's Government that the time for the reconsideration of these two Defence Regulations has now arrived, and that, in order to tidy up the regulations, if I may use that expression, these two regu- lations should be removed. I beg to move.

Amendment moved— Line 3, leave out ("II").—(Lord Wise.)

4.37 p.m.

THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE AND FISHERIES (LORD CARRINGTON)

My Lords, this is rather a different problem from those which we have been discussing hitherto. Part II of the Defence (Agriculture and Fisheries) Regulations, is part of the legislative arrangement whereby the pre-war system of marketing bacon and eggs was discontinued when the Ministry of Food took over the responsibility for buying all pigs, slaughtering them and distributing the pork and the bacon. The purpose of Part II is to suspend the provisions of the Bacon Industries Acts, 1938 and 1939, as the noble Lord has said, and to provide for the continuance of the Bacon Development Board on an emergency basis to look after its assets—that is the purpose of these provisions—but without any of its previous powers. As long as the present marketing arrangements under the Ministry of Food continue, there is no part for the Bacon Development Board to play, and it would not be possible to revive the provisions of the Bacon Industry Acts. The provisions of those Acts would no longer be suitable in present-day circumstances, and the future marketing arrangements for pigs will have to be considered in conjunction with the whole question of future marketing arrangements for other fat stock. It is unlikely that any change from present arrangements will be possible in the very near future, but Her Majesty's Government propose to examine the question of future marketing of fat stock in due course.

With regard to Part III of the Defence Regulations, its purpose is to suspend certain provisions of the Livestock Industry Act, 1937, to dissolve the Livestock Commission and the Livestock Advisory Committee, which was set up under that Act, and to transfer certain of their former functions to the appropriate agricultural Ministers. That again was a necessary prelude to the setting up of the present fat stock marketing system under the Ministry of Food, and as long as this present system continues there is no function for the Livestock Commission to perform. The question of whether or not it is desirable to revive the provisions of the Livestock Industry Act will also be considered in connection with the whole future arrangements for marketing fat stock. Therefore, I am afraid that I am unable to accept the Amendment at the present time.

LORD WISE

My Lords, in view of what the Parliamentary Secretary has said, and the fact that the matter will be reviewed, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

I understand that the noble Lord has addressed himself to the first of the Amendments standing in his name, but I must put the second Amendment formally.

LORD WISE

May I interrupt to say that the third and fourth Amendments are simply consequential?

THE LORD CHANCELLOR

The noble Lord does not move the third and fourth Amendments standing in his name?

LORD WISE

No.

THE LORD CHANCELLOR

The second Amendment standing in his name I shall have to put formally.

LORD WISE

I will not move that Amendment either.

4.40 p.m.

LORD MILNER OF LEEDS moved, in the part of the Schedule headed "Other Defence Regulations" to leave out "Regulation one and paragraphs (4) to (10) of Regulation five of the Defence (Burial, Inquests and Registration of Deaths) Regulations, 1942." The noble Lord said: My Lords, this particular Amendment is on a rather different basis from those which have preceded it. The Amendment proposes to leave out Regulation 1 and paragraphs (4) to (10) of the Defence (Burial, Inquests and Registration of Deaths) Regulations, 1942. The Amendment proposes to leave out the whole of these regulations which provide as follows: If any coroner having jurisdiction to hold an inquest touching a death is satisfied that the deceased person was at the time of his death a member of the American forces, then, unless the Secretary of State otherwise directs, the coroner shall not hold the inquest, or, if the inquest has been begun but not completed, shall adjourn the inquest and, if a jury has been summoned, discharge the jury. Then there is a similar paragraph referring to the death of a person other than a member of the American forces, where the coroner is satisfied before the inquest is completed that a member of the American forces has been charged before a court of the United States of America with any offence involving responsibility for the death of the deceased person.

Your Lordships will remember that quite recently we passed the Visiting Forces Act, 1952. Under Section 7 of that Act the provisions of the Defence Regulation which I have read out are substantially repeated. The Visiting Forces Act, 1952, applies, as I understand it, to all the members of the N.A.T.O. forces who are allied to us. Section 1 refers to Dominion forces and to any country designated by Order in Council. I do not know whether the American forces have been designated; I presume it is perfectly easy to designate them and therefore there would appear to be no need to continue the Defence (Burial, Inquest and Registration of Deaths) Regulations. I do not see why it is necessary to continue this Regulation having regard to the Visiting Forces Act, 1952. I beg to move.

Amendment moved— Line 9, leave out "Regulation one and paragraphs (4) to (10) of Regulation five of the Defence (Burial, Inquests and Registration of Deaths) Regulations, 1942."—(Lord Milner of Leeds.)

THE LORD CHANCELLOR

My Lords, I can deal with this matter in a very few words. The noble Lord has referred to the Visiting Forces Act, 1952, which has recently been passed. Until that Act has been brought into force and is applied to the American forces it is necessary to retain the regulation. As soon as these events have happened, the regulation will go. It is just one of those cases in which it has been found possible to embody regulations in permanent legislation and that is the reason why we have left it for the time being.

LORD MILNER OF LEEDS

I am much obliged to the noble and learned Lord and, having regard to that perfectly clear explanation, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

I must now put the original Motion.

4.45 p.m.

LORD SILKIN

My Lords, there are one or two further regulations which I should like to bring before your notice. I know that it can and probably will be said that these regulations have been before the House for six and a half years and have been constantly re-enacted, and I may be asked when I first noticed these particular regulations and why I have not raised the matter before. Of course, it is equally easy to retort that year after year noble Lords opposite have spoken in the most violent terms about these regulations. They have regarded them with the utmost abhorrence; and here they are, calmly asking this House to-day to agree to them. The responsibility to-day, as I have said in speaking to a previous Amendment, is with Her Majesty's Government. After all they know that it is within their own power to bring forward these regulations or not and they have chosen, of their own volition, to bring them forward.

The first one into which I wish to inquire is Regulation 91. It is hardly necessary to tell the noble and learned Lord on the Woolsack that the whole basis of the liberty of the subject to-day is enshrined in the doctrine that a man must be assumed to be innocent until it is proved beyond all reasonable doubt that he is guilty. Any legislation or delegated legislation which conflicts with that principle is undoubtedly open to question. Now, Regulation 91 lays it down that where a person convicted of an offence against any of these regulations is a body corporate, then every person who at the time of the commission of the offence was a director or an officer of the body corporate or was purporting to act in such capacity shall be deemed to be guilty of that offence. That is a horrible thought for the many directors and officers of companies which happen to be convicted of an offence, unless such director or officer proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence. It is an extremely difficult thing to prove a negative; and it may be the most difficult thing in the world for such a man to prove that the offence was committed without his knowledge. But it does not say that it is an offence if he deliberately keeps himself in ignorance concerning things about which he ought to know. It is his answer to a charge if he can prove that he had no knowledge of it.

I am quite satisfied that for a number of years there has been some justification for this regulation particularly in connection with black market offences, overcharging, and so on. There might have been some case, for a number of years, for putting the onus of proof on a director or other officer of a company to establish that he had no knowledge of the offence—though I must say that I personally have had grave doubts at all times about this, for it is in such complete conflict with the fundamental principle of our liberties. Frankly, I think it is a pity that this regulation was ever introduced; but there it is, and we on this side must accept any rebuke which the noble and learned Lord may seek to administer to us for having allowed it to go on for so long. In his turn, the noble and learned Lord must accept a rebuke, if there is to be one, for re-enacting this particular regulation. I am not moving its deletion, for there may be good reasons for the continuance of this regulation, but we should like to know of them.

There is one other regulation to which I should like to draw attention. It deals with a case where the person convicted on indictment of an offence against the regulation is a body corporate, and there is no provision in these regulations limiting the amount of fine which may be inflicted upon a body corporate. The fine may be of such amount as the court thinks just. Again it is a fundamental principle of English law that the subject should at least know what is the maximum penalty which may be inflicted upon him. The punishment should not be at large, so that any court—and usually no two courts think alike—may impose any penalty it thinks just. There have been occasions when a rich company has been involved in illegal transactions to a large extent and no maximum penalty which might be set out in a regulation of this kind would apply. In such cases I should have thought that some relation might have been imposed between the punishment and the extent of the illegal transactions. It might be desirable to have some flexibility in such cases, but I should have thought that legal ingenuity could have devised some method by which, for example, the maximum penalty might be three times the amount involved. There are some very big sums involved in such transactions and the maximum penalty might well be related to them. In other words, it might bear a relation to the amount of which the Customs or other Government Department may have been defrauded as a result of the delinquency

The principle in the regulation is one which none of us would be willing to accept in normal times. I wonder, therefore, whether the noble and learned Lord, of the offender. the Lord Chancellor, would not take up this matter for reconsideration. As I have said, I have not moved any Amendment and I do not intend to do so, because it may be that there are good reasons for the retention of these regulations for some time longer. But I should like to be told what is their justification at the present time, and, in particular, whether it is considered that certain offenders should have to prove that they are innocent, and whether that principle has been invoked to any considerable extent within the past few years.

EARL JOWITT

I should like to add a few words to the consideration of this subject. In 1951 I was responsible for the introduction into your Lordships' House of the Rivers (Prevention of Pollution)Bill. To one clause of that Bill the noble Viscount, Lord Swinton, moved an Amendment, namely, that the clause be deleted and that the normal principles of law should apply. I remember the incident very well because I made a mistake in the law at that time, and I recall saying to the House that my law was bad but my morals were impeccable! But I said in the Committee stage that, if the House so desired, I would accept Lord Swinton's Amendment; and on the Report stage (and I wish the noble Viscount, Lord Swinton, were present here to-day) he said that he would not move his Amendment because it went too far. But here the Government is doing exactly the same thing. They may be quite right in doing it, but the fact that I was so well castigated for doing this in 1951 makes me feel that I should remind the Government of the fact when they are wielding the same whip.

There are two other matters connected with the Defence Regulations. The exact phrase at the end is, "Other Defence Regulations" and the point I want to make arises under these "Other Regulations." The first of them are Regulations 17E and 20 of the Defence (Administration of Justice) Regulations, 1940, set out at page 113 of the volume. This seems to be a regulation which ought to be continued, and, for my part, I cannot see why it is not part of the law of the land. It states that an application for an order under the Summary Jurisdiction Act on the ground of the adultery of the applicant's wife shall not be dismissed because it was not made within the period of six months, if the person concerned was serving outside the United Kingdom in His Majesty's Forces. That is a sensible regulation and it ought to be part of the permanent law of the land.

The other matter arises under the Defence (Sale of Food) Regulations, 1943. The first clause, at the foot of page 145, states that any person who sells or displays a label on food which falsely describes that food or is otherwise calculated to mislead the public as to its substance or quality is guilty of an offence. Of course it is an offence. If there are not other provisions in the law dealing with this matter it ought to be a part of the law of the land. I cannot imagine why this should be one of the matters which has to be dealt with by a Defence Regulation which this House has to embark upon every year. I suggest that if it is not in the law already it ought to be inserted. It ought to be part of the law. What we might do is to get a review of the food laws and consolidate them, bringing this sort of provision into the permanent law of the land. We should all agree that this provision is obviously necessary, and I hope the noble and learned Lord, the Lord Chancellor, will look into this point. It ought not to be here at all; it ought to be embodied in the permanent law of the land.

THE LORD CHANCELLOR

In reply to the noble and learned Earl, Lord Jowitt, let me say at once that this is a matter which shall be looked into. I had no notice that he was going to raise these particular points, and although I have made a study of these regulations I cannot pretend to have the law in my mind. These particular points have not been brought to my notice at all. If there is a possibility of taking out these regulations and bringing them into the permanent law, that shall certainly have consideration. But, of course, the legislative programme is rather crowded. It is a little difficult to make any promise or give any undertaking that any particular body of law will be incorporated in a permanent Act, but the matter shall certainly be looked into.

In regard to the points which were raised by the noble Lord, Lord Silkin, nobody could quarrel with the very moderate way in which he raised them. There are, to my mind, two points of great difficulty. I find great difficulty in coming to a correct conclusion as to what is the right way of treating a director of a company which has been guilty of an offence. I think the noble and learned Earl is quite right in his recollection that recently the matter was discussed in this House, but I think that, if he will tax his recollection as I am trying to tax mine, he will recall that there has been more than one Act passed since 1945 in which, after due consideration by both Houses, the burden of proof has been placed upon the director. I agree with the fundamental principle of English law, that a man is to be presumed innocent until he is proved guilty, but that has been departed from on numerous occasions in the last six years under the pilotage of the noble and learned Earl. Therefore, while accepting the principle, one cannot but admit that in modern times there have been many exceptions to it.

I cannot for a moment undertake that it will be found possible to do without this regulation or to revoke it at an early date, but I will say, as I have said before, that what has fallen from the noble and learned Earl will receive the most careful consideration. It is a problem which is vexing to lawyers, as the noble and learned Earl well knows. Bringing home an offence to any member of a corporate entity like a limited company is often difficult. Where you find a grave offence committed and there is great difficulty in imputing it to any director or person acting as director of a corporation, it has in certain circumstances been found necessary to presume the directors guilty until they can prove themselves innocent—not always a difficult task for the directors who are, in fact, innocent.

There is the other point, again a very difficult one, which the noble and learned Earl raised on Defence Regulation 92. It is, of course, almost impossible to impose a maximum penalty which will be a real deterrent in the same degree—that is to say, to the small farmer and to the great marketing organisation a maximum fine of £100 or £500 may be very serious, in the one case, or negligible, in the other. Accordingly, it was found necessary to introduce this regulation by which, in the case of a body corporate, the amount of the fine was left to the discretion of the court. I am not saying that that is a regulation which ought to last for all time, but we have not found it possible in present circumstances to say that it may not be needed during the ensuing year. Again, I will promise the noble and learned Earl that that point shall be the subject of careful consideration, but I cannot promise that it will be revoked in the course of the year. Speaking from recollection—I am within the recollection of the House, of course—I do not think that that particular regulation has been the topic of discussion before, but it may have been. Nor have I seen that in the practical working out of it there has been any great difficulty or any injustice perpetrated. But I will merely repeat that I will have that matter looked into, and it may be that we shall be able to dispense with it. I hope so. That is my hope in regard to every emergency regulation. It is a hope which I am afraid, in the case of many of the regulations, will not be realised.

On Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.