§ 2.36 p.m.
§ THE LORD CHANCELLOR (LORD SIMONDS) rose to move that an humble Address be presented to Her Majesty under section eight of the Supplies and Services (Transitional Powers) Act, 1945, praying that the said Act, which would otherwise expire on the tenth day of December, nineteen hundred and fifty-two, be continued in force for a further period of one year until the tenth day of December, nineteen hundred and fifty-three. The noble and learned Lord said: My Lords, this Motion which stands in my name, together with the four others that follow, all relate to the same subject matter, and it may be convenient to your Lordships if on this occasion, as on previous occasions, I deal with them together on the Motion for the first Address, so that we may have a general discussion upon them. Further, as your Lordships will see from the Order Paper, it will be my duty later this afternoon to move the Second Reading of the Emergency Laws (Miscellaneous Provisions) Bill, which also is strictly relevant to the same subject as the matters which are covered by the Motion. I think it will be convenient to your Lordships—indeed I understand that it has been agreed through what are called "the usual channels"—that our general discussion should be wide enough to include the Bill, In this way, the House will be saved the tedium of going over the same subject matter twice within a short time. It will probably be convenient if, before I come to the moving of the Bill, I make some observations on its contents—indeed, it will be difficult in dealing with the Motion to avoid taking that course. Of course, it will be competent for your Lordships, in the same way, to comment on the terms of the Bill.
§ There is one further mater which I ought to mention to your Lordships in 446 relation to this matter. There are five Motions in my name on the Paper, but I propose this afternoon to move only three of them, though, as I have said, the discussion will cover all of them. The ones that t propose to move are the first, the fourth and the fifth. These relate to the Supplies and Services (Transitional Powers) Act, the Patents Act and the Registered Designs Act. The remaining two Motions standing in my name, those which relate to the Emergency Laws (Miscellaneous Provisions) Act of 1947 and the Defence Regulations made thereunder, I do not propose to move to-day. The reason for that arises out of the rather curious circumstances of the case. Your Lordships may know that a debate is taking place to-day in another place on Motions identical in terms withthose which are before your Lordships. A great number of Amendments have been put down there to the Motions to which I have referred—namely, those dealing with the Emergency Laws (Miscellaneous Provisions) Act and the Defence Regulations. Those twoMotions, as your Lordships may have observed, unlike the other three, have Schedules which render them particularly susceptible of Amendment. I think your Lordships will agree that it would not be proper that this House should be asked to accept those twoMotions without amendment (let me assume that for this purpose) until your Lordships have had the opportunity of knowing what, if any, Amendments to the Motions are made in another place. A curious position, as your Lordships will observe, might arise ifin this House we agreed one Motion and in another House quite a different Motion were adopted. That has somehow to be avoided. Therefore, it is clearly convenient that we should wait and see what Amendments are accepted and passed in another place.
§ Therefore, if your Lordships will agree, I will move, at the end of the debate, only the first, fourth and fifth Motions, and I propose to move the second and third Motions at a later date, when we know what has happened in another place. Then, of course, it will be competent for this House, if it thinks fit, to reject any Amendments which may have been made. What would happen in that event I do not quite know; we should have to work out what I think would be an entirely new position. At 447 any rate, we shall be able to see how the matter stands when we have reached that stage. I hope that this is a course which will be convenient to your Lordships on both sides of the House.
Can the noble and learned Lord tell us about what period of time is likely to elapse before we consider the other Motions which we are not going to consider to-day?
THE LORD CHANCELLOR
I understand that a date has been arranged as mentioned by Lord Shepherd. We hope that on December 2, if that is convenient, the matter will be brought before your Lordships again.
Before I come to the terms of the Address, I cannot help thinking it may be convenient to remind your Lordships in a few words of the background. I find this an extraordinarily complicated subject and I think it would be worth while to state accurately, if I can, and get on record, the background against which this matter must be regarded to-day. The power to make Defence Regulations was conferred in the first place by the Emergency Powers (Defence) Act, 1939, Section 1. By Section 8 (3) of that Act, power was given to vary or revoke Defence Regulations. That Act was temporary and it expired —mark the date —on February 24, 1946. Powers conferred by it and regulations made under it are therefore dead, except in so far as they are kept alive by subsequent legislation, to which I shall now refer. The Supplies and Services (Transitional Powers) Act, 1945, Section 1—which was passed, therefore, before the date of the expiry of the Emergency Powers (Defence) Act, 1939—gave power by Order in Council to specify Defence Regulations existing at the passing of the 1945 Act as regulations which are to have effect by virtue of that Act. The Section gave no power to make regulations. Section 2 of the Supplies and Services (Transitional Powers) Act, 1945, to which I have referred, extended the purposes for which Defence Regulations could be made under the 1939 Act, which, as I reminded your Lordships, was still in force in 1945, and it provided that regulations expressed to be made for the 448 new purposes were to have effect by virtue of the 1945 Act.
The power to make regulations for those purposes lapsed on the expiry of the 1939 Act, an event which happened in February, 1946. Regulations which have effect by virtue of the 1945 Act continue in force, unless revoked, so long as the Act continues in force. It continues in force only if it is renewed by an annual Order in Council, which is subject to Affirmative Resolution. Section 3 of the 1945 Act gave power to vary or revoke regulations having effect by virtue of that Act. That is the subject of the first Motion standing in my name which I shall move.
Now I come to the second Motion. The Emergency Laws (Transitional Provisions) Act, 1946, was passed in anticipation of the expiry of the 1939 Act in February, 1946. Section 1 of this Act continued certain Defence Regulations until December 31, 1947, subject of course, to the power to revoke which was given by the proviso to Section 1 (1) of the 1946 Act, and that Act contains no power to vary. Of the regulations continued by the 1946 Act, some were allowed to expire in 1947. As to the rest, Section 1 (1) of the Emergency Laws (Miscellaneous Provisions) Act, 1947, continued some of them until December 31, 1948, and the remainder until December 10, 1950. The power to revoke conferred by the 1946 Act was also continued. Section 7 of the 1947 Act provided for the further continuation of the regulations for a period up to ayear at a time by Order in Council subject to an Affirmative Resolution. That, accordingly, is the Motion which was moved last year and which is the second Motion on the Order Paper, which I shall not move to-day but propose to move on a future occasion.
That is a very complicated story, but if you see it on paper I think you will realise that it is clear. It is an explanation that is extremely difficult to keep in one's head and I thought it was worth while to put it on the record. I may summarise it in this way: there is no power to make new Defence Regulations or renew any that have been revoked or have been allowed to elapse. Secondly, but for the Motions now before Parliament, all Defence Regulations would expire on December 10 next. If I may, I shouldlike to state in a word what we propose. 449 We propose to continue some of the existing Defence Regulations for one further year. Some of the regulations continued by the Supplies and Services (Transitional Powers) Act, 1945, may be varied or revoked in whole or in part. Regulations continued by the Emergency Laws (Miscellaneous Provisions) Acts of 1946 and 1947 cannot be varied, but may be revoked in whole or in part.
That is the end of that complicated story, and I will now tell your Lordships what we propose to do. Perhaps before doing that I might just remind your Lordships again, as a matter of convenience, of what is the procedure. It consists of the presentation of Addresses by both Houses of Parliament to Her Majesty in terms of the Motions on the Order Paper. When this has been done Orders in Council are laid, and it happens that one of them—that made under Section 8 of the Supplies and Services (Transitional Powers) Act, 1045, which provides for the continuance in force of that Act—has to be laid before Parliament.
I should now like to remind your Lordships of the matter we are about to consider. First, there are the economic and financial powers which are derived from the Supplies and Services (Transitional Powers) Act, 1945, and fromthe Defence Regulations which have been made under that Act. The nature and the scope of these powers can, of course, be gauged from the list of regulations and codes of regulations which your Lordships will find conveniently set out in the White Paper (Cmd. 8686). Perhaps I may assume that your Lordships are familiar with the contents of Command Paper 8686: I shall have to refer to it from time to time, but many of your Lordships will have had an opportunity of considering it, which you have no doubt taken. I have said something about the financial and economic powers. Next there are the powers which derive from the Emergency Laws Acts 1946 and 1947 and the Emergency Laws (Continuance) Order 1951. Particulars of these powers your Lordships will find in theSchedule to the second of the Motions standing in my name on the Order Paper. Then there are the emergency enactments which are kept in being by Sections 3, 6 and 9 of the Emergency Laws (Transitional Provisions) Act, 1946. These sections kept alive emergency Acts which 450 related to various matters—the marketing of wheat, land drainage, the beet sugar industry, the administration of oaths and the taking of affidavits by officers of the Armed Forces, the defraying out of capital of management land expenses on settled land and land held on trust for sale, and numerous other matters.
The House will recall that we had a debate on this matter a year ago. On that occasion Her Majesty's Government asked Parliament to maintain the status quo for a time, for the reason that clearly they had not had time to survey the whole area covered by these subjects, and it was a matter which demanded a very long survey. I believe that I in this House, and certainly my right honourable friend the Home Secretary in the other place, undertook that the Government would proceed to a careful review of all the powers, and that in carrying out that review we would have in mind four possibilities. The first of them was that we might find that some of these powers could be relinquished altogether before there was any question of their having to be reviewed. Secondly, there was the possibility that some of them might be embodied in Acts of Parliament requiring annual renewal. The third was that it was thought that after investigation it might prove desirable that some of them should be embodied in permanent legislation. The fourth was that some of them would require to be continued for a further period. Those were the four possibilities which appeared to be open in the considerationand conclusion of this matter.
A prolonged investigation has been held, and is still going on into these matters, and so far we have reached these conclusions. I hope that the House will agree that, having regard to the difficulties under which we have laboured, we have been able to make considerable progress. I have every hope that we shall make further progress in the course of the ensuing year—in fact, I am confident that we shall—but I hope that your Lordships will feel thatwe have made at least satisfactory progress so far. First, there was the possibility which I mentioned, that we might be able to relinquish certain powers altogether. I remember it being pointed out in the debate last year that such powers could be revoked at any time. In the course of the year some few regulations were revoked and powers 451 relinquished, conspicuous among them being the regulation in regard to identity cards. Then there was a whole code of regulations which went in regard to the Parliamentary Under-Secretaries, and there were others. But it was thought desirable, and, indeed, it has so proved, to defer revocation on any considerable scale until the first stage of the Government's review of emergency powers generally has been completed.
At this stage I might refer to the White Paper—and once again I comment on the extraordinary inconvenience to which a Lord Chancellor is put in trying to deal with a multitude of papers with only two hands. If your Lordships will look at the White Paper, you will see that it states:Of the Regulations which were continued in force under the Act last December, Regulation …"—and the regulation is named—has been revoked, and it is proposed to revoke, before 10th December, the following Regulations of the Defence (General) Regulations, 1939, namely: "—and then it sets out a number of them, nine in all. Then on page 3 it goes on to state this:The final result is that the continuation of the Supplies and Services Act will keep in force the following Regulations (some of which, however, it is proposed to revoke in part)"—and there are no fewer than twenty-eight of those regulations which it is proposed to revoke in part. Nine separate regulations are revoked in entirety—and what may be called the code of regulations, shown in the last line of the second page of the White Paper, the Defence (Encouragement of Exports) Regulations, 1940 (it is not perhaps happily printed) —that code of regulations is a separate item.
Since the White Paper was laid my right honourable friend the Minister of Housing and Local Government has completed his discussions with the local authorities' associations and the London County Council about Regulation 68CA. That is the regulation in which some of your Lordships will have taken an interest, which imposes certain restrictions on the conversion of housing accommodation to use for non-residential purposes. The local authorities wished 452 to keep this regulation. My right honourablefriend is satisfied that it is necessary to keep a firm check on the transfer of housing accommodation for other purposes, but he is satisfied that adequate powers of control are given in the Town and Country Planning Act, 1947, which was enacted, as yourLordships may remember, after the making of this regulation. The Act has largely superseded the regulation, which has now become unnecessary. The conclusion has therefore been reached that this regulation should not be retained in force after December 10.I mention that regulation specifically, because I understand that it is one in which certain of your Lordships have taken some interest. As I say, it is considered that ample power is given in the provisions of the Act, which was passed after the regulation had been made.
The second category of instruments which it is now proposed to discontinue are those which subsist by virtue of the Emergency Laws Act and the Emergency Laws (Continuance) Order. I was dealing with the Supplies and Services and so on. Theinstruments in question are the seven separate regulations and the three codes of regulations which are set out on page 5 of the White Paper. I need not refer to them in detail. If your Lordships will be good enough just to glance at the Paper, you will see that there are a substantial number of regulations and codes of regulations which are to be allowed to expire.
I wish to refer back for one moment to what I said a little earlier—namely, that we not only propose to revoke or allow to expire a number of regulations, but we propose also to revoke in part a number of regulations. I should like, if I may, to say just a word about that. Your Lordships will see in the White Paper the statement, to which I have already referred, of our intention to revoke in part some of the regulations which it is intended to keep in force by virtue of the Supplies and Services Act. This process of partial revocation, as I have said, extends to no fewer than twenty-eight separate regulations. In the majority of cases, the power conferred by the regulation will be reduced by its partial revocation. In other cases, the power will not be altered, but the authorities will be precluded from making a fresh use of the power in the future.
453 Let me give an example of what we have in mind. I will take Regulation 68A and other cognate regulations, setting up a licensing, system authorising the reconditioning, and thereafter the occupation, of condemned houses for the purpose of providing homes for farm workers and homeless persons—a desperate and perhaps rather ruthless expedient which was adopted by our predecessors and which was no doubt necessary. In future, no fresh licence will be issued under that regulation, but houses now occupied under existing licences will continue to be available for occupation for that purpose. It is a step forward, illustrating the progress which has been made in meeting the housing problem. I think it is important and valuable that, so far, the regulation should he revoked.
Your Lordships will no doubt have considered carefully what regulations it is proposed should be discontinued, but you will perhaps wish me to draw attention to one or two of the more important. Regulation 54A is one which has excited some comment, certainly in another placeand, I think, in this House also. That is the regulation which allows certain Departments of State to permit nuisances where this is considered to be unavoidable—nuisances by noise, smell and so on. This power is now to be revoked. I might refer also to Regulation 42CA, which relates to unlawful gaming parties, objection to the continuance of which was taken by a number of persons in another place. I do not recollect whether specific reference was made to it in this House, but certainly it appears from a reading of the Reports of what took place in another place that objection was taken to it there.
I should like to give another example or two of the partial revocations—but first I wonder if I may say this. I have felt great difficulty, in moving these Motions, in knowing into w hat detail I should go. Obviously, I could go through every regulation that is being revoked and every regulation that is being continued, and explain why it is being revoked or why it is being continued. That would have been a gigantic task and although, if I may be permitted a personal recollection, I well remember addressing your Lordships' House from the Bar of the House for twenty-five hours, I do not think that is an experi- 454 ment that ought to be repeated. Therefore, I have thought it the happier course to refer in rather general terms to the regulations which we propose to continue or revoke, leaving to your Lordships the opportunity (of which I fancy you will avail yourselves) to ask, it may be, why so many arerevoked or, it may be, why so many are continued, referring in detail to each one of them. I shall do my best to satisfy your Lordships but, of course, in doing so, I must crave your Lordships' indulgence, because we shall be covering the field of every Department of State, and I shall find a great difficulty in being able to answer extempore every question that is put. However, I will do my best.
§ VISCOUNT STANSGATE
May I ask the noble and learned Lord a question? He has referred often in his speech to the fact that these regulations have been closely examined to see which could be done without. Has the examination been conducted by the Ministers who profit by the use of these powers?
THE LORD CHANCELLOR
I do not think the noble Viscount will expect me togo into too great detail as to who has made the examination. It has been made on behalf of Her Majesty's Government. I do not think the noble Viscount can expect me to say what Minister has been one of a Cabinet Committee or other Committee which deals with these matters. But I can assure him that they have been gone into most carefully, and the result of the investigation is that which I tell the House to-day. I add, again with the same authority, that it is hoped that many of these regulations which arenow continued will, in the future—and some of them in the near future—be allowed to expire.
I wish to give an example of one or two cases of partial revocation, and one which I would mention is paragraphs 1 to 3 of Regulation 62. That is a regulation which authorises the issue of directions about the cultivation, management and use of land for agricultural purposes. I think your Lordships, or at least those of you who are interested, may remember that paragraphs 2 and 2A of this regulation, which will not be continued, authorised the dispossession, if necessary by force, of a tenant of agricultural land who had failed to comply with a direction given under the regulation.
455 Another example I can give your Lordships is this. It is proposed to abrogate the power of the Minister of Labour, given by Regulation 58A, to regulate the duration and situation of the employment of workers and to require the compulsory registration of particulars of employers and employees. Another one that I would mention is Regulation 62A. Under this the Minister gives local authorities who hold land occupied by them, including requisitioned land, power to cultivate it, even if the cultivation would otherwise be illegal or would constitute a breach of trust or a breach of covenant. That power is now to be discontinued. Another one I would mention is Regulation 51 (4). Here a power was given to the Government to appoint controllers of undertakings. That is to be relinquished.
Then again, where several regulations are concerned—I mention Regulations 55, 55A, 55B, and 56A, and the Defence (Price Control) Regulations—the Director of Public Prosecutions or other prosecuting authority will lose the right to require that cases shall not be tried by courts of summaryjurisdiction. Your Lordships will see, of course, the result of that. Trial by jury has the effect of exposing offenders to a heavier penalty than that which might be imposed on summary prosecution. The Director of Public Prosecutions will no longer havethis considerable penal power. I would mention, too, Regulation 90, from which it is proposed to delete the words:… or do any act preparatory to the commission of …The effect of that will be that it will no longer be possible to prosecutefor acts held to be "preparatory to the commission of" an offence under the regulations. I cannot help thinking that this is a power the surrender of which will be satisfactory to all noble Lords on both sides of the House.
I come to the second possibility of repeal which I have mentioned. It may be that it will be possible to embody some of the regulations in legislation which will require annual review by Parliament. The Government have not yet been able to satisfy themselves that there are any powers which fall clearly into this category, and accordingly I am not in a position to tell your Lordships that 456 there are any regulations which it is proposed to incorporate in Acts of Parliament requiring annual renewal. But that is a possibility which is being kept in mind, and if an opportunity occurs we shall avail ourselves of it. Your Lordships will appreciate that in a crowded legislative programme this is not a course which we shall willingly take if other courses are open.
The third possibility which we had in mind was that of embodying in permanent legislation emergency powers which could be seen to be permanently required. Very often, what begins as an emergency comes to be regarded as in the course of nature; and the measure which is taken to meet an emergency is seen to be necessary as a part of our permanent law. Emergencies sometimes do create an enduring and permanent situation. We had that in mind when we embarked on this inquiry. If I may be permitted a purely personal reflection, it may well appear that a further review of other regulations which we seek now to renew only for a year will show that they may, in fact, require permanent legislation. But I think noble Lords on all sides will agree that it is very undesirable to take that course unless we are sure that permanent law will, in fact, be required. We have to be very sure of it; and I think we err on the safe side in asking your Lordships to renew for a year in some cases in which it may well prove that permanent legislation will be required.
I do not think it would be expedient for me at this stage to say much upon the way in which that possibility has been met, for that, of course, is the subject of the Bill to which I shall shortly be asking your Lordships to give a Second Reading. But it is a fact that a substantial number of regulations which had a temporary character are now to be embodied in permanent legislation, and they form the several parts of the Bill. I would only say this about the Bill that it is a very hybrid sort of creature—and necessarily so. It contains miscellaneous provisions, but there is one single common characteristic of the various provisions of it, and that is that they have been temporary and it is now determined that they ought to be permanent. But they cover a very wide variety of subjects, with which I will deal when I come to the Bill. In the meantime, I venture to point 457 out to your Lordships that when you consider the number of regulations which, on the face of it, are continued, you will find included in that number a substantial number which are continuing in force only until their place is taken by permanent in an Act. Therefore your Lordships must give us credit for a substantially larger number of revocations than appear on the face of the Order Paper.
Finally, the Government always foresaw that, whatever might be the result of their review of this wide field of emergency powers, a number of powers will have to be continued for a further period in their present form. I do not think I need remind the House in detail of the nature of the powers in question and the need for their continuance. I will only say, first of all, that they are continued for defence purposes. We are still at war; and not only are we at war asa member of the United Nations in Korea, and committed to war-like operations elsewhere—as in Malaya—but we are faced with the grave emergency of continuing our rearmament programme, which demands something more than provisions which were made for conditions of peace. We are therefore face to face with an emergency, and these regulations are needed.
As they are needed for defence purposes, so they are still surely needed also for economic purposes. As your Lordships know well, there is the continuing trouble of our investment programme—a phrase which I do not not like. There is all the difficulty of allocation, supply, finance and so on, to the several clamant needs of the nation, in regard to which some priority must be determined andawarded by Her Majesty's Government. We need them for economic purposes but, more than that, we need them, too, for the winding up of certain war-time measures; and, indeed, for certain post-war problems. If your Lordships look through these regulations that are to be continued, you will see over and over again that this or that measure is required in order to wind up something which has been done in the course of the war or to meet post-war problems. Again, in considering their numbers, what struck me, asI read so many of the regulations, is that one seems to breed 458 another. If I may use a familiar rhyme in this connection:Big fleas have little fleasUpon their backs that bite 'em;And little fleas have lesser fleas,And so ad infinitum.Again and again we find a regulation which is ancillary to another regulation and made in order that that other regulation may be effective.
The question, of course, arose: Assuming that many of these powers have to be continued, for how long should they be continued?We thought it proper to ask for one year, in order that, with the same urgency, the matter may be reviewed during that year. I do not want to rake up old troubles, but I cannot help thinking that when in 1945 His Majesty's then Government asked for a renewal for five years, as they did, of these emergency powers, a mistake was made, because the sense of urgency was lost sight of. At any rate, we asked for one year last year, and we shall ask for one year again. Unhesitatingly, I give the same undertaking that Her Majesty's Government gave before, that the whole question will be vigilantly reviewed all the time, because I do not think there can be any doubt that, from their side of the House at least, the continuance of these powers is regarded as, in principle, objectionable.
There is a matter which may not be strictly germane to my Motion —though I think probably it is, because one of the objections always taken to the continuance of powers of this kind is that they involve a number of officials who have a right of entry and inspection. In answer to a Question that was put to me some little time ago, I was able to give the House some figures in regard to the numbers of officials armed with powers of that kind. Even if the matter is not strictly germane to the subject we are discussing, perhaps your Lordships will forgive me if I give the figures up to date. On July 15 last, the total number of officials possessing powers of entry to private or business premises without a warrant was 16,744. That numberincluded 3,887 who were empowered to enter private houses, used exclusively as such. It represented a very substantial reduction since June of 1951, a reduction of no fewer than 2,451, of whom 2,101 were persons having power to enter private houses. Thatalso is a matter 459 which has been subject to continuous review, and I can now tell your Lordships that the number has been further reduced to 14,450, of whom 3,083 are persons empowered to enter private premises. That represents a reduction since June 1,1951, of 4,745 in the total number of officials with powers of entry, and of 2,905 in the number of those empowered to enter private premises. One can only hope—and I certainly hope—that, as this review continues, and as powers are reduced,so also will the number of those persons whose duty it is to enter upon premises in order to see that regulations are complied with.
If your Lordships will bear with me for a moment or two more, I ought to say just a word or two upon the fourth and fifth Motions standing in my name. The first relates to Section 49 of the Patents Act, 1949. The Motion is a Prayer that, under the terms of that section, its provisions be continued for one more year. This is an extremely difficult and technical subject, upon which I do not want to trouble the House unnecessarily. It is just an example of what I was saying a short time ago. We have been examining the matter with great care but we are not yet satisfied that we have found precisely the right way of embodying the provisions of that section in permanent legislation. It is one of the greatest difficulty. If I may describe it in one word, it enlarges the rights of the Crown in respect of the use of patents. I should be wrong, I think, at this stage to enlarge upon that topic. I will simply say that it is a provision which enlarges the powers of the Crown already existing under Section 49 of the Act in relation to patents; and, with the best will in the world, it must be a matter of investigation and much consideration with the relevant industrial organisations to find an appropriate way of dealing with that matter other than by renewing this regulation for the year.
I venture to mention this at this stage because I know that the noble Lord, Lord Schuster, is exercised in his mind about this matter. There is nobody, if I may say so with respect, who knows so much about these matters as the noble Lord, and therefore his opinion is entitled to the greatest consideration. The fact is that we have had in mind just the sorts ofconsiderations which have vexed him, and we have come to the conclusion that 460 no other course is open to us than to ask the House to renew this section of the Act for one year. We hope that before another twelve months have passed we shall have found a solution. Exactly the same considerations apply to the fifth Motion which stands in my name, dealing with Registered Designs. If possible, this is a more complicated and difficult subject even than that of patents.
Although I have spoken now for nearly an hour, I am conscious that in this vast area I cannot have satisfied all your Lordships about everything. That, perhaps, is a thing that one can never hope for. But I will, as I say, do my best, when my time comes to reply, to deal both with those who think that more regulations should have been revoked and with those who feel that fewer regulations should have been revoked. I do not know into which category most of your Lordships will fall. But I hope that, having expressed your views upon it and having received such answers as I am able to give, your Lordships will see your way to agree at any rate to the Motions which stand first, fourth and fifth in my name; the others I shall not move. I respectfully invite your Lordships, in discussing the first Motion, to deal with the whole area covered by the several Motions. I beg to move.
§ Moved, That an humble Address be presented to Her Majesty under section eight of the Supplies and Services (Transitional Powers) Act, 1945, praying that the said Act, which would otherwise expire on the tenth day of December, nineteen hundred and fifty-two, be continued in force for a further period of one year until the tenth day of December, nineteen hundred and fifty-three.— (The Lord Chancellor.)
§ 3.31 p.m.
§ LORD SILKIN
My Lords, the Whole House will be most grateful to the noble and learned Lord Chancellor for the very clear way in which he has discharged what is, I am sure, a most difficult task. To have attempted to have done more than he did and to have gone into more detail would, I am afraid, have wearied the House and, perhaps even worse, bored it; and especially in view of the threat, or statement, that to develop this subject in the way in which it ought to be developed in full might take twenty-five hours, I am sure we are all very grateful 461 to the noble and learned Lord for sparing us to the extent of only one hour's talk. But to have said less than the noble and learned Lord did say would have made the whole subject under discussion to-day incomprehensible. It is a vitally important subject and I can assure the noble and learned Lord that, in difficult circumstances, he has done justice, and no more than justice, to the subject.
We are asked to approve three of the five Motions to-day and, subject to the addendum which is to be moved to the first of these Motions, we on this side of the House have no objection to them. I myself propose to discuss only two of the individual regulations, although some of my noble friends may have something to say on others. I do not feel qualified to express any opinion as to whether too many or too few have been revoked.I am sure the noble and learned Lord will be pleased when he finds that some noble Lords consider that too many have been revoked, whilst others think that too few nave been revoked, because it puts him in the happy position of saying that probably what the Government are doing is about right; it is a position in which I have always been glad to find myself in the past.
It is much too difficult, without the close study which apparently Her Majesty's Government have given to this matter, to express any definite opinion about it, but I regret that two of the regulations are not being retained. One, as the noble and learned Lord forecast, is Regulation 68CA, which gives to the housing authorities the power to refuse permission to change the use of a dwelling-house to some other purpose. After all, it is the housing authorities who are in a position to know to what extent the housing problem has been substantially alleviated in their area, and, generally speaking, they are not the planning authorities. The planning authorities are more remote from the housing situation than are the housing authorities, and I should have thought that it is at any rate premature to discontinue Regulation 68CA.
The other regulation to which I wish to refer is Regulation 62AA, which provides a penalty for allowing dogs to stray on allotments. That is a subject in which I believe the noble Viscount, Lord Hudson, is interested—at any rate, he 462 referred to it in his speech on agriculture the other day. Psychologically, I should have thought that, at a time when we in this country are still suffering from a grave shortage of food, it was wrong to give the impression that we can let up on any matter which may injure the production of food.
I was particularly interested to hear the noble and learned Lord say that he was not yet satisfied that there are any further regulations which require annual approval by Parliament. This is the third successive year that we have had a similar debate on these regulations, and it is interesting tosee the attitude which various noble Lords on the two sides of the House have taken in this matter, according to whether they were on this side of the House or on the other. In the past, noble Lords who sat on this side of the House certainly gave the impression in debate that they were anxious to sweep away the whole body of emergency legislation, and we who were on the other side of the House made exactly the kind of speech which the noble and learned Lord has made this afternoon. It will be interesting to hear what noble Lords opposite have to say on this subject this afternoon, and to see whether they are consistent.
I do not wish to discuss this matter on the basis of Party politics (it is much too important for that), but I do want to remind noble Lords of one or two statements that have been made in the past. First of all, I should like to quote the Prime Minister who, speaking in Edinburgh, on May 18, 1940 said:I take this occasion of announcing that we should oppose the permanent extension of the Act, and insist on the continuation only on a year-to-year basis in order to retain full Parliamentary control.That is not what the noble and learned Lord is doing to-day. Here he is seeing how far he can make certain of these regulations permanent. I think that was the third of the possibilities he referred to, and it is the purpose of the Bill which we shall be discussing later in the afternoon. On October 23, 1950, the first occasion upon which these regulations came under review for an extension for one year, Mr. Crookshank said (OFFICIAL REPORT, Commons: Vol. 478, Col. 2518):… all this corpus has to be looked at and has to be pruned down, and we serve notice that in our view this has to be done within the next twelve months.463 My Lords, it has not been done "within the next twelve months." Indeed, the harvest has been relatively small—not because Her Majesty's Government have not done their best severely to prune down these regulations, but because they have found just what we found when we were in office, that so many of them really are necessary for the purposes to which the noble and learned Lord himself referred—namely, defence, economic and winding-up purposes. So it is interesting to find that Her Majesty's Government to-day are very much in the position in which the Labour Government found themselves in 1950 and 1951.
There is just one other matter to which I should like to refer in connection with a controversy which has taken place over the years. The Labour Party have been constantly accused of maintaining controls for the sake of maintaining them. That has never been true, and I hope that the House will realise, after the speech of the noble and learned Lord on the Woolsack, that it is less true to-day than it ever was.A large number of these regulations are necessary for maintaining our present-day life. But it is a fact that, in spite of what is said about the love of the Labour Party for maintaining controls for the sake of maintaining them, more than half of the Defence Regulations, more than half of the regulations to which the noble and learned Lord referred, had been discontinued by the end of October, 1950; and a number more were discontinued after that. Indeed, they were discontinued at a rate not very differentfrom the rate at which regulations have been discontinued by the present Government in the past year. We certainly picked those which we thought were ready for discontinuation. But to have discontinued more than half is hardly consistent with the statement that we wanted to hang on to controls for the sake of hanging on to them. I think that fact certainly bears out the view which we take of controls—namely, that it is right to hang on to those which are necessary and to get rid of those which are unnecessary.
I do not think there is any great difference between the Parties about our attitude to the Motions before the House to-day. As the noble and learned Lord said, we may think that some of these 464 regulations are being discontinued prematurely, and we may think that others might be added to the permanent body of regulations. But those are matters of detail and they will be discussed at the proper time. As for myself, I have mentioned the regulations which I think are being prematurely discontinued. I do not wish to deal in any detail with any others, but I should like to remind the House just where we are and where we are going in the way of regulations.
The emergency enactments and the Defence Regulations are becoming more and more complicated: the speech of the noble and learned Lord who sits on the Woolsack certainly bears that out. No one in this House could have put the case more simply and more clearly than he did. Yet he had to admit that he was dealing with the matter just on the surface, soto speak, and that it would have taken a very long time merely to explain what it is sought to do this afternoon. Let us remember that every one of these regulations has the force of law, that they are intended to be obeyed and complied with by the citizens and that any breach of those regulations is committed by the citizens at their peril. Anyone who commits a breach may be punished, and in some cases may be punished very severely. It is almost impossible to keep track of the different emergency enactments under which these regulations are made, and to have in mind which are in force to-day and which are not. And the Motions we now have before us are certainly not calculated to make life any simpler in respect of these regulations. As each year passes, every time we make any variation of these emergency enactments we complicate matters. It is exceedingly difficult to-day to find out which of these regulations are in force and which are not.
At the end of 1950—and I think before that in 1948—there was published a volume of Emergency Defence Regulations. Here they are. The regulations set out are those which were in force at the end of 1950 under various emergency enactments. A considerable number of them have ceased to be in force since then. I suppose that by the exercise of infinite patience and an immense amount of research one might be able to find out which of these enactments have been discontinued and which 465 are still in force, but that is a task beyond the capacity of most citizens and beyond the capacity of a great many of the advisers of citizens. I would ask the noble and learned Lord on the Woolsack whether it is not time to bring out a new edition of this volume, so that we may know what is in force and what is not —at anyrate after these various Motions have been agreed to.
I do not think there is much more I wish to say about these Defence Regulations, but I hope the House will bear with me if I stray somewhat outside the rules of order and extend my remarks to the subject of regulations generally, because, after all, the Defence Regulations are merely a part of a much bigger question—that of legislation by regulation, or "delegated legislation," as it is called. The noble and learned Lord has explained to us that no new Defence Regulations have been possible since 1945, though I understand that orders under Defence Regulations are constantly being made, and that even they have the force of law. But an immense outpouring of delegated legislation is constantly going on under many other enactments. I do not know whether noble Lords see the document that is published every fortnight, under the heading: "Statutory Instruments, Etc." I believe that, on the average, the total of these Instruments works out at something likeone hundred a fortnight. This is the most recent edition of the document to which I refer. I have not counted the number of Instruments therein set out, but I see that the issue is a much bigger one than usual, and I dare say the total runs into several hundreds. At any rate, ever since 1945 we have had an average of over 2,000 new Regulations imposed annually upon the public, every one of which has the force of law and for the breach of which a penalty may be imposed.
It is true that for the greater part of that period these regulations were imposed by a Labour Government, but the present Government have well maintained the average. Up to the present, for the year 1952 they have topped the 2,000 mark. The last time I looked at it, the number was 1,999; there are still six weeks to go and there is every prospect that by the end of the year the output of delegated legislation by the present Government will be well up to what it has been in the past. I do not say nor 466 do any of my noble friends say, nor, I think, will any responsible member of this House say, that delegated legislation is unnecessary. We have reached a time when we have to recognise that delegated legislation has come to stay. Even the noble Viscount, Lord Samuel, recognised that last year,and I imagine he will do so again this year. I think the noble and learned Lord the Lord Chancellor was a member of the Donoughmore Committee—a long time ago now—which recognised that delegated legislation would have to be a permanent feature of our administrative life, though I doubt whether they visualised anything of the order of 2,000 regulations per annum.
We have to look at this problem in the light of the new conditions which exist to-day. We have to look at the immense outpourings of what amounts to legislation, accepting the fact that in the complex system of our present day society delegated legislation is necessary. Nor am I prepared to agree that it is unnecessary to have over 2,000 regulations per annum. I have not examined them all— I do not suppose that any other noble Lord has done so—and it is impossible to say whether every single one is or is not necessary. But I say that if we are to have delegated legislation on this scale, then three conditions must be complied with.
The first is that these regulations must be clear to the ordinary citizen. It is no good having legislation affecting the citizen which reads something like one of the last to be published—No. 1961, the Chocolate, Sugar Confectionery and Cocoa Products (Amendment No. 4) Order, as amended, which is further amended as follows:by substituting in paragraph 2 of Part I of the Second Schedule thereto for the words 'the maximum price shall be at the rate of 5s. 4d. the lb.' the words 'no maximum price shall. apply'.Then there are sub-paragraphs (b) and (c) in somewhat similar terms. I suppose I picked out a fairly easy one, because I have guessed, having read the newspapers, that this means that there is no further control of chocolate prices. But if it means that, it should not be left to an intelligent guess. Why cannot the order say so? Why cannot it be written in plain language so that everyone can understand it and those members of the public pleased with it can really congratulate themselves that something good 467 is happening, without needing the services of someone else to tell them that that is what it means. There are other orders even more complicated than that. I ask if we can have this delegated legislation written in the simplest possible terms, clear to the ordinary citizen. Secondly, orders ought to be in a form which is readily available to the ordinary citizen—not obtainable only by going to Kingsway and buying them, if the persons there are not too busy to sort out what one wants, but readily available so that one can look up and see what regulations are in force relating to a particular subject. That should not be too difficult. Some sort of index could be made available, so that any member of the public who wants all theregulations affecting chocolate, or meat or any other subject, can readily find them—and find them written in terms which he can understand.
The third condition I would make, which I admit is the most difficult of all, is that there should be adequate Parliamentary control. To-day there is a form of Parliamentary control which, in my view, may well be worse than no Parliamentary control at all, because it is illusory. There are two sides to it. There are the Special Orders Committee of this House andthe corresponding Committee in another place, which draw attention to those regulations which they consider ought to be looked at closely. I speak with the greatest respect to these Committees, which are doing a most difficult and, I would say, almost impossible job. There is also the procedure of Prayer or Affirmative Resolution in another place and in this House. The Statutory Instruments Committee and the Special Orders Committee do not go into the merits of the regulations. Generally speaking, they donot explain them. They merely draw attention to those that need some explanation. I do not wish for a moment to decry the value of that, but it is quite inadequate, and I imagine few noble Lords have the opportunity of even finding out what are the reports of these Committees. That, in itself, is hardly Parliamentary control.
The second method, of Negative Resolution, is seldom resorted to in this House, although available to us. In another place it has been resorted to very often—as a method of obstruction, not necessarily as a means of discussing the 468 merits of an order, and this is true of both Parties in recent years. Be that as it may, it is impossible to discuss any considerable number of regulations in this way, even if all the discussions were carried out with the utmost good faith. There is a limit to Parliamentary time and to Parliamentary endurance. When members of another place have been sitting up to 4 o'clock in the morning, as they did this morning, for the purpose of carrying on normal business, it is hardly encouraging then to start exercising public control over regulations which have been introduced. As your Lordships know, there is a limited time in which it is possible to discuss these regulations.
Therefore, the question arises:Is there any new way in which to exercise power to control these regulations, in view of the inevitably large number of regulations which every Government finds itself under an obligation to get through? I submit to the House that this is the most important constitutional question that we have to consider at the present time. I have no ready-made answer; all I can do is to think aloud. But it seems to me that it should be the task of some special body, which should be set up for the express purpose, to gothrough these regulations and to approve or not to approve them: not merely to draw attention to those that need consideration, but to go much further than that. That is a task which, as I have explained, it would be impossible for the other place to carry out. Any suggestion that they can do so, or are doing so, is purely illusory. There is no real Parliamentary control at all.
But is there any way in which we in this House can assist by the exercise of greater Parliamentary control than has hitherto takenplace, or than is possible in another place? It may well be that here is a function for this House which we might consider undertaking, which would not compete with the powers of the other place and which would be in the interest of the public as a whole.Obviously, I do not expect the Lord Chancellor to reply to this suggestion, or even to give his first reactions, but it is a matter which is deserving of the utmost consideration. We just cannot go on with 2,000 regulations a year and pretend that they are the subject of Parliamentary control, when they are not. I suggest 469 that the time may well have come for a new Donoughmore Committee. After all, the last one, which was set up twenty years ago, dealt with an entirely different set of circumstances, and could not possibly have visualised that we should be having anything like delegated legislation of this magnitude. It is not a matter greatly of order; it is a matter of complete revolution in the method of regulation. I think the time may well have comewhen this question should be reviewed by a new Committee, examining it objectively, of course, and putting before us their views on how the matter should be dealt with, and particularly how we could get the maximum amount of Parliamentary control over this form of legislation.
It has been suggested that there should be power to amend regulations, and that that would be one method of exercising Parliamentary control. I am not at all sure that it would really work. Any Amendment that was made by this House would have to go to another place and it would presumably have to go through the various stages of a Bill. Even though we in this House may be able to spare the time to go through regulations in that way, it is obvious, from what I have said, that it wouldbe quite unworkable if they also had to go through the same process in another place. What we need is a simple time-saving method of exercising Parliamentary control in these matters; and unless we have it, frankly, we are in danger of having a dictatorship of the bureaucracy, which I am not sure is not more damaging even than a dictatorship of the proletariat. At any rate, nobody wants dictatorship of any kind, and there is a great danger that we may become involved, perhaps without even realising it until it is too late, in a dictatorship of the bureaucracy.
I am afraid that I have strayed somewhat from the narrow terms of the Motions before the House, and it is fortunate that there is no one to call me to order, but I did feel that this was an occasion when we might discuss the whole question of delegated legislation. After all, these Defence Regulations are only a relatively small part of the whole problem, and it seemed to me to be illogical to consider this small amount without looking at the picture of delegated legislation as a whole. On these particular Motions, I would say that we 470 recognise that, subject possibly to some amendment by the insertion or deletion of a number of regulations in the Schedule, we have to accept these Motions. We certainly accept the principle of the Bill—I am not sure whether the Lord Chancellor has moved it yet.
§ LORD SILKIN
When the noble and learned Lord does move it he will find no difficulty from this side of the House, exceptagain the possibility of moving certain Amendments in the Schedule. I hope it will be possible to consider this problem seriously, and I know of no tribunal where it can be better considered than this House.
§ 4.6 p.m.
§ VISCOUNT SAMUEL
My Lords, I feel surethe whole House will agree that the course suggested by the noble and learned Lord, the Lord Chancellor, for our procedure to-day and the following days is the one most conducive to the smooth working of our business and the right inter-relation between the procedure of this House and that of another place. I am sure, also, that we shall all endorse what the Lord Chancellor has said as to the extreme complexity of the matters with which he has been dealing and with which we are now dealing. He has walked with a firm tread through the devious ways of a very intricate labyrinth, and we were glad to see him emerge with safety "by the same door wherein he went." He began by saying that in the first instance he would deal with the background of the whole problemand he did so primarily from the legal and Parliamentary standpoint. I also had intended, and do intend, to take the same course: not to embark upon discussions of individual cases or particular regulations, but again to deal with the background, though rather the background from the point of view of public policy. For this topic to-day touches closely the matters that I have ventured to bring to your Lordships' notice on several occasions in the form of the Bills entitled Liberties of the Subject Bill. 'These matters we are now discussing were touched upon by the opening clause of the Bill which I had the honour of introducing no longer ago than last July, the question being: What form 471 of Parliamentary control should there be over delegated legislation?
I fully agree with the noble Lord who has just spoken that such legislation there must be—everyone concurs in that. For Parliament to consider point by point and stage by stage, in both Houses, every one of the matters separately dealt with in theclauses of these thousands of regulations, would destroy our whole Parliamentary system and bring democracy in this country into utter disrepute. It is clear that many of the regulations—indeed, no doubt most of the regulations now in force —cannot be brought to a sudden violent stop on December 10 of this year. That would utterly disorganise a great many of the services which are absolutely essential to the daily life of the nation. Therefore, no one, I imagine, in the whole House, no matter to what Party he may belong, would oppose a measure for the continuance of most regulations after the due date for their legal termination.
As to the progress that has so far been made by the Government in pruning this great jungle of administrative regulations, I do not think any of us can judge off-hand whether it is as great as ought to have been achieved or not. I confess that I was not greatly impressed by what the noble and learned Lord said on the subject of the regulation dealing with powers of entry. That is a matter on which one may be surprised to find how lively is the public interest; in the great mass of correspondence that I have received in connection with the Liberties of the Subject Bills, and in cuttings that I have received from the organs of the Press, that is the subject to which reference is most constantly made. The noble and learned Lord on the Woolsack told us, apparently with some feeling of satisfaction, that the Government had been busy in dealing with this subject and had reduced the number of officials with power to enter premises without warrant. To what? I expected him to say, possibly, 200; I would allow him 500 or even 1,000; but he put his hand on his breast and said, "The Government have succeeded now in reducing the number to 14,000." I think that is a matter for a white sheet, rather than for a halo, and I sincerely trust that more rapid progress can be made, rather than that this procedure of piecemeal action in individual cases should be regarded as effective.
472 Let me remind your Lordships how it is that we have come into this position. It is obviously caused—and everyone knows it—by the occurrence of two great wars, and the legislation with which we are now dealing is a legacy of the Second World War. Then, the country, in a state of high patriotism and a sense of grave peril, said in effect to the Government, from the first day of the war: "Take what powers you will, so long as you can defend this country and bring us victory. We will sacrifice all ourresources. We will sacrifice our lives. We will abandon many of our precious liberties so long as you can protect our greatest liberty, liberty from conquest." Without demur all these powers were freely given, and they have been exercised, many of them, ever since. But there was a feeling in the country that this is not to be the permanent arrangement of our laws. I would quote words from one who is always more worth quoting than anyone else—Mr. Churchill. On August 21, 1940, at the very moment of extreme crisis, dealing with these very matters he said this:All these emergency measures which restrict the liberty of the subject shall disappear with the passing of the emergency, and the new offences created by the regulations under the Emergency Powers Act and extraordinary powers entrusted to the Executive will vanish with the advent of victory and peace.That was said in 1940. We are now in November, 1952. Indeed, when the war was over in 1945, the Supplies and Services (Extended Purposes) Act was passed with a scope wider even than had been conferred during the war. Here are the purposes for which regulations might be made:(a) for promoting the productivity of industry, commerce and agriculture;(b) for fostering and directing exports and reducing imports, or imports of any classes, from all or any countries and for redressing the balance of trade.Mark this one above all:(c) generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the interests of the community.Is it possible to imagine wider powers conferred upon any Executive? No Hitler could claim authority wider than is expressed in those paragraphs.
Parliament in earlier days used not to demur at including in a Bill a general clause allowing the Executive to make regulations under that Act, because those 473 regulations were usually minor adjustments necessary to bring the Act into force and to give effect to it in matters of comparative detail. But these clauses that I read just now are of a very different order, and therefore in these days public opinion is much more concerned to see that their representatives—the representatives of the people in Parliament—shall have some voice in what is being done, and some effective voice and power of control, than they ever were in bygone days. Again I would quote the Prime Minister, ten years after his first observation, when he said that all these emergency regulations should vanish on the return of peace. He still has to say:Our object is to get rid of the whole system of controls and restrictions as soon as possible. Post-war shortages should not be made the excuse for clamping a permanent system of controls upon the community.Well, we all endorse that, but at what snail's pace are we going towards the destination which he holds out as our object! That is ten years later, after his first speech. Still the task is far from being accomplished. And mark what can be done in some particular case under ourpresent system!
In 1947, two years after the end of the war, the Government of the day thought it necessary to pass a regulation for what was called "industrial conscription" and "the direction of labour," giving powers to Government Departments to direct working people to go into one industry rather than into another. That may be right or wrong. It may have been avoidable or unavoidable, but it is undoubtedly a grave infringement of the liberties of the subject. What happened to that regulation? It was brought in during the Parliamentary Recess and was put into actual operation—it is; true that it was never given any wide scope, but it might have been—without Parliament having been consulted in any way or having had an opportunity of saying one word either as to the principle or the practice of that regulation. There is, therefore, still a very urgent and actual question of high importance. I do not know that I should join with the noble Lord who has just spoken in thinking that this is the most important constitutional question with which we 474 have to deal, but certainly it is a question of very high importance; and, as he and the noble and learned Lord the Lord Chancellor and others have said, it is one of great difficulty, because we must have these regulations, or some of them. We must not choke Parliament by incessant discussion; and we ought not to give a wider opportunity of wilful Parliamentary obstruction than can be avoided. We have to secure that there shall not be unnecessary conflict between the two Houses.
Then by what means should this be achieved? I should like to quote some words which the noble Marquess, Lord Salisbury, uttered at the end of the last debate on the Liberties of the Subject Bill. He made some observations which I thought were of great importance—perhaps more important than anything else that was said by any speaker during that debate. He suggested some means by which this problem—this Parliamentary problem—could he solved in a practical way.He said: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.He went on to deal with these difficulties. He then said: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.Then he suggested that in some necessary cases, even if it were not made an invariable practice:…it is open for consideration whether …Governments—not only this Government, but other Governments—might not lay such an order in draft.That was the suggestion—that the orders should be laid before Parliament in draft; that discussion should take the form of making suggestions for alterations to the draft; and that then the order might be made accordingly, instead of its lying on the Table to be accepted or rejected as a whole without any possibility of minor amendment being made.
That is a suggestion which I also have advanced. It is actually embodied in one important Statute which has been on the Statute Book (though it is now there no longer), namely, the India Act, 1935, in which this very provision is applied for draft Orders in Council; and, secondly, 475 there was the case of the Military Service Act, 1939, which established conscription. The matter was dealt with in that way and draft regulations were actually submitted to both Houses and fully debated. That might be a possible procedure. The procedure which we are asked to follow to-day at this sitting of the House, or at any similar sitting, seems to me to be one which is most ineffective. It is quite unfair to the House to ask nobleLords to come here and consider, and perhaps to vote upon, such a question as whether dogs should be permitted on allotments—which I believe is one of the subjects to be raised to-day—or any similar matter of detail. You cannot legislate in that perfunctory fashion. These questions should be considered by a regular Parliamentary procedure. It is unfair to the public, it is unfair to great interests, and it is unfair to powerful industrial and commercial organisations, that they should suddenlyhear that on this day of November the House of Lords agreed to the permanence or the discontinuance of some regulation that has been affecting them very closely. They have heard nothing about it; there has been no opportunity of discussion. It is true that the matter has been on the Order Paper for a few days, but there is nothing approximating to our normal procedure, whether by Private Bill legislation or by Public Statute. I am convinced that both Houses of Parliament must reconsider this whole matter.
The noble Viscount, Lord Stansgate, intervened when the Lord Chancellor was speaking and asked by whom this review had been made. That is a very pertinent question. The review is going on year by year and month by month, working gradually through these regulations, and we are told that a certain number are to be repealed and a certain number are to become permanent. But, as the noble Viscount asked, who is conducting that review? The matter is surely one for the adjustment of relations between Parliament and the Government Departments (or the Executive), and this question, which is a vital one, is to be settled by one of them—namely, the Departments themselves. That is obviously wrong; and I feel, and I hope noble Lords will agree, that Parliament inboth Houses should assert itself and say that that is not adequate.
476 What, then, should be done immediately? Here again, I venture to make a suggestion. As this is a Parliamentary matter, simply a matter of internal Parliamentary procedure (though having wide repercussions on the public interest), as both Houses of Parliament are affected. and since the two have to be co-ordinated so that we do not have action of one kind taken in. one place and contradictory action taken in the other, I suggest for your Lordships' and the Government's consideration that the matter should be considered profoundly and at leisure by a Joint Select Committee of the two Houses—that is, of course, if the House of Commons agree. If they do not agree, then it should be considered by one Select Committee here and by one in another place. This is too complicated a matter for us to consider here this afternoon and think it possible to arrive at a conclusion. It is not even possible for us adequately to perform our duty of considering the Motions on the Order Paper with intelligence and a sense of responsibility; and it is above all impossible for us to decide what should be the permanent course of Parliament in dealing with this grave question of controls and regulations which now cover so wide a scope and which touch so many matters closely affecting the whole life of the nation.
§ 4.28 p.m.
§ LORD BALFOUR OF INCHRYE
My Lords. I am sure we are all indebted to the noble Viscount who has just sat down for his analysis of a problem which must be worrying to noble Lords on all sides of the House. The noble and learned Lord on the Woolsack has taken us through what he described last year as "the jungle." We are now having an annual exploration of that jungle of legislation. I think that no noble Lord on any side of the House is really happy about this matter, and, if I may say so with respect, I doubt whether in his heart the Lord Chancellor is really happy that we should have to go through this sort of procedure year after year. The Lord Chancellor told us something of the review of the past year by Her Majesty's Government of these various regulations. He told us, and we have seen in the White Paper, some of the results of that review. The noble Viscount, Lord Stansgate, interrupted the Lord Chancellor just now to ask who was conducting the review. Personally, 477 I find some difficulty in accepting the view that anyone but Her Majesty's Government can have the final responsibility for saying what is or is not necessary.
§ VISCOUNT STANSGATE
Surely the noble Lord is aware that Her Majesty's Government are the servants of Parliament.
§ LORD BALFOUR OF INCHRYE
Certainly, but these regulations affect the work of so many Ministers and so many Departments that finally it must be the Government,who have to be answerable to the Legislature. It must be the Executive who must finally say, and be ready to justify, what degree of regulation is necessary.
§ LORD BALFOUR OF INCHRYE
I am sorry. The noble Viscount is right. Of course, the Legislature is supreme. But I wonder whether there could be some modification of the proposal of the noble Viscount for a Joint Select Committee of both Houses or, if not a Joint Select Committee of both Houses, a Select Committee here and another Select Committee in another place. I wonder whether there could be some Committee in which both Ministers and ordinary members of both Houses should sit together, and the Ministers responsible be obliged to bring forward before this Committee their arguments for wishing to keep in force any particular regulation. We are all throwing out our suggestions; we are all trying to be constructive, and that proposal seems to me a further development of the noble Viscount's ideas. It is a method which would allow Her Majesty's Ministers in various Departments to advance their Departmental necessities in a way which they could not possibly do before a Joint Select Committee.
§ VISCOUNT SAMUEL
I have in mind a Select Committee which could take evidence from all the Departments concerned as to the course which they thought desirable.
§ LORD BALFOUR OF INCHRYE
Yes, I believe we both have the same object in mind, though we think there are different ways in which it might be achieved. The noble Viscount, Lord Samuel, said that he was not very impressed with the 478 results of the year's review. With great respect, I could net quite make out whether the noble Lord, Lord Silkin, was satisfied, or whether he was supporting or opposingthe continuance of these regulations. I tried to follow the thread of his speech, but it was difficult to come to any positive conclusion as to what was in his mind. However, it is clear from the noble Viscount, Lord Samuel, that he is not entirely satisfied with the progress that has been made.
Nobody is entirely satisfied with anything, but I think we can look for a moment at some solid progress during the past year, when the legislative programme has been filled with very important measures and when thecountry has been passing through a grave economic crisis. In spite of that, we have been able to do something. Let me take one thing about which the noble and learned Earl, Lord Jowitt—who I am sorry is not here to-day, though I am sure his absence is unavoidable—gibed Her Majesty's Government last year, the abolition of identity cards. Last year he said:Take, for example, the matter of identity cards. When we had a debate on that matter this House went to a Division, and noble Lords determined that the whole system of identity cards should be got rid of. I rather sypathised with the attitude of the noble Lords opposite. It seemed to me a nice piece of Victorian Radicalism, which I always liked; but I understood at the same time that, unless we had identity cards, we should have difficulty "—and he went on to talk about the various difficulties. Then he said:But no! the Opposition in those days, the Government Front Bench to-day, voted against us and nailed their colours to the mast. Identity cards were to go.They have gone. Surely that ought to give a great deal of satisfaction to noble Lords opposite. The noble and learned Earl, Lord Jowitt, then went on to say:In the meantime it seems to me that 'Set the people free' must wait.
§ LORD SHEPHERD
It is true that the Order dealing with identity cards has gone, but one week after the cancellation of the identity card the Minister of Health appealed to people in the country to retain their identity cards because the information on the cards was required for health purposes. It is true now that, instead of using the old identity cards, the Health Service authorities have had to compile a list of their own.
§ LORD BALFOUR OF INCHRYE
If I remember rightly, the Minister of Health appealed to the public to keep their identity cards while the administrative machinery was being amended, instead of putting their identity cards upon the fire.
§ LORD WINSTER
Surely, while it is the case that the Minister of Health was anxious that people should retain those identity cards for those administrative purposes, the police could no longer call upon an individual to produce his identity card, which was the gravamen of the complaints about them.
§ LORD BALFOUR OF INCHRYE
I do not know whether the noble Lord, Lord Shepherd, is defending the continuation of the identity card, which seems to me the position which the noble and learned Earl, Lord Jowitt, took up last year. I would rather he rejoiced that identity cards have gone. This is what the noble and learned Earl said last year:'Set the people free' must wait. I suppose that at the present moment the Government are busy restoring confidence in the City. It does not seem to havehad very great success so far. Let us hope that when the Government have achieved their results, they will find time to 'Set the people free'.I wish that the noble and learned Earl had been able to be present to-day—of course, he could not be here—because he would surely have been glad to pay tribute to the work of the Chancellor of the Exchequer between November, 1951, and November, 1952, in doing the very thing that he rather cast doubts about—restoring confidence at home and abroad in the financial position of this country.
Meanwhile, however, according to the Financial Secretary of the Treasury in another place the other day, something like 1,024 orders and regulations of general application have lapsed or been annulled. Price controls have been removed from a wide range of manufactured goods, and where the Board of Trade have been concerned, prices have not gone up, but in most cases have gone down. The noble Viscount, Lord Swinton, has been responsible for freeing various of themetals and softwoods the newspaper rationing scheme, the tonnage scheme, has been suspended; licensing of building has been eased. In many directions, thank goodness! we are increasingly "setting the people free"—and that in a year when 480 the Government have been greatly preoccupied in matters of absolutely vital national and international importance.
Despite some degree of satisfaction at the review which the Lord Chancellor gave us, we must welcome the assurance that the review is going to continue, and we hope that when, in a year from now, we are faced once more with the prospect of entering the jungle, the Government will be able to come forward and say, first, that a larger number of regulations than this year are to be revoked, in whole or partially; and, secondly, that if they do not wish, as I understand, to enact regulations into Acts of Parliament which are renewable every year, they will by that time have sifted out what they wish to embody in permanent legislation which will be brought before Parliament in due course. I do not believe that any noble Lord on this side of the House. certainly none on the Liberal Benches, nor, I should think, any on the Opposition Benches, in the majority of cases, likes placing in the hands of the Executive such sweeping powers as remain to-day—for example, in Defence Regulations 53 and 55, the requisitioning of property other than land, and the general control of industry.
Those are enormous powers, and we have to rely upon good and sensible government, from whichever side of the House it may come, not to abuse its opportunities by taking advantage of those powers in any sweeping way. It is fundamentally wrong that such powers should exist in the hands of the Executive. I do not believe that they should be exercised by the Executive, except by Act of Parliament, having gone through the appropriate procedure in such cases of importance as those that I have mentioned. The Statutory Orders procedure, as amended, might work for lesser powers, but I believethat no person who has sound conservative views or sound constitutional views, to whatever Party he belongs, can approve of the Executive's maintaining those powers as at the present time. I hope that, in one year from now, we shall see a position different from that which exists to-day. I do not think we need be dissatisfied with what has been achieved. I do not think that any of us is happy at the present position. I believe that, like Oliver Twist, we ought to ask Her Majesty's Government for more progress in releasing the public from the 481 menace of powers vested in the Executive which, though they may never be used wrongly, should at the same time not be there.
§ 4.41 p.m.
§ LORD CHORLEY
My Lords, this debate which began as one of considerable constitutional importance, has, I think, developed into one of outstanding constitutional importance as a result of proposals which have been made by more than one of your Lordships to-day. I should like to say a word or two about that in due course. Before doing so, however, I should like to offer a few observations on the Motions which have been moved by the noble and learned Lord who sits on the Woolsack.
The last occasion on which we had what one might call a substantial discussion about this matter was, I think, two years ago, when the Motions were moved by the noble and learned Earl who now leads the Opposition. I have been much interested in reading the speeches which were made in your Lordships' House on that occasion. The main speech from the then Oppositionwas made by the noble and learned Viscount who came into the House a few minutes ago. He made a very eloquent speech, in the first part of which he upbraided the Government of that time for having continued the operation of these regulations for a five-year period. This point was repeated by the noble and learned Lord on the Woolsack this afternoon. Both noble Lords took the view that it was wrong that powers of this kind should be extended for more than a period of one year at a time. My Lords, I personally, and I think many other noble Lords who sit on these Benches, are quite unrepentant. that we should have had a period of five years in which to look at the problem in the round, so to speak, to see what: the position of the community was going to be after the, enormous revolution of the war years, to reach a proper decision as to which of the regulations could reasonably be dispensed with and which ought to be continued. I suggest that after a period of such stress as that of war, that is much better done by allowing a period of time in which to sit back and study the situation. I submit that the fact that that five-year period was taken was, in retrospect, really a valuable thing.
482 The noble and learned Viscount went on to condemn some of the regulations in rather forcible terms, and in particular he picked out Regulation 55. In effect, I think he suggested that with such a regulation having the force of law no country could regard itself as free. I observe that although that regulation may be modified to some extent, it is not one of those which the Government propose to repeal. I observe, too, that the noble Lord who has just resumed his seat is very anxious about it. But surely the point is that in a time of stress and emergency such as the present, the Government cannot do without some such power as this. It may be that it need not be in these exact terms. For example, paragraph (b) is for regulating the carrying on of any undertaking engaged in essential work. That may concern essential work in connection with the war in which this country is engaged at the present time. It is interesting to note how easy it is to criticise powers of this kind when one is in Opposition or when, asis the case with the noble and learned Viscount, you have not to bear the burden and responsibility of Government.
Again, I was rather interested in the speech of the noble Viscount who leads the Liberal Opposition, who unfortunately has now left the House. On the last occasion he was distinctly more moderate in his condemnation of the surviving powers than he has been to-day. To-day, little progress if any has been made, but at that time he appreciated that the matter was much more complicated than that ofjust "setting the people free," which he seemed to think could be done quite easily this afternoon. He said then that the matter was much more complicated, and that all Parties, however reluctantly, have to assent to a continuation of these matters; and so he went on. I suggest that that is a much sounder appreciation of the situation than the position which he was taking up this afternoon. He condemned out of hand the fact that there were still 14,000 people with the power to enter upon premises. I shouldlike to have that figure of 14,000 analysed a little more before it was brought down to the figure of 200, which he suggested would be a reasonable figure. Surely this figure of 14,000 includes all sorts of inspectors who go into factories, workshops and other places 483 of that kind, in order to satisfy themselves that regulations which are regarded as essential in the interests of the health and safety of the workpeople are properly carried out. We cannot condemn these powers without a fuller knowledge of what is actually going on.
Then I turn to the speech of the noble Lord, Lord Woolton, whose illness I am sure all noble Lords have watched with anxiety during these last few weeks, and recently with so much encouragement and hope that he may before long be restored to us and be taking his position again on the Benches opposite. The noble Lord condemned out of hand the 10,000 legislative enactments which, at that time, he seemed to think could easily be swept away. When one looks at the proposals which the noble and learned Lord on the Woolsack has put forward this afternoon, one wonders, in the light of Lord Woolton's speech, whether the old tag about nascitur ridiculus mus has not been illustrated very forcibly.
One of the subjects which worries me particularly in respect of this matter is the ease of repeal. It may well be that all members of your Lordships' House are anxious, as a matter of general policy, to have a substantial number of these powers revoked. But I do think we ought to have a better opportunity of deciding which of them, upon the merits, ought to be revoked. Some of them have been referred to this afternoon by other speakers, who suggest that there is still a strong case for retaining them. Is it not a serious thing that some of these legislative enactments (because that is what they are) should be repealable in this way without the repeal being brought before either House of Parliament? If it is a question of repealing an Act of Parliament itself, that cannot be done, and it is right andproper and essential that it should not be done, without going through the Parliamentary machine in the ordinary way. But quite a number of these enactments are just as important as the enactments contained in Statutes, and yet they can disappear on the ipse dixit of a Minister. My noble friend Lord Milner has a Motion down in regard to this matter; therefore I will not steal more than one clap of his thunder. But I do suggest that this is a very important matter and one to which your Lordships should give close attention.
484 Finally, I should like to support very strongly indeed the proposals of the noble Lord, Lord Silkin, that much more care and consideration should be given to the whole problem of delegated legislation, and I would urge that the Government should consider sympathetically the machinery which the noble Viscount, Lord Samuel, suggested should be set up for this purpose. Ever since the Report of the Donoughmore Committee was published, the vital importance of this problem of delegated legislation has been evident not only to the legal profession but to the administrators in the Civil Service, and, indeed, to all people who take any interest in the political situation. It does seem to me that the time has come when, instead of just talking about it in general discussions of this kind, as we so often do, we should make a determined effort to solve the problem. I do not feel that this suggestion that there is a bureaucratic despotism, that the civil servants wish to be autocrats, is really borneout by the facts of the situation. But I do believe that the sort of inertia which exists in Government Departments leads to an unnecessary use of statutory rules and orders. A sort of momentum develops which, when the machine is once turning round, grindsout more and more orders without sufficient care being given in the first instance to the question of whether they are necessary or not. After the machine has once started revolving, the inevitable result is that hundreds of these orders—quite a substantial proportion of which, I suggest, are unnecessary—reach the Statute Book.
I have sometimes thought that if the Departments could have a ration of statutory orders fixed for them at the beginning of each year, they might be very much more careful about those which they produce, because they would realise quite well that they must keep some in hand in order to be able to propose necessary orders towards the end of the year. Though that may seem rather a fantastic suggestion, it might lead to aconsiderable diminution of the numbers of orders and regulations made, and might lead to our getting regulations and orders which are really valuable and necessary, instead of so many of these rather "half-baked" ones which at present become the law of the land. Therefore, I hope that the noble and learned Lord on the Woolsack, who, we 485 know, is very interested in this matter—he was a member of the Donoughmore Committee and he is one of the most distinguished lawyers of the day—will use his great influence with the Government to see that some sort of machinery of this kind is set up, and thus a really important contribution may be made to the constitutional development of this country.
§ 4.55 p.m.
§ VISCOUNT HUDSON
My Lords, I have listened with considerable interest to the speech which the noble Lord, Lord Chorley, has just delivered, but I am bound to say that I could not understand how he squared his statements towards the end of the speech with some of his earlier statements. He appeared to think that many of these regulations had been passed, without adequate thought, by the machines of the various Ministries; and I believe I am correct in quoting the noble Lord as saying that he thought that many of them were entirely unnecessary. I should have thought that in that case he would be delighted to find in existence such a simple method of getting rid of those regulations which he regretted.
§ LORD CHORLEY
I do not feel that it is a satisfactory method to get rid of them on the mere ipse dixit ofthe Minister, without Parliament which, after all, is the legislative body of the country, having any real opportunity of considering the matter.
§ VISCOUNT HUDSON
Yes, but the noble Lord objected to the issue of the regulations on the ipse dixit, not of the Minister but of his bureaucrats. I am bound to say that I remember how night after night in another place—
§ LORD CHORLEY
My Lords. I am loath to interrupt the noble Viscount again, but surely he realises that these things cannot become law without Parliament having an opportunity of objecting to them. But they can be repealed without Parliament being brought in at all.
§ VISCOUNT HUDSON
I have a vivid recollection of making attempt after attempt in another place, during the years 1945 to 1950, to get adequate explanation from Ministers belonging to the Party opposite as to why particular regulations were being issued. I have an equally vivid recollection of how angered the 486 Party opposite were When occasionally we kept them up late at night, seeking to extract reasons—which, when we got them, we considered inadequate—for the issue of so many of these regulations.
§ VISCOUNT HUDSON
it only shows does it not, as one noble Lord said earlier, the difference between being in Opposition and being on the Government Benches.
One matter which I wish to raise is a comparatively small one, though it affects a large number of people in this country. The noble and learned Lord on the Woolsack said that he would do his best to answer either noble Lords who wanted to know why regulations had been dropped or those who wanted to know why regulations had not been dropped. I come in the latter category. I do not expect that the noble and learned Lord will be able to answer this question, and I shall be quite happy if whoever replies on behalf of the Government on December 2 can give the reasons for which I am asking. The matter that I wish to raise concerns the domestic pig keepers, of whom there are very large numbers and who, during the war and since, have made a very great contribution to the supply of foodstuffs in this country, not only for their own families but in augmenting the common stock for the Ministry of Food. In the old days, the regulations affecting permission to kill a pig, and the number of months you had to keep a pig, were no doubt necessary —in fact I had soma small responsibility for putting the original regulations through. There was, of course, in those days of acutemeat shortage, some reason to try to prevent the development of a black market in pork. But at the present moment it seems that pork is likely shortly to become almost a glut on the market.
I should very much like to know why, in the course of these very careful investigations into the various regulations, it has not been found possible to abolish these particular regulations.
§ VISCOUNT HUDSON
I am afraid that I cannot quote the number. It is among 487 the Ministry of Food regulations, and one of the many covered by those mystic numerals with which we have been dealing to-day. There seems to me to be no inherent reason why a man should have to own a pig for four months before he is allowed to kill it. This is a regulation which was introduced not during the war but comparatively recently. Nor is there any particular reason, so far as I can see, why a man should have to give notice in a large number of forms that he proposes to kill a pig within the next fortnight. In the course of filling up these forms (we all have to fill up forms, and no doubt your Lordships have done it many times), there is a stage at which, in applying for a licence to kill a pig, one is told that this is not a licence to slaughter a pig,but merely a licence to apply for a licence to slaughter a pig. I cannot help feeling that in November, 1952, these regulations are no longer necessary. I hope that in the next few weeks or, possibly, months the Ministry of Agriculture will abolish all rationing of feeding stuffs; and if that takes place, I trust that these regulations restricting the killing of pigs will also be abolished. I had occasion the other day in your Lordships' House to regret that one regulation had been allowed to lapse, and that in future dogs were to be allowed to do what they liked on allotments. It seems rather ironical that dogs should be allowed to do what they like on allotments while the unfortunate owner and breeder of the domestic pig is not allowed to do what he wantswith his own pig.
§ 5.1 p.m.
§ LORD OGMORE
My Lords, I should like to turn to a different aspect of the subject from that propounded by the noble Viscount, Lord Hudson, whose interest in smallholders and pigs we all acknowledge. I want to discuss the broad question, which I understandhas already been touched upon by the noble Viscount, Lord Samuel, and by the noble Lord, Lord Balfour of Inchrye. I apologise for not being present at the beginning of the debate and for not hearing several of the previous speakers, owing to an important business engagement elsewhere. It seems to me that we are now almost back to where we were 488 at the beginning. Recently I have been re-reading Macaulay's History of England and was interested to note there how much the early development of Parliament was affected by the difficulty of the Legislature in keeping an eye on the Crown and the Officers of the Crown. No doubt in the year 4,000 some learned professor at the University of Tomsk, or Omsk, writing of the death of Western civilization—if Professor Toynbee is correct—will telescope the two events, and people will be told that what happened in the twentieth century was a subtle move by the Executive to get round the difficulties they experienced with Parliament in the sixteenth and seventeenth centuries.
Be that as it may, we all feel that with the present burden of Parliamentary work we cannot expect to consider every detail of the legislative process, especially the sort of detail which is so often the subject of these orders. But I believe that we should consider making a radical change in the constitution of Parliament. This is not a matter which ought to be left to detailed consideration; it needs a real change of policy and principle. When a few years ago I was a Back Bencher in anotherplace, it seemed to me and to many of my colleagues on the Back Benches that our individual time and labour were largely wasted. We knew, of course, that we were there to support the Government and, in spite of the opinion of the noble Viscount, Lord Hudson, I believe that it is an important function for Back Benchers in another place to support their own Government. But so far as we ourselves were concerned, it always seemed to us to involve a great waste of time. It seems to me that Members of both Houses of Parliament could perform more useful functions if we had the committee system which exists in the United States and on the Continent. I believe that the noble Lord, Lord Balfour of Inchrye, has already touched on this matter. If he has, I would support him on it.
During the investigations of Parliamentary Committees of the various aspects of national life, their members would acquire a large amount of knowledge. They would hear witnesses from the Services, the Departments, the industries and the institutions involved, and when it became necessary for the Government to 489 promote legislation, whether in the form of a Bill or as an order, they would be well aware of the main facts and of the necessity or otherwise of legislation. It is at that stage thatwe can best assert control of the Government. I know that this suggestion is bound to raise objection in the minds of those who believe it would be a complete reversal of our policy in this country, under which the Executive is supposed to be completely distinct from the Legislature. That may be so. But if the present system is not working and the Legislature is once more where it was some hundreds of years ago, unable properly to control the Executive, then we must think of some other way. I suggest, in support of the noble Lord, Lord Balfour of Inchrye, that we should make a radical examination of this question, either by a Select Committee of both Houses or otherwise, and ascertain whether it is not at that early stage of legislation and by a continual examination of toe process of government that we can best achieve the results we desire.
I think that much of the efforts and talents of noble Lords in this House is wasted. There are a great many noble Lords of inestimable worth, with great qualifications to speak on various subjects, who come here after distinctive careers in the Services and elsewhere. What use do we make of their services? Hardly any. Occasionally, perhaps once a year, they speak on a subject of which they have special knowledge, but otherwise they are not heard. That seems to me a great waste of talent. If we had a series of committees, composed of Members of both Houses, we should have on each committee the Members who had special knowledge of the subjects dealt with, and thus use their great experience and talents. If other countries could get a Second Chamber with the distinguished members we have here in this House, they would be delighted. When I was a Minister, the representative of a certain country—I will not say which country, because it might embarrass the gentleman concerned—came to me and asked how they could get in his country a Second Chamber like the House of Lords.
§ LORD OGMORE
I do not want to go into that, because both hereditary and 490 newly created Peers slake great contributions to this House, and I do not want to set one against the other. Whatever the contribution of the hereditary Peers or of the Peers of first creation, the representative of this country was much struck by the calibre of the members of your Lordships' House and he wanted to know how he could establish a similar chamber in his own country. I must say I was in some difficulty about telling him how he could do it, because I do not think one can create a House of Lords of this character. However that may be, it adds point to what I was saying. In my view, Parliament fails very distinctly to make use of the talents of t he Members of both Houses.
§ 5.10 p.m.
§ THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE MARQUESS OF SALISBURY)
My Lords, I am intervening now—and I am quite ready to give way if the noble Viscount, Lord Stansgate, prefers that I should give way—filly because it is thought that in this debate there should be a certain division of labour between the noble and learned Lord the Lord Chancellor and myself. As your Lordships know, the Lord Chancellor is technically in charge of the Bill and of the debate, and is very ready, by leave of the House, to answer any detailed questions which have been raised. But there have been one or two questions of a much broader character raised on constitutional issues, and I thought, as Leader of the House, that it might be of use to noble Lords if I said a word or two about them. Before I come to that, however, I feel that I should, like the noble Lord, Lord Ogmore, who has just spoken, make a most sincere apology to your Lordships for not being present at the beginning of this debate. I can assure the House that the discourtesy was entirely unintentional and connected with the work of my office—I was, in fact, meeting the Prime Minister of Ceylon, who is the first to arrive for the Commonwealth Economic Conference.
As I have said, I do not propose to go into details; but the remarks of the noble Lord, Lord Silkin, and other noble Lords do raise matters of great moment and importance, and I feel that I should discuss them with your Lordships. I would say at once that I do not in the least complain, either of the issues that have been 491 raised or of the tone of noble Lords' speeches in any part of the House. There has been no heat engendered by these discussions, but only a genuine desire on all our parts to combine and find a solution to a problem which we all realise is a very real one. The noble Lord, Lord Silkin, in the moderate and sensible speech which he delivered to your Lordships, stressed the necessity—at least, I understood him so to do—of the maximum Parliamentary control of delegated legislation. I imagine that we should all agree with that. Clearly, we in Parliament are responsible to the British people, and it is for us, if we can, to find some means by which we can adequately fulfil our responsibilities.
I would entirely agree with the noble Lord that this growth of indirect legislation, which is the result of the increasing complexity of the modern world, faces us with—I do not say an entirely new situation, but one of particularly increasing acuteness. That is a problem that none of us wouldwish to burke. As I understand it, the main proposal put forward by the noble Lord was what I might describe—and I think he so described it —as a new Donoughmore Committee. The noble Lord will not expect me to give a definite answer about that to-day; it is a matter about which careful consultation will be required. But I certainly should not rule out (I think I can go as far as this) some sort of inquiry of that kind on all the broad issues raised by this question, either in the form of another Donoughmore Committee or in some other form. The noble Viscount, Lord Samuel, suggested a Joint Select Committee. I am not going to say to your Lordships that such a thing will happen, but I personally should not rule it out or think that it would be a bad thing.
We should need, of course, not merely to reduplicate what the Donoughmore Committee have already done. The Lord Chancellor was a member of that Committee, as your Lordships know, and I am sure he would tell you that there was much which was discussed at that time, although it was some years ago, which would be equally applicable to-day; and to spend an immense amount of the time of important people merely in going over the same ground would be a waste of the time of Parliament. But, as I have said, the situation, though it has not changed 492 altogether in nature, has changed in degree. The problems which the Donoughmore Committee had to face have become more important problems still, at any rate in this particular aspect of their labours. This great mass of delegated legislation has become bigger. It became bigger in the war, because Parliament under those conditions simply could not deal with the executive actions that had to be taken. And once you get increases of that kind, they are rather aptto remain and are very difficult to get rid of. So it is a more difficult problem than it was at that time. But an inquiry of the kind that has been suggested, would, no doubt, help us to find a way out of our difficulties; and to that extent I think it would very likely be justified.
The noble Lord, Lord Silkin, suggested one method for maintaining the control of Parliament. He said that there might be amendment of regulations. I do not think he was very enthusiastic about it himself, and, if I may say so respectfully, I would agree with him. After all, the danger of amending every regulation is that the time taken in this House, and even more in another place where they are perhaps not quite so economical with the time of Parliament as we are here, might well lead to a situation when the duties of Parliament became almost impossible for the Members to carry out. There are only 625 Members of another place, and only a comparatively limited number of your Lordships in this House, and we could not possibly deal with the immense volume of Amendments which might be proposed for each regulation. I do not, therefore, think that that is a practical proposition.
There is, however, the other suggestion to which the noble Viscount, Lord Samuel, referred (I think it washis suggestion originally, or even perhaps my own: at any rate, we both favoured it in the last debate) that in certain cases where the regulations seemed to raise subjects of importance or controversy they could be laid in draft: this draft could be discussed by Parliament, and any noble Lord or Member of Parliament who had suggestions to make would make them in debate. In the light of those debates the draft would be taken back and considered by the Government, and could be amended to take account of any useful suggestions put forward. 493 That is alt alternative possibility which I think might well he considered. There may be snags in it which I do not know about, but it does seem to me a very reasonable suggestion.
There was another suggestion put forward just now by the noble Lord, Lord Ogmore, of a much more radical and drastic kind. As I understand it, he would set up the committee system which exists to-day in the United States. He certainly will not expect me to express an opinion on that proposal this afternoon. But that and other proposals might naturally come before an inquiry, if it took place. All I can say this afternoon on this point is that I will put forward to the Government the suggestions which have been made—I cannot go further than that. If it proves possible to take advantage of them, I imagine that it will be for the Government to talk the matter over with the various Opposition Parties.
I should now like to say a few words on that part of the speech of the noble Viscount, Lord Samuel, in which he spoke of the broad issues of the liberties of the subject. We have heard at various times other extremely agreeable and inspiring speeches of the same character from the noble Viscount. I have always felt, if I may say so without impertinence, that he is in a happy situation, because he can say just what he feels inclined to say, knowing very well that his own Party, in practice, is never likely to have to de al with the awkward situation with which the other Parties may at any moment be faced.
§ THE MARQUESS OF SALISBURY
May I substitute "not immediately likely?" I remember years ago, when I was new in politics, I went down to a meeting to take the chair for a Conservative Member of Parliament.This Member made a speech in which he said: "The Labour Party promise this; the Liberal Party promise that; but I, who have had the misfortune to represent you for fourteen years, cannot afford luxuries of that kind." I feel a little like that this afternoon. It was not always so. There was a time when the Liberal Party—the noble Viscount, Lord Samuel, may say that there will again be such a time—were in power 494 with a great majority. During that period, they were not entirely immune from the same sort of criticisms which have been levelled by the noble Viscount against our Party this afternoon. I have here a quotation from a leading article in The Times of June 22, 1909, when there was a Liberal Government in power, of which I think the noble Viscount himself was a very distinguished member. This is what it said:It is not only in the Finance Bill that the Government is laying the axe to the root of our liberties. The worst feature of that Bill is reproduced in other legislation. All over the field there is a deliberate withdrawal of the main security for our liberties, a determined exclusion of the subject from the protection of the taw, and an assertion of the right of a bureaucracy to dispose of the interests of the subject without judicial control of any kind. Alike in the Irish Land Bill, the Finance Bill, and the Town Planning Bill, a Government Department is empowered to do exactly what seems good to it with every man's properly. Appeal to the Courts of Justice and to the Common Law is deliberately refused. We are in fact relapsing into the condition from which the Duma is trying to extricate Russia.
§ THE MARQUESS OF SALISBURY
I am glad to see that both the present Prime Minister and the noble Viscount have had a conversion since those days. The fact remains that the real trouble is that there are certain restrictions of liberty which, in our heart of hearts, we all admit will be necessary and must be necessary in the modern world. The object—and I think this should apply to all Parties—is to make those restrictions as few and as light as we possibly can. Broadly speaking, I would have thought that certainly in this House, although we may not agree with each other on everything, that would represent the opinion of all serious persons. And indeed, if I may say so, that was admitted last time this subject was debated here. I do not know if other noble Lords have looked up that debate, but when I knew that, we were going to discuss these topics to-day I did look it up. It was a debate of great distinction and, I think, worthy of the best traditions of this House. It was a debate, too, which was remarkable in one particular respect: that not only was there a broad general harmony between the representatives of all the various Parties, but there was, I thought, almost a virtual identity of view.
495 The debate was opened by the noble and learned Earl, Lord Jowitt—who I am very sorry is not here to-day—in a speech which he delivered with all the grace and eloquence with which we are familiar. In that speech, in addition to expounding the details of the regulations which were covered by the Bill—as my noble and learned friend the Lord Chancellor has to-day—he delivered himself of a number of general propositions which I certainly should not dispute, and which I think were, broadly speaking, not disputed by the noble Viscounts, Lord Samuel and Lord Simon, who followed him. The first was that the noble and learned Earl recognised fully the dangers which arise or might arise from a weakening of Parliamentary control—a point made by the noble Lord, Lord Silkin, to-day—but Lord Jowitt emphasized that in his view the power of Parliament over the regulations which he was introducing was retained through the procedure of Negative Resolutions. That was the view of the Labour Party when they were sitting on this side of the House. I think they are not quiteso certain about it now. Possibly that is a natural transition or modification of mind in moving from one side of the House to another. At any rate, at that time, the noble and learned Earl, Lord Jowitt, held that view.
But he stressed that there was another danger—that unless there was some measure of delegated legislation there would be—I use his own words:A cluttering up of the Parliamentary machine to the detriment of the efficiency of Parliament.That is very much the point that I was myself making from this Bench a minute or two ago, and I think it is a point which is common ground between the various Parties. And, lastly, he said, with what I may call pardonable pride:We have already accomplished a good deal in the way of getting rid of unwanted powers and in putting on the Statute Book powers that are permanently needed.That is almost exactly what my noble and learned friend the Lord Chancellor said to your Lordships this afternoon. There is nothing in all that, whether it is saidby noble Lords opposite or noble Lords here, with which most of us would disagree. Indeed, as I say, we all recognise that in the modern State certain measures of delegated legislation are 496 necessary. Of course, a great deal depends upon what regulations and what controls are retained; and especially is that true if there is any question of making them permanent, as he mentioned in the words I have just quoted, and as is the case with certain regulations to-day. That was the feature in the other debatewhich caused the noble Viscount, Lord Simon, with all his experience, the most anxiety. From what he said, I think he was not worried at all about the then Lord Chancellor himself. He felt quite certain that the noble and learned Earl would not wish to gotoo far. But he was not absolutely certain about some of the noble Earl's colleagues. At any rate, broadly speaking, I repeat that it is the character of the regulations and the character of the controls, more than the existence of those regulations and controls, that really matters.
That, no doubt, is what noble Lords opposite will scrutinise most carefully in the Bill which is introduced this afternoon. When they look at our Bill I hope that they will recognise that things, by and large, are moving steadily—perhaps they will say not fast enough; I do not think they will say too fast—in the direction in which we all want them to go. Of that great mass of regulations which was inevitably produced by the war, when there was no time for the ordinary processes of Parliament, more and more are disappearing every year into the limbo of the past. As your Lordships know, there are quite a number which have been cut out this year. I hope there will be more next year and I hope there will be more and more as the years pass, whatever Government may be in power. Of the remainder, none, I think, is to be continued for the additional five years which was enacted in the original Bill. We have gone back to the system we used to know before the war, when Parliament was asked to give its approval year by year; and that, I think, is a thoroughly healthy tendency.
§ LORD SILKIN
I should just like to mention that the annual review is provided for in the original Act.
§ THE MARQUESS OF SALISBURY
In any case, I am sure the noble Lord will approve of it. In addition, there does, of course, remain this small residue, to 497 which I have already referred, of regulations which are to be made permanent. I do not know whether your Lordships have looked at them, but they really are in fact not very spectacular, and they are singularly unalarming. They are not, as I think some speakers have tended to suggest, widespread restrictions on human liberty. There is one which has been referred to since I have been in the House, the regulation that dogs should not be allowed on allotments, or should be restrained on allotments. Your Lordships may think it right, or you may think it wrong, that dogs should be restrained on allotments. If any of us had an allotment and on that allotment there were, say, chickens, we should probably think that the regulation was right. But, in any case, this comparatively minor restriction on the civil liberty of the owners of dogs which go on allotments is really not a very serious matter. Then there is another regulation which concerns cards which are issued to seamen to enable them to land in foreign ports. I do not suppose that anybody really objects to that. It is purely an administrative convenience and not a restriction on liberties. All the things that have been or are to be made permanent are of that kind: there is nothing very dreadful about them. I should not complain if the Opposition felt inclined to poke some fun at the Government over regulations of this kind.
§ LORD OGMORE
May I ask a question regarding one subject which the noble Marquess has mentioned? I was very much interested in what he said about the question of dogs on allotments. As I understand it, the noble Viscount, Lord Hudson, was complaining that the Government were not continuing that regulation, either permanently or temporarily.
§ THE MARQUESS OF SALISBURY
Apparently I could not have been worse informed. But no doubt the noble Lord will be delighted that it has gone.
§ THE MARQUESS OF SALISBURY
In that event the Lord Chancellor will no doubt take into account what has been said or what may he said by any later speaker who may revert to the subject, 498 as he will do in all these matters, which are all for consideration.
It is, of course, one of the main privileges and, indeed, pleasures of the Opposition to "chivvy" the Government on matters of this kind, and they may well claim that it is their constitutional duty. But I do not think that we ought to take seriously—or that they mean us to take seriously—all they have said this afternoon on the question of the actual restriction of liberty. I think all noble Lords know that the things we are doing in these instruments are all of a mild character. They areprobably no more, and perhaps less, than the Opposition themselves would have felt obliged to do if the fortune of politics had put them on these Benches. That is all I want to say to-day. The detailed questions will be dealt with by the Lord Chancellor afterwards. Indeed, I think it would perhaps have been better if I had left all of them to him. But I would add once more that the Government fully appreciate the importance of the larger issues that have been raised and that we shall give full consideration to what has been said in your Lordships' House this afternoon.
§ 5.33 p.m.
§ VISCOUNT STANSGATE
My Lords, I am sure we are all very grateful to the noble Marquess for intervening at this stage. With a good deal of what he said we are in complete agreement. What emerges from this debate is that everybody recognises that you cannot control a modern State by Acts of Parliament, with Amendments, Committee stages, Report stages and the rest. It is impossible. You must have a batch of regulations. But I think that to call them "Defence" or "Emergency" Regulations is becoming rather ridiculous. These regulations are part of the ordinary machinery of government.
I should like to bring this debate back for a moment—modestly, and very inadequately after the speech of the noble Marquess—to another point of view, and to say a word as a Parliamentary craftsman. How are we, as a Parliament, to cope with this problem? Great efforts were made to meet it by the Donoughmore Committee. As the noble Marquess has said, in consequence of the development of the modern social State there is bound to be enacted a mass of this stuff. We as a Parliament have to face 499 it and to decide what we have to do to control it. It is not to be supposed that nothing has been done, nor is it to be supposed that these regulations which we wish to control are derived only from the Acts of Parliament named on the Paper to-day. There are masses of Acts of Parliament—the noble Lord, Lord Silkin, knows it in connection with the Town and Country Planning Act—which not only give the Minister power to make regulations or orders but give him power to interpret orders and to prohibit the subject from taking those orders into the courts of law to be examined. There was the "Henry VIII Clause," which gives him power to "trim up" an Act of Parliament if the draftsmen have not been sufficiently precise.
All these things are part of the process of government of a modern State, and the problem is: how can this House and the other place set up some machinery which will exercise that power of control? The Donoughmore Committee thought they had done that. I am sorry that the noble Lord, Lord Schuster, did not speak in this debate, because he was a member of that Committee as, indeed, was the noble and learned Lord, the Lord Chancellor. The members of that Committee really hoped that they had created something which would be able to control any measure which delegated subsidiary legislation. What did they erect? So far as this House is concerned, they erected the Special Orders Committee. That Committee is directed to examine only those orders which require Affirmative Resolutions. Orders maybe just laid; or they may require an Affirmative Resolution; or they may be subject to annulment, under the Negative Resolution procedure. They may be imposing a charge, but we in this House have nothing to do with that: that is a House of Commons affair.
The Special Orders Committee, under the distinguished chairmanship of the Lord Chairman, is instructed to inquire into certain matters and to report to this House. Bear in mind, my Lords, that the purpose of this is to see whether it is possible to imposeskilled Parliamentary control on the bureaucracy. This is the Committee's Report on the Order which the Chancellor is to move later, the Patents (Extension of Period of Emergency) Order, 1952. Of that Order the Special Orders Committee say this: 500That in their opinion the provisions of the Order raise important questions of policy and principle;That the Order is founded on precedent;That in the opinion of the Committee the Order cannot be passed by the House without special attention, but that no further inquiry is necessary before the House proceeds to a decision on the Resolution to present an Address to Her Majesty praying that the Order be made.That report was (according to the Minute)read and ordered to lie on the Table.Reading that Report of the Committee, I ask what possible guidance is there as to how we are to vote on this Resolution. There is none. Yet the Committee have fulfilled the duties laid down in the Standing Orders which control their function.
The other House paid us the compliment, when setting up their own Committee, of copying a good many of the items which appear in our own Standing Orders. The points in their instructions are to call attention to any order on the grounds: first, that it imposes a charge—that does not arise here: that is their affair; second, that it is made in pursuance of an enactment containing specific provisions excluding it from challenge in the courts, either at all times or after the expiration of a specified period; third, that it appears tomake some unusual or unexpected use of the powers conferred by the Statute under which it is made; fourth, that it purports to have retrospective effect where a parent Statute confers no express authority so to provide; fifth, that there appears to have been unjustifiable delay in the publication; sixth, that there appears to have been unjustifiable delay in sending notification to Mr. Speaker; and, seventh, that for any special reason its form or purport calls for elucidation.
These are all guides to the Statutory Orders Committee in the House of Commons. There has been to-day a diffuse debate, about dogs on allotments and many other things. How could all the agricultural Members gather together to talk about dogs on allotments, and other groups talk aboutrequisitioning derelict houses for refugees? It is absurd. It needs a sub-committee—a more authoritative body than our existing Committee or a Statutory Orders Committee—it might be a Committee of both Houses, a sort of permanent tribunal, which should 501 examine these matters. The difficulty here, of course, is the parity of power in the matter of statutory orders. The Parliament Act does not apply to statutory orders. If your Lordships negative a statutory order it is finished, Parliament Act or no Parliament Act. The question therefore arises, when you come to the matter of examining the statutory orders and setting up a Joint Committee: are you to have an equality of membership between the two Houses? That is one point. As the noble Viscount, Lord Samuel, knows, we are thinking about what was done between 1906 and 1910. That is what actuates the minds of many people in considering what powers should be given to the House of Lords. And therefore I do not see the House of Commons agreeing to anything that makes for a parity of power.
On the other hand, what the noble Lord, Lord Ogmore, said about the talent available in this House is perfectly true. There is a mass of talent and it is available for more time, and with no responsibility to constituents—there are both time and expertise. These are the elements that might make up some form of tribunal. If the tribunal then said: "This is a good thing," or "This is a bad thing," you could do away with the positive or negative Prayer and youcould come to a straight debate on the concentrated issue, which would have value. I give this warning. Once you have done all this, you always come to a dead end, because, as soon as you have examined it and said; "This is monstrous; it cannot be that this regulation should he passed," then a civil servant will come and tender evidence to show that it is intra vires the Minister; and once a thing is intra vires, you can say no more about it. It is his power; he can do it and no committee or joint committee in the world is going to help in the least to protect the privileges of the subject. What do you do then? I do not know. That is really a dead end. Of course, you can say: "What? The man has power to do this? How does that arise?" You can then read somewonderful words about the power of the Minister to make an order in certain circumstances. Of course, anybody who has been in a Department (I am not attacking bureaucrats at all) knows that the official wants to be "on the safe side" and wants to put in something so that he cannot be 502 questioned. In the old days, they used to say: "This shall not be questioned in any court of law." That is what Lord Hewart objected to. I wish that the noble Marquess or someone else could tell us what we should do.
Finally, I make only one suggestion, and it is this. You could have an ex post facto examination of the use of these powers. There are two very useful Committees elsewhere, the Estimates Committee and the Public Accounts Committee. The Estimates Committee cannot interfere with the Estimates, but they can sit round and examine what the Government have done with the money that was granted. They can say: "You have made a wasteful use of this. You did wrong there." There is no executive action to follow, but the moral value of the Estimates Committee is very great. The Public Accounts Committee is another example. The Public Accounts Committee is a sort of audit, but it has great authority. It does not make its Report until long afterwards, but this Report has considerable influence in the shaping of policy. If it were possible—this is perhaps just a jejune suggestion—I should have some body, some tribunal of great authority which would say, "No. It is intra vires. We think it is bad and we should throw it out, but at the same time we want to inquire how it is that the Minister of Works can, for instance, depute somebody to do these things in this vague way. We think it is high time this power was taken away from him." Maybe they could from time to time review all these delegating powers of the Minister and report to Parliament. Then it would he Parliament alone who would deal with the matter by Resolution. Perhaps your Lordships will for give me for making a suggestion of this humdrum and pedestrian kind, but I do feel, with my learned friend Lord Silkin, that it is a very big constitutional question which Parliament has to face, because if Parliament cannot control the Welfare State then both are in danger.
§ 5.46 p.m.
§ LORD WINSTER
My Lords, as the matter has been mentioned this afternoon, I hope your Lordships will permit me to refer for two or three minutes to the matter of the seamen's identity cards. I am closely connected with one of the several seafarers' associations and I am 503 informed that not only do all the seafarers' associations strongly approve of these seamen's identity cards but that it is by their express wish, and in response to their representations, that these cards will be retained. The fact is that the seaman is the only Britisher whotravels abroad without a passport. He goes to a foreign port and he may in his innocence commit some breach of a local by-law. It may even happen that, owing to the vile quality of the alcohol sold in the port, he may find himself a little less lucid and tranquil than is his customary wont. In cases of that sort, if he has on him a document proving his identity it will frequently keep him out of trouble with the local police who, on seeing this document, are likely to treat him reasonably and make no great "to-do" about it.
I do not know that the seafarers' associations are particularly fond of the term "seaman's identity card" but I have an idea that they are going to be called "seamen's cards" instead of "seamen's identity cards", which removes the last obstacle in the matter. I should just like to repeat that the seafarers' associations not merely approve of this matter but are very grateful indeed to the Ministry of Transport for the helpful and courteous way in which they have been treated in the matter.
§ 5.48 p.m.
LORD MILNER OF LEEDS had given notice of an Amendment to the above Motion, to add at the end of the Motion:
but that no Defence Regulation at present in force by virtue of the said Act be revoked in whole or in part or varied unless first an humble Address be presented by each House of Parliament to Her Majesty praying that it be so revoked or varied.
The noble Lord said: My Lords, we have had a most valuable and interesting debate, as I think most of your Lordships will agree. I am bound to say, if I may be forgiven for saying so, that I have found it highly amusing in many respects. I have listened to a great many debates where I have heard speeches denouncing the moral and the unconstitutional nature of these regulations, that they were contrary to all our ancient liberties, that they were frustrating and hindering our manufacturers and our industrialists; and yet now we find that some of those who through the
years have denounced all these regulations are asking the House of Lords on a simple Motion to approve the re-enactment of a great majority of them.
§ I was also interested to hear the noble Marquess say that really there was very little in these regulations; that the restrictions were very small, and so on and so forth. I should have thought that if they were of so little effect, that was a very good reason for cancelling or revoking the great majority of them. In fact, if your Lordships will be so good as to look at page 3 of the White Paper (I will not trouble to go through the whole of these regulations) I should have thought many of your Lordships would take great exception to the continuance of some of them. For example, Regulation 47C gives authority for certain aliens to act as masters or officers of British ships. A moment or two ago I saw here the noble Lord, Lord Rotherwick, who is a shipowner. I should have thought he would have taken great exception to authority being given for aliens to act as masters of British ships in these days, when I believe there are masters who are not fully employed on either British or other ships.
§ Then, if your Lordships would look a little further down, at Defence Regulations 51, which concerns taking possession of land, or Regulation 54, the powers there given are very wide. I cannot think that your Lordships would approve their continuance. Again, Regulation 55, "General control of industry," of which, some mention has been made, was denounced, I remember, by no less a person than the present Chancellor of the Exchequer as being the most notorious of these regulations and the one to which the greatest exception should be taken. And yet it still appears amongst the regulations which this Government propose to continue. Again there is the small Regulation 57D, which relates to the exemption of acetylene from the Explosives Act. One would have thought that any review, however casual, would have resulted in that small and unimportant regulation being done away with.
§ THE MARQUESS OF SALISBURY
As the noble Lord has quoted me, perhaps I might indicate that I said that the regulations which I thought were rather small and unimportant were those which were 505 to be made permanent and incorporated in legislation. There are others which have been continued from year to year, which I hope in time it will be possible to remove. I quite agree that they go further. But I should not like it to be thought that I was saying that the last ones were small and unimportant.
§ LORD MILNER OF LEEDS
I am obliged to the noble Marquess. Perhaps I was under the wrong impression. Whether that be so or not, one would have thought that if there had been a review of any substance a great many more of these regulations might have been revoked or allowed toexpire. The Lord Chancellor, if I may be permitted to say so, gave a most valuable exposition of the position and spent a great deal of time in trying to convince your Lordships that much had been clone in this matter of review. With the greatest respectto the Lord Chancellor, I cannot think that that was the case; otherwise many of these regulations which I have pointed out to your Lordships, and others which had time permitted I could have particularised, would surely have been done away with. It appears clear, as I think your Lordships must all agree, that some form of committee or tribunal must be set up, independently, I hope, of the Government, which should review these regulations in a much more thorough fashion than, in my judgment, has been done in this instance, and should recommend to both Houses of Parliament when they should be revoked or allowed to expire.
My Lords, I rose really to speak to the Amendment standing in my name. As your Lordships will have appreciated, that Amendment is designed to ensure that there is some Parliamentary control over this question of revocation. If your Lordships will turn again to the White Paper, you will see that before December 10 the Government propose to revoke some eight or nine of the Defence (General) Regulations without this House or the other place having an opportunity to give judgment upon them. The purpose of my Amendment, therefore, was to draw attention to the fact that at present there is no opportunity for either House to agree affirmatively to the revocation of these various regulations. It is open for the Government or a Minister, even during a Recess, to revoke a regulation to which your Lordships may attach great 506 importance, and there is no opportunity for either House by Affirmative Resolution to approve the revocation.
As the whole of this matter is extremely complicated, I hoped that after over a year, and having regard to what the Lord Chancellor said over twelve months ago about the review which was to take place, these matters might have been presented to your Lordships in a rather better and more easily understood form. I do not know whether your Lordships have appreciated the fact that some of these regulations are apparently going to be revoked or allowed to expire, some are going tobe kept in force, some are to be retained but revoked by some later measure, in my submission quite unnecessarily and arbitrarily, and some are to be revoked or to be allowed to expire and then to be re-enacted. It is difficult enough for members of yourLordships'House, but it must be quite impossible for the ordinary British citizen to appreciate either what the position is or what it is likely to be when the Motions which the noble and learned Lord is inviting us to deal with to-day, or after the Committee stage of the Bill, come into operation. I express the hope that, certainly within the next year, the Government will have seen to the setting up of some body satisfactory to your Lordships' House and to another place, which will go through all these regulations and, as a result, one hopes, bring before this House some Bill or Motion doing away altogether with the great majority of these regulations. My Lords, at this late stage, as I have made my point and noble Lords have expressed their views upon the setting up of some body to consider all these matters, it may be for the convenience of the House if I do not move my Amendment. It has been fully ventilated and, in the circumstances, I do not propose to move it.
§ 5.56 p.m.
THE LORD CHANCELLOR
My Lords,my first duty is surely to thank the noble Lord, Lord Silkin, for his courteous and even generous observation upon the speech with which I opened this debate—indeed, I give my thanks to other noble Lords also. It is typical of the attitude adoptedby this House towards any spokesman who, however inadequately, at least tries to advise the House upon the matters before him. My 507 next task is this. While the noble Marquess the Leader of the House was addressing your Lordships, my right honourable friend the Home Secretary was addressing another place. I have just heard and am able to tell your Lordships what the noble Marquess was not able to tell you then. My right honourable friend the Home Secretary there said that he could assure the House that the Government are willing that an inquiry should be held into the procedures for exercising Parliamentary control over delegated legislation, and that they would be ready forthwith to discuss through the usual channels the precise form and scope of such inquiry. I do not know whether I use his exact words. I must not be taken as quoting him, but that, I think, is the purport of what he told the other place. That will absolve me from any necessity to re-embark on what indeed would be for me a dreadful labour—namely, the question of the Donoughmore Committee Report. It is true that Lord Schuster, Lord Waverley and I are the only three survivors of that Committee. Lord Schuster and I happen to have been two of the drafting sub-committee, and therefore you may say, I suppose, "Would that my enemy should write a book." I took a large part in the writing of that Report, and the views which were then expressed are, I am bound to say, the views that I entertain still, subject, of course, to such changes as changed circumstances demand. I think, in the circumstances, that I need not embark upon that very wide and interesting topic which has formed a large part of the discussion in your Lordships' House to-day.
I will do what the noble Marquess the Leader of the House said I should do—namely, try to answer some of the detailed points raised in the course of this afternoon's debate. As I told the noble Viscount, Lord Hudson, I am afraid I have not yet been able to get the necessary information upon the subject of the domestic pig; but he will be communicated with, and any other noble Lord who is interested in that topic will also be able to obtain that information. I think I have anticipated what the noble Lord, Lord Silkin, was going to say upon Regulation 68CA, which deals with the requisitioning of houses. I hope that he will find it satisfactory when he con- 508 siders the terms of the Act, for which I think he was in a large way responsible.
Then with regard to the dogs. That is, undoubtedly, rather a small point. It has been suggested, I hope not too frivolously, that the reason why that regulation has been abandoned is that it was discovered that a notice was really ineffective, since dogs could not read. That may or may not be so. With regard to the valuable suggestion made, I think, by the noble Lord, Lord Silkin, that the regulations should be printed and kept up to date, it has already been resolved that as soon as this debate is over, and these transactions are finished, and the Bill which I am about to introduce has been passed, the regulations will be reprinted and brought up to date. The noble Lord, Lord Silkin, also made the point (though this, perhaps, falls rather within the area of the discussion upon delegated legislation) that the regulationsor orders should be clear to the ordinary citizen, and he adduced as an example of lack of clarity the order relating to chocolates. I think that that argument must not be pressed too far. Most of these orders, or at least many of them, are directed only to the particular trade which is perfectly familiar with the subject. I do not think any dealer in chocolates to whom that order is addressed, and who alone is concerned with it, would have any difficulty in understanding its purport and its meaning.
THE LORD CHANCELLOR
I do not believe that there is any member of this House, however addicted to the purchase and consumption of chocolates he may be, who bothers himself about that order in the very least—but I may be wrong. The noble Lord also commented upon the immense outflow of regulations and orders made under them. Of course, that is a perfectly valid criticism; but, as I ventured to point out when introducing this Motion, so long as present circumstances continue, particularly the difficulty about the investment programme, rationing, price control and rearmament, there exists an abnormal condition, and its abnormality probably demands that there should be a large flow of orders. I hope they may stop. I hope, indeed, that within measurable time there may be a further 509 substantial reduction. But it would be unwise to prophesy and foolish to make any promises.
The noble Lord who spoke last was amused at hearing the speech with which I introduced this Motion, having heard, as he said, such different speeches from those who were formerly members of the Opposition. He may be amused about me. I was a little amused, too, as I sat here listening to those who were responsible for making these orders protesting against their being retained. It is a little puzzling, but we will be amused together, the noble Lord and I, on this subject. It is strictly germane to that that a criticism was made—and the noble Viscount, Lord Samuel, took apart in this—that I appeared to be satisfied with the reduction of some 4,700, from something over 16,000 in the number of officers who have a right of entry and inspection. He thought that that was not much to be proud of in a year. I regard that as a very good reduction. Again without giving any urdertaking—for clearly it could not be given—nor making any promises, I would point out that greater reduction may be looked for if things go reasonably well with noble Lords who sit on theGovernment Benches. There should be a very substantial measure of reduction of the number of such persons in the course of four years. But, as everyone knows, whatever happens there must be a number of inspectors. This total includes factory inspectors, who must have a right of entry upon premises. I share with the noble Viscount the hope that the number of these people may be reduced, and speedily reduced; but it will never be reduced to nothing, whatever may happen.
The noble Lord, Lord Chorley, made what, no doubt, is a valid point, that, under the Act, the Executive have power to revoke a regulation without bringing it to the notice of Parliament The short answer to that is that it is done under the Statute, and if objection was to be made to that it should have been made when the Statute was passed by the Government of which, I think, the noble Lord was a member. The Statute expressly provides that the regulation may be made, or may be revoked, with no suggestion in it that before revocation the matter should he brought again before Parliament. I think it is a valid point 510 in a sense, because it may be that revocation ought in some cases to be brought to the notice of Parliament. But the Act does not so provide, and I think that is the complete answer I must make to the noble Lord. To employ the noble Lord's own words, the Act itself says that a regulation may be enacted by the ipse dixit of the Government Departments which have made it, but there is no provision whatever, either for Prayer to annul therevocation or for anything of that kind. It must, I suggest, be left to the Government of the day, if they think fit, to revoke those regulations which, by their very nature, are designed to he merely temporary regulations to meet an emergency—though we all know, alas! that the emergency has continued for very much longer than we thought it would. That is the nature of the regulation and its purpose. It is surely not improper that the Executive authority should have power, when the emergency has ceased, to revoke that emergency regulation.
The noble Lord, Lord Winster, was good enough to anticipate what it might have fallen to my lot to say on the question of seamen's identity cards. This is rather an important question, and it has been made the subject of a provision in the Bill which I am about to introduce. It is satisfactory to know from Lord Winster, who is a high authority on this matter, that it meets with the approbation of the seafaring community. Another matter referred to by one of your Lordships was the regulation dealing with the direction of labour. That is a very important regulation. It is being, not indeed abolished or largely abolished, but substantially narrowed by the partial revocation which I referred to in the course of my opening speech. Would that it could be got rid of altogether! But the time is not yet. As I said, however, we have narrowed it. As I told your Lordships a moment or two ago, the greater part of the debate has been directed to the question of delegated legislation generally, and I hope that I have dealt with all the detailed natters which were raised by many of your Lordships. Therefore, I propose now to put the Motion to the House.
§ On Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.