HL Deb 27 January 1959 vol 213 cc849-63

6.0 p.m.

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, I desire to thank your Lordships for the consideration which you have shown to me in my various duties by the arrangement of the Business to-day. In rising to move that this Bill be now read a second time I should like first of all to offer some remarks in exposition of the contents of the Bill, then to say something about the Government's reasons for introducing it and finally to comment very briefly on certain of the criticisms which have been raised. In the first part of what I have to say I shall refer first of all to the situation with which the Bill deals, and then to the measures proposed in it. I am conscious that the Bill has been before Parliament for two and a half months and that it was accompanied by an explanatory White Paper. Detailed expositions are never very enlivening and noble Lords who are interested might find it convenient if I keep this part of my speech relatively brief and refer to particular and detailed points by reference to appropriate paragraphs of the White Paper. I think they will find it easier to follow my exposition of a somewhat complex piece of legislation if they are able to refer to the printed explanation of particular points.

The emergency legislation still in existence consists, first, of the remaining Defence Regulations, which are kept in force by the Supplies and Services Act and by the Emergency Laws Acts; secondly, of the amendment of the Ministry of Supply Act by the Supplies and Services Act; and, thirdly, of three separate Emergency Acts which have as yet neither been repealed nor incorporated in or replaced by permanent legislation. I will refer in succession to those three parts of the corpus of legislation with which the Bill deals.

The original Act under which Defence Regulations could be made by Order in Council was the Emergency Powers (Defence) Act, 1939, which, as some of your Lordships will remember, was passed in a single day a few days before the outbreak of the Second World War. Paragraph 10 of the White Paper explains how, before this Act expired after the war, the two new Acts to which I have referred were passed in order to keep in force such Defence Regulations as the Government of the day felt to be still required. The Supplies and Services Act dealt broadly with regulations concerned with economic matters and the Emergency Laws Act with the rest.

Only thirteen Defence Regulations of substance now remain in existence. These are set out in paragraphs 11 and 12 of the White Paper, and, together with the twenty-five ancillary and procedural Regulations listed in Appendix A, they represent the residue of the 215 Regulations at the time of the change of Government in 1951. Eight of those thirteen are either to lapse or to be replaced by permanent legislation. The Bill is, therefore, concerned only with the remaining five, though it keeps in force a sixth, Regulation 59, until that Regulation is replaced by provisions in the Factories Bill which is already before Parliament. These reductions and the five Regulations remaining are set out in paragraphs 17 and 18 of the White Paper.

The mere reduction in numbers does not, however, of itself bring about the corresponding reduction of the scope of the powers which a Government can exercise under Defence Regulations. Three of these five remaining Regulations confer, at least potentially, very wide powers indeed upon the Government. Defence Regulation 55 gives power to impose physical controls on any kind of commodity whatever for a very wide range of economic and defence purposes, while Regulation 55AB gives the power to impose price control on any kind of goods and services for any purposes whatever. Regulation 55AA empowers the Government to obtain such information as is needed for the enforcement of the other two Regulations.

It is true that in January, 1955. these wide powers were reduced by an Order in Council to a limited number of specified uses. The limitation, however, did not deprive the Government of the power to extend afresh the powers which could be exercised under the three Regulations without seeking fresh legislation. This is because Section 3 of the Supplies and Services (Transitional Powers) Act, 1945, gives power to vary by Order in Council Regulations kept in force by that Act, and this power to vary can include the resumption of powers given up so long as they fall within the ambit of the Defence Regulation in question and are exercised for the purposes of the Supplies and Services Acts. I would refer your Lordships to paragraphs 19 and 20 of the White Paper for fuller details as to the original scope of the Regulations, the purposes for which they can be used and the use made, since the reduction of their scope in 1955, of the power to vary them.

Now may I turn for a moment to the Ministry of Supply. The extension of the Ministry of Supply Act by Section 6 of the Supplies and Services Act, 1945, gave the Government power to buy, sell and manufacture on Government account any articles, in order to ensure, in the words of the Section: a sufficiency of those essential for the wellbeing of the community, or other equitable distribution, or their availability at fair prices. Noble Lords will recognise that these powers complement those of the three Regulations to which I have referred. The Regulations enable the Government to control the private manufacture, purchase and sale of essential goods, while the amendment to the Ministry of Supply Act enables it to manufacture and sell them on Government account.

There are, thirdly, three remaining Emergency Acts described in paragraph 23 of the White Paper, which are all that now remain of a much larger number. These three are of very different importance. First, we have the Import, Export and Customs Powers (Defence) Act which provides the whole of the Government's present powers for the control of exports and imports; the purposes for which these powers may be exercised are not restricted by any definition in the Act. Secondly, there is the Ships and Aircraft (Transfer Restriction) Act, 1939, which enables the Minister of Transport and Civil Aviation to forbid the transfer of British ships other than those registered in an independent Commonwealth country. Thirdly, the Government and other Stocks (Emergency Provisions) Act is on a very different key and is a minor measure which, apart from a provision applicable only to war-time conditions, facilitates the procedure for the transfer of certain stocks, the number of which is now small. Noble Lords will realise that only very limited use is made of these residual emergency powers.

Some of the functions exercised under the three Regulations on which I have dwelt have been abandoned in recent months, leaving only seven altogether with one continuing authority. Those are all listed in paragraph 21 of the White Paper. But I again repeat what I have emphasised: that in spite of the modest use at present made of the Regulations, wider powers can still be exercised under them if use is made of the power to vary. Similarly, although the use made of the extension of the Ministry of Supply Acts is limited, those very widely extended powers will remain in existence.

I now turn to the Government proposals for dealing with this legislation, which are set out in the Bill before the House. I am aware that the ideal course would be to repeal the whole of it and to enact permanent and detailed legislation covering each of such powers which must be retained. It is, however, quite impossible to do that in a single Parliamentary Session. The replacement of this residual legislation would call for at least half a dozen Bills, each in a different legislative field and some of them substantial and complex. We had, therefore, to envisage this process taking place over a number of years. The objects of the present Bill are accordingly relatively limited. First, it creates a new legislative basis for the Defence Regulations in a much restricted form, and a limited extension of the Minister of Supply's powers. It also repeals, in part, two of the three remaining emergency Acts of Parliament. Secondly, it keeps the Defence Regulations and the extended powers of the Ministry of Supply in force only in respect of the specific powers which are now exercised. The Bill does not do away with any powers which are actually being exercised at the present time. It does do away with the possibility of extending the powers which are exercised to-day. There is one exception to this principle to which I shall refer in a moment.

I should now like to go briefly through the Bill and to explain how these two principles have been applied in drafting it. Clause 1 repeals the substance of the Supplies and Services Acts and the Emergency Laws Acts. Clauses 2 and 3 substitute a new legislative basis for the powers previously exercised by virtue of these two Acts. Clause 2 keeps in force the five Defence Regulations specified in paragraph 18 of the White Paper and the orders and directions at present in force under them; but it specifies that the powers given by these Regulations are limited to those set out in paragraphs 21 (b) and 22 of the White Paper. As a matter of drafting, the necessary amendments to the Regulations are set out in the First Schedule, and the Regulations in their amended form—that is to say, the form in which they will have effect if the Bill becomes law—in the Second Schedule.

Here I should draw your Lordships' attention to the last of the eight powers set out in paragraph 21 (b) of the White Paper—the power to control the production, distribution and price of any commodity if supplies from overseas on which we depend should be interrupted. This differs from the other powers in that the commodities are not specified, although the circumstances in which the power may be exercised are strictly defined in paragraph 1 of the First Schedule, which your Lordships will find on page 9 of the Bill in lines 35 to 47. This is a precautionary power which Her Majesty's Government feel they must have. No-one can be certain that vital supplies on which we depend may not be interrupted owing, for example, to political instability in some part of the world which is supplying us, or it may be to some natural disaster. It is impossible to specify in advance what commodity may be affected and it might be necessary to take action quickly.

May I come now to the amendments with regard to the powers of the Minister of Supply? Clause 3 continues temporarily the extended powers of the Minister of Supply but limits them to those set out in subsection (2) of that clause. Here, again, the general principle is that the Minister will be entitled to exercise only those powers of which he is making use at present. So the Bill has been amended in another place at the instance of Her Majesty's Government, since it was felt that the clause as originally introduced was too restricted to cover the work at present being undertaken by the Royal Ordnance Factories. This clause also continues the authority for the operations of the Jute Control. The responsibility for this now lies with the Board of Trade, having been transferred under the Ministers of the Crown (Transfer of Functions) Act, 1946. This is the only power under emergency legislation which Her Majesty's Government propose to retain to trade in commodities. I am sure your Lordships are aware of the particular situation that obtains in Dundee and the Government statements with regard to it and I need not go into it in any more detail. Clause 4 deals with the Ships and Aircraft (Transfer Restrictions) Act. The licensing of aircraft is now carried out under other powers by the Board of Trade and the appropriate part of the Act has been repealed so that it now applies only to ships. Further, the effect of the clause is to keep in force the Minister's power to control the transfer of ships to and from the British flag only for purposes of national defence. The only other clause to which I think it necessary to refer your Lordships is Clause 10, which specifies that, apart from one minor provision, the whole Act shall continue in force only up to the end of 1964.

Noble Lords may have noticed one important omission from the emergency legislation dealt with in the Bill: that is, the Import Export and Customs Powers (Defence) Act. This Act ought, in due course, to be replaced by legislation meeting the more limited needs and purposes of peace time. I believe your Lordships will readily appreciate that Her Majesty's Government do not judge the present moment to be appropriate for the introduction of a major measure dealing with this particular subject, and I need not go into the various international matters which have caused us to take that view.

May I just say one or two words on the reasons for the introduction of this legislation? I hope that what I have said will have given noble Lords a reasonably clear idea of the situation with which the Bill deals and what it proposes to do. May I now say some thing as to the reasons for it. I venture to describe it as a realistic attempt, within the limits of what is practicable in a single Session, to put on to a proper legislative basis the limited emergency powers that must remain. The two essential points were put in the White Paper. In the first place, a legislative structure designed for war emergency conditions should not continue indefinitely in peace time. Secondly, powers should not exist in peace time unspecified as to their scope and purpose and which the Government might use at their discretion without explicit authority from Parliament. We admit that in this Bill we cannot do all that ultimately will be desirable to achieve both objects. We do propose, however, to demolish the structure of legislation resting on the Emergency Powers (Defence) Act and to do away with the potentially unlimited fringe of powers which might at present be exercised without new legislation. It is for these reasons that the Bill has been referred to as an exercise in constitutional propriety and a measure conducive to the good government of the Realm.

I should like to turn, finally, to certain criticisms which have been made of the Bill. No objection has been taken to the first of our two principles—that the powers to be retained should be put on a now legislative basis to be considered and determined by Parliament. There has been some criticism of their reduction to a limited number of specific purposes. This has drawn two different kinds of criticism: first, that we were setting out to deprive a possible successor Government of powers which they might consider themselves to need; and secondly, that this, our own Government, are depriving themselves of powers which they ought to keep, even though at present they have no desire to use any of them.

With great respect, the first criticism strikes me as rather confused. We are accused of setting out to make things more difficult for possible successors. In the first place, I would point out quite seriously—and I hope the noble Lord, Lord Silkin, will not take this as merely a debating point, for I think it is a serious one—that the Bill does nothing to weaken or reduce any of the powers at present in existence to protect our balance of payments or the strength of our currency. As regards questions of internal policy, no Government can bind their successors and there is nothing whatever to prevent a future Government from asking Parliament for whatever powers they wish to exercise. If they wish to exercise wide powers, however, we believe that they ought to seek fresh legislative authority for them and not to rely on emergency legislation which is now nearly twenty years old and was passed by a Parliament united in the prosecution of objectives quite different from those for which the emergency powers would now be used. We do not question the right of a future Government to do anything which they can get Parliament to authorise but we feel that they must seek Parliamentary authority in a proper way.

As regards the second criticism, that Her Majesty's Government are depriving themselves of powers which they ought to keep, this raises a different question and one on which we must recognise that Her Majesty's Government and the Opposition take different views—and views different not merely in degree. We do not believe that the Government should have unlimited powers to manufacture and trade in commodities or to control the undertakings which do so, or to control all the prices of goods and services. We do not think that such general powers are or should be needed in peace time. We consider that if they were needed in respect of any particular commodity the Government ought to seek specific powers from Parliament for that purpose. I hope that, although noble Lords opposite may not agree with the second of the principles to which we have sought to give expression in the Bill, they will at any rate recognise that it is a consistent embodiment, within the limits of what is practicable, of both these principles; and I now ask the House to give the Bill a Second Reading.

Moved that the Bill be now read 2ª.—(The Lord Chancellor.)

6.31 p.m.

LORD SILKIN

My Lords, I do not propose to detain the House by debating further the two criticisms which the noble and learned Viscount said, quite fairly, have been directed against the Bill. I think it is legitimate for a Government to make things more difficult for its successors; I would not complain about that. The Government, as the noble and learned Viscount says, cannot prevent their successors from introducing any legislation which they desire. I would not myself quarrel, at any rate not violently, with any attempt on the part of the Government to make life more difficult for their successors, so that where in an emergency they might have availed themselves of the existing emergency legislation, they will now have to seek Parliamentary powers by means of fresh legislation. Nor do I particularly quarrel with the view of the noble and learned Viscount that if this Government genuinely believe that they do not require certain emergency legislation, and will not in any circumstances need it, they should accordingly repeal it. So I am not associating myself strongly with the criticisms that he has enunciated, and I have no quarrel with this Bill as such.

I am very much obliged, as the whole House is, to the noble and learned Viscount for his explanation of the Bill. I have been wrestling with the Bill itself for some time with little success. I made three attempts to try to understand it by means of the White Paper. It certainly threw some light on it, and sometimes I thought I had got it and sometimes I thought I had not. I actually had tables showing what legislation was still in existence, what was disappearing and what was going to be introduced into permanent legislation. I could never make the sum agree. But I will certainly read the noble and learned Viscount's explanation. I cannot pretend that even now I have completely got it. I will read it and I hope that the combination of the Bill, the White Paper and the speech will throw complete light on this most difficult subject.

We have had discussions of this kind every year since the present Government have been in office. I believe there have been eight of them. The noble and learned Viscount and his predecessor have made the kind of speech that he has made this evening; and I believe that on every occasion except one, when the noble and learned Earl, Lord Jowitt, made the speech, I have been responsible for saying something in reply. I assure the noble and learned Viscount that in no circumstances will I make another speech of this kind. I really think this is the last. Therefore, in spite of the thinness and lack of excitement that exists in this House over this subject, perhaps he will permit me to make my swan song on emergency legislation.

As the noble and learned Viscount say s, when the present Government came into office there were 215 Regulations; and they came in on the basis of getting rid of them all. They were going to "set the people free"; they were going to sweep away all these emergency Regulations, and there was nothing said about putting anything in their place. Now all these years have gone by, and the noble and learned Viscount realises today that the sweeping away of all these Regulations and "setting the people free" has been a longer and more painful and a more difficult process than he could have imagined at the time. And at the end of it all, this is what the Government say in the White Paper about, these Regulations: Since 1939 new problems of government have arisen and powers taken to deal with emergency conditions have become indispensable if those services which modern Society demands are to be carried on. That is what we have always thought. We have all thought that these powers, or many of them, were essential.

No Government, and certainly not we on this side, had any intention of hanging on to powers or Regulations which were not necessary. Had we been in office—whichever Government had been in office —we would equally have been introducing legislation of the kind which the noble and learned Viscount is introducing in this House to-day. We might have disagreed as to the nature of it and the extent, and there would have been legitimate differences of opinion as to the amount of legislation that was required, but we should have done exactly the same as the Government have been doing in principle; that is, converting such Regulations as we thought were required in the new condition of things into permanent legislation and repealing those that were not required. I do not think that there would have been any difference between us. But saying that is a very far cry from saying that at long last we were going to get rid of all emergency legislation and were "going to set the people free".

I should like to ask the noble and learned Viscount whether he cannot tell us, either now or after investigation, how many of the 215 Regulations which were in force in 1951 have been converted into permanent form by means of permanent legislation. I think he will find it is a very considerable number. Indeed, even in the case of the last thirteen, the last that remain, we find that five still continue in force at present. We are left with five, and I believe that that five are to be incorporated, or have been incorporated, in permanent legislation. I am not sure whether my figures are right or not, but I believe the position is something of that sort. So we have still to live with eight of these thirteen even now, after all these years, to say nothing of the thirty-four or thirty-five subsidiary Regulations. I am not quarrelling with that; I am merely pointing out that the Government have at last discovered what we had all along believed to be the fact: that these Regulations were needed, or that some Regulations were needed, and that we could not just wipe them away with a wave of the hand.

There is one other point—and the noble and learned Viscount referred to it—namely, that a power still remains under Section 3 of the Supplies and Services (Transitional Powers) Act, 1945, to widen the scope of some of the Regulations, if necessary, in those cases where the scope has been reduced. Here again. I think it is very wise of the Government to retain this power. Am I wrong?

THE LORD CHANCELLOR

Yes; I am sorry. I should have liked the noble Lord to develop the point; but I quite realise how the noble Lord may have been misled. That was by Section 3 of the Act, and although the form of the Bill is only to repeal, I think, Section 8 (1), which allows the Bill to be extended year by year, once you have repealed the section which allows the Bill to be extended you have repealed the whole Bill, and that power under Section 3 goes. Therefore, after this Bill becomes law, it will no longer be possible to extend the Regulations again. I am sorry that the Bill is in that form, and I quite understand why the noble Lord took that view.

LORD SILKIN

I must apologise for my stupidity in not following it. I had been under the impression that it would still be possible, but I accept the noble and learned Viscount's assurance that that is not the case.

I do not wish to say any more about the general scope of the Bill, or the need for the Bill. I accept it, and no difficulties will be put in the way of the Government for this Bill to go through. I will, however, in association with my noble friends, have one more look at the Bill to see whether any powers that it is sought to repeal may still be required, or whether it is possible to go even further than the noble and learned Viscount proposes to go under the Bill. If we find that there is any cause for suggesting any Amendments to the Bill, they will be duly dealt with, I hope, on the Committee stage; but, subject to that, we accept the principle of the Bill and hope that it will have a speedy passage.

6.42 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, may I ask the noble and learned Viscount the Lord Chancellor one question which I think is a good Second Reading point? I should be grateful if he would tell me what the situation will be at the beginning of 1965. As I understand subsection (2) of Clause 10 of this Bill, the reference to the Interpretation Act will prevent any powers from re-arising which might be thought to do so by the ending of this Act and the possible re-arising of that which it repeals. Is it also the case that all the powers under the Defence Regulations which are retained by this Bill—and I gather that they are all the remaining ones—will also lapse, and that it will then be necessary to introduce new legislation, if it is considered needed, to carry on the powers of this Act? If I am right in that view, I should be grateful if the Lord Chancellor would tell me so.

LORD CONESFORD

My Lords, may I put one question to my noble and learned friend? In the first subsection of Clause 4 it is provided that the Ships and Aircraft (Transfer Restriction) Act, 1939, shall expire at the expiration of the thirty-first day of December, 1964. I do not think that my noble and learned friend, in the course of his admirably clear explanation of the Bill, dealt with the reason for that date. I do not say that there is anything wrong with it, but I wondered what the reason was. If it is more convenient that it should be explained in Committee rather than to-day, I shall quite understand.

THE LORD CHANCELLOR

I hope the noble Lord, Lord Silkin, will not think me discourteous if I reply to these specific points while they are fresh in my mind, and then come back to him. My noble friend Lord Colville of Culross wanted some information on the incidence of the Interpretation Act. The position is that the expiry of the Act is timed for December 31, 1964, and the reason why it is December is, of course, that if it were wanted at that time to use the Expiring Laws Continuance Act for any provision, then it would fit for December. That is the first point. But the position with regard to the Interpretation Act is that, as he knows, one purpose of the Interpretation Act, if I can put it quite broadly, is to safeguard acts that have been done under an earlier Act. Now, this sounds rather like the stock answer to a question in a law examination, but I hope the noble Viscount will bear with me if I put it in that way. If an Act expires by way of running out—and again I am putting the matter quite broadly—it does not attract the provision under Section 30, which, at the same time, acts as a preservation of powers exercised and, of course, safeguards the people that exercise the powers. That is why it is necessary to draft it in the way that we have done. I hope that that meets the noble Viscount's point, but if there is any further point I shall be pleased for him to let Mme know, and I will try to explain it to him.

With regard to the more general point of my noble friend Lord Conesford, as to the five years, we hope and believe that during that period we shall be able to complete the task which I have admitted is not finished—that is, to adjust the various matters which are left in this Bill, very limited and very reduced in scope, to peace-time legislation. My noble friend during his service—if he will allow an old friend to say so, his distinguished service —at the Board of Trade, must have been very conscious of the point I did mention in regard to the Import and Export and Customs Act. That depends upon negotiations and upon factors in our external economic affairs on which I need not spend time to-day, but I think he will agree that it would be to the point of view of the good functioning of the Department of which he was an admirable member if we could, during the next five years, get the Imports and Exports and Customs laws into another form. We have taken the time, and we hope it will be possible to deal with all the detailed points.

LORD CONESFORD

My question was limited to the Ships and Aircraft (Transfer Restriction) Act mentioned at the beginning of Clause 4. It may be simply that it was convenient to take the same date.

THE LORD CHANCELLOR

Yes, it was. I am sorry; I thought my noble friend wanted the greater to include the less, but that is the position. We think that from the point of view of healthy Parliamentary functioning this ought to be a temporary Act, and we have taken the same period.

The noble Lord, Lord Silkin, has made a very restrained speech, and in answer to it, and to signify my gratitude for it, I will make a very short reply. In fact, in all the eight times on which I have dealt with this problem I do not think his lower limb has ever been elevated less than to-day. It is not because he could not have said more, because he has often done so before, and we have enjoyed the discussions. May I just make this point? —and he knows that I do not do it in any controversial way. I am glad that the noble Lord made a speech with the content and in the tone which we have heard to-night, because it is important that in our legislative functions we should try to preserve that as much as possible of the laws to which the people of this country are subject should be dealt with in Parliament. It is very important that that should go out from everyone as being what is desirable.

Undoubtedly a great many of what I may term colloquially "back room powers" that had been taken during the war by the Government, of which I had the honour to be a member, had become built into our economy and our laws. Moreover, the ability to make orders and permits under them was a direct temptation to laziness in government, quite irrespective of what Party was the Government. It is so easy to make an order under a Negative Resolution, and busy Members of another place will not bother to put down a Prayer. One knows the temptation, and I think that it is an excellent thing that it should go out that that is a temptation to be resisted when we can. The noble Lord, Lord Silkin, from his Ministerial experience knows perfectly well, as I do, that there are cases where we cannot avoid it; but let us try to avoid it and when we do something which in our heart of hearts we feel should be a true piece of legislation, let us make it a true piece of legislation and bring it to the attention of Parliament.

I have always tried to draw the distinction between legislating by Affirmative Resolution and by Negative Resolution. I know that there may be many cases where it may be pointed out that I have failed to do it, and I think that every Minister must frankly admit that these cases do occur. That is why in these words in reply to the noble Lord I would say that if it goes out that we are going to do our utmost to see that Her Majesty's subjects are under only laws at which Parliament has had a look, I think we shall have done something not undeserving of the confidence of our successors. I wish to thank all noble Lords for the tone of this debate.

On Question, Bill read 2ª; and committed to a Committee of the Whole House.