§ Sir HENRY SLESSER
I beg to move, to leave out the Clause.
This is the Clause which has already caused considerable discussion in this House, and in the country and the Press. The House will remember that on the Committee stage we, and a number of hon. Members opposite, took occasion to object to the power which the Government were seeking to take to themselves when what the Minister thought was a difficulty in the Bill should arise by Order he might remove it, andmake any appointment, or do any other thing, which appears to him necessary or expedientand that such Order might modify the provisions of the Bill which is now under consideration. We urged, and I think urged with some force, as consequences show, that such a power was both dangerous and unnecessary, and that when Parliament in its wisdom had set limits and bounds to a particular Act, it was in principle most dangerous, most inexpedient, to give to a Minister or Department any authority to vary that Act, even with the protection of being compelled to lay the Order subsequently upon the Table of the House. That view would appear to have prevailed to a certain extent, and I am very glad to see that the right hon. Gentleman the Minister of Health has himself recognised the folly of his ways, and, to a limited extent, has shown some signs of repentance in that some of the more objectionable powers he sought to take, namely, the powers to do any other thing or make appointments, his Amendment on the Paper will have the effect, at any rate, of deleting.
587 That, in itself, is a considerable triumph for the protestants against this Clause. It is a particular triumph because we were reminded by the right hon. Gentleman, as we are generally reminded when we complain of these usurpations of power on the part of the Government, that there were ample precedents for what he was doing. He cited the National Health Insurance Act as an example. I have always taken the view that this vicious practice of giving immense and uncontrolled powers to Ministers to vary Acts of Parliament started in the National Health Insurance Act, 1911, and that the Government of that day were responsible for its inception. But I have this observation to make upon that point, that although that was so, other Ministers, and particularly the Minister of Health, have shown no sign that they in any way regret that action. Scarcely a day passes without some comment by the judiciary about the powers and arrogation of the Ministry of Health. They are primarily the Department which seems to have revelled in this interference with the rights of Parliament and with the rights of the judiciary, and it is a very curious thing that nearly all the Measures which are cited by the Minister as a precedent for what he has sought to do here are Measures emanating from his own Department.
But, however that may be, I have come to the conclusion, and we as a party have come to the conclusion, that this Clause is altogether unnecessary. What is the actual position in which we find ourselves? We are told almost daily by the party opposite that the party to which I have the honour to belong is one committed to great and despotic invasions of the liberty of the individual. That theory is being propounded almost nightly at the Queen's Hall, or some other place of entertainment. But when we pass from theory to reality we find that all the protests come from ourselves, and from a certain number of hon. and learned Gentleman opposite—a few—and that in every case it is this very Government, which claims to be the guardians of the liberties of the people, which in season and out of season is seeking opportunities to interfere with the rights of Parliament and the rights of the individual. In this 588 matter an ounce of fact is worth a pound of theory. This year, last year in the Rating Bill, and on many other occasions, it is only the watchdogs of the Constitution, most of whom are to be found on these benches, who have prevented the Minister of Health from seeking to set up a kind of despotic tyranny under the form of law.
Why is it necessary to have this Clause at all? It is said that difficulties may arise. During the Committee stage I pointed out that there were two limbs to this Clause; one deals with exceptional areas, and I said that might be a case where power to modify by Order might reasonably be allowed for that limited purpose of the exceptional area; but I also pointed out—and in so far as the actual physical membership of this House fluctuate, from time to time, perhaps I may be permitted to point it out again—that following that apparently innocent suggestion the Clause goes on to say that if any difficulty arises in bringing into operation any of the provisions of this Measures, these great powers of modifying the Act by Order may apply. No question of exceptional difficulty, no question of exceptional area; there is a power by Order to modify them when bringing into operation any of the provisions of this immense Bill. Exchequer grants, rating, Poor Law, superannuation—all of it may be modified by an Order at the will of the Minister in order to bring into force the provisions of the Act.
Why should not this Act be properly drafted? Why should it not be within the competence of the Minister and his advisers, if he seeks to deal with this immense mass of matter, to draw his Act in such a way that he can contemplate difficulties which may reasonably arise? Already under Clause 109 he has full power to make Orders to carry out anything necessary under the Act. These Orders may include—incidental, consequential or supplementary provisions.Surely those Orders should give the Minister, with a properly drawn and properly constructed Bill, sufficient power to deal with any difficulty which may reasonably arise; and if it be the fact that the Minister fears that difficulties are going to arise which are not contemplated in the Bill, I say the reason for 589 that can only be that the Bill is so over-laden and is so complicated, is so difficult of construction, that inevitably he fears that difficulties must arise after the Bill has been passed into law.
I do hope the House will realise what we are asked to do here. I care nothing for the fact that similar Orders were conceded in the National Health Insurance Act or any other Act. If this power has been sought and obtained in the past, it is high time it was put an end to, and any little influence I may have in this matter will always be exerted in the direction of preventing any legislation except with the consent of Parliament. But what really are the difficulties which the Minister has in mind? We have never yet heard what are the difficulties for which he seeks power to alter this legislation. I think I shall be in order if I assume for a moment that the Amendment which the Minister is about to move is in this Bill, and even then I shall ask the House to reject this Clause. Hon. Members will have noticed the effect of the Amendment. It was an Amendment suggested originally by the hon. and learned Member for the English Universities (Sir A. Hopkinson), and here it is practically in the same form. What does it do? As I say, it takes away the power to do "any other thing" or to make an appointment, but it leaves intact the power to make an Order for removing a difficulty which may arise. That Order may modify the provisions of the Act. When we look into it, can we really say that this Amendment offers any real concession at all? The Minister has only got to consider that the difficulty can only be removed by making the appointment or doing the thing, and he may make it or do it in order to remove the difficulty.
I admit that I was to some extent attracted by this Amendment, and I welcome it for what it is worth, but at the same time he is still the judge of what the difficulty is and how the difficulty shall be removed. I do not know whether this really does satisfy my hon. and learned Friend. No doubt this was a well-intentioned and well-drafted proposal, but when we come to look into it I really cannot see that anything which might have been done under the words "do anything or make any appointment" could not equally or properly be done 590 under the plea of removing a difficulty. I cannot understand that there is anything which the Minister could not do under the present Bill as it stands which he could not equally do under these amended words. He is the judge of the difficulty. He is the judge of the means to be taken for its removal. He is the judge of how far the Act of Parliament is to be amended by subsequent Orders of his own. One welcomes the admission of penitence, which is always a sign of grace, one likes to see the sinner come to repentance, and I am sure we should wish to give him absolution; tout while we welcome all that yet, when we look at the dry facts and the actual wording of the Clause, I just wonder whether we have made so much progress after all.
I am delaying the House in this matter because I do feel, and I think the House feels, that this is a very important question indeed. The question at issue is this, is it or is it not in the interests of the State that Ministers shall be given power to alter an Act of Parliament after that Act has been passed without any definition of the limits of their alterations? It may be said, and said truly, that difficulties will arise if the power is not given, and that it may be necessary to come back to Parliament for legislation; that in one way and another certain inconveniences may be caused to those in authority. I quite appreciate that, but the point we have to consider is whether, weighing the matter in the balance, it is not better to stick to the old rule—old, I mean, before the National Health Insurance Act—that all alterations in the law shall be defined and limited by Act of Parliament; or whether, on the other hand, the power to ease possibly some difficulty which may or may not arise is one which debars us from passing the salutary rule that all legislation should proceed by Act of Parliament? With every desire not to obstruct, with every desire to see this Bill given such effect as it deserves, I do think that when these two matters are in the balance it is better to lay down unhesitatingly the principle that Parliament and Parliament alone shall define beyond any doubt of any sort the limits within which the present law shall be altered.
We are constantly altering the law of the country, but the alterations should be defined, should be certain; and I say that 591 if there be precedents in this matter, and there are, apparently, in certain recent Acts, because bureaucracy is not a thing of very recent growth, although under this present administration it has got very much worse—if there be precedents, then let us call a halt. Let us say that in future we will remove difficulties in Acts of Parliament first of all by drafting them and presenting them so that the difficulties do not arise, and, secondly, that if anything in the nature of a difficulty does arise, the Minister shall come back to the House, admit his difficulty, and seek powers to put right what is worrying him or worrying the administrators of the Act. It is better to do that than that we should give power to a Minister, of his own motion, when bringing a Bill into operation, himself to amend or alter that which Parliament, with the Royal Assent, has properly agreed to be the limitations of the alteration. There are no limits here, and that is what I wish so earnestly to impress upon the House. Once a difficulty has arisen in connection with bringing the Bill into operation, once the Minister thinks there is a difficulty, he may by Order remove the difficulty, and the Order may modify the provisions so far as may appear to the Minister necessary. To the Minister! He is the judge throughout the matter. Even if this Clause be amended by the Government's Amendment, there is no single word in this Act, from beginning to end, which the Minister, if he thinks it necessary, may not modify by Order.
Finally, there is this protection, that the Order has to be laid upon the Table of this House, and there is the usual provision that within a limited period objection may be taken to it. I do not think that is a sufficient protection. It is one thing to legislate on a matter when we are all cognisant of what we are dealing with, when the whole House is concerned with the legislation, and it is another thing, a year hence, with different ideas and different matters under the consideration of Parliament, for the Minister to bring an Order to the House and ask that that Order shall not be rejected. The two things are quite different. It is significant that the Government have not seen their way to accept the Amendment of the hon. and 592 learned Member for Altrincham (Mr. Atkinson), that the Order shall not operate until there has been a Resolution by Parliament, which, at any rate, would bring the Order to some extent into line with the position which we take here. In that form, the Order would need the positive sanction of Parliament, but, as it stands at present, there is nothing but the negative power that Parliament may decline to make the Order. I move the omission of this Clause, because I think no difficulties will arise. Of course, I pay the Minister of Health the compliment of saying that I think his Bill is watertight. This Clause has been copied from a bad Act, and, if we delete it now, I hope that we shall not see another like it.
§ Sir JOHN MARRIOTT
I beg to second the Amendment.
I am afraid that I can add nothing to the closeness of the analysis which the House has already heard from the hon. and learned Member for South-East Leeds (Sir H. Slesser). I hope I shall not be considered offensive if I say that for a long time we have not had from the benches opposite a greater amount of wholesome political doctrine than we have just heard. I should be very glad to learn that what the hon. and learned Member for South-East Leeds has said represents the considered opinion of hon. Members who sit behind him. I frankly confess that one of my main objections to this Clause is the apprehension that at some remote time the hon. and learned Member and his Friends may have to administer this Bill when it becomes an Act, and, if that should ever occur, I think a very serious responsibility would fall on those on this side of the House for having conferred upon the Minister powers so extensive in character as this Clause proposes to confer. The hon. and learned Member for South-East Leeds took very great credit—I do not say undue credit—to himself and his party for acting as the watchdogs of the Constitution.
§ Sir H. SLESSER
I specially said that I included a number of hon. and learned Members who sat on the other side of the House.
§ Sir J. MARRIOTT
Unfortunately, I am not a learned Member, but there are some unlearned Members of this 593 House who feel particularly keenly on this question. The hon. and learned Member for South-East Leeds did claim credit for his party, for acting as the watchdogs of the Constitution, and he referred to the Rating and Valuation Act in which there was a provision which emanated from the same quarter, and which was offensive to those who acted as the watchdogs of the Constitution. That particular Clause was successfully opposed in another place, and an exceedingly salutary Amendment was accepted after the objections to the Clause had been pointed out with great force and lucidity by learned Members in another place.
I always regretted that the credit of deleting that particular Clause could not be claimed by Members on this side of the House, and I still regret it. I know that I should not be allowed to refer except for the purpose of illustration to the Rating and Valuation Act of 1925, and I merely refer to it because I think that the action of this House in the past in regard to that Act does impose an additional responsibility upon us in reference to the Clause now under discussion. I think it would be extremely regrettable if the idea obtained prevalence that those who sit on the back benches on this side of the House do not feel as keenly as the hon. and learned Member for South-East Leeds in regard to the evils which he has so eloquently described.
I make another frank confession. I have felt uneasy in regard to a good many of the discussed and undiscussed Clauses of this Bill and the powers which under these Clauses are conferred upon a department of State. Again and again, I have felt uneasy fears to which, for obvious reasons, I have been unable during the Committee stage to give expression. Consequently, I feel it more than incumbent upon me when the opportunity does arise on this Clause to express the fears which I entertain. This Bill is inter-penetrated with the spirit of bureaucracy, but that spirit has reached its most eloquent expression, if a spirit can express itself in the Clause under discussion. At any rate, in this particular Clause we have bureaucracy in excelsis. I subscribe to every word used by the hon. and learned Member for South-East 594 Leeds in regard to the necessity for guarding against what I look upon as an exceedingly mischievous tendency in modern legislation. I think this House has been far too careless in regard to the way in which it has given powers of subordinate legislation to departments of the State. Not once but over and over again in recent legislation this House has parted with powers which indisputably belong to Parliament alone. Legislation is one thing and administration is another. In this House we are concerned with legislation, and I think, speaking generally, that any tendency is deplorable which gives over to the administrative side of public departments functions which ought to be jealously retained in the hands of this and the other House of Parliament. For these reasons—which I have stated very briefly because the hon. and learned Member for South-East Leeds has stated his objections to this Clause with a skill to which I cannot as an unlearned member, pretend—I desire to support this Amendment.
After the series of confessions to which we have just listened, it is clear to me that, although I should never have suspected it, my hon. Friend the Member for York (Sir J. Marriott) has a great deal in common with the hon. and learned Member for South-East Leeds (Sir H. Slesser). Both of them seem to have a really fanatical temperament, and, once their prejudices are engaged, no questions of public convenience or the dictates of ordinary common sense are allowed to stand in the way, and the whole thing must be eradicated root and branch and no compromise must be considered. I know the hon. and learned Member for South-East Leeds is an authority on Scripture, and he will remember the passage in which sinners were encouraged by the statement that there was more rejoicing over one of them who repented than over the ninety and nine just men who need no repentance. If the hon. and learned Member thinks that I am a sinner he does not give me very much encouragement by his speech to show repentance.
What has happened? I confess that I have not changed my opinion in the least as to the necessity of a Clause of this kind in the public interest. Of course I realise after the powerful criticism of 595 some of my hon. Friends during the Committee stage, that the Clause as originally drafted went further than was necessary for the purpose I had in mind, and I have tried to modify it and bring it back into the narrow limits which were really necessary for this Bill. My hon. and learned Friend the Member for the English Universities (Sir A. Hopkinson) not merely criticised the Clause but he put forward a constructive suggestion in the shape of a carefully drafted Amendment and I thought that was something to which I should like to give the most serious consideration. The House will see that the words suggested by my hon. and learned Friend form the basis of an Amendment which I shall move later on, and I think that will represent what I understood to be the sense of the House at the time this Clause was considered in Committee.
I want to go into this matter a little more in detail because I realise that there is a very strong, and I admit a very proper feeling, that the powers of Parliament should not be evaded by giving Ministers or officials powers which would really enable them to contradict the intentions of Parliament. I sympathise with the view that it is for Parliament to lay down the law, and we do not desire to delegate our powers to somebody else. The hon. and learned Member for South-East Leeds has suggested that it has always been the Minister of Health who has been involved in these unconstitutional methods, as a matter of fact the Minister of Health is responsible for most of the Acts of Parliament in which a Clause of this kind occurs. That is so for obvious reasons. The Minister of Health has to introduce Measures of this kind touching many kinds of local authorities in many different areas in the country, and it is just because the difficulties that we foresee arise out of matters of that kind that it is the Minister of Health who has to apply for powers of this kind. The Minister of Labour some time ago introduced a complicated Measure in which he found it necessary to insert a Clause of this kind. That Measure was the Unemployment Insurance Act of 1920. And there too similar difficulties were likely to arise.
The hon. and learned Member for South-East Leeds asks what are the 596 difficulties which can possibly arise and he suggested that some difficulties might arise out of that exceptional area, but there could not be any difficulty in regard to normal areas. I thought the hon. and learned Member would ask a question of that kind, and I have provided myself with a number of instances of the way in which a Clause of this kind has been used in the past. If the House will bear with me I should like to read one or two instances, because I think it is important that hon. Members should see what are the particular difficulties which arise. Those difficulties can only be dealt with in one of two ways, either you must deal with them in a Clause of this kind, or by a separate Act of Parliament. I think hon. Members will see what a great waste of time it would be if in regard to all these trifling matters such as are dealt with in this Clause the Minister had to come back to Parliament, introduce a Bill, obtain a Second Reading for it, and pass it through the Report stage and the Third Reading. As I have said, there are what the hon. and learned Gentleman called, with somewhat sinister emphasis, two limbs to this Clause, one dealing with exceptional areas and the other dealing with areas which are not exceptional. I will take the exceptional areas first. Here is a case in which a somewhat similar Clause to this has already been applied in connection with the Rating and Valuation Act. The parish of Folkestone-next-Sandgate is, for municipal purposes, part of the non-county borough of Folkestone, but for sanitary purposes it is part of the urban district of Sandgate. This is a unique case; there is nothing else like it. An Order was made providing that for the purposes of the Act the parish should be deemed to be within the rating area of the urban district council of Sandgate. If it were not possible to deal with that particular matter in this way, it would be necessary to have a new Clause to deal with it, and the hon. and learned Gentleman would say that a special Clause should be put into the Bill to deal with it; but complaint has already been made that the Bill even now is overladen with Clauses and is intolerably complicated—
§ Sir H. SLESSER
If the right hon. Gentleman will study the earlier Acts relating to local government and similar matters, he will find that, certainly down 597 to the year 1880, there are Schedules dealing with every one of this class of cases. That was the old, and I think the better, way of dealing with the matter.
It would be necessary to have a new and very long Schedule with special provisions setting out what should be done in each particular case. Even then it is very unlikely that it would be possible to think of all of them by the time the Act was passed, and, if any were left out, it would still be necessary to pass a separate Act to deal with them, Here is another case. The parish of Dudley Castle Hill is part of the County of Stafford, and is reputed to constitute a rural district, but no district council has ever been elected. The whole parish is held on lease by the council of the County Borough of Dudley. In order to make provision for the preparation of valuation lists and the issue of precepts in the parish, it was necessary to make an Order providing that, for the purposes of the Rating and Valuation Act, 1925, the county borough council should be deemed to be the rating authority of the parish. Again, the Rating and Valuation Act, 1925, provides that the new valuation list should come into force either on the 1st April, 1928, or the 1st April, 1929, and that the general rate should be made in respect of the period commencing on the date of the first new valuation. In one city, however, the period of the rate made in June, 1928, expires on the 30th April, 1929, and, to meet this quite exceptional case, an Order has to be made making the first valuation list in the City of Manchester, which is the city concerned, come into operation on the 1st May instead of on the 1st April. That is a quite exceptional and unique case which could not be dealt with without a Clause of this kind.
I will give some cases which are not in exceptional areas. Under the Unemployment Insurance Act, 1920, certain payments had to be paid by the military authorities for qualifying seamen and soldiers discharged after the 31st July, 1920, to receive unemployment benefit when they went back to civil life. The Act provided that those payments were not to be made in respect of any person who after the commencement of the Act 598 was entitled to receive payments out of public funds. The date of the commencement of the Act was the 8th November, 1920. Owing, however, to the existence of a strike in the coal industry on the 8th November, 1920, those payments, which would normally have come to an end on the 8th November, were extended to the 20th November, and, as it was impossible to identify the seamen and soldiers who participated in those payments, an Order had to be made substituting the 20th November for the 8th November as the date of the commencement of the Act, because otherwise those people would have been excluded from the benefits of the Act.
I do not want to weary the House, but I should like to give one more case showing the sort of difficulties which arise. Under the Rating and Valuation Act, 1925, the duties of county quarter sessions in respect of rating appeals are performed by a committee of justices, of whom not less than five must take part in the determination of each appeal. It was found that in the county area of the town of Haverfordwest it was difficult if not impossible to secure that number of justices, owing to the small number of justices in the area and the fact that many were disqualified from sitting by reason of their interest as ratepayers. Accordingly an Order was made providing that in this case two justices should be competent to determine the appeals.
Those are really very trifling matters, but they are matters which could not be solved under any Act without some slight modification of its provisions. These are the difficulties which we anticipate are bound to arise in connection with a complicated Measure of this kind, and which I think justify us in asking that these powers should be given. After all, they are not powers for the exaltation of the bureaucracy; they are not powers which are given in order that the bureaucracy may interfere with the intentions of Parliament. They are merely powers which are asked for in the general public interest to get over difficulties which have not, and very probably could not have, been foreseen, but which will hold up the working of the Act in particular places or on particular occasions.
In the comments which have been made on this Clause in the Press and else- 599 where, the Clause is constantly referred to as though there were no time limit. That, really, is very unfair. I need hardly say that I am not accusing the hon. and learned Member for South-East Leeds, but it really is very unfair to speak of this Clause as though it were a, permanent Clause to go on for all time. The Clause has only a limited period of operation. It cannot go on after the 31st December, 1930. It is brought in merely for the purpose of starting the Act, and, when the hon. and learned Gentleman says that there is no word in the Act which, under the Clause as it will stand if my Amendments are carried, the Minister will not be able to alter if he chooses, he really grossly overstates his case.
It says:Any such Order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the Order into effect.That does not mean that the Minister can modify any word of the Act that he chooses.
§ Sir H. SLESSER
What I said was that the Minister was himself the judge of the necessity and of the means by which it was to be met. Of course, it is to be done for that purpose, but he is the judge.
The hon. and learned Gentleman has had too large an experience of public advocacy to make the mistake of supposing that he can put the matter in that way without misleading the general public. It is all very well here. I am here, and others are here, to correct any false impression which may be given by the hon. and learned Gentleman's words, but he knows quite well that, if you tell a public audience that this is a Clause which gives the Minister power to modify any word of the Act that he chooses, it gives an entirely wrong and false impression.
§ Sir H. SLESSER
Does the right hon. Gentleman suggest that I have made 600 public speeches on this subject? I may tell him that I have never spoken upon it anywhere except in this House.
This is in public, and the hon. and learned Gentleman's words are published after he has spoken them here and, I dare say, will be used by others less scrupulous than himself. As there really is a great deal of prejudice on this matter, as well as of what I think is perfectly laudible sentiment upon it, I do hope that in criticism we shall be very careful not to overstate the case, but to realise that there is nothing that is either unconstitutional, arbitrary or dictatorial in the minds of the Government or of those who will be applying the words of this Clause hereafter.
§ Mr. KINGSLEY GRIFFITH
The Minister has spoken of the repentance which he has shown in regard to this Measure since the Committee stage, but he should realise that repentance is of no good without reformation. What he proposes is to go on with the same course of conduct, disguised, as it were, by his white sheet. As the hon. and learned Member for South-East Leeds (Sir H. Slesser) has pointed out, this Clause, even as amended, gives the Minister substantially the powers to which objection was taken in committee. It is no use trying to console us by saying that there is no intention to exalt the bureaucracy. There never is an intention to exalt the bureaucracy. The bureaucracy is an instrument whose powers grow insensibly. The powers are always given for a good reason, but that does not make it less dangerous to see the control of public affairs insensibly departing from Parliament. That is what is happening under a Clause of this kind.
It is, perhaps, first of all essential that the law should be right, but it is almost equally essential that it should be easily ascertainable. My right hon. and learned Friend the Member for Spen Valley (Sir J. Simon) said on one occasion that, if any lawyer were asked what the law was on any subject, he would, if he were honest, say, "I do not know, but I think I can find out." If the law is to be overloaded by multitudinous Orders of a Minister, it is going to be harder, and, indeed, almost impossible for anyone to 601 find out if the Orders may be, not merely for carrying the Act into effect, but actually for abrogating and taking away parts of the Act for the time being. On this question of the importance that the law should be easily ascertainable, I think it is worth calling the attention of the House to the words of one of the most learned Judges of the King's Bench, which appear in the "Times" this morning, on a matter connected with the law of public health and local government. The case is one in which the Poplar Borough Council is concerned. With its merits no one here is in any way concerned at present, but the learned Judge said, in regard to that case:I wonder that the local government of this country can be carried on at all.… Local government ought to be based on clear and systematic rules and regulations … instead of the most amazing, mass of intricacy that ever judicial mind had to inquire into.Counsel for one of the parties said that that showed what a genius we have for self-government, to which the learned Judge replied that he would be sorry to deprive counsel of any of his illusions in the matter; and at the end he said that the Minister of Health appeared to have power to say what salary should be paid to a sanitary officer, that he appeared to have absolutely despotic power, and that by his fiat could destroy legislation. That is what was happening in connection with one of the Measures which are quoted to us as precedents on this occasion. It is exactly that mischief that we want to avoid by the Amendment to omit this Clause, and I suggest that in a matter of this kind the opinion of one of the most learned of those who have to carry out and administer the law should carry the very greatest weight here.
Of course, as the Minister has said, there is undoubtedly a limit of time, which lessens the mischief which this Clause would otherwise carry with it, and, speaking for myself, if there were not only that limit of time, but also a limit of space—that is to say, if these powers were only to be exercised for the limited purpose of dealing with exceptional areas, with regard to which I think the Minister made out a case of considerable weight—I should have no further objection to the Clause. It is because of the unlimited nature of the 602 powers that the Minister is now given that I object, in spite of the limit in point of time. As regards the subjects on which Orders may be made, there is practically no limit, and, if for no other reason than that, I think we should vote for the rejection of this Clause, because, although there is a limit as to time, it will undoubtedly be used on other occasions as a precedent for other Clauses which will not be so limited. Therefore, I have the greatest pleasure in supporting the Amendment.
§ 5.0 p.m.
§ Major HILLS
I have listened to all the Debates on this Clause in Committee with great respect, and I have listened to the present Debate, but I confess that many of the speeches have surprised me, because it seems to me that some of my hon. Friends are taking a theoretical and unpractical view of what is, after all, a practical question. But I felt no surprise at all at the speech of the hon. and learned Member for South-East Leeds (Sir H. Slesser), for he was performing an agreeable task; a task that gave him a double pleasure, for he was standing up as the watch-dog of the Constitution and the guardian of the liberties of the subject—a well-known function of the Socialist party—and he was also trying to hamstring a Bill that he had not succeeded in killing. So that the hon. and learned Gentleman's objection was quite clear. But I would point out to the hon. and learned Member that I think he went a good deal too far, if he will allow me to suggest to so distinguished a lawyer as he is, in the powers which he assigned to the Minister. He said that the Minister was the judge and that the Minister could alter every Clause and every word of the Bill. Now, the hon. and learned Member knows very well that the powers of the Minister are limited in several ways and they are limited, first of all, with regard to the areas in question and then the bringing into operation of this Bill. When the hon. Member says that the Minister is the sole judge in his own case, he forgets that, if the Minister exceeds his powers and people aggrieved by the exercise of more power than the Minister has been given under the Act choose to do so, they can take the Minister before the Courts.
§ Sir H. SLESSER
Over and over again, in Courts of law, if the Order of the Minister is intra vires, then unless the act of the Minister is biased or unreasonable, the Courts will not disturb his act.
§ Major HILLS
But the hon. and learned Gentleman spoke as if the Minister could do anything under this Clause. He told us that the Minister could alter the whole Bill. The whole tenor of the hon. Gentleman's speech was that this Clause was not limited to the bringing into operation of the Act or to the special areas in question, but that the Clause enabled the Minister to alter the whole Bill.
§ Sir H. SLESSER
I say that, under cover of carrying into operation any of the provisions of the Act, the Minister is to be the judge of what is necessary to be done in order to bring the Act into operation.
§ Major HILLS
No, his powers are very strictly limited. He can modify the Act so as to bring the Act into operation.
§ Major HILLS
The hon. and learned Gentleman knows very well that any Court called upon to construe a Clause of this sort would construe it very strictly against the Minister and, if they saw that it exceeded what was necessary to bring the Act into operation, the Minister would lose the case. The Minister is not the judge in his own cause.
I want to say just one word upon the general principle. I think my hon. Friends sometimes overlook two things; the complexity of administration and also the fact that there is a "No Man's Land" between legislation and administration. It is really idle to talk of bureaucracy. Bureaucracy has nothing at all to do with the question. These so-called bureaucrats are highly-trained and well-instructed people who carry on the miracle of governing this country. They have a difficult task; a task which gets more complicated every year. To revile them as bureaucrats just because they carry on this work, and must carry it on under great difficulty, 604 seems to me to be beside the mark. If you want to attack anybody then it is the Minister whom you ought to attack and not the so-called bureaucrats. I think hon. Members opposite must recognise that you cannot come back to Parliament for all these small variations of an Act, the principles of which are accepted by Parliament, Here, again, I do respectfully suggest to the hon. and learned Gentleman that no modification of the Act is possible by the Minister except such as is consonant with its principles. I am perfectly certain that the Courts would say that.
When Parliament has accepted a principle and when you get these little quite trivial difficulties that you cannot foresee, do you want to put this overburdened Parliament of ours to all the trouble of Second Beading, Committee stage, Report stage, and Third Reading and then the same in the House of Lords, and then the Royal Assent, for these small difficulties that are not legislative matters but are administrative matters? They really are in the field of administration and not in the field of legislation. All those difficulties that the Minister read out from the box are not matters which require Acts of Parliament to put them right. They are little snags that have cropped up in the working out of a complex Act, of which Parliament has accepted the principle. It really is ridiculous that my hon. Friends should think that each one of these is to be embodied in a special Act of Parliament and is to go through all the cumberous machinery of Parliament. It surely is the case that in the infinite complexity of life and affairs these things must arise. You cannot guard against them any more than you have done in your Act. Of the two alternatives, either the difficulty and expense and delay of a fresh Act of Parliament, for all these things, or the procedure of some such Clause as this, carefully guarded as the Clause is, I believe the House will support the Minister and will support the Clause as it is now proposed to amend it.
§ Mr. ARTHUR GREENWOOD
I am sorry that the hon. Baronet the Member for York (Sir J. Marriott) is not in the House. I should have liked to thank him for his courage in seconding our Amendment, and for the reason he 605 adduced for doing so. His reason was that there was going to be a Labour Government which would be able to operate this Clause. I quite agree with him, and no doubt he is aware of the fact that the powers sought for under the Clause cannot be exercised after the 31st day of December, 1930. I think really that the Clause has not arisen out of unforeseen difficulties; this Clause has arisen because of the hastiness of this particular piece of legislation. Here is an enormous Bill, more or less hurriedly thrown together, which has had to undergo very drastic Amendments on Committee and on Report. Every day the Order Paper has been littered, not merely with Amendments arising out of promises made by the Minister, but out of the discoveries the Minister has made with regard to the shortcomings of his own Bill. A little later to-night we are to have more than a page full of Amendments, on this very last day of the Report stage, in order to allow the Minister of Transport to re-draft the whole of the Eleventh Schedule. My contention is that it is shoddy legislation, and that Clause 120 is the Minister's device to get over the difficulties which must arise because it is hasty and shoddy legislation.
The Minister quoted, as a precedent to be followed, the Unemployment Insurance Act of 1920. That was precisely similar legislation. It was panic legislation. It was legislation passed in a hurry, and, clearly, if the Act had to work with so little time given to it beforehand, it was necessary to arm the Minister with powers to make it work in spite of itself. Had the Minister been able to give that considered amount of attention which I am sure he would have liked to give to this Bill, I am quite certain he would not have asked for these powers. Had he given to this Bill the larger portion of his time during this Parliament, and had he come here with a Measure which really did represent his matured views as a result of constant examination and re-examination, most of the difficulties—I will not say all the difficulties, because English local government is a very complicated structure—now arising would have been foreseen. Indeed, the Minister in this short space of time has already discovered some difficulties which might have been foreseen and might perhaps have been 606 dealt with in the body of the Bill itself. The Minister has said that the case of Folkestone-cum-Sandgate will have to be the subject of an Order. I see no reason why there should not be another schedule to the Bill. After all, the Minister does not seem to have been smitten with the desire for economy in the use of paper. This Bill extends now over 174 pages. It has 12 Schedules, and there is no reason why it should not have a Thirteenth Schedule unless the Minister is superstitious. I should have thought that in a Measure of this kind, which the Minister regards as one of great importance and which is certainly going to make very far-reaching changes in the structure and in the work of local authorities, it would have been the business of the Minister to foresee as far as possible the difficulties to which he has alluded.
As a matter of fact, although the right hon. Gentleman may only wish to deal with the case of Folkestone-cum-Sandgate, that is not what the Clause confines him to, and that is why apprehension has been caused in the minds of certain hon. and learned Members opposite. They realise that, while the Clause may enable the Minister to remove certain small difficulties in regard to the administration of the Act, the actual wording of Clause 120 goes much further than that, and it is not the very small difficulty with regard to Folkestone-cum-Sandgate, but it is any difficulty that may arise. Let mc suppose that those authorities, some of them powerful authorities, which are going to suffer under this Bill because the Poor Law area is going to be restricted and not enlarged—I mean areas like Liverpool and Tyneside and, I believe, Walsall—suppose they were to strike and say: "We are not going to put this Act into operation." That would be a real difficulty; not one of the little difficulties which the Minister has asked the House to believe that this Clause is going to enable him to deal with. Suppose that situation were to arise. Is he, by Order, going to enforce his will on these large and important, local government bodies, without any reference to Parliament? Or suppose certain other local authorities, perhaps in London, were to strike and say: "We find the operation of the Bill is going to be so adverse to us that we 607 do not propose to work it." The right hon. Gentleman would never take the trouble to come to the House and to explain that here was a very serious deadlock. He would operate by Order. We know the way he has treated boards of guardians. One thing I will say for the Minister of Health. He is courageous and he is not above suppressing local authorities. He got his Default Act, and in a very short space of time, without giving any real opportunity for the House to deal with the matter, he suppressed one or two. A Minister who is prepared to act like that is prepared to use his powers if similarly large difficulties arise when the Act is on the Statute Book.
It may be said that we are overstating the case. After all, it remains true that the Minister is the sole judge as to whether it is a real difficulty or not, and as to how he is going to make these people toe his particular line. That is the method of the Default Act. It is the method of repression. I have no doubt if difficulties were to arise, he would be glad enough to use his powers to the full. This Clause, as drafted, seems to confer far too large powers on the Minister in view of his case for it. He might say: "As I contemplate very substantial difficulties arising, I can imagine Liverpool may take the bit between its teeth, and I must be armed with a power to enforce the Law." But he comes and wheedles round the House of Commons and says: "I am asking for these tremendous powers, but I really do not want to use them. They are only to smack naughty little boys who may come along." It seems to me that he is using a sledge hammer to crack a nut. I hope hon. and learned Gentlemen opposite who have taken objection to these wide powers that the Minister has given himself will stick to their guns and support the constitutional party. It has been said that we, and certain hon. Members opposite, are the guardians of the Constitution. At any rate, as far as this Bill is concerned, our actions have proved it, and I hope hon. and learned Gentlemen who roused the emotions of my hon. Friends when this thing was under discussion in Committee will still be loyal to the observance of the Consti- 608 tution and will support us in the Lobby against this Clause.
§ Mr. GERALD HURST
There are two reasons why I cannot support the Amendment, although I had the good fortune in Committee to be the first to raise the issue that the Amendment raises. First of all, it is clearly too sweeping. The Minister has clearly established a case whereby some measure of discretion must be vested in him, and if the Amendment were carried he would have none at all. Secondly, many of us who sympathise with a good deal that has been said as to the constitutional issue involved in the Amendment, realise that the Socialist zeal is entirely a sham. [HON. MEMBERS: "Withdraw!"] I will put it this way. It does not carry very strong conviction. They say they are championing the cause of Parliament and our ancient Constitution, and secondly they say they are championing the cause of resistance to bureaucracy. Who are they to champion the liberties of Parliament? We all remember a short two years ago when they sympathised with a movement the whole object of which was to overawe Parliament and to substitute for it an illegal body and, as far as opposition to bureaucracy is concerned, if a system of State Socialism were ever inflicted upon this country—
On a point of Order. I presume that in reply to the hon. and learned Gentleman we shall have a right to raise the whole of the circumstances governing the rebellion in Ulster.
§ Mr. HURST
It seems to me, also, that in their denunciations of bureaucracy, hon. Members opposite forget what would happen if a system of State Socialism were ever established. It would simply involve the enthronement of the bureaucracy which they now denounce. I except from my criticisms the late Solicitor-General, because he is a real Conservative at heart and his head remains in mediaeval England, though his feet sometimes stray in a different direction. There is no doubt that a great many Members on this side feel real apprehension with regard to the two points which are involved in this Clause. The Minister's actions under it will undoubtedly be taken upon the advice of the Ministry of Health and, although my hon. and gallant Friend has described those bureaucrats as highly-trained and well- 609 instructed people, we should prefer in matters of legislation that the Minister took his advice from the House of Commons. I think we have good grounds also for distrusting any repetition in these days of the dispensing and suspending power. I took the opportunity afforded by the few days that have passed since the Bill was in Committee, to read up the leading case that was decided with regard to dispensing power just before the Bill of Rights was passed in 1688, and the ground on which the dispensing power was justified by the judges of that day was that the divine right of kings entitled the King to fill up such gaps as had been left by Parliament, and that it was a necessary and proper exercise of such divine right. We do not want to substitute for the divine right of kings the divine right of the Minister of Health, and I think there are just grounds for criticising the extent, the orbit and the language of this Clause.
I am sorry it has been thought necessary to embody in it so clear a repetition of principles which this House discarded more than two centuries ago. At the same time, I realise that my hon. and gallant Friend has put before the House that there is little actual, practical danger, and I appeal to the Minister to consider whether it is not possible, while preserving the language of the Clause in the form in which it is now drafted, to incorporate into it the spirit, if not the language, of the Amendment in my name and in that of my hon. and learned Friend the Member for Preston (Mr. A. R. Kennedy). It is true this dispensing power only lasts until 31st December, 1930, but it would be quite valid for the Minister on 29th December to make an Order which would remain in force indefinitely for any number of years. That is to say, although the actual exercise of the powers with regard to those Orders is limited to nine months, there is no limit whatever to the operation of Orders made at the end of that period. It does not seem to me to be an extravagant suggestion to make that there should be some time limit for the operation of these Orders, and that it would be a desirable thing to have some named period, say, that Orders made within nine months should receive the sanction of Parliament to their operation after that time. The 610 proposal in the Amendment is that any such Order, if it is desired that it is to remain in force for an indefinite period, should receive the sanction of Parliament before 1st April, 1931. That seems a reasonable limit to place on the very wide powers which are being given to the Minister. I hope that, while no doubt insisting that the powers conferred upon him by the Clause should be preserved, the Minister will not altogether shut, his mind to the desirability of reconciling the constitutional position which this Clause involves with the maintenance of the supremacy in legislative matters of Imperial Parliament.
§ Mr. W. BENNETT
It is with considerable trepidation that I venture to intervene in the Debate, both as a new Member and as a layman, when we have such highly-learned and skilled gentlemen connected with the law taking part in it. But I am not only a new Member in the House. I have been a worshipper of the House of Commons and the constitution of the Mother of Parliaments for the whole of my life, and it seems to me that there is a rather large principle involved. It is all very well to talk of it being a very small matter, but it seems to me it is time the House put its foot down. I may be wrong, but, judging from what I have seen in the last few years, there has been a growing tendency to give greater and greater power to Ministers and administrators, and that the power of Parliament is being trespassed upon more and more. I do not like taunts addressed to us about constitutionalism. I believe that we on this side are the guardians of the Constitution, and I have been given to understand that, regardless of party, all Members put the power of Parliament as their first consideration, and stand for its preservation even if they have to vote against their own party. Gentlemen on the Front Bench tell us we shall be making speeches in public on these matters, and we ought to be careful. I shall probably have to make speeches on the Bill, and I want to be right about the matter.
May I give a precedent? I have always understood that, in connection with the Housing Act and the housing subsidy, it was the intention of this House that any subsidy that was granted should go to the occupier-owner—the person who had the house built. I have seen, at Torquay, 611 at least 300 persons who were under the impression that that subsidy was an absolute right, and that Parliament intended them to have it. I have seen it handed over entirely to the builder who erected the houses, and refuge was taken behind an Order, and what seemed to be a letter from the Ministry, that justified the town council in handing over the whole of the subsidy to the builders. They put it in their pockets and got away with it. We are witnessing the growing power of Ministers and Departments to go behind the back of Parliament and make Orders which constitute legislation in essence. It is time that some sort of stand was made against it. One hon. Member opposite said that anyone has the right of appeal to the Courts against a decision. When a poor person in possession of a house wishes to get an Order, we are immediately told that he can carry the matter to the Courts. The County Courts will not deal with it because the amount is too great, and when you go to the High Court the person in question, who is concerned with a house valued at £400 or so, has to put down £250 before he can even attempt to appeal to the Courts. I am not sure that the Courts will thank the House of Commons for this extra work, especially if the House of Commons is in possession of the Labour party.
§ Major PRICE
The words of the Minister were very generous in the way of meeting the objections to the Bill, but I am afraid that the Amendment which stands in his name does not carry out what he said. He said that the Clause as originally drafted went a good deal too far, certainly further than was necessary, and that what he wished to do was to bring it back within the narrow limit which he had originally in mind when he drafted the Clause. If hon. Members will examine the Amendment and the Clause they will see that the Clause, as proposed to be amended, will read:If any difficulty arises in connection with the application of this Act to any exceptional area, or in bringing into operation any of the provisions of this Act, the Minister may make such Order for removing the difficulty as he may judge to be necessary for that purpose.612 The words to be eliminated from the Clause by the right hon. Gentleman's Amendment are:By Order remove the difficulty or make any appointment, or do any other thing, which appears to him necessary or expedient for bringing the said provisions into operation.I do not think there is any difference in substance between the effect of the words in the Amendment and the words which are proposed to be left out of the Clause. The right hon. Gentleman will still be able by Order to make an appointment or remove the difficulty; he can do anything provided it is put into the Order. Under the Clause, he can modify the provisions of this Measure in so far as it may appear to him necessary or expedient for carrying the provisions into effect. Surely, that was the whole gravamen of the complaint made by the hon. Members on this side who now appear to be satisfied with words that are merely an alteration of the Bill without an alteration of the power. The objections that we had to this Clause from this side are, that there have been so many precedents in the past. If this was an exceptional Clause brought in for an exceptional purpose our objection might be waived, because of the exceptional purpose, but when we start with a precedent away back in 1911 broadening out to this precedent, which will be quoted next year as the precedent of 1929, Parliament ought to cry "Stop!"
I am certain that it is not beyond the wit of the Minister to devise words to bring the Clause within what he said was his intention. He has given us examples of difficulties with regard to matters in other Acts and said it would have been absurd to go behind the backs of this House to alter them. We have to consider to-day that the Minister has taken power in many of the Clauses to make administrative Orders to carry out those particular Clauses. This Clause is an overriding Clause which gives him overriding powers. I do hope that, even now, he will see some way of carrying out what he told us was his intention. Although there is a time limit, the danger does not lie there. The danger lies in the fact that hereafter this provision will be cited as a precedent for the enlargement still further of powers given to Ministerial Departments. I have not heard a single argument from the supporters of the Clause which lead 613 me to alter the views which I originally held in regard to it. I agree that it is necessary to lessen the burdens that are placed upon Parliament, but there is something that is even more necessary, and that is the elimination of the risk of autocratic power on the part of any Minister to alter the provisions of an Act of Parliament which has been deliberated upon in this House, passed through the other House and made law. For that reason, I cannot support the Clause as it is drawn, and I hope that between now and the passing of the Bill into law an Amendment will be made in one House or the other to carry out what the right hon. Gentleman said was his intention.
§ Mr. CRAWFURD
I rise to make an appeal to the right hon. Gentleman, who has obviously been very much impressed with the arguments that have been addressed to him from all quarters of the House. When his right hon. colleague appeared to be certain that the hon. and learned Member for Moss Side (Mr. Hurst) had departed from his original intention, he showed much pleasure and appreciation of the hon. and learned Member's speech. What the hon. and learned Member pleaded for, I am going to ask the Minister of Health to disregard. The hon. and learned Member for Moss Side referred to the drafting of the Clause. If there is one reason better than another why this Amendment should be accepted, it is on account of the drafting of the Clause. May I draw the right hon. Gentleman's attention to the wording of the Clause? It is quite obvious that it was drafted and re-drafted about half a dozen times. The right hon. Gentleman realised, originally, that there would be difficulties owing to what he called exceptional areas. Therefore, he had a Clause drafted to the effect that:If any difficulty arises in connection with the application of this Act to any exceptional area,it should be made the subject of an Order. It was then pointed out to him that other difficulties would arise. Therefore, he brought in the words:or in bringing into operation any of the provisions of this Act.Then, the question arose, How could the Minister do it? Whereupon the Clause proceeds to give some explanation how he could do it.The Minister may by Order remove the difficulty.614 On that particular drafting the Clause stopped there, and I think it would have been as well if the Clause had stopped there altogether. But it was pointed out that in some cases there were delegated powers in the Bill and that the right hon. Gentleman could not remove the difficulty, but that somebody else would have to remove the difficulty. Thereupon, it was provided in the Clause that the Minister should be given power to:make any appointment, or do any other thing, which appears to him necessary or expedient.If necessary, why expedient? If expedient, why necessary? The whole wording of the Clause is overlaid again and again with unnecessary, useless and mischievous expressions. The worst part of it comes later.
§ Mr. CRAWFURD
This is a very serious matter. The Clause proceeds:and any such Order may modify the provisions of this Act so far as may appear to the Minister necessary.The hon. and gallant Member for Ripon (Major Hills) told us that there was no need to be worried. He also said that the hon. and learned Member for South-East Leeds (Sir H. Slesser) was entirely mistaken in his legal view of the matter, because anyone who was aggrieved by any action taken by the Minister could go to the court and get a decision, and that any judge would give a decision to this effect, that the action of the Minister under this Clause must be in accordance with the principles of the Act.
§ Mr. CRAWFURD
The Clause says something quite different. It says:may modify the provisions of this Act so far as may appear to the Minister necessary or expedient.I would make an appeal on behalf of the learned Judges. These poor men get a very indifferent salary, and they are very hard worked; yet, under the provisions of this Bill, we are going to ask them what is in the mind of the right hon. Gentleman when he does or does not make an Order. We are going to ask them to say what may appear to the right hon. Gentleman to be right or proper.
§ Major HILLS
I think the hon. Member does not appreciate that what has to be brought into effect is the Act of Parliament.
§ Mr. CRAWFURD
May I again, very respectfully, point out to the hon. and gallant Member and to the right hon. Gentleman that that is not what the Clause says? It says that the Minister may:do any other thing, which appears to him necessary or expedient for bringing the said provisions into operation, and any such Order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient.The words, "may appear to the Minister," govern every other syllable and sentence in the Clause. It means putting an impossible burden upon the Courts. The right hon. Gentleman has, obviously, been impressed by the argument from all quarters of the House. I would appeal to him that it would be well to accept a manuscript Amendment, which I should be prepared to move, bringing the Clause to an end at the word "difficulty" on the fourth line, namely:the Minister may by Order remove the difficulty.If he would agree to that, it would be possible between now and the proceedings in another place to draft some words which would bring sense into a perfectly senseless Clause.
§ Sir ALFRED HOPKINSON
I hope that if I appear to be speaking brusquely and dogmatically when I speak frankly, it is for the purpose of saving time. There is nothing like frankness, if you desire to be brief. The suggestion has been made that the proper course to adopt would be to withdraw the Amendment and then proceed to consider the question as to what exactly shall be the shape of the Clause, having regard to the Amendments which have been put down. What seems to me to be absolutely clear is that the case has been proved up to the hilt that some Clause of this kind is necessary in order to make the Act a working Act. There is no need to go into details, but certainly statements have been made which prove up to the hilt the need for a Clause of this kind. I am not a Tory or Liberal or a Labour man, but I am an old-fashioned Whig. A Whig is a guardian of the Constitution at all costs. If there is only 616 one Whig in the House, I am very glad to be that Whig. When I raised my objection to this Clause originally, I had not the faintest expectation that the Minister of Health would under any circumstances be likely to make an abuse of his powers. I never dreamt anything of the kind. I am perfectly certain that under this Clause he can be trusted to do everything that is right and proper in regard to matters that require consideration. I suggested certain words, certainly on the spur of the moment, which would give just as wide powers, as the words of the original Clause. What then were our objections? They were not academic or pedantic. We felt that it was a matter of absolute necessity, more essential now than it has been for a long time, that the growing tendency to substitute the acts of a Department for Acts of the Legislature should be checked. What we were afraid of was this: that as precedents were quoted for a Clause of this kind, this particular Clause might also be quoted as a precedent.
Some such Clause as this is necessary, as a matter of business. Is it limited in such a way as not to infringe on the grounds of constitutional authority? Is it another precedent? Can it be quoted as niggling away constitutional authority? If you take it as it stands the Clause is limited in time; it is only to operate until the Bill comes into operation. It is quite futile to suggest, as is the case in one Amendment on the Order Paper, that the Clause should not come into operation until the Act comes into operation. The whole essence of the thing is that you should get the Bill into operation promptly. The Clause is limited in the matter of time, although the actual time limit is not specified. Secondly, it is limited in purpose; it is not for the purpose of overriding or altering an Act of Parliament but for carrying an Act of Parliament into effect. It is proposed in order that what we decide in this House shall become effective, although some unforeseen circumstance may arise which may require an additional provision. It is not far removed from the Rules of Court. These Orders are not actually approved and considered by Parliament, but they are issued for the purpose of carrying out an Act of Parliamnt, and if anything is done which is not for that purpose it 617 is ultra vires and null and void. Therefore, it seems to me to be absolutely essential that the Amendment should be withdrawn and that we should go on to consider the Clause. I Ventured to suggest words, I admit they were hurriedly drawn, which would limit the Clause to cases arising in connection with the application of the Act; that is bringing it into operation. I suggested the words:The Minister may make such Order for removing the difficulty as he may judge to be necessary for that purpose.There you have a statement that the Order is merely for the purpose of bringing into operation an Act passed by this House, and for no other purpose. If the Clause had stopped there it would have put an end to the difficulty, because the Minister would only be able to perform the ministerial act of bringing into operation an Act which Parliament has passed. I am sorry that the Amendment on the Paper means that the Clause will still include the words:And any such Order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the Order into effect.I hope those words will be dropped. They are really no good. You have all the power necessary if you stop at the word "purpose," in the Amendment of the right hon. Gentleman. Why go on and say that he may modify the provisions of the Act? That is quite unnecessary. It is rather like a red rag to us constitutionalists. They do no good. If the Clause stopped at the word "purpose," I think the House might unanimously pass it. I acknowledge the patience of the right hon. Gentleman the Minister of Health. He has won the admiration of all hon. Members, and it is not for the want of any help on his part if we have not been able to understand and grasp the many complications of this Measure. I suggest that the Amendment might be withdrawn, with general consent, and then that the Clause should provide that the Minister shall make an Order carrying out in detail what the House has determined in principle, dropping out those words which are so terrifying to some of us and which are so unnecessary. If we stopped at the word "purpose" I think we should all be unanimous in agreeing to the Clause.
§ Captain GARRO-JONES
I should like to add my voice, briefly, in protest against the Clause as it stands, and to ask the right hon. Gentleman to make some alteration in it. I really cannot think that every hon. Member has read the Clause carefully enough to understand what it means exactly, and at the risk of some repetition I am going to read it again, leaving out irrelevant or immaterial parts. It says:If any difficulty arises…in bringing into operation any of the provisions of this Act, the Minister may … do any other thing, which appears to him necessary or expedient for bringing the said provisions into operation.What limitation is going to be imposed upon the right hon. Gentleman if those words are passed into law? I know that the Parliamentary Secretary is going to quote a precedent against us. He asked the hon. Member for West Walthamstow (Mr. Crawfurd) if he knew where the Clause came from. I submit that that is not relevant at all. In those days a great many Acts were passed which would not be carried in the House to-day, and hon. Members and right hon. Members of every party must take their share of responsibility for those errors. We are responsible to future Parliaments for what we do to-day, and if this Clause is left ass it is there is no limit to what the Minister may do. I received a letter from a constituent of mine this morning enclosing a stamped address—I am glad to pay a tribute to the consideration which my constituents always accord me—to this effect:Dear Sir, I had an argument. Can you tell me if the provisions of D.O.R.A. are Still in force or not?I am sending the letter to the Home Secretary to answer. If this Clause is passed as it is then, in view of the wide field which the Bill covers, there are very few things which the Minister could not do by Orders. It is true that any aggrieved person can go to the Courts of Law and have an Order set aside, but if the Minister has wronged that person he can quote this Clause as a protection, and I doubt whether the aggrieved person could secure indemnity from the right hon. Gentleman. He may arrest a recalcitrant town clerk who refuses to carry out the provisions of the Act.
The Clause has financial aspects which should be fully considered by this House 619 before they are passed. The other day I raised the case of the Secretary of State for Air who has entered into an arrangement with a private company, which presupposes the expenditure of certain sums of money for which the approval of the House will be necessary. That has been done repeatedly by various Departments in the past, and it is time it was stopped. This Clause gives immense power to the right hon. Gentleman. It says he may remove any difficulty or make any appointment. He can double the number of appointments and salaries paid under the Bill. It may be that the right hon. Gentleman is going to concede some points, but the fact that this Clause should have passed the Parliamentary draftsman, and should have been approved by those responsible for these proposals, reflects the greatest discredit on the Minister for Health and those who advise him, and I hope the House will give its expression to that view before the Clause is passed.
§ 6.0 p.m.
§ Mr. A. R. KENNEDY
I am afraid that the suggestion put forward by the hon. and learned Member for the English Universities (Sir A. Hopkinson) is not a practical one. If the Clause stood without the words referring to the modification of the provisions of this Bill, it would not be open to the right hon. Gentleman to modify the provisions of the Bill by any Order he might make, because he would be doing something which would be ultra vires. If, for the purpose of bringing this great Measure into operation it is necessary for the Minister to have temporary urgent powers for modifying certain provisions, it is equally necessary that these powers should be explicitly stated in the Bill. We have to face this position. On the one side there are those who affirm the principle that Parliament alone shall modify the terms of any Statute. On the other hand, you have those who, like myself, are willing to consider expediency. The issue may be said to be perfectly clear-cut. If the Amendment is pressed to a Division, the House has to elect whether it takes its stand upon the principle and will not recognise the necessity of providing some machinery which will enable the Bill to be brought promptly into operation, and face the consequences, or, on the other hand would 620 desire to meet the situation in a reasonable manner. Secondly, no one in this Debate or in previous Debates has suggested that on the previous occasions, when a Clause such as this has been in operation, there has been any abuse of it. In these circumstances, in considering this Clause and the objections to it—objections clearly and sincerely and deeply felt in some quarters—I have endeavoured to meet the situation by proposing words which could be added to the Clause and secure this effect—that while under the provisions of the Clause the Minister would have the powers which he says are really necessary, those powers would be modified and subject to the important limitation that within a limited time the modifications in the terms of the Act which he finds it necessary to make should themselves be embodied within the terms of an Act of Parliament, so that at a later date it would be possible to see within the terms of a Statute what modifications of this Statute had been made. That is the object of an Amendment which I have drafted and which appears on the Paper.
If that Amendment of mine were accepted in substance, the position would be that, while the Minister would have power to make the modifications which were necessary or which appeared to him to be necessary, those modifications would operate for a certain length of time but would not be permanent unless before 1st April, 1931, they were embodied collectively in a Statute. It would then be practicable for anyone to raise an objection to any modification, but if, as one may anticipate, the modifications had been made for good reasons, there would be no difficulty in passing such a Measure through this House. Unless some limitation of that kind is made, I can see that the objection of those who take their stand on principle will remain. When it comes to a test as to how one is to vote on the present Amendment, I, for one, with reluctance will take my stand on the side of expediency, because, while principle is involved, it is manifestly wrong to stand on that principle alone and be blind to-the necessities of the case. In those circumstances I shall support the Clause.
§ Sir ELLIS HUME-WILLIAMS
I want to say only a few words, and I say them 621 with some hesitation, because I was unfortunate enough not to hear the speech of the Minister of Health. I say them also with hesitation, because my right hon. Friend's conduct of this Bill has convinced me that his intentions in drafting the Bill as it stands are merely to carry out what the House desires, and to do so in as quick and convenient a manner as possible. But I cannot, as a lawyer, let this Clause go through without pointing out just one thing that occurs to me and that possibly the Minister may not realise. Let me read the Clause on the supposition that the Amendment proposed by the Government is accepted. The Clause will then read:If any difficulty arises in bringing into operation any of the provisions of this Act, the Minister may make such Order for removing the difficulty as he may judge to be necessary for that purpose.That, really, is a most drastic power to exercise. Observe that it does not say, "If any difficulty inherent in this Act," or, "to be found in the terms of this Act." It says that if any difficulty arises in connection with the bringing of the Act into operation, then the Minister may make such Order as he thinks fit. In practice that means that, supposing one of the Clauses of the Act is not accepted with gladness—
§ Sir K. WOOD
My hon. and learned Friend must read the remainder of the Clause:and any such Order may modify the provisions of this Act so far as may appear to the Minister necessary on expedient for carrying the Order into effect.
§ Sir E. HUME-WILLIAMS
I quite agree, and under this power the Minister can delete the whole of the Section and draft a new one in its stead. There is nothing to prevent him doing that. Surely that is not the intention? I do not see that the addition which the Parliamentary Secretary has just quoted makes any difference at all. If the Minister finds that for successfully bringing the Act into operation one of the Sections is not appropriate or is not accepted, he can delete the whole of it and draft a new one in its stead. Logically, he could, in an interval of time, redraft the whole of the Act and take out all the provisions and put in new ones. Of course, that is an extreme and ridiculous supposition, and nobody would 622 suppose that the Government are likely to do anything of the kind. But you cannot point out the real effect of the provisions of this Clause unless you lead it to these ridiculous conclusions. If it is any consolation to the Parliamentary Secretary, whose head appears to be shaking somewhat ominously, I will read the whole of it:If any difficulty arises in bringing into operation any of the provisions of this Act, the Minister may make such order for removing the difficulty as he may judge to be necessary for that purpose, and any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect.Of course, he will modify the provisions of the Act if he deletes some of the Sections and puts in a new Section instead. How can the words at the end of the Sub-section alter what I have said? They are:Provided that the Minister shall not exercise the powers conferred by this Section after the thirty-first day of December, nineteen hundred and thirty.I can see no answer to the proposition that I have put forward. I am sure that what I have stated is not the intention of the Minister. I make the point, not with the desire to delay the passing of this most badly needed Act, but in order that the wording of this Section may be changed, and so that it shall not lead to the ridiculous results that I have pointed out.
§ The ATTORNEY-GENERAL (Sir Thomas Inskip)
My hon. and learned Friend has raised a point of construction which, I think I am right in saying, has not occurred previously to anyone, however ingenious. If it has occurred to anyone, hon. Members have been singularly backward in presenting it.
§ Captain GARRO-JONES
It was mentioned by the hon. and learned Member for South-East Leeds (Sir H. Slesser) in his speech.
§ The ATTORNEY-GENERAL
I can only suppose that the unwillingness of hon. Members in presenting this construction was the result of a doubt as to whether the construction could be a sound one. If I understood my hon. and learned Friend aright the suggested case is this: A local authority or some population in a district finds the provisions of 623 the Act unacceptable—to use my hon. and learned Friend's words—and the Bill is unpopular in some districts. The suggestion is that the Minister then, under this Clause, can treat that as a "difficulty" that arises in bringing into operation any of the provisions of the Act.
§ The ATTORNEY-GENERAL
I am bound to deal with that suggestion. The criticism is that, in the case that my hon. and learned Friend has supposed, that is a "difficulty in bringing into operation the provisions of this Act," and the Minister may thereupon say, "This is very inconvenient and very troublesome; it is giving a great deal of work to my officials at the Ministry"; and he may say, "Let us make an Order," and he can write out a new Act giving the Minister power to commit these obstreperous town councillors to prison, or something of that sort. I say to my hon. and learned Friend, for whose learning I have great respect, that that is a fantastic interpretation.
§ The ATTORNEY-GENERAL
That the Minister may delete the section which is unpopular. That is a similar suggestion. I can only tell the House that I believe it to be a fantastic interpretation of the Section. I do not believe that to be a "difficulty" at all. The "difficulty" that is aimed at in the Section is what may be called a physical difficulty, that I he Minister finds that the intention of Parliament as expressed in the provision of the Act cannot be put into operation because there is some actual difficulty in the state of the law or the legal organisation of some district, for instance. My hon. and learned Friend has presented his construction. I can only tell the House, with all the respect that I feel for him, that I do not believe that that construction would hold water for a moment. Just visualise the Minister being brought into a court of law, and through his counsel, a Law Officer, saying that he found that the particular Section was not liked in a particular part of the country, and that, therefore, he had cancelled the Section. There is not a single 624 Judge on the Bench who would listen to that interpretation of the word "difficulty" and say, "We think that Parliament intended that the Minister should have power"—
§ Miss WILKINSON
That is in the present provision. Does the hon. and learned Gentleman think that any Law Officer of the Crown would put it so crudely? Might he not wrap it up in much more delicate phrasing which would induce the Judges to accept it?
§ The ATTORNEY-GENERAL
Hon. Members will welcome the admission that even the most ridiculous proposition could be put in such an attractive way as to commend itself to the Judges on the Bench. The hon. Lady pays a tribute to the members of the Bar at the expense of members of the judicial Bench, who must be credited with some common sense in applying what Parliament has enacted. Apart from criticism of the construction which my hon. and learned Friend has suggested to the House, I think that the Minister has overwhelmingly met the case. There may be a variety of opinions as to whether any particular drafting of the Clause is preferable to that which has already been proposed. Upon that I beg leave to say only that my right hon. Friend the Minister of Health has really done what the Committee on a previous occasion suggested that he should do. After the Minister proposed his Clause the hon. and learned Member for the English Universities (Sir A. Hopkinson) made a proposal, and various Members in different parts of the House said, "Cannot the Minister accept the proposal of the hon. and learned Member for the English Universities?" My right hon. Friend has accepted the proposal, which was made and backed up in all parts of the House.
§ Major PRICE
Does the learned Attorney-General suggest that the wording of the Amendment of the Minister of Health in any way limits the power that is given to him in the original draft of the Bill?
§ The ATTORNEY-GENERAL
Perhaps my hon. Friend has not been listening to me during the past few moments. That was not the point that I was making. I was suggesting to the House that the Minister found that the Clause in its 625 original form was not acceptable to the Committee of the Whole House when the Bill was previously under consideration; that he proposes to amend it in accordance with the suggestion which was then made and accepted in all parts of the Committee, and that it is asking the House to do a rather unreasonable thing now to start considering it afresh. I rose for the purpose of dealing with the interpretation of my hon. and learned Friend, and I venture to make these observations in order that the House may realise that what it is now being asked to do is to go back upon what was sought to be done in Committee, when hon. Members urged upon the Minister the reasonableness of accepting the proposal of the hon. and learned Member for the English Universities. That proposal in substance is what the Minister now asks the House to adopt.
I did not understand from the speech of the hon. and learned Member for the English Universities (Sir A. Hopkinson) that he is at all satisfied. I understood his suggestion to be that the Minister's Amendment should be adopted and that these other words should be omitted. The Attorney-General having devoted himself to knocking down a bogy—which no one on this side set up—about some impossible case, proceeds to say to the House, "Do not, for goodness sake, start moving Amendments now." But what is the House for if not to move Amendments? Have we sunk so low that the Guillotine is not merely to execute us at intervals, but to deprive us, even of the right to live. I want to dispel the impression which the Parliamentary Secretary has sought to create by presuming that this Clause has its origin in the National Insurance Act of 1911. It is not for me to presume to defend Gentlemen who are so well able to defend themselves as the hon. Gentleman on the Liberal benches.
That is so. I certainly voted for this Clause in 1911, but, as a matter of fact, the original Clause is in the Irish Local Government Act, 1898, which was passed by a Conservative Government, and this fact was pointed out by us when the same Clause was attacked with great vehemence and cogency by the 626 representatives of the party opposite in 1911. I would like to remind the House of a very authoritative opinion upon it—that of the present Secretary of State for War. I propose to quote the right hon. Gentleman verbatim et literatim:I submit it is quite unnecessary. They ought to have powers to carry out the Act as it leaves this House but not to modify it.The Clause then referred to Commissioners where, in this case, it refers to the Minister. The right hon. Gentleman continued:If these words are retained, the Commissioners will have power to make an Order modifying the Act, and they may carry out that Order. That, to my mind, is giving them power to legislate. Whether the Government intends to place a time limit on the powers or not, I hold that these words ought to come out.…I want to give them power to carry out that which Parliament has enacted, and not power to carry out something which they think Parliament ought to have enacted."—[OFFICIAL REPORT, 10th November, 1011; cols. 2026–2027, Vol. 30.]I do not know what deference the Parliamentary Secretary will pay to a Member of the Cabinet, but that is the considered view of the present Secretary of State for War upon this Clause. It is true that I voted for the Clause in 1911. It is quite easy to throw these charges and countercharges backwards and forwards, but the real question is whether it is possible, with the enormous mass of legislation which we have nowadays, to retain effective Parliamentary control and it is to that question I propose to address myself. Take the history of this Bill. In the first place the House of Commons has never approved this Bill in detail. It supports the Ministry which introduced the Bill, but no one can pretend that there has been any effective examination of the Bill in detail by the House of Commons. I do not know that it could have been done with a Bill of this size, unless we devoted a long Session to it. But the Government have not attempted to do it, Secondly, we are working under a Guillotine which limits stringently empowers to interfere. Take the case of the payment of officers, a question which interests many people on all sides of the House. We could not move an Amendment in Committee because of the Guillotine. We could not move it on Report because it would have been out 627 of order as increasing the charge. Nor could the Government move it on Report. Indeed, the Government themselves were "caught out" last night when they attempted to move an Amendment which the Guillotine permitted but which Mr. Speaker forbade because it was out of order. In view of these facts, it is obvious that we cannot pretend to have anything like effective control of the legislation which is being turned out by the House.
We go one step further and we come to the "power to remove difficulties" which is almost a necessary corollary of a complicated piece of legislation like this, and we find our grip is still further weakened. It is true that these Orders, when made, must be laid on the Table of the House. I do not know if I am right in supposing that, even there, that form of control has been somewhat curtailed in this case. The usual form was that during 21 days a humble Address might be moved, amending or anulling the Order, but I notice in Clause 119 that we are only to have power to annul and not to amend. We must take the Order as the Minister drafts it, or leave it. There seems to be great doubt as to what are the powers of the Minister under this Clause. The hon. and learned Gentleman the Member for Bassetlaw (Sir E. Hume-Williams) says that these powers are considerable—though he never went to the grotesque lengths suggested by the Attorney-General. The Attorney-General, on the other hand, thinks that the powers are inconsiderable and do not matter. The only way to settle it is to ask a few questions.
§ The ATTORNEY-GENERAL
I did not suggest that. It is a matter of opinion as to whether they are considerable or inconsiderable. I was merely dealing with the suggestion that unpopularity is a difficulty.
It is a great difficulty with the Government at the present time. Recent news which seems to have leaked into the House suggests that it is their chief difficulty. That does not prevent us from asking a few questions. For instance, supposing the difficulty in carrying out the Act is the formula, will the Minister be allowed to adjust the formula. [Interruption.] A little 628 muttering does not deal with what is an important Parliamentary point. Is it possible for the Minister to say that he will take a larger percentage, or take into account more women, or adjust the formula in any other way, because he finds a difficulty in carrying out the Act in regard to it? Supposing it is a question of adjusting some of the numerous and complicated financial relations between the central government and the local authority, would the Minister have power to carry out what, in his view, was the Act of Parliament and make an order adjusting those financial relations? I do not know if I am entitled to an answer on these points. I can only put questions and other people must decide whether they are worth answering or not. They are questions which will trouble some local authorities and will trouble very much people who believe as we do that we ought to make the best use possible in modern circumstances of the Parliamentary machine.
This sort of thing—this relaxation of the grip, this practice of making it easy to vote for a big Guillotine, this "power to remove difficulties" Clause and so on—is a habit which is now confirmed by the Government. It is a habit which will not stop there. I pointed out on the Guillotine Resolution itself, that the Government are making the road easy for another Government which, at some early date, may take its place. Let us take a suppositious case. Perhaps the Attorney-General will think it grotesque but I will suggest it to him. Take the case of a Finance Bill. There will be a highly contentious Finance Bill proposed in this House before long. Supposing that the first thing done is to erect a Guillotine so that the matter has to be passed whether the House wishes it or not, and, supposing there is put into the Finance Bill a Clause modelled on this one, giving the Chancellor of the Exchequer "power to remove difficulties." That will not be very palatable to some people, but that is the road on which we are travelling. As far as I am concerned, I would like to see the maximum Parliamentary control retained. I believe in the House of Commons. I aim proud to think that, in my small way, I am a House of Commons man. But there are difficulties and the Minister is doing nothing to help. He is not meeting the very reasonable speech of the 629 hon. and learned Member for the English Universities. [HON. MEMBERS: "He has!"] He has not met it. Let the hon. and learned Member speak for himself as to whether he is satisfied with the Amendment or not. It is open to the Government to go to a Division and to carry this Clause, but it is a dangerous thing to do, and it may have consequences very unpleasant for hon. Gentlemen opposite at a later date.
§ Sir WALTER GREAVES-LORD
I do not intend to follow those who have spoken about the general principle, which I think most of us want to safeguard, namely, that Parliament should retain its control over legislation. The Minister by his Amendment has gone a long way to meet the objections which were raised to this Clause, but I venture to suggest that he has not gone far enough. A few moments ago the Parliamentary Secretary read a part of the Clause, but he inadvertently left out certain words. He read the last portion of the Clause in this way:And any such Order may modify the provisions of this Act so far as may appear to the Minister necessary for carrying the Order into effect.The right hon. Gentleman forgot the words "or expedient" which occur in the Clause after "necessary." If we put into the Clause the Amendment which the Minister has put down, but retain in the last portion of the Clause these words "or expedient," we leave the Clause still open to a great many of the objections which have already been taken to it.
§ Sir W. GREAVES-LORD
I am very pleased to hear that announcement It indicates why the Parliamentary Secretary left out those words though one would not have taken the right hon. Gentleman's intimation in that way. It seems to me that in order to keep the power of the Courts to supervise what is done by the Minister—in order to save that power from being usurped—we should also leave out the words "as may appear to the Minister necessary," and substitute "as may be necessary." Thus you would get the principle of the Amendment which the Minister has put down, namely, that the Order made 630 should be limited to removing difficulties; that it should be such an Order as is necessary for that purpose, and that, when he finds it inconvenient to carry out such Order without modifying the provisions of the Act, the power to modify should be interpreted strictly. There should only be such modification as is necessary to carry the Order into effect and not something which will be left again to the Minister's discretion because that means a double discretion which is undesirable and constitutes a very great inroad upon the powers of Parliament.
§ Miss LAWRENCE
For the first time in these Debates I have found myself a listener with sympathy to hon. Members opposite, I listened to what was said with regard to the Constitution, and bureaucracy, and the danger of extending, the powers of Ministers at the expense of the House of Commons, and I felt it was all unanswerable, and yet the thought that continually arose to my mind was how essentially convenient such a Measure as this might prove to be in the near future. It reminded me of what the schoolboy said, that "the abomination to the Lord" is "a very present help in trouble." This Clause may prove a help. I visualise Members who are likely to occupy the benches opposite and the office of the Minister of Health and who might be intending to go through this Measure with a blue pencil in order to remove difficulties. How very much one could improve this Measure if one removed such things as might appear to one to be unnecessary.
One could turn the Bill inside out. There is the difficulty, which we are going to discuss in a partial way, of the coastwise shipping. It is a very great difficulty when we penalise one class of exports as against another, and what could be more pleasant than slightly to alter the Clause so as to remove that difficulty? Then we could remove the difficulties with regard to mineral railways and with regard to voluntary health societies and many others; and when we come to the financial Clauses, to the formula and the complications and difficulties connected with it and with the block grant, they could all be removed by a Minister, It might appear to a new Minister desirable to remove that difficulty of the formula and, until he could 631 prepare a new Measure, simply to hand back to the localities the de-rating of which they had been deprived. When I feel how short Parliamentary time is and how very convenient it may be to put large portions of this Measure into cold storage, if I go into the Lobby to vote against the interests of my own
§ party, I shall nevertheless be extremely grateful to those zealous Members opposite who will have kept so precious a power in the hands of the Minister.
§ Question put, "That the words proposed to be left out, to the word 'by,' in line 38, stand part of the Bill."
§ The House divided: Ayes, 207; Noes, 119.633
§ Sir K. WOOD
I beg to move, in page 103, to leave out from the word "may", in line 38, to the word "and", in line 41, and to insert instead thereof the words:make such order for removing the difficulty as he may judge to be necessary for that purpose.
§ Mr. SPEAKER
I do not know whether the hon. and learned Member for Altrincham (Mr. Atkinson) who has an Amendment in line 38—after the word "Order," to insert the words "approved by Resolution of both Houses of Parliament"—wishes to move it; if so, I will save it.
§ Sir K. WOOD
I thought it was quite unnecessary to do so, because my right hon. Friend had dealt with the matter in the course of his speech in the discussion on the whole Clause. What we have done has been, as I think most hon. 634 Members followed, to make the Clause read:If any difficulty arises in connection with the supplication of this Act to any exceptional area, or in bringing into operation any of the provisions of this Act, the-Minister nay make such Order for removing, the difficulty as he may judge to be necessary for that purpose.Then it goes on:and any such Order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the Order into effect.In a moment or two I shall move another Amendment to leave out the words "or expedient" in that last paragraph. What we have done in amending this Clause has been with the object of meeting the wishes of the Committee on the subject, as was fully explained just now by my right hon. Friend.
§ Mr. GREENWOOD
The right hon. Gentleman said that the Minister had explained the exclusion of these words, but 635 he has not explained in the least the difficulties of the first part of the Clause. Everything that has been said about that still stands. I am prepared to admit that the Minister's power will be whittled down by this Amendment and that he will not be able to go about the world making appointments and doing anything that he likes. That is all to the good. Under this Amendment, the Minister can only make an Order where he thinks it is necessary, and not merely because it is expedient. What has been said by many hon. Members in criticism of the Clause, however, still remains. A good deal of the Minister's speech was devoted not so much to the question of appointments, and the things that he might do, but to his defence of what led to the Clause being put into the Bill. His reason was that there were certain small difficulties that had to be removed, and a good deal of the subsequent discussion ranged round the allegation that as the Clause is drafted the Minister's power stretches far beyond that. This Amendment does nothing to meet that point.
The Clause still provides that if any difficulty arises, of whatever kind, the Minister can make an Order, and can proceed under that Order to compel obedience to the law. That being so, the Minister has not met the criticisms that were made both in Committee and this evening on this Clause. If he would define the difficulties, or limit the kind of difficulties to those of which he has given illustrations, it would be an Amendment of substance which we would consider favourably, but these words "if any difficulty arises" remain unsatisfactory and give the Minister powers which he ought not to need. Therefore, we cannot agree with the Parliamentary Secretary that in this Amendment he has met the wishes of the critics of this Clause.
§ Mr. KELLY
I cannot see even the whittling down that my hon. Friend the Member for Nelson and Colne (Mr. Greenwood) can see. I cannot see that it whittles down the Minister's power at all. It is still open to him to make an Order for removing a difficulty, whatever the difficulty may be, as he may judge necessary for that purpose, and he has still power in that Order to modify the provisions of the Bill. Even after we 636 have deleted the words "or expedient," I cannot see that it will whittle down the powers which he has under the original words. I can well understand the fears of the Seconder of the last Amendment, who realises that there will be a new Minister of Health in June next.
§ Mr. MORRIS
The more this Clause changes, the more it remains the same. The really objectionable part of it, which will remain after the words have been inserted, will be the passage:any such Order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the Order into effect.The Minister usually has power to make Orders under various Acts, but those Orders are for the purpose of carrying out the provisions of the Acts under which the Orders are made. The Orders here, however, are quite differently made. This Clause does not mean that the Minister may make an Order for carrying out the provisions of the Act, but for modifying the provisions of the Act and that may include in effect nullifying certain provisions of the Act. That is a totally new power for the Minister. It is one thing for the Minister to come to the House and ask the House to give him powers by an Order to carry out certain provisions under an Act, but to ask the House to transfer powers to him to modify the provisions of an Act which the House has passed cannot be justified on any constitutional grounds.
§ Mr. SPEAKER
With regard to the Amendment of the hon. and learned Member for Altrincham (Mr. Atkinson), the words which he proposes will come in the words proposed to be left out by the Amendment proposed by the Parliamentary Secretary to the Minister of Health. I do not think, therefore, that I can save his Amendment, as it would not come in if the present Amendment were accepted. Perhaps the hon. and learned Member had better speak now if he wishes to do so.
§ Mr. ATKINSON
The insertion of the words which I suggest after the word "Order," in line 38, would not read very well, but the idea is there, and I will deal with it as a criticism of the proposed Amendment. It must be recognised that all sorts of difficulties may arise in carrying out this Bill, and getting rid of those 637 difficulties may very well involve some alteration in some of the provisions. I admit that where these alterations involve some modification of the provisions, and in other words, involve repealing what this House has done, the House ought to retain control over it. The objectionable part of this Clause is that if any difficulty arises in bringing into operation any of the provisions of the Act, an Order may be made to modify the provisions of the Act. In other words, if there be any difficulty about it, a provision may be modified, and there is no limitation whatever to the extent to which the provision can be modified. I submit that as a matter of principle there ought to be some machinery by which the House can take control of that operation. It might involve bringing in an amending Bill and passing it through both Houses of Parliament, which is a long operation which takes time, and time very often is not available; but the operation which I suggest, that an Order should not be effective until it has been approved by a Resolution of both Houses, can take place in the course of an evening.
The supposed safeguard contained in the last two lines of Clause 119 is very inadequate. Suppose that this emergency or difficulty arise when the House is not sitting, and an Order be made which at once becomes operative. Although when Parliament sits again this Order can be laid on the Table of the House, and the House can declare it void, they cannot undo what has been done. Therefore it an Order has been made which has repealed or varied some of the provisions of the Act, and has been acted upon, the House have no means of putting that right. They can only put it right by passing another Act of Parliament, which would have to be retrospective, a proceeding which is always open to objection. Supposing the difficulty arise when the House is sitting. Is it any hardship to ask Parliament to approve the proposed Order before it becomes effective? Again, suppose that the difficulty arise when the House is not sitting. Then you have to weigh up the objections on either side. As a matter of principle, are we, if a difficulty arise in carrying out any legislation when the House is not sitting, going to delegate 638 the legislative powers of the House to some Minister?
This is a very dangerous principle, and one cannot quite see why or how a difficulty might arise which demands such immediate relief or attention that it cannot wait until the House sits again. These difficulties do not arise in a day; you see them coming, and points are raised which can hardly be of very great urgency; and I suggest that the wiser of the two courses is to put in a modification of this provision in the reasonable way which I suggest. It would relieve the Minister of the difficulty of having to ask for an amending Bill, and everybody would agree that that would be all to the good. At the same time, it would retain the control of Parliament over any proposed modification, whereas such wide powers as are given in the Clause mean that there is no limitation of the extent to which provisions may be modified, and it becomes very important that a matter of that kind should not be effective until the House has expressed their approval. I agree that it might be said that the difficulty may arise when the House is not sitting, but the House seems to be always sitting for a great part of the year, and the small objection to the postponement of the decision of the House for a few weeks cannot outweigh the very serious objections to setting up the precedent of permitting a Minister to have such wide powers as include an unlimited modification of almost every provision in the Bill without the House retaining control.
§ Mr. WITHERS
I should like to support the views of the hon. Member for Altrincham (Mr. Atkinson). When the matter was in Committee and the Amendment was proposed by my hon. Friend the Member for the English Universities (Sir A. Hopkinson), I and a number of other Members took it that his Amendment would be in substitution for the rest of the Clause, and that that would get rid of the words "modify the provisions of this Act." If the Amendment of the hon. Member for Altrincham can be accepted, I should support it.
§ 7.0 p.m.
§ Sir E. HUME-WILLIAMS
I am still unrepentant and cherish the hope that the wording of this Amendment may be altered. It still seems to me that the result of the Amendment, if it be accepted in its present terms, will be 639 in the words: "If any difficulty arises in bringing into operation any of the provisions of this Act." They will give rise to the queston of as to what sort of difficulty can occur in bringing the provisions of the Act into operation. It might be that somehow they do not work, and that they are not applicable, or perhaps that they are not being obeyed by some section of the community, and that there is a difficulty in bringing them into operation. Then this Amendment, as it stands now, would undoubtedly give the Minister the power to modify the provisions of the Act by deleting the Section altogether if he likes. What is to prevent him from saying: "Well, I have difficulty in bringing this Section into operation, so I will take it out. It is true that by doing so I am modifying the provisions of the Act, but this Amendment gives me the power to do so." Observe that the end of the Section only says this:For bringing the said provisions into operation, and any such Order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the Order into effect.It does not say: "so far as may appear to be in accordance with the Act to be necessary for carrying out the intention of the Act." The Order may be made to delete a Section. That cannot be intended. I know it is a matter of words which can be put right. I do not think anybody can deny, leaving out of consideration what the intention of the Act or of the Orders is for the moment, that, as a strict interpretation of the letter of the law, this Amendment, if passed, would give the Minister power, not only to modify the provisions, but to make an Order deleting a Section altogether and even to put in a new Section if he likes. That cannot be intended.
§ The ATTORNEY-GENERAL
My hon. and learned Friend the Member for Bassetlaw (Sir E. Hume-Williams) says he is of the same opinion still, and I have the misfortune also to be of the same opinion still. When he and I are not in agreement, I am afraid it is necessary to trouble the House once more with the reasons I have for thinking my view is the right one. I will deal with the other matter afterwards. My hon. and 640 learned Friend suggests that, when a difficulty occurs in bringing the provisions of the Act into force, the Minister may, by a stroke of the pen, remove the provisions. That overlooks that the Section says that, if any difficulty arises in bringing into operation any of the provisions of this Act, the Minister may by Order remove the difficulty. It does not say that the Minister may remove the provisions. There is all the difference in the world. The object of the Clause is to say that the Minister may do that which is necessary for making the Act apply. The first sentence which I do not think my hon. Friend criticises, is that dealing with the application of the Act to any exceptional area. Quite obviously the Minister cannot do anything to alter the Act, though he may have power to make the application of the Act effective. It is the second sentence which says that the Minister may remove the difficulty that occurs in bringing into operation any of the provisions of the Act that is criticised. The Clause seems to me to say that the Minister may remove the difficulty so as to bring into operation the provisions of the Act, and it does not say that the Minister may get round a difficulty by doing away with the provisions of the Act.
§ The ATTORNEY-GENERAL
Those are the terms of the Amendment because the words which the House has already passed are:If any difficulty arises…in bringing into operation any of the provisions of this Actand it goes on to say that the Minister may make such an Order as he may judge to be necessary for that purpose. That is to say, for bringing into operation the provisions of the Act and not for abolishing the provisions of the Act.
§ Mr. MORRIS
What meaning does the hon. and learned Gentleman attach to the phraseany such Order may modify the provisions of this Act?
§ The ATTORNEY-GENERAL
I do not know if I would be in order in answering that question. I can only answer one objection at a time. My answer 641 is that that is only a subsidiary power which it is necessary to give to the Minister to make the first part of the Section effective. Under the first part of the Section, the Minister may remove a difficulty and make an Order. It is quite possible that the Minister's Order may be in conflict with something in the Act, because the Minister's Order is to remove a difficulty. Then you will have two provisions, one by the Act and one by the Order which the Minister is empowered to make, which are in conflict. Both will have statutory authority and will be conflicting. The question is which is to prevail. Unless the last sentence of this Section were added, there would be no solution of the puzzle. In order to solve that problem, the House says that the Minister may modify the provisions of the Act so as to get rid of one of the two inconsistent provisions. I hope that answers the question which the hon. and learned Member has addressed to me.
The hon. and learned Member for Altrincham (Mr. Atkinson) raised the question, which he argued very well, as to whether it is or is not necessary to give Parliament the power to approve an Order. He anticipated correctly that the main objection to that would be the possibility of delay. He says that these difficulties can be seen coming. They are not difficulties that can be seen coming until they are required to be dealt with immediately. The hon. and learned Member for Bassetlaw did not hear the Minister of Health, and therefore the House will perhaps forgive me if I refer to one of the illustrations given by the Minister. It was that of the provisions in the Eating Act which insisted that certain cases should be determined by justices numbering five. There was an impossibility of carrying that out, because nearly all the justices who might have sat otherwise were disqualified because they were ratepayers. The question immediately arose how were these matters to be determined, and the Minister made an Order modifying that Act by substituting two justices for five. That is an example of a difficulty which cannot be seen coming until information of it comes to the Minister.
The suggestion of the hon. and learned Member for Altrincham is that, if Parliament is not in Session, such a 642 question as that must wait until Parliament is in session. He says that a few weeks will not matter. The difficulty of delay is rather a serious one, and I would point out that he really has the substance of this matter in Clause 119, Subsection (3), which provides that Parliament may annul any Order that is made. The hon. Gentleman opposite is right in saying that "modified" is not in. There are two possibilities. The special matter of the Order may be of so trivial and unobjectionable a nature that Parliament will not want to discuss it, and not a single Member will want to put down a Motion to discuss it. If my hon. Friend's Amendment is put in, Parliament will be compelled to debate these trivial matters. [HON. MEMBERS: "No, no!"] I am perfectly right. If my hon. and learned Friend's suggestion were adopted, no Order made by the Minister could be effective until it was approved by both Houses of Parliament. Therefore, any trivial or unobjectionable Order, however formal, would have to be approved by Motion in this House and in the other House.
§ The ATTORNEY-GENERAL
At any rate, by Motion in this House. That is to say, the House would be troubled and the other House would be troubled by these Motions, and by discussions upon matters which, according to my hypothesis are too trivial for any Member to raise in this House. Clause 119 gives the House ample power to annul an Order if it really is improper or more than formal, or is not one that would be accepted by universal consent. I am not saying that my hon. Friend's suggestion is not worth consideration. It is well worth consideration. The Minister of Health has: considered it. At the present I moment, he takes the view that he has already got the safeguard which is desirable in Clause 119, Sub-section (3) and, after what I have said in answer to the hon. and learned Member for Bassetlaw, I hope it will be felt that my right hon. Friend has met the House fairly by the Amendment which has already been moved by the Parliamentary Secretary.
§ Mr. T. WILLIAMS
Does the hon. and learned Gentleman still maintain that, merely because the Minister finds a 643 legitimate difficulty in the application of this Bill, when it becomes an Act, it will really become necessary to discuss every small infinitesimal point which may be removed by means of the presentation of an Order to the House? Is it not perfectly correct to say that if the Amendment of the hon. and learned Member for Altrincham (Mr. Atkinson) were adopted, it would be merely a question of placing a notice on the Order Paper and of the question being formally put from the Chair? Is it not fair to assume that the House under normal circumstances without any discussion would at once see the validity of the Motion and would be willing to agree to the question without discussion?
§ The ATTORNEY-GENERAL
I do not say that the House would see the validity of the Motion until it was explained.
§ Mr. WILLIAMS
We are frequently confronted in this House after Eleven o'clock with from seven to 17 gas Orders. The Minister of Transport presents them to the House. They are on the Order Paper, and one after another they are put and agreed to. It is understood by all Members that the whole of the proceedings have been dealt with in the ordinary legitimate course of business, and they are accepted without discussion or debate. Therefore, it seems to me that the power given to the Minister here will be used for the purpose of making any changes that may be necessary in this Act. Whatever the hon. and learned Gentleman may say, the hon. and learned Member for Bassetlaw (Sir E. Hume-Williams) is perfectly correct in his assumption that the power contained in the last few words to modify the Act and give the Minister full power to make the Order effective does after all leave the Minister, in the last resort, well above Parliament. Is it advisable to place the Minister in that position for dealing with big points as well as the small legitimate points which may arise in the application of such a comprehensive Bill which as the right hon. Member for Seaham (Mr. Webb) said, is really six Bills rolled into one?
All Members of the House can foresee difficulties. It is plain that, if any Minister of Health cared to abuse the power which this Section places in his 644 hands, he could do so, and Parliament would have no redress. Therefore, I would suggest that, in the light of our own experience of gas Orders, which are accepted merely by the question being put from the Chair, the Minister of Health would in no way be retarded in the application of this Bill, when it becomes an Act, if he was obliged to present his Orders to both Houses of Parliament. I see no difficulty in that. If it were desired to retain Parliamentary control over big questions—and this is a very big question, affecting all the local authorities—and if the words now suggested could not be accepted, the Minister might at least satisfy the House that the Ministry are not desirous of abusing their powers. I he would promise to look into this matter and introduce the necessary words, that would give satisfaction to all parts of the House.
§ Amendment agreed to.
§ Sir K. WOOD
I beg to move, in page 104, line 1, to leave out the words "or expedient."
This is a manuscript Amendment, and the object with which it is moved has already been referred to by my right hon. Friend and myself. The omission of these words will leave the position so that the Minister may by Order modify the provisions of the Act:So far as may appear to the Minister necessary for carrying the Order into effect.
§ Sir H. SLESSER
I should like to know, and I am sure the House would like to know, what is the legal effect of leaving out these words "or expedient." I understand that this is another instalment of repentance on the part of the Minister, and I am sure his intention is good, but does it mean anything at all? As the Clause reads now, it says that he may modify the provisions of this Act:So far as may appear to the Minister necessary or expedient.Now it is proposed to leave out the words "or expedient" so that it will read:So far as may appear to the Minister necessary.What I would like to know, and what we have not been told, is what difference is produced by leaving out the words "or expedient." We may assume that any Order made would be necessary in the opinion of the Minister and that equally 645 he would think it expedient. Therefore I should like to know whether anything at all is being achieved by this proposed Amendment. Surely we may know why the Minister, who has quoted so many precedents to justify this Clause, has now got these qualms and thinks the omission of the words "or explain" will improve the situation. He is still the judge of the necessity, and no doubt in judging of its necessity he will judge of its expediency. What is the precise distinction between the two? Perhaps the learned Attorney-General will oblige us.
§ The ATTORNEY-GENERAL indicated dissent.
§ Sir H. SLESSER
If the learned Attorney-General is unable to give the answer, perhaps the Minister will tell us what is the difference between necessity and expediency in this connection?
I shall be very happy to try to enlighten the hon. and learned Member who, as on so many previous occasions, has not, I am afraid, carefully read the Clause in its original form and as altered by the Amendment we have already passed. If he will look at the wording in the Clause as it stood originally he will find that it says, on page 103, at line 40:which appears to him necessary or expedient.When I moved the Amendment which accepted in substance the words suggested by my hon. and learned Friend the Member for the English Universities (Sir A. Hopkinson), we inserted in place of those words the words:make such Order for removing the difficulty as he may judge to be necessary for that purpose.As we have omitted the words "or expedient" in that place, obviously it is only consistent that we should omit them again where they follow in this instance, and that is the sole reason for this Amendment.
The right hon. Gentleman has not given us a word of explanation as to the real meaning of the word "expedient" It may be that the present Government may be necessary, but it is not expedient. This Clause gives the Government power to modify the provisions of the Act. That is agreed.
Whatever form of words the Attorney-General wants, I accept them; but it gives power for certain modifications to be made—that, at any rate, is agreed. What I want to know is this. Under this particular Clause can the Government make an Order modifying the provisions of this Clause 120 itself? We have given them power for the year 1929 to modify the provisions of the Act. Is it possible under this Clause to extend 1930 to 1931?
§ The ATTORNEY-GENERAL
If I may speak once more, by leave of the House, I may say that I find it very difficult to conceive any such case as the hon. Member has suggested. The best answer I can give him is that I do not believe that this Clause could be used for any such purpose as he has suggested.
§ Mr. HARRIS
Abstract points have been put, but I should like to get down to the concrete. This Bill deals with the Unemployed Workmen's Act, 1905, and when I asked a question this afternoon as to what was to happen to the Hollesley Bay colony, which was established under the Act of 1905, the Minister airily said that it would be transferred to the London County Council. I suppose that is an example of the kind of Order which the Minister intends to promulgate. Personally, I have no objection to this being done, but I think it is rather highhanded in face of what the House of Commons decided under that particular Act.
§ Mr. PETHICK-LAWRENCE
If the Minister has power to modify certain provisions, does that power apply to the definitions Clause? Take one point— there is no definition of "infectious disease" in the definitions Clause, though there is a reference to it in another part of the Bill. The Minister told us rather airily that he was informed that the term "infectious disease" would cover certain things, but we have never been very clear as to what particular diseases it does cover. Institutions under the local 647 authorities might find themselves in a difficulty if one particular kind of tuberculosis is included and another variety of tuberculosis is not included, and it might be very convenient for the Minister, "for the purpose of removing the difficulty," to say that no kind of tuberculosis should be included in the definition of infectious disease. I would like to know whether the Minister can modify what he says he understands is the definition of infectious disease under this Clause of the Bill.
§ Sir K. WOOD
Obviously, the power given under this Clause has nothing to do with the question of what is infectious disease since it is not denned in this Measure. If a local authority wants to find out what is an infectious disease it must look elsewhere than in this Bill. Therefore, this Clause will not affect that point. As regards the question about the transfer of Hollesley Bay, that would not be done under this Clause, but under another Clause in the Bill.
§ Mr. PETHICK-LAWRENCE
But what is to prevent the Minister from making a definition for the purpose of removing difficulties in carrying out the Act?
§ Lieut.-Colonel FREMANTLE
With reference to what the Parliamentary Secretary has said about a definition having been inserted, I would point out that there is no definition of infectious disease in the Measure; but I hope after what he has said, that it will be inserted at another stage.
§ Sir K. WOOD
The hon. Member misunderstands me. I said there was no such definition. I said you had to look elsewhere for a definition. I held out no such hope of putting a definition in this Bill.
§ Amendment agreed to.
§ Mr. SPEAKER
The hon. and learned Member for Altrincham (Mr. Atkinson) handed in a manuscript Amendment. I do not know whether he thinks it worth while to move it now?
§ Mr. ATKINSON
I do not want to move it, but not because I am satisfied with what the right hon. Gentleman has said.
I beg to move, in page 104, line 11, to leave out the words "borough or."
This is merely a drafting Amendment. There is no case to which these words would apply.
§ Amendment agreed to.