§ 2.56 p.m.
§ VISCOUNT SAMUEL rose to move to resolve, That this House, considering that various encroachments upon the liberties of the subject have taken place in recent years, would favour the introduction of legislation to restore and preserve those liberties; and in particular—(a) to provide for more effective Parliamentary control over the issue and administration by Government Departments of statutory orders, rules and regulations; (b) to enable Parliament to exercise greater control over the Boards of nationalised industries and services; (c) to implement those recommendations of the Committee on Ministers' Powers, 1932, which have not yet been carried into effect; (d) to 1169 restrict the authority given to departmental officials to enter and search private premises; (e) to transfer to the courts of law, at the option of the defendant, the power given to marketing boards to impose penalties; (f) to abolish the existing distinction between public authorities and private persons in respect of the limitation of actions; and (g) except where the special nature of the employment may require it, to make it unlawful for public authorities or private employers to impose any political, racial or religious test as a condition of employment.
§ The noble Viscount said: My Lords, perhaps the House will allow me, in introducing the Motion standing in my name on the Order Paper, to say a few words—and they will be very few—as to the recent history and the present stage of this question of the liberties of the subject, an issue which fills so large a part in the constitutional history of this country. After the First World War it was found that there had been a spate of orders and regulations necessarily arising out of the conditions of the war—orders and regulations which gave large powers to Ministers without direct Parliamentary sanction. The Lord Chief Justice of that day, Lord Hewart, wrote—I think after his retirement—a book called The New Despotism which attracted the attention of the whole nation to the extent to which this process had been carried. The Government of the day appointed a Committee to inquire into the matter, which had as its title "The Committee on Ministers' Powers," and of which the chairman was Lord Donoughmore. He was afterwards succeeded by Lord Justice Scott. They reported in 1932. Nothing very much was done on that Report; some of its recommendations were adopted but many were not adopted. On the contrary, there was during the Second World War and there has been since a vast increase in these encroachments—as they were—upon the liberties of the individual subject.
§ Now that nearly twenty years have elapsed since the Report of the Committee on Ministers' Powers, it may be thought that the time is ripe for a consideration of their proposals. It usually happens in this country that twenty and sometimes thirty years elapse between the time when a proposition is made which it is obviously right to adopt and the time when it has passed through all 1170 the stages of popular and Parliamentary discussion and some definite action is taken. Realising this long delay, when the Second World War was over we on these Benches took the view that the House of Lords should take cognisance of the position; and the noble Marquess, Lord Reading, who was then a denizen (if that is the word) of these Benches introduced a Bill entitled "The Preservation of the Rights of the Subject Bill." That Bill was discussed in your Lordships' House and on Second Reading was carried in a small house by a majority of 37 to 19. However, the prospects of that Bill being passed into law were slight in view of the opposition shown by the Government of that day.
§ In June of 1950 I introduced a Bill, the same Bill in effect, with the title "Liberties of the Subject Bill." That also was carried in your Lordships' House on Second Reading, on a Division, by 66 to 24, and that Bill received an extraordinary volume of support in the Press and in public opinion. But the sinister fact about that debate and the fortunes of that Bill arises from the unfortunate circumstance that the Government of that day were still vehemently opposed to it. The then Lord Chancellor, Lord Jowitt—who is, I know, unable to be present at the first stage of this debate because of a public engagement elsewhere—destroyed one by one each of the twelve clauses of which that Bill consisted. He went through them—one, two, three, four, up to twelve, and at the end there was nothing left at all. It reminds me of a story that was told of an incident towards the beginning of the French Revolution when one of the old aristocracy was challenged in the streets of Paris by a revolutionary sentinel who demanded his name. "Monsieur le Marquis de Saint Cyr," he replied. "Pas de 'Monsieur'," said the sentry.—"Marquis de Saint Cyr."—"Plus de 'Marquis'!"—"de Saint Cyr."—"Pas de 'de'!"—"Saint Cyr."—"Pas de Saint'!"—"Cyr."—"Pas de 'Sire'!"
§ Such was, in fact, the fate of my unfortunate Bill at the hands of the then Lord Chancellor. Since it had no prospect of passing into law under such auspices, because the Government made it clear that they would give no time for the Bill in another place, I did not think 1171 it proper to invite the House to enter upon a Committee stage of the Bill, and to spend much time and trouble on what would necessarily be technical questions, when at the end there was no prospect of any positive result. So the Bill was dropped.
Nevertheless, we were encouraged, before the last General Election, by a speech by Mr. Winston Churchill in which he said, early in the year 1950, that he was
much encouraged by the Bill embodying individual rights which the Liberal Party had sponsored and had introduced into the House of Lords.
We were much encouraged by that statement on his part. It will be seen to-day how far the encouragement that we gave him is now to be reciprocated. There is also another change since the last Election. We have this new Government in office and, above all, a different Lord Chancellor. It is the Lord Chancellor who, of course, has the leading voice on questions of constitutional and other law, such as this concerns, and I well remember, as all your Lordships who heard it remember, in a recent debate in your Lordships' House, the Lord Chancellor declare in eloquent passages, when he used these words:
I submit to the House that freedom is a thing which is above all price."—
and he quoted the famous words of Milton:
Methinks I see in my mind a noble and puissant nation rousing herself like a strong man after sleep.
It is true that the "noble and puissant nation" on that occasion was being roused in order to give a right to commercial advertisers to choose our broadcasting programmes, but I hope that on this occasion the Lord Chancellor will devote himself with equal eloquence and enthusiasm to rousing the nation in a cause which I think is more in the spirit of John Milton.
§ It was a question whether the best course for me to pursue would be to reintroduce the same Bill as I introduced in 1950, and afterwards to ask the House to go into Committee on it—and, as I say, spend time and labour in shaping its clauses. But that depended upon what prospect there was of getting the Bill passed. Moreover, a Bill of this 1172 sort ought properly to be introduced by the Government of the day. It is a matter of very difficult drafting. It deals with a number of Statutes and the skilled hand of the Government draftsman is required to put it into shape. If this Government would take over this Bill—I do not say in all its clauses but if they would introduce legislation in that spirit—no one would be more pleased than we on these Benches. And if the Bill could be shaped by the work of the House as a whole, with all three Parties co-operating, that would be the best course of any, for at one time or another we have all declared with feeling, and no doubt with sincerity, that the cause of individual liberty is very dear to our hearts. Why, then, should a Bill not pass through the House of Lords with general assent to achieve those objects?
§ So I thought perhaps the best course was not to introduce a Bill but to put down a Resolution to ascertain the mind of the Government and the feeling of the House. There have been frequent precedents for this. I remember two of them in my own Parliamentary experience. One was as long ago as the time of the Government of Sir Henry Campbell-Bannerman, who introduced Resolutions on the subject of a reform of the powers of the House of Lords as a preliminary in order that the policy of the Government should be made clear to the nation and to Parliament, and that a discussion should centre round specific proposals. That was followed a few years later by the Parliament Bill, which became the Parliament Act of 1911.
§ The second example I would quote was in the year 1918, towards the end of the First World War and just after, when a Bill had been passed through Parliament by general agreement making large changes in the franchise and in Parliamentary matters generally. That was the Bill that established women's suffrage, but no provision was made for making women eligible as Members of Parliament. Therefore, just before the General Election of 1918, when the war was over and I was out of office, I introduced a Resolution in another place in favour of legislation to make women eligible as Members of Parliament. That was passed with hardly any opposition, and was immediately followed by a Government Bill which passed through 1173 all its stages with great rapidity, just in time for the General Election of 1918. So that there are various precedents (several others could be cited) for this method of procedure by Resolution.
§ This Resolution I might have limited to the general principle involved in the first two or three lines of the Resolution, without giving any specific examples; but, if I had done that, I think the House would have complained that I had put down something merely in the nature of a platitude and that they wanted to know what were the specific grievances of which I complained, and the general lines on which I thought they should be remedied. That is why I have put down the headings alphabetically, from (a) to (g), and those headings indicate the kind of legislation which I would desire the House to favour. In putting forward this Motion, I do not expect either the Government or the Opposition, or any noble Lord, to pledge themselves or himself to all these proposals. They are put forward only as part of the Resolution. We are not new legislating. This Resolution has no operative effect, and any noble Lord who disagrees with any particular point can declare his disagreement and reserve any action to the time when some operative measure is put before the House.
§ I do not propose again to go into detail of all these particular points, as I did when the matter was last before the House in 1950. On that occasion, the first three speeches—my own, Lord Jowitt's, and Lord Llewellin's—took between them two hours. I do not think that any of those speeches could well have been shorter, in view of the ground that they had to cover. If we were to repeat that procedure to-day, I think we should draw upon ourselves the just wrath of my noble friend Lord Stansgate because, quite rightly, he fulminated against the undue length of speeches in your Lordships' House, a House which used to be famous, and indeed glorious, by reason of the brevity of most of its orations. But some brief reference to the various points is necessary, and I shall be very concise.
Heading (a) deals with delegated legislation. Delegated legislation there must be. Parliament must not be cluttered up with having to consider the details of hundreds of orders and regulations, and the question is whether, when these orders
and regulations are laid on the Table of the House and of the other place, either the one or the other shall have power to amend them. At present, Parliament cannot amend these regulations and Orders-in-Council; they must be either passed or rejected. Many of us have felt for a long time past that that is wrong, and that procedure ought to be adopted such as would enable the House to take cognisance of these various regulations, and not be limited to throwing out the whole of a long Order-in-Council, or a whole code of statutory regulations, or else passing it en bloc. Mr. Attlee, when he was deputy leader of the Labour Party in another place, said something very definite on this point—namely:
There must be a means of making orders applying detailed regulations, but they should come in a form in which the House can amend them. This House"—
that is the House of Commons—
should have the opportunity, either on the floor of the House or through Committees, of thoroughly examining regulations in draft and amending them.
And when this Bill to which I have referred was before the House Two years ago, the noble Lord, Lord Llewellin, who took a keen interest in this matter, made a most valuable speech. Perhaps a senior member of the House may be permitted here to pay tribute to the work that has been done in this House by Lord Llewellin. It has not attracted very much attention and is not spectacular, but it shows great devotion to a proper consideration of the details, both of major and of minor legislation, and I know of no member of the Howe who has done more than he to maintain its reputation and efficiency as a revising Chamber. On the occasion to which I have referred, the noble Lord said (OFFICIAL REPORT, Vol. 167, Col. 1058) that he thought it was not
beyond the wit of man to arrange some procedure whereby genuine points could be raised and an amendment made by either House of Parliament.
Parliament itself has included in an important Statute this particular provision. Section 475 of the Government of India Act, 1935, provides for an Address to the Sovereign by both Houses of Parliament with respect to any Order-in-Council
praying that the Order may be made either in the form of the draft, or with such amendments as both Houses of Parliament may have agreed to.
I should like to ask the Government the specific question whether, if they approve of the principle of this proposal, they will in future legislation not insert the clause that is now normally inserted with respect to Orders-in-Council made under the Statute, but will insert a clause in the same terms as in the Government of India Act, 1935.
§ Then, my heading (b) deals with the difficult question of Parliamentary control over the boards of nationalised industries and services. That matter is still under debate. It has been discussed in both Houses, and I do not think that anyone feels that a fully satisfactory position has yet been reached. It is necessary, on the one hand, to have adequate Parliamentary control over these great national undertakings, while, on the other, no one wishes to interfere meticulously with their day-to-day administration. Parliament having decided by law that these industries shall be nationalised, the new régime should not be put under the daily handicap of Questions and Motions in Parliament. But where the balance should be struck in that regard is still not quite clear. This proposal, however, like the proposal in the Bill of 1950, does not raise the whole wide question of Parliamentary control, but aims simply at giving to individual persons who consider themselves to be treated in a way that is unfairly oppressive, rights to secure redress. It gives that individual person access to the Minister; and if the Minister thinks—but only if the Minister thinks—that the complaint shows some reasonable ground, he may communicate with the board, or with the controlling authority of the service concerned; and if he does not get a satisfactory answer he can of his own authority make an order dealing with the matter. That provision has been suggested, and it is one that we commend for the consideration of your Lordships.
May I interrupt the noble Viscount, simply on a point of clarification? In those last few remarks does he mean complaints by the employees of the national boards or the general public, or both?
§ VISCOUNT SAMUEL
I should think both. But it would have, of course, to be a matter for consideration. You cannot 1176 have any "crank" making a complaint and expecting his grievance to be immediately remedied. That would be carefully safeguarded. But there ought to be some kind of access for the subject who is aggrieved.
Heading (c) of my Resolution deals with the recommendations of the Committee on Ministers' Powers which have not been carried out. One of those recommendations is that:Any party aggrieved by the judicial decision of a Minister or ministerial tribunal should have an absolute right to appeal to the High Court of Justice on any question of law.That is a very sweeping and unqualified recommendation, and it has not been fully carried out. Here a new point has arisen in the administration of the law this year, of which I think your Lordships should take cognisance. It was the case of The King v. Northumberland Compensation Appeal Tribunal 1952, and the point is summed up very clearly in the judgment of Lord Justice Singleton, when, on the question of appeals from tribunals or departments, he said this:The regulations under the National Health Service Act, 1946, are of great complexity. The interpretation of them is left to the tribunal; there is no provision for an appeal to the courts. That position arises frequently nowadays. I most earnestly wish that in such cases, where difficult questions of law, and of interpretation, must arise, there should be given some right of appeal.I venture to ask the noble and learned Lord on the Woolsack whether he agrees with that declaration by Lord Justice Singleton, and whether he thinks there ought to be a right of appeal in all such cases on matters of law.
There is another new point which has lately arisen, dealing with the time limitation on the bringing of actions, such as are usually brought in the case of personal injuries. Under the present Statute, public authorities are given a privileged position with regard to the time within which claims must be made against them. They are given privilege as compared with private individual employers or with private undertakings. This matter was referred to a special Committee, under the chairmanship of one who is now a member of your Lordships' House, Lord Tucker, known as the Committee on Limitation of Actions. In July, 1949—that is three years ago—they presented a unanimous Report. In the course of the Report they said that there were 1177 "many anomalies," and they went on to say:That injustice often results to the individual is manifest.That is the view of an extremely authoritative Committee, presided over by a leading member of the Judiciary, in a Report made three years ago. Again, I venture to put a question to the Lord Chancellor. The Committee state:That injustice often results… is manifest.Is that denied? If it is denied, then the Committee must have made a great blunder. If it is not denied, if it is admitted, ought the law to be content to leave the matter there? That is the question, and I ask the Lord Chancellor what action he proposes to take in the circumstances?
A further recommendation of the Committee on Ministers' Powers, twenty years ago, which has still not been carried into effect is that there should be published a report of any statutory public inquiry held on behalf of a Minister, or that, if its recommendations are not adopted, reasons should be given for that course, or words to that effect. That was in the Bill which I introduced two years ago. It is a matter which arouses a great deal of public interest, because after some Minister has ordered an inquiry into some local matter, an inspector or other chairman is sent down, the matter is carefully gone into, often with the help of counsel, and a report is made, it may happen, and very often does, that no one knows what tae judgment of the inspector has been, whether it is in favour of the local authority or against it, whether the Minister is supported by the results of the inquiry or whether he has overruled it. That is a matter which we think should be dealt with in general.
Another point which, again, has aroused a great deal of public attention—I think it is regarded by the popular Press as the kernel of the Bill—is the need for restricting the authority of Departmental officials to enter into and search private premises. That has also been frequently animadverted upon by the courts of law, which have frequently rebuked local authorities for the improper exercise of their powers of inspection. Is it proposed to take any action in that matter? Next there are the Marketing Boards, which have their own tribunals to ensure the proper administration of the 1178 Marketing Acts. Those tribunals have powers to appoint committees; those committees may impose lines on persons whose action has been impugned, and those fines can be enforced as though they had been imposed by a court or law. In the Bill which I introduced it was provided that all such cases should go before a court of summary jurisdiction. But some members of your Lordships' House, particularly Lord Lewellin, thought that that would be detrimental to the work of the Marketing Boards and was not really necessary, provided that the defendant (if a person can be called a defendant in such a case) had the option of having the matter tried in a court of summary jurisdiction and was not required to submit to a fine imposed by a committee behind closed doors.
Next I come to heading (g), which is the last. It suggests that it should be made an offence for any employer to impose any religious, racial or political test as a condition of employment. The specific case was cited of a very important business, a well-known department store in London, which had announced that it would not employ anyone who was either a Fascist or a Communist. So long as it is legal to be either a Fascist or a Communist, a person ought not to be deprived of a chance of earning a livelihood or be boycotted on such a ground by either one employer or all employers, and it was proposed to make that an offence. Some qualification, it has been pointed out, must be made. You cannot have, say, a Conservative Association which is about to appoint a secretary obliged to appoint a Communist as secretary, even though he is better qualified in every non-political direction than any of the other candidates. Similarly with religious organisations, in the case of propaganda being carried on by Catholics or Protestants, or whoever it may be, through agents, some test must necessarily be applied as to the genuineness and sincerity of such persons. There are other similar cases. But it should not be difficult to draft a clause to provide sufficiently for the necessary exceptions.
In the endeavour to secure general agreement on the provisions of these Bills, we have omitted several clauses which were originally intended to be included. In the Bill of 1947 there was a clause touching the question of the "closed shop." That is a highly controversial matter and 1179 a very difficult one, and we agreed that if any measures were necessary they should form part of trade union legislation or of a special Bill. Similarly there was a clause dealing with the Public Assistance Board, but that has been dropped, as a valid objection was raised against it by the late Lord Rushcliffe and others. Again, visiting Forces in the United Kingdom—American, Polish and Dominion Forces stationed here—are permitted to administer their own code of law in dealing with criminal offences. They can do that to the exclusion of writs of habeas corpus. It is, I believe, the only case in which a writ of habeas corpus does not run in this country. There, again, it was felt that the matter should be dealt with, if at all, by special legislation, such as the Visiting Forces Bill which is now before Parliament, and should not be brought into one Statute with these other matters.
No doubt the later speakers in this debate will point to many technical difficulties with regard to these particular provisions. But technical difficulties need not be insuperable. I would ask your Lordships to remember what happened with regard to the National Registration identity cards. They were adopted originally during the war because everyone agreed that there must be control over the whole population and the people were willing to submit to any restrictions that would help to win the war. But when the war was over, and questions of security did not arise in the same connection, these identity cards were continued in operation and were even used as a means for checking road offences and in other ways. A good citizen, Mr. Willcock, deliberately infringed the law in order that the case should be adjudicated upon, and the King's Bench took the matter very seriously. A special Bench of seven judges adjudicated upon it and they had to convict Mr. Willcock of an offence. At the same time they uttered some caustic opinions about what had become a misuse of the system of identity cards. The present Lord Chief Justice uttered one of his characteristic, forthright observations, such as we all admire so much—when we agree with him!
The immediate effect was that the police, on instruction, gave up calling for identity cards in such cases. The Government, then the Labour Government, 1180 refused to abandon the system. It was brought before your Lordships' House in July, 1951, by my noble friend Lord Reading, who moved a Resolution:That … the use of identity cards is unnecessary and oppressive, and should be discontinued without delay.That was hotly opposed from the then Government Bench, the spokesman on that occasion being the noble Lord, Lord Shepherd, who said that it was essential to maintain this system, and that its abolition would cause confusion and maladministration in matters of food rationing, National Service and national registration. The House, however, carried the Resolution by 54 votes to 26. Public opinion was strongly aroused and very much objected to the continuation of these identity cards, which really constituted a system like that in vogue in Continental countries, where the individual is called upon to carry police papers everywhere—a kind of domestic passport, to be produced whenever demanded. That is one of the most characteristic marks of the Police State, and public opinion here would have none of it. Therefore when the new Government was formed last February, by a stroke of the pen they abolished altogether the system of identity cards, announcing that they were thereby making an economy of 1,500 in staff and about £500,000 in expenditure. And, so far as I know, no inconvenience has been caused in any direction as a consequence. So I think we may take heart by that precedent—some may take heart and others warning—and not be so ready to assume that difficulties, such as there may be, are necessarily insuperable. They will find that if they have the will, they can find the way. I beg to move.
Moved to resolve: That this House, considering that various encroachments upon the Liberties of the Subject have taken place in recent years, would favour the introduction of legislation to restore and preserve those liberties; and in particular—(a) to provide for more effective Parliamentary control over the issue and administration by Government Departments of statutory orders, rules and regulations; (b) to enable Parliament to exercise greater control over the Boards of Nationalised industries and services; (c) to implement those recommendations of the Committee 1181 on Ministers' Powers, 1932, which have not yet been carried into effect; (d) to restrict the authority given to departmental officials to enter and search private premises; (e) to transfer to the Courts of Law, at the option of the defendant, the power given to Marketing Boards to impose penalities; (f) to abolish the existing distinction between public authorities and private persons in respect of the limitation of actions; and (g) except where the special nature of the employment may require it, to make it unlawful for public authorities or private employers to impose any political, racial or religious test as a condition of employment.—(Viscount Samuel.)
§ 3.33 p.m.
§ LORD MILNER OF LEEDS
My Lords, may I begin with an apology to your Lordships? I think there is nothing more discourteous than making a speech and immediately leaving the House. Unfortunately, I have to-day a public engagement which will necessitate my leaving your Lordships' House for a short time, and in that circumstance I hope your Lordships will acquit me of discourtesy. The noble Viscount, Lord Samuel, has introduced, in his own eloquent, concise and delightful way, a very great subject, a subject of which there are a thousand and more facets, one of which was demonstrated in your Lordships' House yesterday. To-day, and, as I gather, not for the first time, the noble Viscount is not really dealing with the subject of liberty in a general sense; he is raising a number of specific instances in which he suggests that there has been an encroachment on the general principle. To some extent, they are matters in which the noble Viscount really proposes improved machinery for ensuring that these encroachments are avoided or lessened. Whether the noble Viscount be right or wrong, we must all be grateful to him for raising this subject on these occasions, because it has been truly said that:arbitrary power has never been introduced into a country at once—it has been introduced by slow degrees as it were, lest the people should see its approach.I was rather concerned, however, that the noble Viscount should animadvert upon what my noble friend Lord Jowitt said on the last occasion when this matter was discussed. I think the noble 1182 Viscount, Lord Samuel, was a little unfair to the noble and learned Earl. I have had an opportunity of reading that debate, and while it is true that my noble friend Lord Jowitt did point out a number of practical difficulties in connection with many of the matters raised by the noble Viscount, at the same time he not only laid down a number of general principles, but also pointed out the great advance in freedom and liberty which there had been in many directions in the last few years. If my noble friend or I were to discuss the general question of liberty, I am sure we should both say that the great majority of our people were never so free as they are to-day, for they have been largely relieved of grinding poverty, bad housing, a life of toil for long hours and intermittent unemployment, which was so often their lot in past days. They have reached a stage of comparative comfort, regular work and freedom of choice in work, and their conditions of working, their housing, their health, their pensions and their old age are now the constant concern of all those who may be elected to represent them, and, I doubt not, of all members of your Lordships' House. Therefore, in my opinion, they have attained a freedom, a dignity and an independence never before achieved. Beside these changes, the mild restrictions on their liberty, which nowadays are not confined to one section of the community but are suffered and, indeed, consented to by all, are surely of very minor consequence. Indeed, we have almost approached the time when, in the words of John Wycliffe:There be neither serfs nor nobles, but all are equal.I think we can agree in some measure with most of the noble Viscount's suggestions, but there are some practical difficulties. The matter of delegated legislation is a thorny one, but it is one of which I had some experience and in which I think the present evil suggested by the noble Viscount is somewhat exaggerated. In another place, and I believe also in your Lordships' House, there are Committees with extremely competent advisers, whose duty it is to consider all statutory rules and orders and bring those they think fit to the attention of the House. As your Lordships know, most of these orders relate to comparatively minor matters, to alterations in rationing, prices, utility 1183 clothing and the like—matters of importance, but not of the greatest importance. In another place all orders, whether requiring an Affirmative or a Negative Resolution, are considered by that scrutiny Committee. I gather that in your Lordships' House only those orders which require an Affirmative Resolution are considered by the Committee.
I know that in another place quite a number of factors are borne in mind by the Committee. It is not possible in such a Committee to go into the merits of these orders, because the Acts of Parliament authorising them deal with the merits, and the orders made under these Acts merely carry out the details authorised, or presumably authorised, by the Acts. Therefore the power of such a Committee is limited. They can deal only with questions as to whether orders exceed the power given to them by the Act; whether the orders deal with retrospective matters; whether a charge is involved; whether orders are clear or require some further elucidation, and whether the explanatory notes are adequate for their purpose: and they do not go into the merits of the matter.
The difficulty is that these Committees sit after the horse has bolted and the stable door has been closed. In my submission, the Committee ought to sit on the particular provisions of the Bill authorising these powers before the Bill comes before the House. Obviously, when an Act of Parliament authorises the powers, then those powers are there, and a Committee cannot at that stage, after the Act of Parliament has been passed, deal with the merits, but only largely with the technicalities of the situation. Therefore it seems to me that the question might be considered whether some Committee should not sit to consider those provisions of a Bill which propose to authorise the delegation of certain powers. It would then be possible to deal with those powers on their merits, to make a report to the House, and to modify, not the rules and orders, but maybe the Bill itself before Parliament. That, in my submission, is one of the remedies which would be better than the present provision.
The noble Viscount, Lord Samuel, then raised the question of Parliamentary 1184 control over nationalised industries. Here I express only my personal views. This clearly is a difficult question. Your Lordships will all agree that detailed control by Parliament cannot be expected—indeed, we have seen in the last few weeks evidence of the muddle and uncertainty into which the intrusion of political motives into the administration of the nationalised industries has got us. Party politics and the crack of the whip, perhaps, enter into too many matters such as these, where independent judgment would be far more valuable and would have better results. I am not clear whether the noble Viscount suggested any new procedure. I gather he puts forward the suggestion that a complainant might have the right of complaining to the Minister. I notice that in a previous debate my noble friend Lord Hall pointed out that there were facilities of that sort to-day, so far as consumers are concerned—and I think the noble Viscount, Lord Samuel, referred more particularly to consumers. My noble friend said (OFFICIAL REPORT; Vol. 167, Col. 1106):Consumers' consultative machinery was set up in each industry for the precise purpose of enabling the grievances of consumers to be thoroughly ventilated and, if necessary, brought before the Minister who is empowered to give directions to the boards.Similarly, so far as workpeople are concerned, my noble friend pointed out that their grievances are dealt with through conciliation machinery.
The real remedy, perhaps, is that Ministers who are responsible to Parliament for these nationalised industries should take a stronger line with regard to them. Admittedly, the detailed work has to be left to the boards, but it seems to me that in many instances Ministers might take a stronger line than is at present the case. I do not think the noble Viscount, Lord Samuel, is right with reference to complaints. Every Member of Parliament throughout his whole period as a Member receives multitudes of complaints, many of them latterly relating to the nationalised industries. The Members of the other place send those complaints to the Minister responsible, who passes them on to the chairman or the appropriate official of the particular nationalised board, and gets an answer. Therefore, for the reasons given by my noble friend Lord Hall, as well as for the other reasons I have indicated, I do not think 1185 Lord Samuel's complaint is justified. I feel that when the nationalised industries have been give a little time in which to settle down these matters of division of responsibility will be clarified and placed on a more satisfactory basis.
The noble Viscount, Lord Samuel, then raised the question of powers of search. Here, as in so many of these questions, the old problem of holding the balance between liberty and order arises. How far are these powers of search necessary? I imagine that your Lordships, without exception, would be glad to see any done away with that could be properly done away with. But we do not know how far these powers are necessary. I should have thought that one course which might be adopted would be to set up a Select Committee to consider all these various powers of search, to hear evidence and to make recommendations. It cannot be expected that Departments themselves will take very effective action in getting rid of their own powers of search, but the appointment of an independent Committee, hearing evidence and making recommendations, might well result in a large reduction in the number of those powers.
With regard to the question of the limitation of actions, as a practising solicitor I am certainly in favour of having the limitation of time during which actions may be brought the same for all. As I understand it, that was the point raised by the noble Viscount, Lord Samuel. I know of no justification for a private individual being placed in a different position from the public authorities, the Crown (I think an alteration has been made here by the Crown Proceedings Act) or the national hoards. In my experience, and in the experience of all those having to do with these matters, great hardship has been caused to ignorant but quite innocent people because the various time limits, for one reason or another, have been uncertain and have been overlooked.
The last proposal of the noble Viscount, Lord Samuel, may give rise to difficulties, but, with the proviso which he went into at some length to-day, I would support it. Finally, in congratulating the noble Viscount, I would remind him and also the Government of another quotation from Milton:This is not the liberty which we can hope, that no grievance ever should arise in the 1186 Comonwealth—that let no man in this world expect; but when complaints are freely heard, deeply considered and speedily reformed, then is the utmost brand of civil liberty attained that wise men look for.Complaints have been, and will be, "freely heard" in your Lordships' House to-day. Let us hope that they will be "deeply considered and speedily reformed" by those responsible.
§ 3.48 p.m.
THE LORD CHANCELLOR (LORD SIMONDS)
My Lords, I am sure I shall be speaking for every member of your Lordships' House when I say with what pleasure we hear the noble Viscount, Lord Samuel, once more blow the trumpet of liberty. That has become a biennial privilege and pleasure, and I hope that it will go on for a long time. Speaking for myself, I rejoice that the exigencies of constitutional propriety demand that I should leave the Woolsack and stand on the floor beside him, for, in truth, we are, I believe, at one in mind and heart on these matters. We enjoy the same ideas of liberty, and we indulge in the same sentiments: we can even quote Milton together, though not perhaps to quite the same end.
I think the difference between us is this. I do not find it possible to advise your Lordships to put into an Act of Parliament a provision that "a noble and puissant nation" shall arise "like a strong man after sleep" and, in effect, I think it would be as effective to put a provision of that kind into an Act of Parliament as to legislate in the terms of this Motion. The Motion resolves:That this House, considering that various encroachments upon the liberties of the subject have taken place in recent years, would favour the introduction of legislation to restore and preserve those liberties.…As a general proposition, that is wholly unexceptionable. I believe that there is nobody in this House who does not welcome that proposition but, like my noble and learned predecessor upon the Woolsack, when I come to the specific provisions by which the general sentiments are to be enforced, I must confess that I join issue with the noble Viscount. Joining issue with him upon these specific details which he proposes, it is impossible to assent to the Motion, though it may be prefaced with a preamble to which we all assent. Therefore, I find it necessary to refer to some of these specific provisions which the noble Viscount submits 1187 to your Lordships as being provisions necessary to restore and preserve our ancient liberties.
I am conscious that I must do just what my noble and learned predecessor did—that is, go through these items one by one. I shall endeavour to do so as shortly as possible, but many of them raise issues of the utmost difficulty and complexity. I can only crave your Lordships' indulgence if I do not go into each of them as fully as some of your Lordships might wish. Now let me be a little selective. I should like to take all of them, but not quite in the order in which they appear in the Resolution. The first one that I would take is the one to which reference was made in the speech of the noble Lord, Lord Milner, whose experience in these matters must, of course, be of great assistance and value to your Lordships—I refer to the proposal that we shouldabolish the existing distinction between public authorities and private persons in respect of the limitation of actions.Upon that proposition I am bound to make this observation: that that is included as one of the ways in which we are to recover our ancient liberties. We are to restore and preserve our ancient liberties by abolishing that distinction.
Now, with great respect, nothing could be more misleading than to suggest that a distinction between the period of limitation in respect of which an action can be brought against a public authority and a private person is any innovation of recent years. On the contrary, it was in the year 1893 (when the noble Viscount was already embarking upon his political career), in Mr. Gladstone's Government, that the Public Authorities Protection Act was brought in. That Act did not for the first time introduce this difference, but perpetuated, confirmed and elaborated it. If I may go back a little further, I will go back to the year 1875. The noble Viscount was then at the age of five, and I dare say that he was already perusing the Statute Book. If he had done so, the first thing that might have met the gaze of the infant Samuel would have been section 264 of the Public Health Act, 1875, which included just such a provision as this.
THE LORD CHANCELLOR
The noble Viscount says that he remembers it well. I thought perhaps he might have failed before he reached quite that section of the Act. That is only one example, if I may say so with great respect, of the fallacy of this Resolution which the noble Viscount proposes. This is surely not a question of restoring our ancient liberties, although it may be one of effecting a proper reform in the law.
It is true that in the year 1948 a distinguished Committee, under the chairmanship of my noble and learned friend Lord Tucker, was established in order to examine this question, and that Committee reported in favour of assimilating the law as between private persons and public authorities. I remember reading the Report at the time, and I have recently refreshed my memory on it. That Report was made in July, 1949, and for two years and three months it lay, no doubt, on the table of my predecessor and his colleagues. Something might have been done. I think some things were done. The matter was investigated and the very great difficulties of implementing this report, which referred not only to that but to other matters which required emendation in regard to the law of limitations, were considered. I can only tell the noble Viscount that, while I make no promises, it is a matter which I will look into personally in order to see whether it is possible—although, indeed, the legislative programme is sufficiently crowded—to do anything in regard to that matter. Now this points what I was saying. If I vote in favour of this Resolution, I vote in favour, in particular, of abolishing the distinction to which I have referred. I cannot do it, and I cannot invite your Lordships to do it.
Now let me turn to another point, and I will do it as shortly as I can. I refer to heading (e) of the noble Viscount's Motion:to transfer to the courts of law, at the option of the defendant, the power given to marketing boards to impose penalties.Theoretically, no doubt, there is lot to be said for that proposal. But the fact is that those who are concerned—the licensed producers who are subject, if anybody is, to penalties—do not want it. I have made inquiries—it is difficult of course to prove a negative—and I have not heard of any demand at all for this amongst the persons affected. They 1189 prefer self-discipline, as do many bodies, professional and others. I believe they object altogether to the suggestion that the power vested in their own disciplinary committees should be transferred to courts of summary jurisdiction. In fact, they do not believe that "the man in Whitehall knows best." They want to manage their own affairs, and I hope they may be allowed to do so.
This does not rest simply on my own opinion or ipse dixit—I should be sorry if it did. This matter was fully explored by a Committee which was presided over by the noble Viscount, Lord Falmouth, which reported in the year 1939—that is, after the Marketing Act, 1931, had been in operation for some years. They had to consider not only Marketing Acts but other Acts under which similar schemes were established, such as the Herring Fishery Act and, I think, one of the Mines Acts. That Committee, having fully examined precisely the point of view which the noble Viscount has put forward, unanimously recommended that there should be a disciplinary committee, consisting of an independent chairman and four or five members of the board, and rejected recourse to courts of summary jurisdiction, on the two main grounds that the committee were not dealing with any offence against the community but against the members inter se. They rejected recourse to a court of summary jurisdiction for the further reason that they saw in recourse to such a court great expense and inconvenience and, what was thought very undesirable, the possible stigma of a criminal conviction. Accordingly, from that day to this there has been no demand, except in this House by the noble Viscount and others who have spoken with him, for this provision which finds its place in the noble Viscount's Resolution to-day. That is another reason why I, at least, cannot vote, or invite your Lordships to vote, for this Motion.
Now perhaps I may turn to item (d), the purpose of which isto restrict the authority given to departmental officials to enter and search private premises.We are at one in this: that we should like that power to enter private premises to be restricted within as narrow limits as is possible, conformably with the social legislation to which both Parties are pledged. Now, I can give your Lordships 1190 one or two figures which may be encouraging. An answer was given in another place only the other day on this subject. The number of persons authorised to enter upon private premises in the month of July, 1952, was 16,744. Of them, 3,887 were authorised to enter private houses exclusively used as such. Those numbers represent a diminution of 2,451 and 2,101 respectively since June of the previous year; so there has been a substantial reduction in the numbers of those persons.
But I do not hold out a great hope of a large reduction, for two reasons. The first is this. So long as food rationing goes on, there must be inspectors to see that the law is carried out. I hope—indeed, I am sure—that when food rationing ceases there will be a great reduction. But, apart from those inspectors who are concerned with offences against the laws dealing with food, there are a number of other inspectors, whose inspection is necessary to the carrying out of laws which both Parties have passed. I could not help reflecting (since I had already seen the terms of the noble Viscount's Motion) that he sat here yesterday applauding the passing of a Bill called the Heating Appliances (Fireguards) Bill. That Bill provided for entry into private houses for the inspection of fireguards. What is true of that Bill is true of a score of other Bills. I am sure that if the noble Viscount carries his mind back—I speak from a very uncertain memory—he will recall that he was responsible for one of the Factory Acts—at any rate, a Factory Act was passed by a Government of which he was a member—and that Act provides that all factories must have proper inspection. Similarly, if you are to deal properly with foot-and-mouth disease you must have proper inspectors. You cannot get rid of inspectors who have a right of entry so long as there are laws which we deem it necessary to pass in what is called the Welfare State. With regard to this third item also, I find it quite impossible to vote for an item of legislation which says in general that authority given to Departmental officials to enter and search private premises shall be restricted. We all hope it will be restricted and that it will not last one moment longer than is necessary. But we cannot legislate for that: it must depend upon the particular circumstances in which each law is passed.
1191 Now I will, if I may, deal with item (b). I fear I am keeping your Lordships far too long a time, but I have been invited to go through these items and I will deal with this one very quickly. Item (b) invites you to legislate so asto enable Parliament to exercise greater control over the Boards of Nationalised industries and services.I am quite sure I can be brief with regard to this matter. The relation between Parliament and the nationalised industries presents to my mind the greatest problem of to-day. There is a Select Committee dealing with this matter with these terms of reference:To consider the present methods by which the House of Commons is informed of the affairs of the nationalised industries and to report what changes, if any, in regard to the provisions laid down by Parliament in the relevant Statutes may be desirable in these matters.Probably the noble Viscount would agree that it would be very unwise for this House to commit itself to any Motion demanding legislation in that regard until we know what the Report of that Select Committee says. So I am afraid I must regard item (b) as gone, too.
Now I come to what is the most troublesome part of this matter. I refer to items (a) and (c) which can, I think, conveniently be considered together. Item (a) is in very vague and general terms, and I was not at all sure to what point the noble Viscount was going to direct himself. Item (a) invites your Lordships to legislate:to provide for more effective Parliamentary control over the issue and administration by Government Departments of statutory orders, rules and regulations.Item (c) invites you:to implement those recommendations of the Committee on Ministers' Powers, 1932, which have not yet been carried into effect.Now, as I have had the temerity to tell your Lordships before, I was myself a member of the so-called Donoughmore Committee. I was worse than that: I was one of a small drafting Committee of three which was in the first place responsible for this Report. Therefore, I was invited by the noble Viscount, when this question was raised, to renew those ancient labours and to see not only what 1192 we recommended but how far our recommendations have been carried out. Your Lordships will see that you are invited to:… implement those recommendations … which have not yet been carried into effect.May I briefly ask your Lordships' attention to that matter? I cannot help reminding myself that we are endeavouring to discuss in a short afternoon matters which occupied a strong Committee for over two years. I am happy to see one member, at least, of the Committee in this House, the noble Viscount, Lord Waverley. I think that he and I and the noble Lord, Lord Schuster, are the only three survivors of that body.
The recommendations of the Donoughmore Committee were these. The first, which has not been implemented, does not in any way touch the liberties of the subject. We begged that in all future legislation there should be a consistent nomenclature and there should not be orders, regulations and rules all referring to the same thing—that the same word should be used when the same thing was meant. The draftsmen have not found it possible to follow our recommendation there, but I do not think that that very much matters. The second recommendation was thatThe precise limits of the law-making power which Parliament intends to confer on a Minister should always be expressly defined in clear language by the Statute which confers it: when discretion is conferred, its limits should be defined with equal clearness.I think that has been done. Then Recommendations III and IV of the Committee referred to the abandonment of the "Henry VIII clause," a clause which used at one time to be inserted on rare occasions in Statutes giving the Minister power by order to modify an Act of Parliament so as to bring it into operation. That has never found its way into any Statute since our recommendations were made. Then we recommended in Recommendation V:The use of clauses designed to exclude the jurisdiction of the courts to inquire into the legality of a regulation or order should be abandoned in all but the most exceptional cases, and should not be permitted by Parliament except upon special grounds stated in the Ministerial Memorandum.which we recommended should be attached to the Bill. That has been carried out expressly in its entirety. Our sixth recommendation was really a 1193 corollary of that. In our seventh recommendation, we referred to immunity from challenge, and that has been carried out.
Now I come to a very technical point and I am not going to trouble your Lordships with it. It has been, I think, of great importance. We made a number of recommendations in regard to the Rules Publication Act, 1893, advising its amendment. That recommendation was carried out by the late Administration in the Statutory instruments Act, 1946. Recommendations VIII and IX both refer to that. Recommendations X, XI and XII were all carried out, and in recommendation XIV we recommended a Standing Committee to consider and report on every regulation and rule made in the exercise of delegated legislative power. That has been carried out both in another place and in this House.
§ VISCOUNT SIMON
Forgive me for interrupting, but I have before me the Report of the Committee on Ministers' Powers to which the noble and learned Lord is referring, and I find that at page 115 there is a series of specific recommendations numbered from I to XI.
THE LORD CHANCELLOR
Yes. Perhaps I can help the noble and learned Viscount. He is looking at the wrong place in the Report. There are two Parts to this Report. I will come to the Second Part later. First of all, I am dealing with delegated legislation. Secondly, we come to the exercise of judicial or quasi-judicial powers. If he turns to pages 66 and 67 of the Report, the noble and learned Viscount will see the subject matter with which I have been dealing.
THE LORD CHANCELLOR
It will be convenient if I come to that at once. I will take it briefly. We were here embarking on what I say is a very difficult topic, the question of the exercise of judicial or, as they are sometimes called, quasi-judicial powers of Ministers. I do not intend to embark upon that very difficult topic. What I am going to say is that, as a general proposition, I entirely concur in what the noble Viscount has said, that there should be an appeal on a point of law to a court of law. That, as a general proposition, is 1194 unexceptionable, but I cannot commit myself to saying—and indeed it would be futile—that there ought to be legislation in order to provide for it. Obviously, every case must be determined on its own merits.
There are, I believe, not many cases where there is not an appeal on a point of law to a court of law, but there are such cases and I will give one example. Under the National Insurance Act, and equally under the National insurance (Industrial Injuries) Act, Parliament, in its wisdom, and after much consideration, determined that certain questions should not be susceptible of appeal to an ordinary court of law. That Act had a very interesting provision in this way: that it carefully divided the subject, some matters being appealable from the insurance officer to the Minister, and the Minister having power to refer a point of law to a court of law, as had anybody who was aggrieved by the Minister's decision. Other matters it was determined should not be so dealt with, and it was provided that they should go from the insurance officer to the local appeal tribunal and thence to an appeal tribunal which was, in fact, the commissioner of insurance and certain deputy commissioners. They were wholly independent, and it was perhaps unfortunate that they were called "commissioners"; they were men qualified by their legal attainments to act as judges and they were, in fact, a legal, specialised tribunal. Parliament determined—and I venture to think, wisely determined—that in such cases, where there had been an appeal from a local appeal tribunal to an appeal tribunal consisting of legally qualified persons, there should be no further appeal.
That has been going on since 1946, and I think it has gone on long enough for us to be satisfied that the system has worked reasonably well. But it does not quite rest there, because a somewhat similar system had prevailed ever since 1911, and I think that the noble Viscount, Lord Waverley, will remember that time. This system of adjudication was evolved under the Unemployment Insurance Acts, and has remained substantially unchanged under those Acts since 1911. It was examined by a Committee presided over by Sir Harold Morris in 1929, which did not recommend any major change. 1195 It was again examined by the Royal Commission on Unemployment Insurance, presided over by Judge Holman Gregory in 1932, which recommended that the machinery was working satisfactorily. They said:We have no major alteration to suggest in the general framework of adjudication.So when the noble Viscount asks me the specific question, am I prepared to say that in all cases there should be an appeal to one of our established, recognised, well-known courts of law, I say, "No." I say that there may be cases (I think that to-day there are cases), where an appeal is properly taken to a specialised court of law—not to the High Court or the county court as we know them, but to a special court of law set up to deal with the particular problem, manned by judges who have a particular and specialised knowledge of the subject.
§ VISCOUNT SAMUEL
I am sorry if I was wrong in making that claim, but it is the claim which was made in the Report of the Committee of which the noble and learned Lord was a member.
THE LORD CHANCELLOR
I think, if I may say so, that there is some confusion in terminology. I should hesitate to call the commissioners who hear these appeals "ministerial tribunals," but if indeed we went too far in the Donoughmore Report then we must suffer for it. I myself think that the system has worked well; and all I can say, having then and now, and in the interval, given much reflection to that matter, is that it would not be right to say that in no case should a right of appeal to the courts of law on a point of law be denied where there is a specialised court which will deal with the subject. That is the best answer I can give to the noble Viscount.
§ VISCOUNT SIMON
For the benefit of those members of the House who have not the Donoughmore Report before them, would the Lord Chancellor be good enough to read Recommendation No. VIII on page 117? Then perhaps he will tell us whether that was the view which he then held, or whether he has changed his view since.
THE LORD CHANCELLOR
Of course I will assist not only the noble and learned Viscount but any member of the House in any way that I can, but I 1196 do not propose to be cross-examined upon it, as the learned Viscount will appreciate. This is a Report of 118 pages, and if the noble and learned Viscount would be good enough to look through it (not indeed now, but he might employ his leisure hours in doing it), I think he will find perhaps that there is some little doubt as to how far the words in Recommendation VIII should go.
THE LORD CHANCELLOR
As to whether I have changed my mind or not, I have often changed my mind; that is the privilege of a reasoning man. At any rate, the state of my mind now is that I decline to say that in every circumstance there should be a right of appeal to a court of law on a point of law, particularly where a specialised tribunal has been set up. I hope the noble and learned Viscount will forgive me if I do not go further into the Donoughmore Report.
§ VISCOUNT SAMUEL
There is one other recommendation in the Donoughmore Report which I quoted, which deals with the publication of inspectors' reports. That is to be found on page 116, and it is Recommendation No. VI.
THE LORD CHANCELLOR
I am much obliged. I was going to deal with that. This is a matter of great complexity, and I am sorry if I have missed anything with which I should have dealt. It is a question upon which very different opinions have been held. I think it is a nicely balanced issue, whether in any particular case the report of the inspector should be published. Speaking for myself—and I think I am only echoing what the Donoughmore Report itself says—I think that, as a general rule, the report should be published. But, there again, I feel that it is a matter about which it would be impossible to generalise and to legislate, and to say that in every case the report of the inspector should be published. I think it will be within the recollection of Lord Waverley that there were few things which were discussed at greater length or caused more difficulty in our consideration than this matter. Perhaps the noble Viscount would be good enough to refer me to the page.
THE LORD CHANCELLOR
My recollection is quite right, I think. That recommendation says:In any case in which a statutory public inquiry is held in connection with the exercise of judicial or quasi-judicial functions by Ministers, the report made by the person holding the inquiry should be published; and only the most exceptional circumstances and the strongest reasons of public policy should be held to justify a departure from this rule.I think that is substantially what I was putting to your Lordships. As a general rule the report should be published; but as we point out here, it is impossible to legislate for it, because there may be valid reasons why a departure from that rule should be made. That is another reason why I could not vote for the noble Viscount's Resolution, because he would, I think (I may be doing him an injustice), suggest that in every case the report should be published. Clearly there are cases in which it cannot be published. I think the experience of every one of us who knows anything about local administration, must establish that there are cases in which it cannot be published.
Unless there is something more in this voluminous Report, that leaves, I think, only one other matter, that under heading (g) in the noble Viscount's Resolution. There he asks usexcept where the special nature of the employment may require it, to make it unlawful for public authorities or private employers to impose any political, racial or religious test as a condition of employment.I remember when this matter was last brought before the House, the noble Viscount, Lord Hall, protested in the most vigorous terms on behalf of the trade unions against any such form of legislation. And I believe that it would be absolutely impossible to legislate for such a thing. It is a matter which must be left to the conscience, good feeling and good sense of employers. That was the view expressed by the noble Viscount, Lord Hall, with all his experience of relations between employers and employed, and I feel sure that that is a matter which is not apt for legislation.
So, my Lords, I come to this: that while I applaud, as we all do, the noble sentiments of the noble Viscount, Lord Samuel, and although I would gladly vote for a Resolution in general terms, when that Resolution is coupled with specific 1198 provisions in almost all of which I find great difficulty and which I do not think are susceptible of legislation, then I find it impossible to vote for the Resolution.
§ VISCOUNT STANSGATE
Before the noble and learned Lord the Lord Chancellor sits down, may I ask him whether he is going to make any observation upon the section of the Resolution marked (a)?
THE LORD CHANCELLOR
I am much obliged to the noble Viscount, Lord Stansgate; I had meant to refer to that. I think the noble Viscount is referring to the suggestion that statutory orders, or instruments as we now call them, should be subject to amendment as well as to annulment. That again was a matter which the Donoughmore Committee examined at great length. As your Lordships know well, I do not speak from any personal Parliamentary experience, but I do know that on that Committee we had members of great Parliamentary experience, and the opinion was unanimous that it was quite impossible to allow this power of amendment because it would defeat the very purpose of delegated legislation. The speed, the flexibility which is possible where you have only the power to annul would be gone if you had the power to amend. Inevitably, any regulations might be subject to what would, in effect, be a Committee stage. There would have to be Amendments sent from one House to the other, and the speed which is the postulate of delegated legislation, and the flexibility of it, would be entirely defeated. As I have told your Lordships, I do not speak from my own Parliamentary experience, but that was the unanimous opinion of the united experience of those who formed that body. Accordingly, we did specifically recommend that there should be power to annul but not to amend statutory instruments.
With regard to delegated legislation in general, I do not know how it is proposed that we should legislate in any way to deal with it, and I have not heard any proposals. I must therefore be absolved from dealing any further with the vague generalities of that part of the Motion. So I repeat what I have said—and I am afraid that I have occupied your Lordships' attention for far too long: that with regard to the specific items there are many with which I cannot agree, but with the noble sentiments which form 1199 the preamble, I agree entirely, and I should like to vote on them if they stood alone.
§ 4.32 p.m.
§ VISCOUNT STANSGATE
My Lords, I should like first of all to say that it is now about fifty years ago—to be exact, I think it was in 1906—that I first saw the noble Viscount, Lord Samuel, in action in Parliament. If he will allow me to say so, I do not think that he has advanced one year in age or lost any degree of his vigour since that time. It was a great pleasure to hear him to-day put his case, as he did, in a way which must have appealed to all members of your Lordships' House. This has been largely a legal debate in the last hour, and I was hoping that one ex-Lord Chancellor was going to be permitted to cross-examine the sitting Lord Chancellor. That would have been something worth listening to. But the Lord Chancellor says that he will not be cross-examined, and that, of course, disposes of that matter. I am speaking purely as a private member of this House and as one who was at one time a private Member of the other place, and I should like to put before your Lordships the sort of problem which is really represented in heading (a) of the noble Viscount's Resolution—that is, the problem of statutory orders, rules and regulations. It is a very difficult question, and it is impossible to give a simple answer. If you are on the Government side you are inclined to take the departmental view, the Caligula view, that people have one neck. If you are on the opposite side of the House you have many ingenious suggestions to put forward, and opportunities for criticism. But whether you are on the Government side or on the Opposition side, the problem remains as a very serious problem of Parliamentary government.
In those far off times of which I have just spoken, when I entered the House of Commons and found the noble Viscount, Lord Samuel, already a member of the Government, everything was very simple. You moved Amendments of detail—even, for example, to alter the hours of labour. The volume of legislation was, of course, very small at that time. But when we had the social legislation of the Liberal Party which came 1200 to power in 1906, and particularly when we had the vast mass of legislation of the Socialist Party, when they came into office in 1945, the whole machinery of government took on quite a different perspective. Whether you believed in Parliamentary criticism and wished to bring everything to the notice of Parliament or not, it was clearly impossible to do it in detail. That was the reason the power to make statutory rules and orders was not seriously contested, so far as I know, from any part of the House.
In the course of the few brief remarks which I shall venture to address to your Lordships, this is the matter with which I shall deal. I had hoped that the Lord Chancellor would do it, but I should like somebody on the Government side to give us his considered view as to whether something can be done to help Parliament in this difficult technical matter.
THE LORD CHANCELLOR
Will the noble Lord forgive me for dealing only with legislation and not with Parliamentary procedure? The Resolution relates only to legislation.
§ VISCOUNT STANSGATE
That is a purely technical answer. The Resolution, I believe, begins with words suggesting that legislation should be introduced. But the Lord Chancellor surely would not contest that what we are really discussing is the substance of the matter and not the particular form which the Resolution takes. I am dealing with the merits of the subject—namely, whether something could be done to prevent Departments putting to the Houses almost Acts of Parliament dealing with minutiæ(but not always dealing only with minutiæ) and asking us to "take it or leave it" as it stands. That is the problem which faces every member. Every one of us who receives the Blue Papers knows that every fortnight lists are issued of statutory rules and orders that have been laid before the House in the preceding two weeks. They amount to hundreds, and it is quite impossible for anyone, without immense research, to go into them as he would go into the details of a Bill before Parliament.
The noble Lord, Lord Milner of Leeds, in a very interesting speech—because he is a master of the practice of this thing—made the suggestion that once a Bill is passed then the order follows naturally: that when the order comes before the 1201 House one cannot say, for example, "I object to this order which regulates the price of carpets" because the Minister has already been given power to regulate the price of carpets, and the order is merely a detail in the discharge of his duties. Lord Milner suggested that there should be some Committee which would examine Bills which give a Minister power to make statutory orders, before the orders are laid. It is a very interesting suggestion, but it seems to me that it would absolutely paralyse the work of both Houses of Parliament if, before a Ministry could lay something before Parliament, it had to go before some preliminary Committee. The Committee might say: "We cannot allow you in this matter to make a statutory rule. We shall refer it to Parliament." Legislation in such circumstances would become impossible. The noble Lord, Lord Milner, for reasons which he has explained, is not able to be here now. I wish that he were, for I certainly should have invited him to develop that matter a little further.
§ VISCOUNT STANSGATE
I am very glad; perhaps he will accept my invitation to give us some further explanation. I did not know he was here, for he had said that he would be prevented from attending further by a public engagement.
I should like to ask somebody on the Government side (perhaps the noble Marquess the Leader of the House will do so when he comes to reply) to say a word on this matter. We can divide these orders into three classes. There are orders which deal with money, in which we have no say. That is to say they are laid before us—but I am not sure of that; at any rate it they do come before us, we are not invited to express our opinion about them. That I consider proper. There are other orders which require, before they become operative, an Affirmative Resolution. For the purpose of examining these orders, and to see whether this House is justified in agreeing to an Affirmative Resolution, we have a Special Orders Committee which looks into them and says whether this or that order can properly be approved by an Affirmative Resolution of the House. But the vast mass of the orders are orders which are simply laid, and if we do not say "No" they become operative. The 1202 same applies in another place. They have the right to "pray," as they say, against an order. In another place one of the greatest difficulties that Parliamentarians have to face is lack of time. The Government monopolise time, and private Members have little opportunity. But if something is done by order then a Member can, in another place, put a Motion on the Paper praying against the order. As that Motion is exempted business, a Member of Parliament always has the opportunity—true it may be late at night—of contesting an order. In this House that does not apply, of course. We have plenty of time here. Anyone can put down a Prayer on any of these orders.
That brings me to my two final points. The first is: what exactly, in the Government's view, should be done in this House in reference to these orders? In particular, what do they say about the possibility of amendment? For reasons given by the noble and learned Lord the Lord Chancellor, all Departments would resist the amendment of their orders. Bureaucrats. (I am not using the word offensively), public servants, are like mothers at a baby show. They say, "That is my baby." And they cannot bear any criticism whatever of their product. Everyone who has held office knows that it is impossible to go back to the Department and suggest that an order will not do. We know that all Ministers, even ex-Ministers, are more afraid of their offices than of the House; and, of course, they give way to the bureaucrats. But were it possible to consider the amendment of these orders—the noble Marquess mentioned this favourably in the interesting remarks he made some time ago—that would be a restoration of Parliamentary control in a most effective form if it were possible to do so without hindering the steady movement of the administrative machine.
My second and final point is that under two Parliament Acts this House has lost the power to give the final word on any legislation. I think that is right, and I should not like to see the power restored in any form. But if a statutory order, even of great importance, comes forward, this House, by passing a Negative Prayer, retains the power in fact to refuse it, regardless of and over the heads of both Parliament Acts. People may say, "Well, leave it alone. We shall 1203 see how things shape." I am not challenging that, but I think it should be made clear by somebody that there is a current of opinion, which I share, that if such a case arose it would be improper for this House to attempt to resume its veto by means of passing a Negative Prayer against a statutory order. I mention this merely because I believe that no such Prayer has been passed. If that is correct, an excellent precedent has been created. Therefore I venture to put forward these few questions, in the hope that they may receive the consideration of the noble Marquess, the Leader of the House, when he resumes the debate. That would be to the great advantage of private members.
§ 4.43 p.m.
§ LORD ELLENBOROUGH
My Lords, it is with considerable diffidence that I intervene in this debate after the galaxy of experienced speakers who have so far taken part. May I say once again how indebted we are to the noble Viscount, Lord Samuel, who has raised this important issue of the preservation of the freedom of the individual? Certainly it is no less important now than it was when the matter was discussed in your Lordships' House about two years ago. It may, perhaps, be said that the noble Viscount has set the Government something of a herculean task. He has chosen seven tentacles of the octopus he wishes Parliament to confine and restrain. Certainly to devise satisfactory legislative chains to curb the appetite of the monster which is forever feeding on our personal liberties is a task before which Governments may well quail.
I am more concerned with the general principles which inspired this Resolution, rather than with the seven specific points which are contained in it. I believe that something is most urgently needed to give concentrated expression and form to the belief that, even in the planned society which everyone is agreed we must have to-day, nevertheless there is no reason why the rights of the individual should not be as jealously preserved as they have been in the past. As I see it, the liberty of the subject depends on the maintenance of a proper balance between the powers of the State and the rights of the individual. In this connection I take some encouragement from extracts 1204 from a recently published document called A Statement of New Principles. This is a document which has been published by a body called the Socialist Union, and which has, I understand, received the official blessing of Mr. Attlee. It is in rather marked contrast to other documents which are being published by the Labour Party, such as the Fabian Essays. In the Statement of New Principles the class struggle is renounced, and much else of the general mythology for which so long the Socialist Party has been noted. Perhaps I may quote one extract which seems to be relevant today.We are all becoming aware that the concentration of economic and political power in the same hands may, in the absence of measures to avert its dangers, be a threat to the freedom and independence of the individual. His very existence becomes more and more dependent upon forces which, by their nature, are inclined to sacrifice him for the sake of the collective good.I do not know whether this Socialist revulsion against an all-powerful State, and stress upon the individual and the general importance of his contribution to society, will amount to a missionary campaign to convert the followers of the Socialist Party from the errors of their past. It will certainly have to be a veritable crusade if much impression is to be made on certain members of the Labour Party, particularly on Mr. Bevan, who has described the document as "Sunday School Socialism" and made rather scathing references to the document which I would hesitate to quote in your Lordships' House. Perhaps, after all, the document is merely to entice the floating voter and, in particular, the Liberal elector into the Socialist parlour, so that the kiss of death can be placed on the Liberal cheek. At any rate, I like to think that a considerable section of the Labour Party, amongst whom I am sure one can include many noble Lords opposite, stand in unison with the Liberal and Conservative Parties, amongst whose fundamental principles are opposition to the regimented State and freedom for the individual to shape his own life according to his own values, free from the arbitrary trammels of State interference.
I think that in this Welfare State of ours, liberty needs defining in terms of law far more closely than so far has been the case. I venture to remind the Government of the resolution passed 1205 unanimously by the 1947 Annual Conference of the Conservative Party. This was a proposal which called for what was termed, "A Charter of Liberties." This "Charter of Liberties" incorporated some of the proposals in the Resolution before us to-day and certain others as well. I do not wish to advocate anything that savours of a written Constitution, but it seems to me that our last Bill of Rights was rather a long time ago. Today, regardless of what Government are in power, we have government by a Cabinet oligarchy, which by means of an obedient and tightly disciplined majority in another pace can steamroller through Parliament any legislation it desires. In fact, we have a Constitution which, if extremists held office, would enable them to carry through pretty well any policy they liked.
That brings me to remind your Lordships of one of the proposals contained in the "Charter of Liberties," of which no mention has been made in the Resolution before us to-day, and that is, to ensure that the State is not the judge of its own case when in the national interest it deprives a man of his property. I would say that it is perhaps time that there was some constitutional guarantee against property being taken for public use without just compensation. I remember only too well an occasion when a Minister in the late Government was asked whether he thought the Government of the day had the right to take away property of individual citizens without arbitration. His reply was:Yes. I think the Government of the day, which has the will of the people behind it, can do anything it likes.Surely, the only interpretation of that is that there are no constitutional or other limitations to powers which a Government majority may exercise. The State can rob, and rob with impunity, because it can be above moral law.
We have also heard recently some decidedly unpleasant threats, or at any rate hints—I think they were supposed to be threats—from important members of the Labour Party with regard to possible terms of compensation that will be paid to owners of industries that may have been de-nationalised during the lifetime of this Parliament, always assuming that these industries are de-nationalised and that the, Labour Party are returned 1206 to office. This would seem to be not only penalising honest people who may be putting all their resources into a certain undertaking, but also to be penalising them retrospectively. I should have said that any Party is entitled to nationalise, de-nationalise and re-nationalise, but that no Party is entitled to inflict retrospective penalties upon individuals.
I feel that most of us will agree with the principles behind the last point in the Motion before us to-day, which concerns itself with political and other tests as a condition of employment and so on. I must say that I think it would be extremely difficult to introduce legislation on this point. But I should like one day to see incorporated in any Bill of Rights that we may have Article 20 of the Universal Declaration of Human Rights, which has been approved by the United Nations, and which states:No one may be compelled to belong to an association.I know perfectly well that this raises the question of the legal status of trade unions—it is, of course, more properly a matter of trade union law—and also that this Government, at any rate during the lifetime of this Parliament, are pledged to take no action. But it seems to me that to deny the claim of an individual to be free to join or not to join a union or association, as he pleases, is a negation of what the predecessors or our present trade union leaders and others fought for. They fought for, and attained, the freedom of association, and not for the 100 per cent. closed shop which many people to-day appear to desire. We have the unhappy experience of the Durham County Council, and other instances, which seem to provide clear evidence that one day this problem must be faced up to. Perhaps what is needed more than anything is the force of public opinion to be aroused in this matter, and to assert itself as much as possible.
In connection with the nationalised industries, we have built up centres of economic power—somewhat unwittingly, perhaps—which are answerable to nobody but themselves. By no means a nonentity in the Labour Party described the State boards as "a constitutional outrage." I believe that many people in all Parties are now becoming increasingly doubtful whether the concentration 1207 of economic power in the boards of management as at present set up, if extended to other industries, will not merely accelerate the modern development towards a bureaucratic and managerial society, in which the coercive power of the State may well turn out to be far worse than all the alleged evils of capitalism. It would seem, therefore, that we must ensure not to build up two stratas of society, those in the employ of the State, and the remainder. We must also beware lest the State control of industry results in any form of State "black-balling" or victimisation. I also hope that the review promised last year by the Home Secretary on the whole question of powers exercised under the Supplies and Services Act will have a satisfactory outcome from the point of view of the greater freedom of the individual. The powers of the Government can still be described as semi-dictatorial. We are fighting what is termed a "cold" war against Communism—and in some parts of the world it is not just a "cold" war. We must be careful to see that we do not produce in this country the very system that we are bending all our energies, and some of us are making such sacrifices, to defeat.
§ 4.57 p.m.
§ LORD WISE
My Lords, I hesitate to join in this discussion, after hearing a number of legal speeches at very high level, which I cannot attempt to follow; nor do I intend to follow the speech which the noble Lord, Lord Ellen-borough, has just delivered. However, I do want to make one reference in a practical way to point (e) of the Motion before the House this afternoon. I hesitate even to do that, because I realise that in what I have to say the noble and learned Lord the Lord Chancellor has already wiped me out—I am sorry that he has had to leave the Woolsack for a moment. But I am encouraged by the fact that the Lord Chancellor did say that he changed his mind, and perhaps I may change my mind that he is right in what he said, or perhaps he may change his mind and feel that I am right in what I am about to say.
With regard to point (e), the Lord Chancellor said that he thought that amongst the farming industry there was no desire to change the methods by which 1208 penalties were imposed by the Milk Marketing Board. It is some years since I was a milk producer, but I have it well in mind that never have I been more annoyed or irritated by things which happen in a marketing board than by receiving month by month the pamphlet of the Board, the Home Farmer, and seeing that so many small and other farmers had had penalties of a few shillings or a few pounds imposed upon them for failing in small matters, such as failing to render returns, or to maintain records, and the like. I believe that these penalties have not increased in number during recent years, but I have in my hand a copy of the Home Farmer for February, 1952, in which no fewer than forty-seven farmers of all sorts were stated to have incurred penalties, mostly for failing to render returns.
I wish to put to the Government that in future, when they are embarking upon plans for new marketing boards or extensions of the present boards, they should look at the powers of the boards over the producers. In the case of the Milk Marketing Board, it appears to me that the Board have two levels of penalties: one level with a maximum fine of £100, plus any loss suffered by the Board in regard to the retailing of milk without a licence, or any contravention of any determination of the Board in regard to milk selling. That is a fairly high penalty, and I think that that part of the Board's powers might well be referred to a court of summary jurisdiction. The Board also have the power to levy a penalty of up to £20 for smaller matters, such as the failure to maintain records or to render returns, and also in regard to the rendering of false returns, which, of course, is a serious matter. But the others are small matters, which can rightly, I think, be dealt with by a committee of the Board. At the moment, it is possible for anyone who has been fined by the Board to submit the matter to arbitration under the Arbitration Act, 1899. But it is obvious that no farmer who has had a small fine imposed upon him is likely to submit the case to arbitration. Therefore, whilst not entirely agreeing with the Lord Chancellor, I make the suggestion that when the powers of these producer boards are being considered by the Government in future, some alteration may be made in regard to these penalties which may be imposed for various acts 1209 of omission of which the producers may be guilty.
The noble and learned Lord, the Lord Chancellor, said that he thought the industry as a whole would prefer to act as at present outlined, but in my own mind I am not sure about that. Although there is an independent chairman of the disciplinary committee of the Milk Marketing Board, it must be remembered that it is a producers' board and that they are dealing with producers. For that reason the powers which are entrusted to the Board may be open to some sort of abuse. Therefore, in certain respects I believe that it would be better to take these cases to the courts, as the noble Viscount, Lord Samuel, has suggested, though the smaller cases might be left to the Committee. The point of taking a case to the courts is that if it is known that it might go before the courts, it would be some deterrent to the making of false returns or matters of that sort, of which the producer might be guilty. I hope, therefore, that in the future the Government may be able to consider this point.
§ 5.5 p.m.
My Lords, may be allowed to congratulate the noble Viscount on once again initiating a debate on freedom, the most precious inheritance of the English-speaking peoples, one that they have done more than any other people to develop and, by example, to hand on to others? I suggest that the rapid growth of power in the hands of permanent officials, due to wars and rumours of wars, has brought about a growth of regulations; and since, as your Lordships well know, appetite grows with eating, these have grown and continue to grow in number. Some of the regulations that became law for one single purpose could be and are, in fact, being used for another.
I would by way of illustration take the rationing system. This system has all to commend it when applied to food. It is fair and just when so applied. But I submit that it was never intended that it should result in other than the holder of a ration card getting the food to which he or she is entitled. I have been shocked recently to find the information required from an applicant for rations 1210 bringing to that applicant other things than food—persons, and not always desirable persons. Quite recently a friend was lucky enough to find someone to cook for his family, and she, the cook, applied in the normal way for a ration card. To my friend's amazement, and to the cook's fear and disgust, who should turn up but a cruel, sadistic husband, of whom she was frightened and from whom she had escaped, to cash in on her new job—"tipped off" so to do by none other than the police. Your Lordships will be shocked at this and feel very sorry for the cook. I am sure that there was no intention that the system should be so used. That shows the dangers which may result in the wrong use of a system set up for another purpose. Such was surely never intended, and it illustrates how dangerous regulations can be when applied in a manner never intended.
As the noble and learned Lord on the Woolsack has told your Lordships, there are problems of great complexity facing the nationalised industries. In a previous debate, I submitted information to your Lordships with regard to the lack of power of one of the nationalised industries—to wit, the British Electricity Authority—to order the intallation of a piece of apparatus that might be found desirable to be fitted at all the power stations in this country. The system does not allow the headquarters executive to do this, but it does allow the individual power stations to fit it if they are so minded. So far, so good. But it is surely quite wrong that the headquarters, where the technical "say so" must fundamentally lie, should not be able to bring about a change of a desirable nature when some new piece of apparatus is invented and developed.
Were this debate initiated by the noble Viscount to go to a Division, I would certainly wish to vote with him, but in the circumstances I regret to tell your Lordships that I cannot so do, since, by agreement with another Scots representative—to wit the noble Lord, Lord Saltoun, who wished to vote against the noble Viscount—I have paired with him. I am surprised at the opinion of my brother Scot. But I promised to make my noble friend's opinion known to your Lordships. As one descended from a signatory of the outstanding freedom pronouncement of the Scottish Islands, the Declaration of 1211 Arbroath of 1326, I certainly would otherwise give my vote in favour of the noble Viscount if the Motion were pressed to a Division.
§ 5.11 p.m.
§ LORD LLEWELLIN
My Lords, I apologise to the noble Viscount who has introduced this Motion for not being able to be in the House when he did so. It happens that I arranged some time ago to go to a meeting of the Ports Efficiency Committee this afternoon; I was in the chair at it, and so was unable to leave. I understand that the noble Viscount made a reference to myself which I shall read in Hansard to-morrow. I believe that I have to thank him very warmly for what he said. I am glad the noble Viscount has introduced this Motion in the House to-day. I was, frankly, rather sorry that the noble and learned Lord on the Woolsack was not more forthcoming than he was in meeting a number of the points raised, because I believe there is a good deal more that we can do and should do, particularly under a number of the heads raised in this Motion, to ensure a continuous watch on the liberty and freedom of our people.
If we look at heading (b) we shall, I am sure, feel that that must be a matter for scrutiny by every one of us who cares for the freedom of the subject when legislation is introduced. Although it may be pleasant from our point of view—that is to say from the point of view of a Member of another place, or of a Peer, as the noble Viscount, Lord Stansgate has said—to have less detail to attend to, it is quite wrong that the ordinary subject should feel that a very large part of the Statute Law is now only to be seen in quantities; that there are so many thousands of these departmental rules and orders in existence that it is impossible for him to know more than a few. Although everybody is supposed to know the law, I should think there is not one single member of your Lordships' House who knows the details of all these orders and regulations; and among the ordinary persons. I should think that very few have any idea of the existence of the greater part of these orders. What we want, therefore, is to try to limit as much as possible the extension of these statutory rules and orders. Even in the ordinary barristers' chambers, or in the solicitors' the 1212 offices, it is very difficult to keep pace with the vast numbers of these regulations that come out from day to day and from week to week. It is surely time to see whether we can do anything to curb that flow and to make it easier for all those who are assumed by law to know the law to be able more easily to find Out of what that law consists.
With regard to heading (b) of the Resolution, I think that Parliament ought to exercise control, or at any rate greater control than at present, over the nationalised industries. During part of the war I was Parliamentary Secretary at the Ministry of War Transport. In those days we only rented the railways; we did not own them. Any Member of another place could put down a Question asking me about any small point of railway administration—my Minister was in your Lordships' House and I answered all the questions in another place. I remember one question, which was why the price of buns on a station somewhere in the Midlands was a halfpenny higher than it was in most stations in the country. I had to answer that small question to the satisfaction of the inquiring Member of Parliament. But now that we as a nation own the railways we are not allowed to ask anything. I think that that position is quite absurd, and I hope that during their tenure of office the present Government will see that those who sit in Parliament, and who are in a sense trustees of the country's interests in these nationalised industries, will have better facilities than they have at the present time for inquiring into the running of the industries.
Personally, I should like to see set up at the beginning of each Parliament a joint Select Committee of both Houses, which could summon before it members of the different boards, whether it be the Gas Board or the Transport Commission, or whichever body it might be, to give such explanations within the scope of the duties of any member as the Committee might see fit to ask him. Under the American system, of course, committees of Congress have vast powers of sending for people and asking them questions. I should not carry it so far as that, but with regard to these nationalised industries I think some machinery of that kind might well be set up.
1213 The noble and learned Lord on the Woolsack dealt with paragraph (c)—and as he has now returned to the Chamber perhaps I may repeat what I said a few moments ago, that I am sorry he was not more forthcoming in the answers that he gave to your Lordships' House on this Resolution to-day. I believe that we are getting too used to these tribunals, and take them rather for granted. I have always believed—and I have said it once or twice before in your Lordships' House—that people do not believe they are getting a fair and impartial hearing if they know that they are appearing before a tribunal the head of which is appointed by the Minister, who is a party to the case. I have long wanted to see a panel of inspectors created, working under the Lord Chancellor's Department and able to hold those impartial inquiries.
I remember one case very well—I have ventured to quote it before in your Lordships' House. I was once briefed in a case to acquire land for Western Avenue. Many owners of that land were saying that the Middlesex County Council were acquiring too much, or were going a long way. When I had my preliminary talks with the Clerk to the Middlesex County Council I said, "By the way, what is the attitude of the Ministry of Transport on this whole project of Western Avenue?" "Oh." he said, "it is their plan, it is their project. They are paying about 90 per cent. of the cost." So I said: "I do not suppose we shall have much trouble before this inspector from the Ministry of Transport"—and we did not. But I am not sure that that is quite justice. I think it ought to have been an outside person, unconnected with that Ministry, who held an inquiry of that sort. Secondly, I should like to see inspectors' reports published; and if a Minister, if it is an administrative matter, disagrees with them, then let him disagree, but let him give Parliament the reasons for his disagreement. That is the way I should like to see a reform under that head.
When we come to heading (d), I remember saying in our last debate on this subject, on June 27, 1950, that there were some 18,000 people who had powers of entry without warrant. The noble and learned Earl, Lord Jowitt, who was then occupying the Woolsack, told me it was 18,800. I should like to know how many there are to-day.
THE LORD CHANCELLOR
I did give those figures when the noble Lord was out of the House. If the House wishes, I will give them again. In July, 1952, the number was 16,744, of whom 3,887 were authorised to enter private houses exclusively used as such. But I gave the contrasting figures of a year earlier, showing that these figures were, respectively, 2,451 and 2,101 lower than the previous year. That, again, was a reduction, if I have followed the noble Lord, on the 1950 figures.
§ LORD LLEWELLIN
I am obliged to the noble and learned Lord for those figures. I am glad to see that a reduction is taking place. Frankly, I should like to see them all go. If a policeman, who is a well-trained and highly respected person, has to go to a magistrate to get a warrant to enter a private house, why should not an inspector? That is the way I would put it, quite simply. If there is real cause for an inspector to enter a house and he has some real grounds for doing so, let him too go to a magistrate and get his authority for a search warrant for the house. I do not know how many noble Lords I shall carry with me in that suggestion, but if such authority is needed for the police who are a well-trained and highly disciplined force, much respected throughout the country, equally, in my view, there should be a similar obligation on these inspectors.
When we come to heading (e), the penalties which may be imposed by marketing boards, this is what I advocated in the debate to which I have already referred. I then said, and perhaps I may briefly refer to it again, that there is a precedent for this form of procedure. If one happens not to have taken out in time one's road licence for one's car or lorry, or something like that, the local county council or county borough can impose a mitigated penalty. Most wise people quickly pay the mitigated penalty: but, if they do not like it, they can go to a court of summary jurisdiction. I do not see why anybody who does not wish to take lie award of the disciplinary committee of a marketing board should not have the right, if he wishes, to go to open court and have his case tried by a bench of magistrates. I think that in any future marketing Acts, whether or not we alter the position under present Acts, we should certainly consider doing it in that way. I am not sure that 1215 there is very much in the noble Viscount's heading (f), and I must say that I disagree with (g). I think that it would be extremely difficult to restrict private employers in the way that they employ people.
Take, for example, the case of a person's own household where he happens to be a Roman Catholic. Why should not he employ, if he likes, Roman Catholics in his own house? It would be difficult to enforce this idea. I think the matter is much better left as it is at present. For instance, in the case of a schoolteacher, in this Christian country where we have Christian syllabuses in the schools, I should always like to see my headmaster or headmistress a Christian. I am not distinguishing in the least to which Church they should belong, and I do not think it matters; but if I had the responsibility for it, I should never knowingly appoint an atheist to be head of a school and to conduct the daily service every morning in the school, because I do not think that he could do it with that sincerity which would impress itself upon the children under him.
§ VISCOUNT STANSGATE
If I may interrupt for a moment I should like to ask a question, because this is a very old and interesting controversy. Is the noble Lord now suggesting that we should re-impose religious tests for teachers?
§ LORD LLEWELLIN
I say that I personally would, and I should have no hesitation whatever in doing it, because I believe in this country remaining a Christian country. I believe that the struggle in the world to-day is between Christianity and atheistic Communism, and that if you appointed, say, an atheistic Communist as headmaster of a school, he would automatically try to bring up those young boys and girls as Communists. That is a strong view, and I do not apologise in the least for it. I believe that it is an absolutely fundamental view, and a view that is held in quite a different context from the days of which the noble Viscount was talking, in the early years of this century, when no such problem faced this country. To-day I may be the only person in the House who holds this belief, but I hold it sincerely, and I shall continue to do so.
1216 Now I come to a lighter note—because the noble Viscount, Lord Stansgate, is there and he had a word or two to say about the power of this House to pray against an Order in Council. He said he hoped that we should never exercise such a veto. We have no right of veto on legislation, but we still have a right of veto on these Orders in Council, which is not quite the same thing. They are ministerial orders. I hope that we shall be jealous to preserve that right, although I hope we shall be extremely cautious in exercising it. I believe that in these days we ought not to give up any right that makes us equally responsible, with Members of another place, as watchdogs over the liberties of the people. By preserving that negative right we are still maintaining the position: if the worst came to the worst, and if it were absolutely necessary for some action to be taken, we in this House, as has often been done of old, could once again stand up for the freedom of the subject against ministerial decree, which is what a statutory order really amounts to. My Lords, whilst I trust that we shall preserve that right, I hope that it will never be exercised lightly; indeed, I hope that it will never have to be exercised at all. My Lords, I have now spoken for longer than I intended. I am glad that the noble Viscount has once again enabled this topic to be discussed in your Lordships' House, and I hope that some good will come from the debate.
§ 5.31 p.m.
§ VISCOUNT SIMON
My Lords, with the concluding observations of my noble friend Lord Llewellin, I am in the warmest agreement. It seems to me that the House should be grateful to Lord Samuel for raising this matter to-day. I should not myself be able to support his Resolution, for some of the reasons which were mentioned just now in the speech of the Lord Chancellor, for I think that some, at least, of the matters listed in Lord Samuel's Resolution are not matters which, in the interests of restoring and preserving our liberties, call for legislation at this time; but I hope I may be permitted, with sincere respect, to say that I, too, like Lord Llewellin, could have wished that the Lord Chancellor had been rather more forthcoming. To my mind, we are debating a subject of vast general importance, 1217 one in which the development of our own law, for which the head of the law is especially responsible, should be carefully considered as a whole. In the old days, the law of England was, for the most part, declared by the judges, and they were guided by the precedents which had already been established. They decided as justice demanded and they worked out the system of our Common Law; and it is from that service that we derive the great freedoms which we all value—the freedom of the Press, freedom of speech and freedom of opinion, for example. These all really proceeded from the interpretation and application of the law by the judges themselves.
Then there began a period during which, quite rightly, there was added to that a great deal of legislative change. It was essential that there should be passed Acts of Parliament which, to that extent, would modify or extend the Common Law, or would apply it to new situations. During that period, for the most part, these pieces of legislation were deliberate actions of the two Houses, in many cases discussed paragraph by paragraph. Everybody, not only the judges but other people too, understood what was happening. All that is what is now often referred to as the "rule of law," though I think that phrase (which was originally, I think, invented by Professor Dicey, for a much more limited purpose) is sometimes now mouthed without very much regard for what it really covers. It was inevitable in this development (and it has been so in our own time), that there should be many Acts of Parliament which did not provide everything in connection with a given subject, but which authorised regulations to be made by the Departments that were responsible in respect of that subject. We could not carry on the law of education in this country if the Board of Education had not been given by Parliament the power to make regulations about education. We could not provide for the application of the Factory Acts unless we gave power to the proper Department to make a great many regulations under those Acts. As long as we do that, Parliament is authorising subordinate legislation in respect of a particular topic which it is carefully considering and dealing with.
What is the change that has taken place? To my mind, it is a most important change, and I could wish that my 1218 noble friend the Lord Chancellor had referred to it. What has happened is that after two wars we have dropped into the habit of having a large part of the rules which govern our lives drawn up by Departments, not under the express authority of a particular Statute dealing with a particular topic, but perfectly generally; so that at this moment there is, for example, a regulation under which any Department and any competent authority (it is a very wide term) may make regulations of the most enormous width, all of which are to stand as the law of this country. Now that is a very important change, and I do not think much attention has been drawn to it this afternoon. I do not for a moment dispute that it was necessary, especially in the emergencies through which we have been living, to give to Departments by Act of Parliament very wide additional powers. But I do most strongly hold that those powers were powers given in their widest extent mainly for the purpose of the emergency through which we lived, and that we are fundamentally changing, or are in danger of changing, the nature of the law under which we live if indefinitely we go on saying, "All this is to be covered by Regulation No. so-and-so in the regulations under the Supplies and Services Act"—or whatever it may be—"and we cannot help it if the orders are as wide and numerous as they are." To my mind, that is the really big question which is, or ought to be, raised in this debate.
My noble friend Lord Stansgate, with a moderation which I always admire in him, said that he supposed that there might be some hundreds of statutory instruments. He might like to know that in this single year there have been over 1,300, and I will undertake to say that there is no lawyer in this country, indeed there is no man alive, who could give me now one-tenth of them with even approximate accuracy. We must face the fact, whether or not we can get over it, that we are moving into a state of society in which really we are governed more by subordinate regulations than by the law of the land which people discuss in their newspapers, which everybody tries to know, and which everybody ought to understand. It may be inevitable, but I think that it is closely associated with the development of a Socialist State. That is my own view.
1219 I noticed with great interest that the noble Lord, Lord Milner, in following the first speaker to-day, justified and defended the present position by pointing out that, after all, the ordinary inhabitants of this country were better housed and clothed, that employment was good, that their wants were studied, and that in all ways they were happier than they were in the old days. I think my noble friend thought that that was the same thing as saying that the ordinary inhabitant had more liberty. I am all in favour of social reform. But do not make any mistake: slaves on a well-managed slave estate have no unemployment; they are fed, clothed and housed. The real question is, whether or not this development runs contrary to what are our fundamental conceptions of the freedom and rights of individual persons. I think the only way in which that question can be solved is by recognising that we cannot avoid having a great many regulations; that they have become numerous owing to the emergencies through which we have been passing; but that it is a very urgent matter indeed to consider whether there is a means by which they can be reduced or whether there is a method by which they can be resurveyed.
I will not, for a moment, discuss the question of whether or not my noble and learned friend the Lord Chancellor has changed his opinion about part of the Donoughmore Report. I simply do not know. He told me that he did not like to be cross-examined. I was not asking him any question except this: would he be good enough to read to the House the particular recommendation of the Donoughmore Report which seemed to me not to be consistent with what he was saying? But he said he would not he cross-examined, and he did not read it. I will do so. It extends only to three lines and it was signed, I think, by every member of the Committee including the two survivors. It shows the result of very careful consideration. This is what it says:Any party aggrieved by the judicial decision of a Minister or Ministerial tribunal should have an absolute right to appeal to the High Court of Justice on any question of law.I do not mind whether my noble and learned friend still takes that view or not, but it is just as well to know that that 1220 was the unanimous recommendation of the Donoughmore Report in 1932 when the noble Lord, the Lord Chancellor, was a member, and, if I may say so, before he became a politician.
THE LORD CHANCELLOR
May I ask whether there was any innuendo in that? It seemed to me to be a singularly unpleasant observation. What did the noble and learned Viscount mean by it?
§ VISCOUNT SIMON
I will say exactly what I mean. I do not mean to say anything unpleasant. I did think that the noble and learned Lord's defence from the Woolsack this afternoon was not quite so judicial in tone as the Report of the Donoughmore Commission, and I thought he was much concerned to resist this Resolution (I shall join him in resisting it) without really conceding what I hope will be conceded before the debate is finished—namely, that it is very desirable that this matter should be looked into, and looked into by the Government.
§ VISCOUNT SIMON
Certainly—I do not wish to make any. I was saying that up to the present we have not had from any Ministerial speaker any recognition of what I regard as the central fact in the situation. I hope we shall hear before the end of the debate—and from the Ministerial Benches—that there is such a recognition, because that was certainly the view taken by the Conservative Party when they were in opposition not so long ago. I should have thought that it was necessary to consider whether there has not been in more cases than one a use of this power of regulation which was much too wide. It is late to give illustrations, but I venture to put forward one or two. Take a case like this. Regulations give the Crown very wide powers of requisitioning—and no doubt rightly. But the present regulations not only give a Minister or a Department power to requisition property, but they give power to delegate power of requisitioning to other and subordinate persons. The Minister of Health has regulations which enable him to delegate powers of requisitioning property to the clerks of local authorities that power of delegation was given by circulars which were issued to the clerks of local authorities, 1221 and the circulars were not published. The result was that there were all sorts of people in this country who, in fact, had the power to requisition property, though no one had any means of knowing that they had that power or what was the document which gave it to them.
What happened? The owner of a house in Blackpool wanted to sell it because it was too large for him. He found a purchaser, and an agreement was going through for the sale of the house, with vacant possession, when the town clerk stepped in and said that it should not happen. Of course, the moment the town clerk came in, the bargain was off; as soon as the purchaser heard of the requisitioning, he called off the deal. So the owner told the town clerk: "Well, I will go into occupation myself." Unfortunately, he town clerk did not attend to that. Thereupon, the owner's solicitor asked to see what was the authority of the town clerk to intervene in the matter at all. In fact, the authority was in an unpublished circular. The owner was actually refused production of that circular. He was told that such circulars could not be made available to the public. It was nearly six months before he got it. Of course, as soon as he got it, it appeared at once that he, the owner, was entitled to say: "Very well, I will occupy the house rather than that it should be requisitioned"; and the court had to hold that the requisition was had. I have a sentence here of Lord Justice Scott in which he said:The modern extent of sub-delegated legislation is almost boundless: and it seems to me vital to the whole English theory of the liberty of the subject, that the affected person should be able at any time to ascertain what legislation affecting his rights has been passed under sub-delegated powers.That was in 1948. The case is called Blackpool Corporation v. Locker, and it is reported 1948 I King's Bench Law Reports, page 349.
Take another illustration. Under existing regulations the Minister of Works exercises strict control over building. I have no doubt it is necessary. But see the way in which the regulations actually are framed. They provide that it is unlawful for anyone to carry out certain building works except under licences granted by the Minister. I daresay that is quite right. In a particular case a builder who was proposing to do some 1222 building asked the proper authority for a licence. He was informed that it was all right and that he could go ahead. He was told that by the proper authority, but he was told by word of mouth. He was further told that the licence would be issued later. So he went on with the work, and the licence was issued soon afterwards. But when the builder sought to get payment from the man who had employed him, the building owner said: "The work was done illegally because you had not a written licence at the time you did it." The consequence was that the court had to deckle that an offence was established, and the man, who had acted in all good faith, on the assurance by the local authority that the licence was forthcoming, had to go without his payment. That case is known as Jackson and Stansfield v. Butterworth, and it is in the All England Reports for 1948, second volume, p. 558.
It would be very easy to multiply instances which I agree are extreme instances. But does not the Lord Chancellor agree that this really does make a case for considering whether existing machinery and arrangements are in fact the best that can be devised? I hope very much that on behalf of the Government a statement will be made in this debate that it is recognised that, no doubt owing to the emergencies through which we have been passing, regulations have been made in wider terms than are justified, and, what is worse, have in some cases been used in ways which go beyond what is really right and reasonable.
I should submit, with great respect—because I am not at ill extreme about this matter; I know quite well that there must be many regulations—that these propositions ought to be accepted by the House. First, there have in recent years been encroachments on the liberty of the subject which go far beyond previous experience. Secondly, those encroachments have not been effected by deliberate Acts of Parliament after Parliamentary discussion, but for the most part have been effected by the use of delegated powers and sub-delegated powers. Thirdly, those powers were (perhaps inevitably) framed in wide terms. It was difficult, perhaps, at the time to frame them more narrowly, but there have been cases in which they have been used too widely and quite a number of cases in which there is a real 1223 need for a review of the situation with a view to these powers being more strictly limited and more carefully exercised.
I had hoped that that was the view which would have been taken by the Government, and I am extremely sorry that the noble and learned Lord the Lord Chancellor was annoyed with me. I regret it very much, indeed. But it did not seem to me that in his speech he was prepared to concede anything at all. From his speech I should have supposed that he thought we were in the best of all possible worlds and that no serious issue was involved. I dare say that is not what he meant, and if it is not, I apologise most sincerely. Nobody has a greater admiration for the noble and learned Lord than I. But in public debate it is necessary for somebody to say definitely, and I do so, that the essentials of individual liberty are in danger of being overwhelmed by this vast mass of regulation, which none of us could possibly rehearse, much of which none of us ever heard of, and the existence of some of which none of us suspects. We are in danger of submitting our entire lives to a vast mass of regulation which cannot be effectively checked, with the result that we are putting in jeopardy something which I hold more precious—namely, those liberties which used to be enjoyed. Of course, those liberties must be regulated, but we must be careful not to regulate them to such an extent that the liberties themselves will disappear.
I apologise extremely to the noble and learned Lord the Lord Chancellor if I have spoken more heatedly than I should, but it has been a disappointment to me in this debate up to the present that the facts which I have stated have not been clearly recognised. While I do not myself agree with the Resolution of the noble Viscount, Lord Samuel, for the reasons I have stated, I think the considerations which are at the back of what he says are extremely important considerations, needing close attention. I hope that in Government, as in Opposition, the Conservative leaders will indicate in no uncertain voice that they think there should be such an inquiry and that they hope the result of it will be considerably to reduce this mass of regulations which I think is now far more than this country ought to tolerate.
§ 5.54 p.m.
THE LORD CHANCELLOR
My Lords, may I ask leave of the House to say one word now, in answer to the noble Viscount, Lord Simon? I do not think that very much of what he has said is in any sense contrary to what I have said of my own views on the matter. I was confining myself, and I was bound to confine myself, to the terms of this Resolution, which indicates that in the opinion of this House we have to legislate for these matters. I pointed out that they are not susceptible of legislation. I did not think it appropriate to embark upon a general discussion of the administration in this country. That was not the subject of the debate at all. With very much of what the noble and learned Viscount has said, I most cordially agree, and why he should say I am not forthcoming because I did not embark on a kind of essay or discussion of the general problems of administration, which are not raised in this Resolution, I really do not know. But I am quite prepared to do that. I spoke for some three-quarters of an hour on the several items, (a) to (g), and I should have been prepared to talk on these topics, which have long interested me, much longer, but it did not seem to me to be relevant to do so. On the other point, I understood the noble Viscount, Lord Simon, made what appeared to me to be a very unpleasant innuendo, and I left it at that.
§ 5.55 p.m.
§ EARL JOWITT
My Lords, I want to speak for a moment, if I may, simply because in the last debate on this topic I took rather a prominent part. I am sorry that owing to a public engagement, of which I notified the noble Viscount, Lord Samuel, I was unable to be here earlier and, therefore, have not heard the observations made in the two preceding speeches. Therefore, I shall be very brief. This matter is certainly one which calls for our constant attention. I think there is a danger of the liberty of the subject being usurped in this way. Therefore, as I have said before, it calls for a most vigilant Parliament. It also calls for a Parliament which has time to devote to these matters. That is where I differ from the noble and learned Viscount, Lord Simon. I do not think that, in surveying the danger of the time, he 1225 placed nearly enough emphasis upon this problem.
In my view, the great danger of the time is that Parliament may be so cluttered up by a mass of business to which it has to attend that it cannot do its work efficiently. I believe it is inevitable and right that Parliament should put on one side, by means of these orders, a very large number of matters. I agree that that, in its turn, brings a danger, but I think we should most frankly recognise that that is so, and must be so; and that there is a greater danger still of Parliament being completely tied up,
§ EARL JOWITT
The noble and learned Viscount told us—and it is interesting to hear—that already this year, which has not been a year of heavy legislation, we have had over 1,300 regulations. If we take it that at this time of the year we have had about two-thirds of them, then I may hazard the guess that by the end of the year we shall have had over 2,000 orders. I cannot help pointing out that, when I was in Opposition, I was violently assailed about that, but I am not going to play the stupid Party game of taking advantage now that I am in Opposition and saying the same to the Government. It is quite inevitable that there should be this large number of regulations and, for my part, I do not blame the Government at all.
On the other hand, the Government did hold out great hopes of "setting the people free'' and I can well understand that the noble Viscount, Lord Simon, and the noble Lord, Lord Llewellin, before him, are hungry for this freedom which was so generously promised but which has not yet become very evident. Still, when I have said all that, I feel that it ought to be said that, when we think of the vast mass of regulations made during and since the war, we must also think of how very few have been called in question. That is a remarkable tribute to the care with which these regulations have been drawn. May I say, in parenthesis, that I remember quoting, in one of my speeches, the number of regulations made in the year 1938, before the war? My recollection is—perhaps somebody has the figure—that the number was something like 2,000, so that the situation is not entirely due to the Socialist Administration, or to the growth of the Welfare 1226 State. It existed in 1938, under a Government of which the noble Viscount, Lord Simon, was such a distinguished ornament.
Let me take the Blackpool case, of which we have all heard. The point was the shortage of housing accommodation. The man involved wished to leave his house vacant, no doubt to try to sell it. The regulation was that if there were vacant houses there should be power to requisition them. The right steps were not taken, the technicalities were not observed, but the general principle of requisitioning to deal with acute shortage of housing was right.
§ VISCOUNT SIMON
My Lords, I appreciate that we were discussing the individual case for a long time. That was not the point I was making. My point was that in this case the authority which the town clerk had was to be found in a document which had been sent to him by the Ministry of Health and which the Ministry of Health would not produce.
§ EARL JOWITT
That is what I mean by my reference to "the technicalities." He was quite wrong in not producing the document. On the other hand, I think the Minister of Health was quite right in leaving it to the town clerk. That was a typical example of decentralisation. If you have every house in Blackpool being dealt with in Whitehall, you will get into a state of complete confusion. Surely, the thing to do is to allow the houses in Blackpool to be managed by the authorities there.
There is one other thing I should like to mention—namely, the theory that there must be an appeal to the courts in all cases—I have mentioned this matter before, and I repeat it only because the noble Lord, Lord Llewellin, mentioned it to-day. I profoundly disagree. Whether the Lord Chancellor has changed his mind, I do not know, and I do not greatly care. But a man who cannot change his mind in the light of experience is a very poor fellow. When I became Minister of National Insurance I had to deal with industrial injuries and workmen's compensation. The one request that everybody made to me, workmen as well as employers, was: "For goodness sake keep this out of the courts! Set up a tribunal and let the Lord Chancellor appoint the members" 1227 (and he has appointed a tribunal of three persons, two of whom are former county court judges) "and let there be an impartial hearing before that body."
§ EARL JOWITT
Even on points of law. The confusion that comes from having a tribunal like that, and having the courts thrown in, is very great. I also showed your Lordships what happened in the Pensions Appeal Tribunal when there was an appeal from the tribunal to the courts on a point of law. What happened was that the Pensions Appeal Tribunal worked happily for a year or so, giving all sorts of decisions: then somebody appealed to the court on a point of law, and the judge held that on a certain point the tribunal had been wrong. In future, the Pensions Appeal Tribunal will follow the judge. But what about all the cases that had already been decided? I then had to set up another tribunal to deal with all those cases that had been decided before the judge gave his decision. Then this same thing happened again. That shows, to my mind, that, if you are ever to have an end of litigation, there are grave disadvantages in having this kind of mixture between the courts of law and an administrative tribunal
As I have said before on this subject, I am all in favour of these matters being kept under careful review. I believe that the Government of the day should keep these things under review, in order to preserve liberty. But may I point out to your Lordships that liberty is not a natural thing? There is no liberty in the jungle. Liberty itself is a process of law. What we have to do, in trying to make our laws, is so to make them as not unduly to interfere with the right of an individual to do what he likes, except in so far as that right interferes with the right of other individuals. That is a process of law in a highly civilised community.
For myself, I welcome this Motion in this sense: that if it is a mere list of topics to which any Government ought to have regard, it is perfectly all right. But to ask for legislation on these topics is, in my view, completely the wrong way to do it, as I have said many times before. When 1228 the noble Marquess, Lord Reading, introduced the Bill in 1947 I said that it was a series of slogans rather than a Bill. I venture to suggest that this Motion is really a string of slogans. If you are going to suggest legislation, you must go much more carefully into it: you must consider all the pros and cons, and the details of every case, and find out where the balance of advantage lies. I hope that that is the line which the Government will take. I fervently hope that they will not commit themselves to the proposition of having legislation of an undefined nature about this variety of topics. Rather do I hope that they will say that they certainly will do what they can to strengthen and preserve the liberties of the subject; that in their administration, and in the course of the conduct of Government business, they will try to see that that principle is observed. If they say that, then I, for my part, shall feel they are completely right. If they say more than that, then I believe they will be making a great mistake.
§ 6.5 p.m.
§ THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE MARQUESS OF SALISBURY)
My Lords, we have had this afternoon an extremely interesting and distinguished debate on a subject with which this House is particularly qualified to deal. In winding up, I am not going to speak from a purely Party point of view, because I do not regard this as a purely Party question. Although I have noticed that the noble Earl, Lord Jowitt, and one or two others, could not resist just a few, gentle Party digs, I imagine that, in fact, there is no one in any part of this House who would really disagree in principle with the broad purpose of the Motion moved by the noble Viscount, Lord Samuel. All of us, at any rate, on the Conservative and Liberal Benches—if I may be allowed my own little dig—are agreeably at one on the vital importance of maintaining, so far as possible, the liberties of the individual. There is no difference about that. Indeed, I would go further and say that I believe that it is common ground among all Parties, at any rate in this House.
No doubt, as the noble and learned Earl, Lord Jowitt, truly said just now, in the highly integrated communities of 1229 the modern world there must inevitably be some restriction on individual liberty: otherwise ordered liberty, which is what we are talking about, would gradually deteriorate into anarchy, and ultimately, as I see it, the position would have to be restored by some form of dictatorship, which none of us wants. But I imagine that, equally, we should all wish that the restrictions on the citizens of civilised States—those restrictions which they, in fact, voluntarily impose upon themselves—should be as few as the national interest requires; and we should all be vigilant to see that any undue constraints which are imposed (by over-active executives maybe), should be periodically pruned and brought within proper bounds.
I would emphasise at this point, if I may, in answer to what was said by the noble and learned Viscount, Lord Simon, that the Government fully recognise that obligation; that we are constantly reviewing the position to see where restrictions can be removed, and that we shall continue to do so. That, too, as I understand it, is equally the purpose of the noble Viscount's Motion, and to that extent, of course, we all welcome it, as we have welcomed similar Bills and Motions in the past. But, as in those earlier days, I feel bound to point out that, while the enunciation of general principles is comparatively easy, the practical application of those principles is frequently much more complex and difficult. That was the burden of speeches which were made by the noble and learned Viscount, Lord Simon, the noble Lord, Lord Llewellin, and others, in former debates, and that was really the burden of the speech which my noble and learned friend the Lord Chancellor made this afternoon. I did not think his speech was negative, as apparently some noble Lords did. I thought it was realistic. He indicated certain practical steps which have already been taken by the Government to deal with some of the detailed matters mentioned by the noble Viscount, Lord Samuel, in his Motion. He indicated, further, some actual achievements; which we have accomplished. He explained the attitude of the Government with regard to other matters mentioned by the noble Viscount; and he exposed, as he was bound to do, the practical difficulties which were raised by some of these proposals.
1230 There were, indeed, certain matters which have been raised about which I ought, perhaps, to say something, though I do not in any way want to go over again what has already been said. There was the question which was raised first by the noble Viscount, Lord Samuel, and then by the noble Viscount, Lord Stansgate—that of the statutory rules and orders. I entirely agree with what the noble Viscount, Lord Stansgate, said—that it is a very difficult question. Of course it is. It has already occupied a good many debates in this House since I have been here, and I have perhaps wearied your Lordships by addressing you on this; subject more than once. I say frankly that I have always been unhappy that statutory orders cannot be amended, but, at the same time, I do see—as I know the noble and learned Earl, Lord Jowitt, sees—the practical difficulties. There is an immense body of these statutory instruments. Thousands are passed through Parliament every year, and if we began amending all those orders it would put a completely impossible burden on us. Therefore I have been playing about, as I am sure have other noble Lords, with the idea of finding out whether there is any other way round the difficulty.
The noble Viscount, Lord Samuel, made a constructive suggestion this afternoon. I am not sure that I understood it aright, but he will correct me if I did not. He asked whether the Government would insert a clause in all new Bills in the terms of the Government of India Act. As I understand it, the purpose of that clause was to allow orders; to be laid in draft. I should have thought it was unnecessary to insert a clause to that effect in all Bills. That is overdoing the thing. As I understand it, there is really no reason why orders cannot be laid in draft even without a clause, if that is the desire of the Government. Indeed, since we have been in this House, I remember on several occasions the late Government taking that step with regard to certain matters. One does not want to do that every time; it is not necessary every time. Most of these orders are mere matters of machinery, of which no one would complain. But if there were a case where it seemed likely that political issues would be raised, I agree that it is open for consideration whether, 1231 in such a case, Governments—not only this Government, but other Governments —might not lay such an order in draft.
§ VISCOUNT STANSGATE
May I ask the noble Marquess a question? When would the forty days for praying begin—after the draft had been laid for a certain number of days? It could not begin when the draft is laid, otherwise it is not a draft. When would it become operative?
§ THE MARQUESS OF SALISBURY
The idea would be as it has been done up to now—that the draft order would be merely laid for debate. It would not be laid for amendment. It would be laid to enable Parliament to make suggestions for amendments which would improve it. Of course, after the Government had had the opportunity of considering comments in Parliament, it would be laid in the ordinary way for so many days. I am not going to say—and I am not empowered by the Government to say—that we should adopt such a method on every occasion, or perhaps on very frequent occasions. I can give the noble Viscount merely my own view, for which he asked, of a possible way of getting round the present difficulty. I think in saying that I shall probably meet with the general agreement of the noble Viscount, Lord Samuel. I am quite convinced that, if that can be done, it is a better method than trying to amend Orders in Council. If you once began to do that, you would clog up the machinery of Parliament and perhaps make it impossible to work.
Then there was a point which was made by the noble Viscount, Lord Samuel, and, I think, by the noble Lord, Lord Llewellin, about the right of officials to enter private premises. They asked what was going to be done about it. It is the aim of the Government to eliminate such interference so far as is possible. But there is a genuine matter for consideration of which I think the House ought to be aware, and which we all have to face. What is the fact? The point which was raised is not a limited one; it raises very wide issues. As I see it, it brings up the whole question of the balance between liberty and efficient administration. The major reason why these people have been appointed is to ensure that the law is implemented. There may be cases—there have been within recent years—in 1232 I which the Government know that the law is being widely evaded. Now if the use of these inspectors were abolished—I am not saying it is the wrong thing to do—it is fairly certain that the law would be yet more widely flouted. Everybody should know that, and that is a fact which would have to be faced by the noble Viscount as much as by any one of us.
I would add this. Speaking personally and generally, I should always be inclined, like many other people, to take some risks on the side of liberties against efficiency, and I hope that that will be the view of successive Governments in this country in the future. But we must not try and blind ourselves to the fact that to do that may mean less efficient administration. That may be an inevitable result of it, and that is the sort of balance which Parliament has to strike.
§ LORD LLEWELLIN
May I interrupt the noble Marquess, as he referred to me? I was suggesting only that the inspectors who had the power to enter private houses should be permitted to do so in future only if they obtained a warrant from a magistrate, like a policeman has to do. I do not think that that would raise the danger of the law being more widely broken, because these inspectors could always apply for a warrant.
§ THE MARQUESS OF SALISBURY
I shall be delighted to put forward the noble Lord's suggestion. I wanted to make that general point because I think it is a point of which Parliament ought to be aware. On the other hand, I am sure the noble Viscount will be glad to know, from what was said by my right honourable friend, that in this respect we are at any rate moving in the right direction.
§ EARL JOWITT
I entirely agree with what the noble Marquess is saying. It is not, however, a question only of efficient government; it is a question that you may encourage a system of law breaking—failure to observe the law, such as there was in prohibition days in the United States—which may have very serious consequences indeed upon the whole community.
§ THE MARQUESS OF SALISBURY
Of course, what is equally true is that you have a great many silly and restrictive laws which result in the law not being kept, and that is a matter which we have 1233 to take into account. The noble Viscount, Lord Samuel, in the course of his speech, poked some fun at the Lord Chancellor for quoting Milton in a recent debate. He said, I thought rather ironically, that what he proposed on that occasion was that the citizens of this country should have the right to choose commercial broadcasting.
§ VISCOUNT SAMUEL
No, I did not say that. What I said was that the noble and learned Lord Chancellor was invoking Milton to rouse the nation in order to confer upon commercial advertisers the right to choose our programmes.
§ THE MARQUESS OF SALISBURY
I quite realize that that is not a right which the noble Viscount personally favours, but, after all, it is a form of liberty. I think he cannot get round that. If he is in favour of individual liberty, why should not the commercial broadcaster choose the programme he wants? If you prevent him, that is restriction of individual liberty, and nobody can get round that. I thought that that occasion was one of those times when the Conservative Party was in favour of a restoration of individual liberty and the noble Viscount was opposing it.
I do not propose to go into the other detailed points which have been raised to-day, although I can assure noble Lords who have raised them that they will, of course, be carefully considered. I do not want to weary the House merely by re-traversing ground already covered by my noble and learned friend the Lord Chancellor, with far more authority than I have. But it is quite evident, I think, that he would be a very rash man who assumed that all these matters which were raised in the noble Viscount's Motion were susceptible of the same treatment or that they could all be pursued at the same pace. It is even doubtful, as I think the noble and learned Earl, Lord Jowitt, said, whether they, can all be dealt with by legislation, as the Motion suggests. What seems to be required of us this afternoon, if I may very diffidently suggest it, is a solemn declaration of this House of the purpose that must inspire it and the Government regarding restrictions on liberty. That declaration, if it is to have any real value, must, of course, be objective. It must recognise that there will be, in any case, some restrictions 1234 necessary in the modern world; but it will equally establish as a general principle of government that it must be the aim of the Administration, of whatever political colour, to make individual liberty, to the full extent which is consistent with the essential needs of the community, their primary concern. That, as I see it, is what this debate could achieve. If that could be done by the united agreement of this House, I believe the debate would have achieved a very valuable purpose.
As a contribution to this most desirable aim I should like to suggest to the noble Viscount, with all diffidence, certain modifications of the existing words of his Motion, which would, I can assure him, make it acceptable to the Government—and, I imagine, to the official Opposition too. What I have in mind is this: that the noble Viscount should agree to omit all words after the word "favour" in the third line of the Motion and insert the words:progressive restoration of such liberties as and when the national situation allows.That is what I would suggest. The effect of the proposed Amendment would be, of course, to cut out all the more detailed part, which, I would urge the noble Viscount to believe, any Government would find it impossible to accept en bloc in vague form as part of a general Motion. It would also amend the definite reference to legislation—for some of the encroachments, as I said earlier, are really not susceptible to be dealt with by legislation. I suggest to the noble Viscount that he should, if he is willing, move the Motion in the amended form I have suggested. If he found it possible to do that—and I truly believe that it would achieve his main purpose—I can say quite clearly now, on behalf of Her Majesty's Government, that we should be very ready to accept it.
§ LORD PETHICK-LAWRENCE
Would the noble Marquess be good enough to read the Resolution as it would appear?
§ THE MARQUESS OF SALISBURY
Yes. The Resolution would then be:That this House, considering that various encroachments upon the liberties of the subject have taken place in recent years, would favour the progressive restoration of such liberties as and when the national situation allows.That is how it would read.
§ VISCOUNT SAMUEL
May I ask with regard to this proposal, before I exercise my right of reply, whether the noble Marquess would himself be prepared to sponsor that Amendment?
§ THE MARQUESS OF SALISBURY
Yes. I should. I should be quite ready to move it as an Amendment, and then it could be put to the House.
§ VISCOUNT SAMUEL
I will deal with it, if I may, towards the end of my observations. If noble Lords wish to know whether or not there is to be a Division I will say now that I do not propose to divide the House.
With regard to the debate as a whole, I would quote some words of the present Prime Minister before the last Election, to which considerable prominence was given at the time. He said that he had been "much encouraged" by the Bill for the protection of the liberties of the subject which had been introduced by the Liberal Party in the House of Lords. I cannot say that I have been equally encouraged by the reception of my Resolution, which is on the same lines as that Bill, by the present Government. I feel the less encouraged when I remember that when I introduced the Bill two years ago it was carried on Second Reading, and the previous Bill, moved by Lord Reading, was carried on Second Reading, in 1947, by the loyal and cordial support of the Conservative Party. I remember also that the noble and learned Viscount, Lord Simon, voted for the Bills on those two occasions. On the last occasion, among others who voted for it were the noble Viscount, Lord Swinton, now the Deputy Leader of the House, and other noble Lords, including Lord Woolton and Lord Cherwell, while one of the tellers in that Division was the noble Lord, Lord Carrington, acting on behalf of the Conservative Party. So it cannot have been so foolish and miserable a Bill as would now appear since those noble Lords have assumed office.
§ LORD MANCROFT
I on one occasion and Lord Reading on another, and other Back-Benchers, who voted and spoke in favour of the Bill, supported it in principle, and voted in that way; but we all, without exception, gave voice to those provisos and exceptions to which my noble Leader has referred.
§ VISCOUNT SAMUEL
Everybody, of course reserved the right to amend the Bill if it reached another stage.
§ VISCOUNT SAMUEL
That is true. But the Bill as a whole was not scoffed at and regarded as impossible, as the Lord Chancellor seemed to suggest this afternoon. However, the noble Lord, Lord Llewellin, in his speech today, to a considerable extent rebuilt the case. For instance, in regard to inspecting private premises it is not a question of the number of inspectors but of their power or authority to enter. The Lord Chancellor thought that it disposed of the matter to say that the number of inspectors had been decreased. That is not the point. Everyone knows there must be inspectors, and the noble Marquess, Lord Salisbury, spoke of what might happen if inspection were abolished. That question does not arise. In the last debate on this subject I made it clear that what we had in mind was that nobody should be allowed to enter a private house—I am not speaking of a factory—without a proper authority for so doing. Lord Llewellin spoke of the case of a policeman in hot pursuit of a criminal—something very much more important than an offence against the rationing laws. But a policeman has to go to a magistrate and get a warrant before he can enter, while an inspector can go and inspect without showing any authority at all. There have been various animadversions by the courts to show that they disapprove of the practice, but our point is that no inspection should be allowed without proper authority.
§ VISCOUNT SAMUEL
Certainly. Entry should not be possible without the authority of the Statute under which they are acting, which they must exhibit to the householder.
THE LORD CHANCELLOR
I want to be clear on this matter. The authority of the magistrate, the authority of the Department, or the local authority who appoints the inspector?
§ VISCOUNT SAMUEL
Whichever is considered right if you legislate. Not necessarily the magistrate, but there ought to be some authority to support the entering.
1237 With regard to marketing boards, the Lord Chancellor said that no one makes any complaints at all about the present procedure. But the noble Lord, Lord Wise, who is himself a working farmer, got up this afternoon to state that he regards the present practice as most objectionable and in need of reform. Similarly, the noble and learned Viscount, Lord Simon, said that he could give a large number of instances—and he gave several—of abuses which do occur under the present system of licensing under regulation. The noble and learned Earl, Lord Jowitt, gave an example, which I must say shocked me, about the need for not allowing appeals from ministerial tribunals to courts of law. He gave it in a previous debate and, coming from an ex-Lord Chancellor, it seems to me a very strange doctrine. He said that, when he himself was Minister for National Insurance, everybody was in favour of having no appeals and no litigation, but that when one case was taken to the courts with regard to a certain class of pensions, the court held that the procedure of the tribunal had been wrong; that it was not what the Statute had ordered. People had been deprived of certain advantages which should have been granted to them. As a result, a large number of cases had had to be reviewed. It meant that those people had, until that moment, been deprived of those pension rights which Parliament had intended them to have and, so far from his argument leading to the conclusion that it is a wrong thing to have an appeal, it shows how necessary it is to have that very appeal.
§ EARL JOWITT
Suppose that somebody litigated to the Court of Appeal and the Court of Appeal decided one way and that the case then went to the House of Lords, who came to a different conclusion. Would the noble Viscount suggest that everybody who had acted under the previous decision of the Court of Appeal should be entitled to reopen the matter?
§ VISCOUNT SAMUEL
Does that mean that the House of Lords or the Court of Appeal should be abolished?
§ VISCOUNT SAMUEL
Whether the court's decision should be retro-active or not is one question. Maybe there is 1238 something to be said for a Statute of Limitations, which does apply; but, apart from that, what the noble and learned Earl is now contending is that, although a tribunal is wrong in law, its decision should not be open to appeal so that all future cases, at all events, may be dealt with rightly: the tribunal will go on being wrong indefinitely, with the result that all kinds of pensioners, and perhaps people receiving compensation of other kinds, will be deprived of what are really their legal rights; merely because of a wrong decision of one of these tribunals. It seems to me that, if there is any argument in favour of the proposals in the Resolution to-day, it is the argument to the contrary of the noble and learned Earl.
With regard to the contention that these matters could not all be dealt with in one Act, the Resolution does not say that they should be. The Resolution says that this House "would favour the introduction of legislation." It is true the various matters were all gathered together in one Bill for Parliamentary purposes—namely, to concentrate attention on the main issue which had been forgotten and ignored. All the vague feelings that ware floating about the country, that the liberties of the people were insufficiently regarded, were brought together into one Bill in order to have a debate such as this. But that does not indicate that these matters should be necessarily dealt with in one Bill. If it is found more convenient to deal with one topic in one Statute and another topic in another Statute, well and good. The Lord Chancellor says that because they cannot be all dealt with in one Bill that puts the matter out of court and we need not trouble about it any further.
THE LORD CHANCELLOR
Nothing of the kind. What I said was that I could neither vote for the Resolution, nor advise anybody else to, on these specific proposals.
§ VISCOUNT SAMUEL
In my speech I said that, of course, it was impossible for a large number of different proposals to be presented to the House and for the House to be tied by a decision given on this occasion. Exactly the same thing happened on the Second Reading of the Bill when, as the noble Lord, Lord Mancroft, has said, many noble Lords 1239 got up and said that they disagreed with this or that. But they said that the principle or the idea was right, and they voted for it and carried it in the House. The Lord Chancellor says that, because all these items cannot be dealt with in one Bill, the House is not to do anything at all about it. If the Lord Chancellor had said: "This is not a matter for one Resolution but should be dealt with, if the House is of opinion and expresses the view that it ought to be dealt with, in a number of various measures belonging to different departments of the Statute Law," well and good. Or, if he had said: "Some of these measures cannot be dealt with by legislation but can be dealt with by administration, or in some other way" I should have been grateful.
If he had said, further, or if the noble Marquess, Lord Salisbury, had said afterwards (he was pretty close to it, but he did not quite say it): "Recognising the feeling that there is in this House, and still more in the country"—for it is remarkable how public attention has been concentrated upon this matter— "we will now survey all those particular cases and go into them one by one," that would be an advance. They might have said, for instance, in regard to appeals from tribunals to a court of law, that the Government would consider now, in 1952, whether the Lord Chancellor was right when he signed the Report of the Donoughmore Committee, which said that there ought always to be an appeal, or whether the Lord Chancellor is right now when he says there ought not to be an appeal—in other words to distinguish between the two. If they said that, it would be a step in advance, and nothing could be said against it. Similarly, if, one by one, they had gone through the items of my Resolution, from (a) to (g), and had said: "We will look into these matters and see what can be done to meet this feeling," I should have been very grateful and should have been rather disposed to condone the course which has been taken by the noble Marquess.
But in his speech the Lord Chancellor says that, as a general proposition, my Resolution is unexceptionable, but not in any particular. That reminds me of a 1240 cynical saying of a great cynic, Bismarck, who said:When you say that a thing is right in principle, it means that you have no intention whatever of doing anything about it in practice.
§ THE MARQUESS OF SALISBURY
The noble Viscount said that we did not go as far as he did, and that we have not pledged ourselves to make any inquiry into the seven points to which he personally happens to attach importance. What I did say in my speech was:I would emphasise … in answer to what was said by the noble and learned Viscount, Lord Simon, that the Government fully recognised that obligation "—that was the obligation, your Lordships may remember, to prune restrictions where possible—and that we are constantly reviewing the position to see where restrictions can be removed …The greater includes the less. The noble Viscount has selected seven important points to put into his Resolution. The Government are bound to consider the largest field, and I do not think that what I have said excludes what the noble Viscount said. I do not think that any Government can be expected, in the course of debate on a general Resolution, to tie themselves to introduce legislation on those particular issues which happen to interest the noble mover of the Resolution.
§ VISCOUNT SAMUEL
Then my fault is not that I am proposing too much but that I am proposing too little. Certainly, the wider you go the better I shall be pleased, but the Lord Chancellor's note is somewhat different from that which has been sounded by the noble Marquess. The Lord Chancellor said with regard to myself that I have been every second year sounding the trumpet of liberty, and that he hoped that these biennial soundings would go on for a long time. That rather indicates to me that it may be necessary for me or my successors to go on sounding this same trumpet of liberty every second year and, for all the hope that he has given me, it appears that it will be necessary for it to be done by me or by my successors indefinitely.
The noble Marquess has proposed to amend this Resolution, and to put it into terms which are quite innocuous. He has sought to put in an "if and when" 1241 clause, which reminds me of an answer which I heard Mr. Asquith give in another place when I was sitting by him, to some rather persistent questioner who was asking him whether he would take into account this or that. Mr. Asquith at last got up and, nodding benevolently, said, "If and when the occasion arises all relevant considerations will be taken into account." That answer was most gratefully accepted by the questioner. I am not sure that I shall be quite so grateful for the terms of the Amendment which is now proposed. But if the noble Marquess really means to do something—if he means to use this debate as a stimulus to get things done, either by legislation now or in future Bills, or by a survey of administrative methods—then this debate will have served a useful purpose; but otherwise it will not.
As to the terms of the Amendment, I cannot, of course, withdraw my Resolution, and I cannot myself accept the terms of, nor should I be prepared to move, the amended Resolution in place of my own. But I gather from a question that I asked across the floor, that the noble Marquess is himself prepared to move an Amendment. If he does that I shall not challenge him in the Division 1242 Lobby, because I think it is more than probable that he would have a majority. Therefore I accept, but I do not condone.
§ THE MARQUESS OF SALISBURY
My Lords, in view of the moderately encouraging attitude of the noble Viscount, I should now like to move my Amendment to his Resolution.
§ Amendment moved, Leave out all words after "favour" in line 3, and insert "the progressive restoration of such liberties as and when the national situation allows."—(The Marquess of Salisbury.)
§ On Question, Amendment agreed to.
§ Resolution, as amended, agreed to.