§ 4.16 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR) 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-five, be continued in force for a further period of one year until the tenth day of December, nineteen hundred and fifty-six. The noble and learned Viscount said: My Lords, I rise to move the first of the five Motions which stand in my name on the Order Paper. For technical reasons, which I can explain if it is desired, these Motions require separate approval from your Lordships, but it may be convenient if I deal with them all in a single speech, because they are closely related to each other and are all concerned with the continuance for a further year of emergency legislation. As your Lordships are aware, it is necessary for the Government to come every year to Parliament for approval of the continuance of what remain of these emergency enactments, and the responsibility rests on the Government to discharge the burden of proving that their continuance is necessary. I do not regret this situation. On the contrary, I think it is very salutary for the Government to make an annual public justification for the prolongation of these powers.
§ I should like to point out that in regard to these powers we have now reached a new stage. Most of the Defence Regulations that could be safely abandoned have been revoked or allowed to lapse. Of the thirty-four substantive Regulations that are left I hope to show your Lordships in a moment that fourteen have received, or are about to receive, what I might term a new statutory undercarriage to support their contents. We are now up against the small, hard core of Regulations which may have to become part of the permanent law of the country. There is no need for me to emphasise to your Lordships that this presents a much more difficult problem than was presented by discontinuing the Regulations altogether. There is, first, the difficulty, which is well known to your 839 Lordships, of finding Parliamentary time; and secondly, there is the fact, which we have to face, that many persons regard the perpetuation of these powers in statutory form as no less odious, if not, indeed, more so, than their yearly continuance by Regulation. This makes it necessary that there should be the fullest consultation with the interests affected, in accordance with modern Parliamentary practice, and most careful preparation before the permanent legislation is introduced. We must try and obtain the greatest possible measure of agreement.
§ If I may be absolutely frank with your Lordships, perhaps I may take as an example of the unfortunate effects of a too early attempt to supersede emergency powers without the fullest consultation the Inventions and Designs (Crown Use) Bill which came before your Lordships two years ago. That Bill would have made it possible to abandon the Defence (Patent and Trade Marks, &c.) Regulations and would have made unnecessary the fourth and fifth Motions which are before your Lordships to-day. Your Lordships will remember what happened to that Bill: it was severely criticised in this House on the grounds that there had not been sufficient consultation with the interests affected. The Bill was consequently not proceeded with, and since then the Government have, carrying out the spirit of what was said in your Lordships' House, had a series of discussions with representative associations interested in the industrial property matters concerned. A considerable measure of agreement was reached, but there are still a number of associations who do not see eye to eye on this controversial topic.
§ We took the matter up again after the General Election, but, that being still the position, my right honourable friend the President of the Board of Trade has now decided to appoint a small committee to consider whether the Crown should have permanent powers over the use for defence purposes of unpatented materials, and, if so, under what conditions they should be exercised. We hope that the committee will report shortly, and that soon afterwards we shall be able to reach a decision about the legislation and present it to Parliament. I have dealt with that matter at a little length as an example 840 of the difficulties which face the Government when it is a question of perpetuating —I repeat, perpetuating—powers of this kind by permanent legislation, and I am sure your Lordships will agree that the course taken by the Government, of endeavouring to obtain the widest degree of agreement, was the right course.
§ Now may I turn to the Regulations which are about to die. There are a number of measures which are either now before Parliament or will soon be introduced which will procure the death of the fourteen Defence Regulations which are mentioned. First of all, there is Regulation 60D. That will be killed by the Aliens' Employment Bill which has passed through your Lordships' House. Secondly, there are the nine surviving Defence (Sale of Food) Regulations which will be painlessly. I hope, put to death by the Food and Drugs (Amendment) Act, 1954, and the Food and Drugs (Scotland) Bill, when they are brought into force. Thirdly, there are Regulations 50A and 56, which deal with water, and they will be dealt with by a Water Bill which is shortly to be introduced. Fourthly, there are Regulations 60A and 59 (2) which are dealt with by the Mines and Quarries Act, and they will go when it is brought into operation. Fifthly, there is Regulation 26 which will be dealt with under the Defence (Agriculture and Fisheries) Regulations. These Regulations are no longer in use in England and Wales, and are preserved in Scotland only until the schemes of the three Scottish marketing boards have been made. It is expected that these schemes will be made in the course of the next year, and that Regulation will then no longer be necessary.
§ As I said, the result of this process has been that twenty Regulations only are left of the substantive Regulations—twelve in the Defence (General) Regulations and eight in other codes. We have gone through them very carefully and are convinced that they cannot be dispensed with at the moment. I shall not weary your Lordships with a detailed description of each one, but I should like to deal with one or two categories in order to show your Lordships that my point is a justifiable one. The most important of them deal with the question of the requisition of land and with the regulation of trade in strategic materials between the East 841 and the West, necessitated by the conditions of the cold war which still, alas! seems to be with us. I will deal with those Regulations.
§ There are several Defence Regulations relating to the use of land for defence purposes. I ask your Lordships to believe me when I say that this is a matter on which the preparation of permanent legislation presents particularly acute problems. It is very difficult to keep a just balance between the claims of security and governmental activity on the one hand, and, on the other, of the reasonable expectations of holders of land. It was partly to investigate problems of this kind that I set up the other day the Committee under the chairmanship of Sir Oliver Franks to examine the whole subject of administrative tribunals, with special reference to the acquisition of land. The Government are pressing on with the preparation of the legislation to supersede these Regulations, but I think your Lordships will agree that it would be wise, if it is at all possible, to wait and get the Report of the Franks Committee before we put our legislation in final form.
§ There is one improvement which will be, and I think can be, made without waiting for that Report. Your Lordships may have noticed that only two days ago the Underground Works (London) Bill was introduced in another place. That Bill will dispose of one of the purposes for which emergency powers relating to land are required, and, therefore, brings us so much closer to the goal. I am not going to anticipate the Bill, but I remind the noble and learned Earl, Lord Jowitt, who was a brother Minister of mine during the war, of the great difficulties we had in regard to the shelters near the tubes. He can imagine, without any further word of mine, how much complication has been caused before we could get legislation to take the place of the powers we then took.
§ I want to say a short word on control of trade by sea. Defence Regulation 46 provides the authority for the Control of Trade by Sea (China and North Korea) Order, and that was made in March, 1953. That was part of the measures taken in accordance with international agreements to control the supply of strategic goods to the Soviet bloc, China, 842 North Korea and North Vietnam. I regret to inform your Lordships that in the present international situation it is not possible to dispense with this control at the present time.
§ I should like to say a few words about Defence Regulations 58AA and 59 which deal with the responsibilities of the Minister of Labour. Regulation 58AA provides for the continuance of the authority under which the Industrial Disputes Tribunal operates. The Tribunal has done valuable work with the agreement of—to use a phrase I do not like, but I cannot find an equivalent—both sides of industry. But neither side of industry has been prepared to commit itself to the establishment of permanent machinery in this held. I think it is important that the work should go on, and I hope that we shall be able to get agreement for the permanent structure to take its place. Regulation 59 provides for the employment of women in certain processes for which the more rigid terms of the Factory Acts are not suitable. That has been carried on with general agreement of all those affected.
§ I have tried to put frankly before your Lordships the difficulties with which we are now faced, but I should not like your Lordships to think that these difficulties mean that we are going to cease or even to slacken in our work. I feel very strongly, just as all your Lordships do, that we ought to get rid of these emergency powers in their special form, and either to end or replace them. On the other hand, I thought that I ought to put to your Lordships clearly the difficulties that have lain in the way in this, the last corner of the work—namely, the difficulties of replacement. I can only assure your Lordships that we will apply our minds to these difficulties and do the best we can to achieve what I know is the general aim and objective of your Lordships' House. 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-five, be continued in force for a further period of one year until the tenth day of December, nineteen hundred and fifty-six.—(The Lord Chancellor.)843
§ 4.31 p.m.
§ EARL JOWITT
My Lords, I am sure that all your Lordships are grateful for the exposition which the Lord Chancellor has just given us of these Motions. I would go further and say that we are all grateful to him also for not having told us what is the distinction between the Emergency Laws (Transitional Provisions) Act, the Emergency Laws (Miscellaneous Provisions) Act, 1947, the similar Act of 1946, and the Acts of 1940, 1942, 1949 and so on. I used to know what was the difference between these various Acts of Parliament—indeed, I was responsible for expounding this interesting topic to your Lordships' House ten years ago. To-day, fortunately, I have forgotten all about it. Just about a hundred years ago, when Lord Palmerston was Prime Minister and the question of the position of the Duchies of Schleswig-Holstein, which very shortly after that date gave rise to war between Prussia and Denmark, was under discussion, he is reputed to have said that there were only three people who understood the history of the Duchies. One was the Prince Consort, and he was dead; another was a German professor, and he had retired to a madhouse; and the third was Palmerston, and he had forgotten what the answer was. I am like Palmerston: I have forgotten what the answer is about these matters, but, of course, we will concede to the Government what they want.
Having said that, I must point out that the powers which are asked for are in some respects drastic. I notice one, for instance, which entitles the Government to go into land—and "land," of course, includes houses and parts of houses. I remember very well in the old days, when we promulgated a similar Regulation, the eloquence of noble Lords on the opposite side of the House. It was a very crowded House in those days when we were considering these things. The very suggestion that an Englishman's home should no longer be his castle, and that an official authorised could go into a man's house and inspect any part of the house for the purposes therein mentioned was regarded as a most monstrous proposition.
I cast my mind back to those days. Rather more than ten years ago, I, as a very inexperienced Lord Chancellor, had to introduce the Bills which gave rise to these Regulations. I expounded what I 844 then knew of the difference between the various Acts of Parliament. I said this [OFFICIAL REPORT, Vol. 137, Col. 550] on October 30, 1945:We realise that we must use these powers sensibly, and that we must use them to get rid of controls one by one and as quickly am we can.Then I added (Col. 551):We look forward to the time when we shall be able to reduce controls so drastically that your Lordships will hardly realise there are any controls left.Then, after I had made my speech asking the House to give us these powers, the noble Viscount, Lord Woolton (I am very glad to see him here to-day, looking so young, almost younger than he did ten years ago, and so vigorous, though I doubt whether he will ever rise to the supreme heights of eloquence to which he rose on that occasion when I suggested that we might have these Regulations), stood up and was kind enough to say that I had made an eloquent speech. He went on to say (Col. 552):I believe they may tolerate it, after such an eloquent expression, for two years, but I believe that there will be a growing resentment against this continuation of controls if it is carried on for any long period. Perhaps that is why the Government are making hay while the sun shines and getting this power.Then the noble Lord (as he then was), in a most moving passage which will stay in the memories of everybody who heard it, added this (Col. 554):Our generation and our sons have fought and died for some intangible thing called freedom. All I say to His Majesty's Government is this: Do not deprive us of it. Do not deprive us of the hope of it. Whilst you are planning, I do beg that you will try to fit your plans into humanity rather than try to marshal humanity into your plan.It was magnificent. It was great eloquence; and, of course, it was a perfectly sound sentiment with which I entirely agree. All I can say is that I never contemplated for one moment that we should try to squeeze humanity into our plans and make them lie down on a so-called bed of Procrustes. I have never contemplated such a thing.
That is the past. Here we are now, ten years later. There sits the Lord Chancellor, beaming at us with an empty House; and everybody concedes at once, of course, that he must have these Regulations. I make my speech on this particular topic; I promise him that I shall not speak on any of the others; and 845 I say that he shall have these Regulations and that so far as we are concerned, they shall go through. I do not doubt at all that the Government have been looking at these Regulations and trying to cut them down and replace them by what the Lord Chancellor calls another form of undercarriage. I say at once that I greatly prefer the machinery of an. Act of Parliament to the machinery of Regulations. I prefer it for this simple practical reason: that it is so difficult to find where these Regulations are; it is so difficult for anybody to know what the law is if the law depends entirely on Regulations. Of course, in any complicated Act of Parliament, there must always be a regulation-making power. If Parliament were to be so foolish as to cut out that power, Parliament would not be able to cope with the volume of business. One must draw a line between the passing of a mere skeleton Act of Parliament with Regulations (which I do not like) and the passing of an Act of Parliament with some detail giving to the Ministers in charge reasonable power to make Regulations, which, of course, can be prayed against.
I certainly am on the side of the angels in this matter. I do not like Regulations. I should much rather have Acts of Parliament, so far as possible, though I concede at once that in a modern legislature it would be foolish to try to tie Ministers to such an extent that they had no rule-making or regulation-making power. I have gone through these Regulations and, although in some of them, principally the one I have mentioned—the power in regard to land—the power given seems drastic, I think the Government can be trusted to use it sensibly and well. I hope that they will be able to introduce some legislation in a form that will enable them to get rid of these Regulations, but, for my part, I think that in the old days a good deal of quite unnecessary political capital was made (I am not going to make it now) out of these things. Certainly it was always the desire of the Labour Government to get rid of these Regulations. In our time, we got rid of a great many of them. It was not possible to do it all at once. The good work, I believe, is still continuing. I wish the Lord Chancellor all success in carrying on this work, so that at long last he may not have 846 to introduce these five Motions in the course of the next year.
§ 4.40 p.m.
§ LORD SILKIN
My Lords, I feel that I ought to say a few words on this occasion because I have done so on a number of earlier occasions and had hoped, as a result of the replies I received then, that it would not be necessary to say anything more. I should like the House just to review the situation as it is to-day. As my noble and learned friend has just said, in 1950 and earlier, whenever these Regulations came before the House, we were met by violent criticism. These Regulations were referred to as "controls"—the "umbrella" term was used—and it was said that they must all be swept away at the earliest possible moment. The suggestion was put forward from the other side that if only the present Government were in office they would get rid of the controls in a very short time.
But what are the facts to-day? As I understand it, after the present Government have had five years in office, there are still sixty-nine controls, or one-third of the number that were in existence at the time when the Government first came into office. The criticism against the controls was, of course, two-fold. First, it was said that the controls were bad in themselves; that all controls are objectionable, and must be swept away as quickly as possible. The second objection was that in any case it was a bad thing that they should be continued by way of Emergency Regulations. Her Majesty's Government are meeting the second point; they are gradually transferring these Emergency Regulations, which we all agree are objectionable, into permanent legislation. None the less, they are controls, whether they are incorporated in permanent legislation or in Regulations; the objection that we are retaining a large body of controls arising from the war still remains.
In introducing the same Motion as the noble and learned Viscount, the Home Secretary said in another place [OFFICIAL REPORT, Commons, Vol. 546 (No. 53), Col. 32]:It is broadly true that the powers now proposed to be continued"—he was referring to these sixty-nine Regulations—cannot be given up until Parliament replaces them by permanent legislation.847 I would ask the noble Viscount, Lord Wootton, to bear in mind that we are to have the same controls but instead of reviewing them year by year we are to have them in the form of permanent legislation.
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (VISCOUNT WOOLTON)
We have never said that we did not want legislation, have we?
§ LORD SILKIN
I thought you said that you did not want controls—that they were bad in themselves, and you were going to sweep them away.
§ LORD SILKIN
This argument was constantly put forward about these controls, but now all the Government can say is that they are to make them permanent instead of bringing them up year by year. In the case of the present controls—perhaps it would be better to call them "controls," because that is what they are—there are sixty-nine of them, as I understand; last year there were seventy. One control has been removed in the present year. I understand that certain legislation is, or will be, before Parliament, which will enable a certain number more to be withdrawn, but only by this process of converting temporary controls into permanent ones.
I think it is right that we should put on record that, in spite of all the objections that have been raised in the past against controls, in spite of statements by noble Lords opposite about what they would do when they had the chance, they are not in the least withdrawing the controls; they find controls necessary, and are now converting temporary controls into permanent controls. I do not in the least wish to complain, because some of the controls which we asked the House to continue have always been regarded by us as essential. Those which were not essential we gradually withdrew; but it was always recognised that a certain number of controls would be necessary and permanent. My quarrel with noble Lords opposite, if it is a quarrel, is that they did not say that at all. They gave the country the impression that all these controls would be withdrawn at the earliest possible moment. It now turns out to be the case, as we knew it would, that these controls are essential for the 848 life of the country, and not only have to be continued but have to be made permanent. I wish the Government every joy in that process. I hope they will go on with the good work, but I hope they will never again say that they are against all controls.
§ 4.46 p.m.
§ THE LORD CHANCELLOR
My Lords, it is with some reluctance that I say even a word in answer, because the noble and learned Earl and the noble Lord who have spoken, have not only used great restraint but have charmed us all by references to past eloquence on bath sides of the House with which I for one should never try to compete. But I think that the words of the noble Lord, Lord Silkin require one short answer; it is one which is familiar to the noble and learned Earl in his arguments in other spheres in the past. It is a philosophical truth that you can get such a difference in degree that it becomes a difference in principle.
My Lords, when we took office in October, 1951, there were 215 of these Regulations in being. Of these 35 were ancillary or formal Regulations, dealing with procedure. There were, therefore, 180 positive controls—to use the word of the noble Lord, Lord Silkin. Of these, 146 have been swept away, and if the noble Lord had paid a little more attention to my speech (I do not say that it merited it, but I attempted to deal with the point) he would have noted that what I said was that up to now we have been able to deal with the situation by clearing away, not by substitution. We have now cone up against the problem which I frankly admitted to the House, of a hard core which we cannot dispense with, and which we have got to deal with by legislative process. But I think I am right in saying that the vast majority of the 146 that went have gone altogether and are no longer part of the law of this country.
§ LORD SILKIN
I wonder whether the noble and learned Viscount has any figures on the subject. I speak only from my own recollection, and legislation has come up to this House from time to time; but I am under the impression that the number of Regulations which have been translated into permanent legislation is not insignificant.
§ THE LORD CHANCELLOR
My Lords, I did restrict myself to saying "the vast majority," and I am as sure as I 849 can be from memory. As I told your Lordships, it was my task, when I was Home Secretary, to supervise the removal of Regulations and the 146 were, I think, all dealt with during my time. I am prepared to stand by my statement that the vast majority were cleared away, although the noble Lord is quite right that some—but a very small fraction—were replaced by legislation. To take one point arising from what the noble Lord says, I think he will be well aware that it is important to consider not only the children of the Act, in the form of Regulations, but its grandchildren in the form of orders made under the Regulations. May I take Regulation 55—that for the control of industry, which is the control at the source. When Her Majesty's Government came into office in 1951—which, after all, was six and a half years after the end of the war—there were 277 orders under Regulation 55. There are now under two dozen. That is quite a consideration.
May I ask the noble Lord to consider this from the point of view of the ordinary citizen? While he may not be greatly concerned with the contents of the green book which is before your Lordships today, he is concerned with its results in his daily life. When I last addressed your Lordships on this point, dealing with the year 1954, I mentioned that there were 642 prosecutions under these Regulations in that year. As the noble Lord is aware, that total compares with many thousands in the period at the end of the war; but I am taking only the years with which we are dealing. In the first half of 1955 the number of prosecutions had come down to 119: that is, roughly, a reduction to one-third of the 1954 figures. I therefore put it to the noble Lord, who I know always gives most fair and frank consideration to all problems put before him, that the work has attained a very considerable degree of success and is going on towards that end which I believe everyone in your Lordships' House desires—the greater freedom of the ordinary citizen in this land.
I hope that in what I have said I have been as restrained as the noble Lord was in putting his point of view; but I want to end on a point which I believe to be most important. This is a task on which, we are all agreed, we must work to complete the duty that lies upon us of getting rid of these Regulations. No doubt I shall be coming before your 850 Lordships' House with attempts to solve some of the very intricate problems which I have mentioned to-day. I want to pat to the noble Lord as fairly as I can that this is not only a question of abolishing war-time controls; it is a problem of dealing with these difficulties in the light of a modern scientific State and modern methods of defence. All have to be re-examined: in that light. I would ask, and more than that I would express the hope, that when I come before your Lordships seeking a solution I shall get not only your sympathy in the problem but your assistance in its solution.
§ On Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.