Import Duties (Hansard, 6 March 1975)

§ Mr. Shore

I am grateful to my right hon. Friend for the opportunity to clarify this matter. Since the debate I have taken further legal advice, and while the matter is not free from doubt, the probable position seems to be as follows.

Section 5(1) of the Statutory Instruments Act 1946 provides that the effect of a resolution of either House that an Address be presented to Her Majesty praying that a statutory instrument be annulled is that "no further proceedings shall be taken" under the Order "after the date of the resolution". The previous orders would already have been revoked by the Import Duties (General) (No. 5) Order 1974 as from 1st January 1975 and the resolution of the House would not by itself have changed that situation. For the time being there would have been a hiatus. The old orders would still have been revoked and nothing could have been done under the new order.

Once the Order-in-Council had been made by Her Majesty—unless it contained an indication to the contrary—the previous orders would have revived on the No. 5 Order being revoked. It is considered that the revival would have taken effect only from the date of the Order-in-Council. Although Section 5(1) of the Statutory Instruments Act 1946 provides that the resolution and revocation shall be without prejudice to the validity of anything previously done under the instrument this would not have altered the situation since the revocation of the earlier orders is not "under" but "by" the instrument. The collection of duty would have been a thing done under the No. 5 Order and therefore, would have remained valid if done prior to the resolution, but not after.

In the light of the above I was not, therefore, wrong in suggesting that a hiatus would occur as an immediate consequence of the annulment of the No. 5 Order. But I was wrong not to indicate 507W that the dead body of General Order No. 8 would have been revived when the Order-in-Council was made. If this had been done on the day following the debate on the Prayer there would effectively have been no gap between the annulment of the No. 5 Order and the revival of the No. 8 Order. But it would have been necessary to arrange a meeting of the Privy Council on that day. If any delay had occurred, the Government could, of course, have laid a new order to reestablish a tariff.

I very much regret that what I said in the House may not have been entirely accurate, but the interpretation of Section 5(1) of the Statutory Instruments Act 1946 is difficult and uncertain. In view of this, consideration will be given to the possible amendment of the section when a convenient opportunity occurs.