HL Deb 13 March 1952 vol 175 cc755-8

6.25 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee. —(Viscount Swinton.)

On Question, Motion agreed to.

House in Committee accordingly:

[The LORD MERTHYR in the Chair]

Clause 1 [Power of Her Majesty to give effect to certain Agreements relating to insurance contracts]:

EARL JOWITT moved to leave out subsection (3) and insert: (3) A draft of any Order in Council proposed to be made under this section shall be laid before Parliament, and the draft shall not be submitted to Her Majesty except in pursuance of an Address presented by each House of Parliament praying that the Order be made.

The noble and learned Earl said: I have put down this Amendment, which raises rather the same point as that which we have been discussing recently. I am not one of those who inveigh against all Orders in Council. I realise that in modern conditions if Parliament is not to get completely clogged up with its work it is inevitable that there shall be a large number of Orders in Council. We none of us want to make the number too great, but it is impossible that we should get back to the situation which existed fifty years ago. When we were in office, your Lordships used to taunt me with the fact that we made a great many of these Orders in Council. I have not kept a strict account, but I have a strong suspicion that the present Government have fully kept up the average up to the present time. I do not suggest that in all cases we should have the Affirmative Resolution procedure, for that takes longer and may involve serious encroachment on Parliamentary time.

What I have in mind is this. In this Bill the Government are taking power to give legislative effect to, first, an Agreement which has been made with Finland. That Agreement has been made, published, and much thought about, and, so far as that Agreement is concerned, if it were all, I confess I should have been content with the Negative Resolution procedure. But when you are taking power to make Orders in Council giving effect to Agreements which have not yet been made and which might, perhaps through inadvertence, have an adverse effect on some individual who would find his rights prejudiced, I feel that the Affirmative Resolution procedure should be insisted upon. Parliament then has to take notice of the matter in a formal way, and anyone who thinks himself aggrieved has a much clearer right to bring his grievance to Parliament, where we should be inclined to remedy it. I heard a discussion just now about Treaties, and whether we had a Negative or an Affirmative Resolution. I was concerned in that matter but, frankly, I do not remember. I should not mind so much if there were a negative procedure in a case where the Treaty had been agreed to and all you were doing was to give it effect. But where you are taking power to do this in future in regard to Treaties or contracts which are not yet agreed to and which might have an adverse effect upon some individual, I think the affirmative procedure is right.

One further point occurs to me. I got help in drafting the Amendment by the kindness of the noble Viscount opposite, but what we wish to do is sometimes done in one of two forms, and I mention it so that the noble Viscount may consider it. Sometimes it is proposed that an Address should be presented to Her Majesty. That, of course, means that the noble Earl, Lord Clarendon, has to present the Address and then has to come to this House and tell us that Her Majesty is graciously pleased to assent to the Address. I believe there is another form by which we simply pass a Resolution. I am not sure whether I am right, but it occurs to me that it might be worth while for the Government to look at that point. It might save a certain amount of trouble if, when we had a positive procedure, we contented ourselves with a Resolution. That seems to me, at the moment, to be a simpler procedure, and if there is no objection in any quarter we might adopt that as the standard form. Perhaps that point might be looked into. It is a matter of indifference to me, so long as we get procedure in positive form. I beg to move.

Amendment moved— Page 2, line 5, leave out subsection (3) and insert the said new subsection.—(Earl Jowitt.)

6.30 p.m.

THE CHANCELLOR OF THE DUCHY OF LANCASTER (VISCOUNT SWINTON)

The noble and learned Earl the Leader of the Opposition has moved this Amendment in a most reasonable way. As regards the last point which he raised, I say frankly that it is a new one to me. I wanted to get provision in the right form, and this is the way in which it has been drafted by the Parliamentary Counsel. I think there will be time between now and the Report stage, and I will ask the Board of Trade and Parliamentary Counsel to look at it and see whether it could be done in a more convenient form. I agree that while we should take cognisance of all these matters, the less burden that is put upon Her Majesty the better. There will, of course, be a Third Reading of this Bill, and the question whether, while taking the affirmative form, there is a more convenient or less cumbrous method of effecting it. is one which I will have considered.

With regard to the merits of this procedure, I am glad that the noble and learned Earl has put his view in the way he has done and has not said that the negative procedure is a bad one. I do not think it is at all a bad procedure, because it is a very convenient one. It gives Parliament the same opportunity of discussion that the affirmative procedure gives—that is to say, if any Member of either House takes exception to an Order in Council, all he has to do is to put down a Prayer within forty days and the Order cannot be made effective until the Prayer has been disposed of. I do not think that what has caused trouble in the past and has been the subject of criticism has been the question of a Negative or an Affirmative Resolution so much as the scope of the Orders in Council which are being made. I hope we shall all be guilty' of delegated legislation procedure; we cannot escape from it. But what I hope we shall not be guilty of is making the delegated power to make Orders in Council wider than is necessary for the purpose of an Act or the intention of Parliament. What we have objected to in the past has been what I may call the "Uncle-Tom-Cobley-and-all "clause, which, having said that the Minister can make Orders for the purposes of the Act, then goes on to say, in the best Parliamentary language, that the Minister can make any Order which any functionary in the Department may think would be a good thing but has not been able to think out yet. That is what is really bad in delegated legislation

I come to the merits of whether we should have an Affirmative Resolution in connection with this Bill. I have had an opportunity of discussing this matter with my right honourable friend the President of the Board of Trade, and we agreed that, as the noble Lord, Lord Henderson, has just said, it may be right to deal by negative procedure with Treaties which put obligations upon British citizens, but here we have a Treaty which may affect the rights of individual British citizens not merely by putting an obligation on them in the future, but by reviving an obligation which had elapsed. I think that that puts it in a class by itself, and, therefore, without creating a precedent and without giving any undertaking for the future, my right honourable friend and I both think it would be reasonable in this case to require an Affirmative Resolution, and I have much pleasure in acceding to the Amendment.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Remaining clause agreed to.

House resumed.