Mr. Malson (The High Peak)
I beg to move,That this House would welcome the setting up of a Select Committee, without power to send for persons, papers or records, whose duty it should be to carry on a continuous examination of all Statutory Rules and Orders and other instruments of delegated legislation presented to Parliament; and to 203 report from week to week whether in the opinion of the Committee any such instrument is obscure or contains matter of a controversial nature or should for any other reason be brought to the special attention of the House.
§ Sir Herbert Holdsworth (Bradford, South)
On a point of Order. May I ask whether it is your intention, Mr. Speaker, to allow a wide Debate covering not only the Motion but all the Amendments?
§ Mr. Speaker
I think that the Motion and the Amendments will be covered by the Debate, except the last one, which is outside the Motion, namely, that in the name of the hon. Member for Central Leeds (Mr. Denman), in line 7, at end, to add:provided that there be also set up a Select Committee to consider to what extent law-making by the Executive could be avoided by devolution on to subordinate democratic legislative bodies.
§ Mr. Silverman (Nelson and Colne)
On that point of Order, may I ask you whether it is your intention to call the Amendment standing in my name and that of my hon. Friends? I think it raises a question that probably would not be covered in the Debate, namely, whether the proposal in the Motion will extend to all Regulations or only those of a specified kind?
§ Mr. Speaker
It is not my intention to call that Amendment. I think the subject can be covered quite well in the general Debate.
§ Mr. Molson
It has been a feature of the history of this House that, while it has been conservative in maintaining its authority and consistent in defending the liberties of the people, it has always seen that it should be ready to adapt its methods and to amend its procedure in order to meet new conditions. For example, in the 19th century, when there was a great increase in legislation, the procedure of the House was altered, and the number of questions put on the passage of a Bill was reduced from 14 to four; and again, when the Irish Party developed the policy of obstruction, the Closure was introduced which, only a short time before, would have been regarded as subversive of the rights of the House. Just as Parliament has been willing in the past to restrict its activities in 204 order to facilitate the passage of business, so, in my submission, there are new conditions arising which require it, in some degree, to extend its activities. The Motion calls for the new machinery which is needed, if we are to retain the old control over legislation which is necessary in the new conditions of to-day. It is no new thing for this House to delegate rule-making powers to the Executive. As early as 1337, the Statute of the 11th year of Edward III, Chapter I, provided for the banning of the export of wool from this country.till the King and his Council do otherwise provide.We come down to the present time. Part III of the Education Bill, which this House passed last week, will come into effect when an Order in Council is issued by His Majesty. Therefore, there is nothing unusual or against precedent in great powers being delegated to the Executive in our Statutes, but if it is intended to continue and to extend the policy of making substantive Orders and Regulations under the authority of a Statute, it will be necessary for this House to set up new machinery, if we are not to be delegating not merely authority but sovereignty itself.
There are a number of reasons why delegated legislation is not only desirable but necessary. In the first place, it economises the time of the Legislature. Lord Thring, the first holder of the office of Parliamentary Counsel to the Treasury, wrote, in 1877, in his "Practical Legislation":The above-mentioned matters"—that is, procedure, etc.—should either be enacted in a Schedule or, what is far better when possible be left to he prescribed by a court or department of the Government. … The adoption of the system of confining the attention of Parliament to material provisions only, and leaving details to be settled departmentally, is probably the only mode in which Parliamentary government can be carried on. The province of Parliament is to decide material questions affecting the public interest; and the more procedure and subordinate matters can be withdrawn from their cognisance, the greater will be the time afforded for the consideration of more serious questions involved in legislation.That quotation is important, because it is the doctrine which is still followed by Lord Thring's successors. It is, I think, a sound doctrine, for not only does it economise the time of Parliament but also 205 it results in the Statutes being shortened. If I may quote a living Parliamentary draftsman, Sir William Graham-Harrison, he says:It is the only way in which to avoid the intolerable prolixity of the 18th century Statutes.In the second place, delegated legislation is flexible. It can limit the applicability of legislation by time, location, ownership, age or otherwise, and all these limitations are able to be changed at short notice. The same considerations applied in ancient Greece, and Plato says in Book VI of his "Laws":Rules and up-to-date amendments must be made from year to year by persons who have constant experience from year to year in these things and who are taught by practice, until a satisfactory code is finally agreed upon to regulate such proceedings.In the third place, the value of delegated legislation is that, in a sudden emergency, it enables the Legislature to dispense with long deliberation and to arm the Executive with the special powers that are needed. There was an example of that in the Economy Act of 1931 and in the Emergency Powers (Defence) Act, 1939.
In the fourth place, where a Legislature is forced to influence the economic life of the country by physical measures, powers of this kind are almost inevitable. When we are using duties, quotas, licences, bounties and various other expedients it is obvious that some power has to be given either to the Treasury or the Tariff Advisory Committee to give effect to the policy of Parliament.
Up to this point I hope that I may have been carrying with me the agreement of the Home Secretary. I have tried to show that I am not in any way hostile to delegated legislation as such. As the scope of legislation in the last 40 years has been greatly extended and has included national health and the insurance scheme, responsibility for the training of labour, unemployment insurance and relief of poverty, and the closer supervision of agriculture and industry, while the fiscal system has been adapted to serve a protectionist purpose, delegated legislation of this kind has become increasingly necessary. Nor do I disagree with the Home Secretary when he anticipates a further increase in delegated legislation when we come to pass the Reconstruction Bills which will be necessary. But if that 206 be so, then the case for such a Committee as I am asking for, which is strong now will then be stronger still. It is worth noting that there were more Statutory Orders and Rules in 1920 than in any one of the years of the last war, and it may prove to be the case that that experience will be repeated.
We have already had two Debates upon this subject and the Home Secretary has made two speeches, one on 26th May and one on 15th July, in which he indicated that at that time the Government were not fully persuaded of the desirability or need of a committee of this kind. The first argument he used was that the scrutiny of delegated legislation by a committee as was recommended in the Donoughmore Report might be of arguable value in peace time but that in war time it would be too dilatory. There is not the slightest reason to suppose that the Committee would delay matters at all. In suitable cases the Order or Regulation would come into effect exactly as it does at the present time, but during the 40 days when it is open to this House to Pray against the regulation, there would be this special Committee whose duty it would be to scrutinise it.
Colonel Sir Charles McAndrew (Ayr and Bute, Northern)
Lord Donoughmore suggested a Standing Committee, on which the minimum number is 30 Members. Does not the hon. Member think that would be much too big?
§ Mr. Molson
I am not following in all details the Donoughmore Report, and the exact size of the Committee would naturally be a matter for the decision of this House if we agreed upon the principle. The Home Secretary said on 26th May:The House has delegated to the Government complete legislative power over a certain field, subject to certain Parliamentary checks. … You delegate or you do not … the legislative power is delegated and it is important that either the House or the Government shall be clearly responsible."—[OFFICTAL REPORT, 26th May, 1943; Vol. 389, c. 1655–6.]Again I reply to my right hon. Friend that the setting up of this Committee would not in any way affect the relative responsibilities of the Government and of the Legislature. It would only mean that machinery would be set up to do effectively what we are supposed to be doing at the present time. On 15th July my 207 right hon. Friend was replying to some arguments which I had put forward. I had given some examples from past legislation of how the new system might be expected to work. He called them precedents and argued that they were not precedents at all. I would prefer to call them analogies. Perhaps I may be allowed to argue that in point of fact they really have a very close bearing upon what we are asking for to-day.
The first example is the Ministry of Transport Act, 1919. Under Section 29 of that Act there were certain Orders which admittedly were only capable of coming into effect during the first two years when that Act was on the Statute Book, and the Minister had certain powers. It was provided that:The Minister on publication of notice of a proposal to make an Order under Paragraph r of Sub-section (1) of Section 3 shall send the Chairman of Committees of the House of Lords and the Chairman of Ways and Means of the House of Commons … and if such Chairman reports to the Minister that he is of the opinion that the proposals of the Draft Order are of such a character or magnitude that they ought not to be proceeded with without the authority of Parliament, the Minister shall not make the Order unless or until the Draft Order has been approved by Resolution.The next example I would quote is Standing Order 212 of the House of Lords, which provides:At the commencement of every Session, a Standing Committee shall be appointed to which all Special Orders shall stand referred. The expression 'Special Order' means any Order in Council, Departmental Order, Rule, Regulation, Scheme or other similar instrument … presented to or laid in draft before the House where an affirmative is required before the Order or any part thereof becomes effective.The right hon. Gentleman cannot say that that Standing Order of the House of Lords has seriously handicapped him. It has been used on occasions and it is certainly a valuable constitutional safeguard. It is, I think, in one important respect misconceived. It applies to those Orders which have to be laid before the House. What my hon. Friends and I are chiefly concerned about are those Orders which come into effect automatically without being laid before the House unless a Prayer is carried, in which case they are annulled. Therefore, our Motion is so drafted that all those Measures which under the present system are apt to slip through without 208 being scrutinised by anyone in particular shall be scrutinised by the Select Committee.
In the third place there is the case of ecclesiastical Measures. The Home Secretary said that they were not relevant to this proposal. I venture to think that that procedure is extremely relevant. Largely because of the pressure upon Parliamentary time, this House, under the Enabling Act, 1919, delegated the power of legislating for the Church of England to the Church Assembly. When such a Measure is passed in the Church Assembly it does not come into effect until it has been approved by this House, although this House has no power of amending the Measure. In 1919 Parliament did not say with the Home Secretary "You delegate or you do not delegate." No, it set up a special Ecclesiastical Committee charged with the express responsibility to report to this House with regard to any Measure passed by the Assembly what the effect would be upon His Majesty's subjects:After considering the Measure the Committee shall draft a Report thereon stating the nature and legal effect of the Measure and its views as to the expediency thereof, especially with relation to the constitutional rights of all His Majesty's subjects.We had an example of this procedure as recently as 10th March. A Measure was passed by the Church Assembly with reference to livings in the Church of England which did affect the parson's freehold, and my hon. and learned Friend the Member for Warrington (Mr. Goldie) opposed the approval of that Measure on the ground that it not only affected the parson's freehold but would injuriously affect the rights of many parsons now serving as chaplains with His Majesty's Forces. A Report had been presented to this House by the Ecclesiastical Committee, which, after considering those points, recommended that the Measure should be approved. I am confident that the House would not have passed that Measure as easily as it did, on a Friday, if it had not known that the Measure had been carefully scrutinised in a judicial spirit by a Select Committee of this House.
Among those who have given special attention to the matter of delegated legislation there are many who think that we should rely upon the courts to protect the people's liberty. I venture to think that that is an error. The courts are only suited for the purpose of deter- 209 mining what is legal and what is illegal. What we are primarily concerned about are Orders and Regulations issued by the Executive which are perfectly lucid and legal but which are bureaucratic, vexations, embarrassing and harassing to the subject. Whether or not this House should approve an Order of that kind is a political decision which only a Legislature is competent to take. It is at this point that I venture to differ from the Report, entitled "The State and Personal Liberty," issued by the Liberal National Council. They complain thatcases like the Point of Ayr Collieries … have established that the courts are, or … consider themselves to be quite powerless to inquire into the Minister's reasons for taking control of an undertaking or for requisitioning property.I must say frankly that when a Minister of the Crown has exercised his executive discretion to take over a colliery that seems to me to be essentially a matter, for which he should be held accountable by this House and not by any court of law. It is manifestly impossible for any judge to consider whether the Minister, having all the facts of the case in his mind, exercised his discretion in a reasonable way. That is a matter essentially for this House, and it will be within the recollection of hon. Members that the taking over of the Point of Ayr Collieries was debated in this House. That is why we are concentrating at the present time on the securing by this House of control over delegated legislation.
§ Mr. Silverman
I follow the hon. Member's point very well, but would he say how he applies the last observation to the principle, which he stated earlier in his speech, that judicial questions should be determined judicially? If you have the exercise by the Minister of powers which he has had delegated to him by the House in a particular case, and the question is whether in that case the Minister has acted fairly, in accordance with his powers, or unfairly or unreasonably, is not that a judicial question which you cannot determine fairly in a political Assembly where votes are cast on general political considerations and not within the narrow limits of a particular case?
§ Mr. Molson
When I used the word "judicial," I only meant that in this House and in a Select Committee appointed by this House, the evidence 210 on both sides should be weighed in a fair and reasonable manner. In some quarters this Motion has been criticised on the ground that it is too moderate, but we have tried to meet all the points of substance which were made in the Home Secretary's speeches on the two previous occasions. In the first place, we have not asked for this Committee to have any executive power. In the second place, we have not asked for it to have any delaying power. We ask only that it should report to this House what it considers to be any Order or Regulation which is deserving of the special attention of this House. In the third place, we have not proposed that it should have power to send for persons or papers. We did feel that there was substance in the Home Secretary's argument that in the middle of a war it was not reasonable to ask that Ministers and busy civil servants should appear before the Committee unless they wished to do so and, moreover, we did not really think that those powers were necessary to enable the Committee to do its work. It is for those reasons that I should have been unable to support—had it been your intention, Mr. Speaker, to call it—the Amendment standing in the name of my hon. Friend the Member for Daventry (Mr. Manningham-Buller). We do not desire that this Committee should have any power to delay the coming into effect of a Regulation, and it would, as far as my reading goes, be a complete breach of precedent if any Committee of this House were given the power to interfere with the discretion of the Executive and to require that any order issued should be suspended until this House had passed judgment upon it.
Moderate as our Motion is in many ways, it does, in one respect, perhaps, go somewhat beyond the recommendations of the Donoughmore Committee. The Donoughmore Committee said that Committee would not report on the merits of the Regulation or Rule, but would report upon the specified seven points. That, of course, had led to debate as to what is the meaning of the merits of an Order, and it is extremely difficult to draw a clear distinction between the merits of an Order and its form, but there might well be Orders issued by the Government, perfectly legal and lucid, but which were, in the opinion of the Committee, of such importance that the attention of the House should be drawn to them. On 26th May 211 last the hon. Member for Nelson and Colne (Mr. Silverman) referred to Regulation 47A under which a seaman who had already been punished under the Merchant Shipping Act, could be tried and punished a second time for the same offence under a certain Regulation. That is just the sort of case where a Select Committee of this kind would certainly say that the attention of the House was warranted.
It is in matters of this- kind that we, as Members of Parliament, must represent the point of view of our constituents. Increasingly, we are legislating into the very homes of the people. We are doing so with benevolent intent, and, because we are in touch with our constituents, we know, or think we know, how far they wish us to go. But it is a very different matter if we are to allow civil servants, under delegated powers, to carry that same legislation further, and it is obviously most desirable that we should exercise a strict control over their tireless zeal and efficiency. We must, indeed, speak for the toad under the administrative harrow and be on the look-out for Regulations which, highly convenient to the bureaucrats, will be regarded as intolerably burdensome to the people. This is a case, in my submission, where we require to have a new piece of machinery in order to maintain the effective control of the House of Commons over what is taking place.
There was, recently, a case which came before the courts where one unhappy man was fined for giving his own daughter two lbs. of pork which he had obtained from one of his own pigs and, as the judge observed on that occasion, it was probably the first case of its kind in the history of this country where any father had been punished for feeding one of his own children. On another occasion, under another of these Orders, the producer of a doughnut sprinkled sugar on the top of the doughnut. He could quite legally have put the sugar into the admixture from which he made the doughnut, but to sprinkle it was an offence, and he was duly tried and convicted of that offence. Things of that kind make it essential for us to maintain some measure of control over all this delegated legislation. We now have two fat volumes of these Orders and Regulations issued year by year, and it is really impossible for this 212 House, with all its other duties, to scrutinise every one of these Orders. It is only a piece of machinery to appoint a Select Committee of this House to scrutinise them before they are allowed to become permanent legislation.
The Home Secretary is an able administrator, but even he, on one or two occasions, has found himself a little out of touch with public opinion. But because he showed courage, this House has supported him on each occasion. If he is a good House of Commons man, I believe my right hon. Friend will welcome the proposals that we are making to-day. It is desirable that in these matters we should be able to express the point of view of our constituents. It is desirable that this House should retain its control over legislation. It is desirable that we should share with the executive the responsibility for what is being done. If the right hon. Gentleman is a good democrat and a shrewd administrator, I believe he will realise that in these proposals we are not weakening, but rather strengthening, the Executive because we hope thereby to make sure that it never gets out of touch with public opinion and with the feeling of this House.
§ Commander Bower (Cleveland)
I beg to second the Motion.
This, I hope, will be, largely, a backbenchers' field day. I do not think it will be any the worse for that, because I believe that this Debate reflects the opinion, which is becoming very widely held all over the country, that this matter wants looking into. The Motion, with over 140 signatures, is supported by Members of all parties, although it is, perhaps, natural that the majority of the signatures are those of Members of the party to which I belong, which has always considered the maintenance of our ancient institutions one of its most important principles. This Motion is the result of a cloud no bigger than a man's hand, which arose into the political atmosphere about three years ago when a small handful of Members, of whom I am glad to say I was one, decided that this war-time spate of Rules, Orders and Regulations was clearly becoming something of a menace to the liberties of our people. At first, it was no easy task for those who shouldered the burden of looking at Regulations such as 18AA under which political organisations 213 can be banned, 18B, under which the Habeas Corpus Act is, to all intents and purposes, suspended, and 2 (d), that sword of Damocles which hangs over the heads of our independent Press. We found that our activities were far from popular in many quarters and we were even warned, quite seriously, by our friends that if we went on with this sort of thing, we should run the danger of identifying ourselves with Fascist sympathies. In certain irresponsible quarters, that suggestion has actually been made, but in respectable quarters, our work has received recognition, and we hope to find some reward in the form of a concession from the Government to-day.
The hon. Member for The High Peak (Mr. Molson) has said that delegated legislation is not new, and it is not delegated legislation, as such, to which we object, because the growing pre-occupation of the Government with the lives of the people makes a lot of it quite inevitable and even desirable. This House cannot possibly work out all the details of big legislative measures, but I think the House will agree that we must always have in mind one important fact and that is that the practice of delegating legislation does, and must, entail a partial abandonment by Parliament of its legislative functions and, indeed, of its supremacy. It goes even farther than that. It does appear that Parliament, in the course of delegating wide powers to Ministers, has, from time to time, delegated to them and their subordinates power to deprive citizens of their access to the courts of law. We regard that as being a very serious matter which should receive attention from every Member of this House. As the Donoughmore Report, to which reference has already been made, and to which I shall refer later, says:Prima facie this involves an infringement of that rule of law which is 'a characteristic of the English Constitution.'That is on page 6, second paragraph.
It is obvious therefore that Parliament must have efficient machinery for supervising and controlling delegated legislation of this character. Our contention is that whereas the process of "laying" Orders was a perfectly right, proper and adequate safeguard in days when delegated legislation was the exception rather than the rule, to-day, when there is such 214 a mass of these Orders, it has become utterly inadequate, and it is physically impossible for the average Member to carry out what is his plain duty. In fact the process of Government by Rule has, for the moment, completely run away with us. With the rather haphazard habit so characteristic of the development of our Constitution it has grown, at first gradually, then rapidly, without any logical system, with the result that delegated powers now take the form of Rules, Regulations, Orders, Warrants, Minutes, Schemes, By-laws—the essential difference between these instruments, if any, being nowhere exactly specified. To the layman, at any rate, the political or legislative function of these different forms of Orders appears to be precisely the same. Throughout these instruments of delegated legislation, we find, again and again, different words being used to indicate the same meaning, and the same words being used to indicate different meanings, often according to the taste of the Department concerned.
Through the multiplicity of Orders there often arises the most appalling confusion through overlapping. Departmental draftsmen, no doubt, do their best, and I do not in any way wish to criticise them, but it is undeniable that the drafting of a great many of these Departmental Orders often leaves much to be desired, and is very far below the standard we expect, and get, from our Parliamentary draftsmen. The result is many diffuse and incomprehensible Orders, which even practised legal minds find it difficult to understand, while the general public, who are often liable to heavy penalties if they do not comply, cannot understand them at all.
I would like to give just one example of intolerable waste of time and delay which have recently occurred owing to a loosely drafted Order, which has apparently been differently interpreted by half-a-dozen different authorities. This is merely one example of many which have been sent to those of us who are known to have interested ourselves in these matters. At the beginning of this year the Transport Department of Glasgow Corporation wished to obtain 80 yards of blue cloth for various purposes. Accordingly, on 14th January the Department ordered 80 yards of blue cloth from Gourock Rope-work Co., Ltd. I will give particulars of 215 the correspondence which ensued. On 9th February the ropework company wrote asking for authorisation and suggesting that the Department should write to the Cotton Control, Manchester. On 14th February the Department wrote to the Ministry of Supply, Cotton Planning 'Department, Manchester, asking for a permit. On 18th February, Manchester replied:In this instance apply to Ministry of War Transport, London.On 19th February, the Department wrote to the Ministry of War Transport, London, who passed the letter on to the Ministry of Home Security, Glasgow. On 10th March, Gourock Ropework Company rather naturally wrote again asking urgently for a permit, as they had other clients for this material. On 13th March, the Ministry of Home Security, Glasgow—
§ The Secretary of State for the Home Department (Mr. Herbert Morrison)
I have not an office in Glasgow, as far as I know.
§ Commander Bower
I will show my right hon. Friend my authority afterwards. As I was saying, on 13th March the Department wrote saying that they could only deal with 20 yards of the cloth which was required for rescue vans, and that the remaining 60 yards required for other purposes should be reapplied for to the Ministry of War Transport, London. On 16th March, fresh applications were accordingly lodged with the Ministry of Home Security, Glasgow, and the Ministry of War Transport, London. On 18th March, the Ministry of Home Security issued a certificate for the 20 yards. On 20th March, this was sent to Gourock. On 21st March, Gourock Ropework Company replied saying that the certificate was not a permit, and was therefore useless, and advised writing to the Cotton Control, the people originally consulted nearly two months before. On 3rd April, Cotton Control replied saying that the Department should make their requirements known to the Ministry of War Transport, London.
On 5th April, the Department, faint but pursuing, wrote once more to the Ministry of War Transport, London. On the same day a postcard was received from the Ministry of War Transport, saying that 216 the Department's letter of 16th March had been forwarded to Edinburgh—this concerned the 60 yards portion. On 11th April, another postcard was received from the Ministry of War Transport saying that the Department's letter of 5th April had been forwarded to Palmerston Place, Manchester, concerning the 20 yards portion. This, of course, would have been all right except that Palmerston Place is not in Manchester, but in Edinburgh. That is how the situation rested after 3½ months of stern effort on the part of all concerned. That is just one example of something which is going on all over the country.
I turn now to the Committee on Ministers' Powers, commonly known as the Donoughmore Report, to which I have already briefly referred. This Committee, which reported in 1932, included among several hon. Members who are with us to-day the Chancellor of the Exchequer and the hon. Lady the Parliamentary Secretary to the Ministry of Home Security. It also included Mr. Harold Laski. This Report is a real mine of information on the subject of delegated legislation, and in my view it should be in the library of every one interested in constitutional practice. But after publication apparently, no notice whatever was taken of it, and when a few months ago I wished to study it, I found with difficulty one copy in the Library, and was informed by the Stationery Office that it was out of print. The Financial Secretary to the Treasury, however, came to the rescue, and a limited edition has now been reprinted.
In page 20, and following, the Report emphasises the essentially subordinate character of delegated legislation. Parliament, it says, is supreme, and its power to legislate is therefore unlimited. It can do the greatest things; it can do the smallest. The Report points out that Parliament has, in its time, provided for the payment of old age pensions, and for boiling the Bishop of Rochester's cook to death. In a footnote it explains that an Act of Henry VIII provided:… that the said Richard Rose shall be therefore boiled to death without having any advantage of his clergy.The Report then goes on to say that whereas it is a principle of our Constitution that whatever laws are passed by Parliament are binding as the law of the land on everybody, it is equally a principle of our Constitution that no one 217 may be deprived of his liberty or of his rights except in due course of law, that is, unless he has done something which the law says specifically shall have that effect. In the absence of a common law or statutory authority, "A" cannot be deprived of rights by an executive act of a Minister; and if the Minister claims to have made a Regulation entitling him to interfere with "A's" rights the courts can interfere to stop the Minister unless he can show by what authority he has made the Regulation in question. It follows, therefore, says the Report, that to safeguard the second of the two principles just mentioned, the precise limits of the law-making power which Parliament intends to confer on a Minister should always be defined in clear language in the Statute which confers it. This, in my view, is where we have too often gone wrong in some of our Statutes delegating wide powers.
It is essential to make a clear distinction between delegated legislation in time of peace and of war—not that the underlying principles are in any way affected, but because the people, and their watchdog, Parliament, are willing to put up with a great deal in time of war that they would not tolerate in time of peace. As the Prime Minister has said:Immense surrenders of their hard-won liberties have been voluntarily made by the British people in order, in time of war to serve better the cause of freedom and fair play. … Parliament stands, custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fulness when victory has crowned our exertions.The watchdog, Parliament, has on the whole been faithful during the period of the war—with moments of laxness and aberration. But the crux is really going to come with peace for—let us be quite frank—opinions differ very widely as to the extent to which delegated powers should be used after the war. If, as some suggest, there is to be an extension, then surely that makes it all the more necessary to appoint a Committee such as this Motion demands.
There are, of course, those who have the intention, if they get the chance, of effecting a revolutionary change in our entire social and economic system by means of Rules and Orders incapable of challenge in the courts, made under an Emergency Powers Act, which would be 218 passed through all its stages in one day immediately following a victory at a General Election. I think all my friends on this side will say that if this were done, it could lead only to a constitutional crisis of the gravest order. In fact, when my hon. Friend the Member for The High Peak talked about the toad under the harrow, I am a little bit more afraid of the toad under the Winchester. I see that Winchester is not very well represented to-day.
There are those—I believe the Home Secretary is one of them to judge by his pronouncements at Dundee, Bradford, and elsewhere—who desire to see a considerable extension of delegated legislation after the war. They are perfectly entitled to that view, but we are equally entitled to ask them how, if their ideas are to be brought into practice, they propose to safeguard the ancient liberties of our people which appear to be threatened. We are giving my right hon. Friend the opportunity to tell us to-day. The solution offered in our Motion to-day is, in our view, nothing more than an instalment. We offer a means, which seems to us reasonable, whereby the ordinary Member of Parliament who finds it a physical impossibility to carry out his plain duty of scrutinising the thousands of Rules, Orders and Regulations which now appear every year, can be assured, to some extent, as to which of them are harmless, and which affront, as many do now, the ancient traditional liberties of our people.
The Donoughmore Report recommends a Committee such as we ask for, but it goes rather further than we do in determining the grounds on which a Regulation shall be examined. These grounds do not altogether appeal to us for various reasons which I need not enter into now, but we do venture to hope that if the Government disagree with our proposal, they will bring forward some proposals of their own for coping with a situation which is rapidly becoming intolerable and bids fair to upset the delicate balance of the centuries old Parliamentary machine. We are all agreed that some delegation is absolutely necessary. Parliament must delegate, but it must not abdicate. To-day we in this country are shaking off the last shackles of economic slavery, a slavery which since the enclosures and the Industrial Revolution has been a very real thing to many of 219 our people. But in so doing we must not forget—The condition upon which God bath given liberty to man, is eternal vigilance; which condition, if he break, servitude is at once the consequence of his crime and the punishment of his guilt.We have, I think, been a little lax in this matter in letting a new threat to our freedom arise. Perhaps the error into which we have fallen has been best summed up by John Christopher Hob-house who, writing of Fox, used these very remarkable words:As most misery is caused by the pursuit of an abstract happiness, distinct from the occupations that make men happy, so most tyranny springs from the struggle for an abstract liberty, distinct from the laws and institutions that make men free.
§ Mr. John Wilmot (Kennington)
The matter which has been raised to-day, on the Motion of the hon. Member for The High Peak (Mr. Molson), is, in my view, of the utmost importance. How can we make our Parliament work, with a proper balance between action and control? I believe that upon finding the right answer to that problem, which was stated, in a most able and wise speech, by the mover, depends the whole future of Parliamentary democracy, of which we are the custodians. But we have to examine it very carefully. As soon as the European war is over, urgent action will fall to be taken to switch the whole war effort to the conquest of the remaining enemy. In this very complex and difficult task, affecting the lives of so many of our people, this House will have to play an active part. Unless there is to be a bewildering and dangerous interregnum, it must go forward to its work with terrific speed. When demobilisation begins, a truly formidable situation will confront Parliament. If the nation is to swing over rapidly, without disruption, from war to peace, our democratic system must work fast. The rapid solution of a whole range of major problems, which must be tackled simultaneously, because they all hang together, will be the price of the survival of our system. Food, work, homes, fair shares of what is still short, the organisation of export, the carrying on of the great projects in the White Papers and Reports, rebuilding the damaged cities, making the best use of our urban and rural land, organising the social security services and 220 carrying out a programme of public health—these will be the orders of the day of the Parliament of the victorious nation. To cover this ground while the armies are demobilising, we cannot afford to loiter, or to let the grass grow under our feet.
So, in considering, as, in my view, we should consider, how we should adjust our Parliamentary practice to the changing needs and the varying tasks, let us keep right in the front of our minds this essential truth: that Parliament is a means to an end, and that end is the service of the people. All our procedure must be adapted so that this great instrument is fitted to the job on hand. We realised this on the outbreak of war, when we equipped the Executive with the power of acting by Defence Regulation and Order. Without it, the astonishing changeover of our economic and social apparatus from peace to the prosecution of total war, could never have been made. I believe that it will stand to the eternal credit of Parliament that we realised that in time. It probably saved us from defeat. In the years ahead great changes of a like order, but of a very different purpose, will have to be carried through—great, far-reaching, and beneficent changes. Much preparation has already been done. The Education Bill, now well on its way, was the first big instalment of legislation.
But the subjects still waiting in the queue are many in number and complex in character—so complex that I doubt whether it would be possible to bring within the Clauses of the Bills direct authority for every action that would need to be taken. They are bound to be largely enabling Bills, giving direction and authority to Ministers and to local and other bodies and persons, to take the necessary steps and Acts to carry out the principles and policies upon which Parliament has decided. But, even were it possible to get it all into the Bill, that would surely have most undesirable results. Under delegated power, a Minister can make Orders in the light of circumstances. If circumstances change, if mistakes and omissions are made—as they are—he can amend and rectify by a subsequent Order, but if it is all in the Bill, he must come back to Parliament with an amending Bill, to take its place in the queue, and probably to get jostled out of it, while the anomalies remain. There would be no Parliamentary time. 221 Every Department, I am told, has Bills of this kind waiting in the pigeon-holes. They have been there for years, some for decades, waiting for Parliamentary time, while the old, obsolete laws clutter the ground. Too much detail in a Bill creates such congestion in Parliament that it stifles, rather than expands, the power of discussion and control. Hon. Members with longer experience than mine will remember better than I do that it was congestion that led to the Guillotine procedure. When the time allotted to a particular stage had elapsed, whole series of Clauses were carried through without any discussion at all. That, in my view, was a far more deadly instrument for crushing out Parliamentary discussion than the proper delegation of detail to Executive authority. So it seems to me that, unless we are prepared to meet the need for great and rapid change at the end of the war in the same way as we met it at the beginning, it will be years before all that is now clamouring to be done can be accomplished.
Let us look back over the years before the war, and think how many of these vast and complicated Measures which now lie before us are likely to get through, even if they could be drafted under the old system, in a House which, whatever the political complexion of the Government, may well have a large and active Opposition. We should find that Parliamentary procedure was a major obstacle to the carrying out of the declared will of the people. It would be no excuse to say that there was no Parliamentary time.
§ Mr. Keeling (Twickenham)
May I suggest that my hon. Friend is really beating a dead horse? There is no suggestion in the Motion, and there was no suggestion in either of the speeches made, that we should limit the power to delegate. That is a matter for the House to decide on each Bill which proposes to confer such power. What we are discussing is the exercise of such power.
§ Mr. Wilmot
Perhaps the hon. Member will allow me to discuss this matter in the way I think it should be discussed. It is a matter of great public importance, and the House has to look at it in all its bearings.
§ Lieut.-Colonel Dower (Penrith and Cockermouth)
If there is a big Opposition, is it not only right that that Opposi- 222 tion should have its opportunity of expressing the views of a large number of people in the country?
§ Mr. Wilmot
If the hon. and gallant Member will give me another two or three minutes, I shall come to that point. I think we may take it that the needs of the peace years, no less than those of the war, will require the continuation, and indeed the extension, of delegated powers. There is nothing in the principle which conflicts with the constitutional principles and the sovereignty of Parliament. Parliament has both the first and last words. Parliament gives and Parliament takes away; and it can take away at any time. Properly arranged delegation does not involve the loss of essential Parliamentary control. Why should it? It is surely no more than applying to the business of the nation the same principles of administration and organisation by which all other effective business management is carried on. The board of directors of a large corporation can properly control the undertaking only if it delegates the details and concentrates itself upon the principles and essentials. That does not mean that it has lost control; on the contrary, it is the means, and the only means, by which it can effectively retain control. It is the weak and incompetent board, which insists upon meddling with every day-to-day question of management. Such conduct can be trusted to run the enterprise into ruin. So, if we recognise, as I think we must, that, properly controlled, the use of delegated legislation is not only necessary but is a positive instrument for good, it is very wise to examine, as the mover suggested, whether the Parliamentary control which is an essential aspect of it needs to be strengthened or changed as suggested in the Motion.
§ Mr. McGovern (Glasgow, Shettleston)
On a point of Order. Is this really a Debate, or is it a day when Members come here to read prepared lectures? Is not this sort of procedure—by which the Motion is not really debated—undermining Parliament a great deal more than anything else?
§ Mr. Speaker
I noticed that the hon. Gentleman had notes, and he is quite entitled to read notes. I can again take this opportunity of saying that I do not like speeches which are read and which are, after all, against the Rules.
§ Mr. Wilmot
I think it would be wise, in the first place, to consider the powers that we have. They are not inconsiderable. The Defence Regulations can be annulled by a Prayer of either House, and such a Prayer is exempted Business. Many Statutory Rules and Orders are subject to affirmative or negative Resolutions. The other methods of Parliamentary control over the Executive have lost none of their terrors, and the Parliamentary Question and the Debate on the Adjournment are not inconsiderable guarantees of Parliamentary effectiveness. I was re-reading the other day a Debate which took place on this subject in this House about a year ago, and I was interested to read the claims then made by the hon. Member for South Croydon (Sir H. Williams) and others about the activities of the group of Private Members who had undertaken the task of scrutinising the Rules and Orders. Their efforts seem to have been very effective and to have had results. Nevertheless it is vitally important that Parliament should remain on the alert, eagerly watching to see that its functions or those of the courts are not usurped, while employing its time and energies to the best possible advantage.
There are those of us who are convinced that, in the period of transition and reconstruction which will soon confront us, more and not less delegated legislation will be required. I was interested to hear that the mover of the Motion agreed with that view. It is the view which my hon. Friends and I take, and, far from resenting, we welcome a Debate such as this to see whether it is possible to tighten up our Parliamentary control and provide a further guarantee against possible abuses, particularly in cases which affect the liberty of the subject and the freedom of the Press and of speech. We are convinced that it will not be in the interests either of Parliament or of our democratic system, nor will the nation, in any mood, be tolerant of it, that there should be a holding up of legislation, because of inability to solve questions of Parliamentary procedure. But it is equally important that the delegation of authority, as a necessary method, should not be discredited, and that there should be public confidence in it and in the effectiveness of Parliamentary scrutiny and control. I think that this was recognised by the Home Secretary in the speech which he made in 224 the Debate last year. He then announced a series of steps designed, at any rate, to meet the wishes of the House as then expressed—
§ Lieut.-Colonel Dower
On a point of Order. Must the House listen to an entire speech before we have any Debate?
§ Mr. Deputy-Speaker (Mr. Charles Williams)
There is a Rule of this House about reading speeches, and I think it would be a good thing if all hon. Members read that rule and followed it more.
§ Mr. Wilmot
These announcements which the Home Secretary made in his speech last year did provide a very important series of changes in the matter of the issue of Orders, and these changes should have had good results. But they were confined to Defence Regulations and to the Orders made under them, while the Motion, and to-day's Debate, cover a much wider field. We are now looking ahead to the sort of arrangements that will be necessary after the end of the European war. A specific proposal in the Motion is for a Select Committee to scrutinise all statutory Rules and Orders and other instruments of delegated legislation presented to Parliament. This suggestion of a scrutinising committee is, as the hon. Member explained, not a new one. The Donoughmore Committee itself recommended a Joint Committee of the two Houses. The whole object of the Donoughmore Committee's recommendation was to inform the House, in the one case, of the nature of legislative power and, on the other, of the general character of the Orders made, and it was emphasised that the Committee should not go into the merits of a Bill or Regulation.
An alternative suggestion was put forward by a number of hon. Members, including, I think, the hon. Member for The High Peak in the Debate last year, that there should be a Committee of Members to examine delegated legislation and report to the House, where necessary. There again, this Committee was not to be concerned with merits. I think that there is a very great deal to be said for a scrutinising committee of this kind, subject only to the overriding consideration that it would not cause delay or, what is also important, diminish the present powers of Members of Parliament. It would be necessary to avoid, 225 as is recognised, making heavy demands and taking up the time of Ministers and officials, and it would be essential that it should not concern itself with merits. But I do suggest that it is necessary to examine whether such a Committee would be able to carry out this work, without the power to have evidence from responsible persons and to obtain relevant information. I am inclined to think that, as the price of making it an effective piece of Parliamentary machinery, it should, within proper limits, be given those powers.
Would it not be very difficult for a body of Members of Parliament to deal with complicated Rules and Orders, unless they had the opportunity of obtaining explanations from the Departments concerned on what would be very technical questions? Such an unequal task might easily sap the energy and the enthusiasm of the Committee, or might lead them, quite inadvertently, to give unsound advice to the House. I am also doubtful whether it would be possible, from the point of view of making the Committee effective, or whether it would be wise, as the Motion wishes, to charge this Committee with the task of continuous examination of all the Rules and Orders of delegated legislation presented to Parliament. I wonder if the proposers really considered the vast volume of work which would fall to this Committee under such terms of reference. Would it not be possible to find some way, in advance, of distinguishing between those Rules and Orders which would require scrutiny, and those where the need is less great? Otherwise, is there not a danger that the Committee will be so overwhelmed that it will miss the very essentials of which notice should be taken? Particularly, I think it is important that the Committee should be free to give very special attention to those Orders which affect the liberty of the subject.
These are points which I think the Home Secretary might consider and with which I hope he will deal when he speaks on behalf of the Government. Subject to satisfactory assurances that the dangers and difficulties which have been mentioned are overcome, that the machinery is practical and efficient, that the duties of the proposed Committee are fairly and healthily discharged and that the rights of private Members are not 226 diminished, then the proposal in the Motion could be accepted by my hon. Friends in principle, and not least by those who, like myself, believe that the future must see a wide increase in the use of delegated legislation. We are anxious that those powers should be properly controlled, and that the safeguards against them should be such as to command public confidence, but this is subject to the overriding consideration that no delays must be occasioned by Parliamentary procedure which would hold up the work of government. It is for that reason that we could not accept the Amendment standing in the name of the hon. Member for Daventry (Mr. Manningham-Buller), but my hon. Friends and I trust that the House as a whole would reject any Amendment designed to put on the brakes.
In conclusion, I would say that I think it is paramount that we should so arrange our affairs in Parliament that we may render in the years ahead the services to the nation which it will demand and which it has a right to expect. Released at last from the strain and struggle, our people will be in no mood to await the upshot of interminable Debates—
§ Mr. Pickthorn (Cambridge University)
If the hon. Member reads a speech, he should read it properly.
§ Mr. Pickthorn
If the hon. Member challenges me, I will draw the attention of the Chair to the fact that the hon. Member appears to be reading his speech, contrary to the Rules of Order.
§ Mr. Deputy-Speaker
I have already told the hon. Member that there is a Rule against reading speeches, and it is rude to the House to continue reading.
§ Mr. Wilmot
I am sorry, Sir. I was referring to notes on what is, after all, a rather technical and complicated subject, but I apologise. I was saying that it is of paramount importance that this House should not be hampered by procedure which prevents it from doing its work, and that it will be no answer to the returning soldier, who is looking for a job and trying to find a house, that there has been no Parliamentary time.
§ Colonel Sir Charles MacAndrew (Ayr and Bute (Northern)
Almost exactly a year ago, when we had a Debate on this subject, I intervened and said that the present method of putting down a Prayer, though perhaps unsatisfactory, was the best way of dealing with matters of this kind. I have not gone far from that position now, though I think some change should be tried. During the last year I have been taking an interest in the procedure in another place, and I think that the Special Orders Committee in another place has a very useful function. Although it has a large number of Members on the Committee—36, I see, when it was set up at the beginning of this Session—I have always felt that a small committee is the body that should concern itself with these Rules and Orders. A Standing Committee would be much too big, and I suggest a small committee. I further suggest to the Home Secretary the possibility of a Joint Committee. There is in today's "The Times" a letter from a late Member of this House, Lord Soulbury, dealing, to some extent, with this problem. Apparently, in the House of Lords, it has worked well for a considerable time.
The hon. Member for The High Peak (Mr. Molson) said there would be difficulty in distinguishing between the merits of Orders, but the way it works in another place, I understand, is that a representative from the Department is sent over to explain how the thing is going to work, and this Committee, if they think fit, refer it for further consideration by the House. I think that if something of that kind was done it would deal with the enormous mass of Orders and Regulations put through, and I think, in addition, that it would be a deterrent on the Department pushing things which they think they might get through unobserved. I would also suggest that counsel to Mr. Speaker and counsel to the Lord Chancellor should assist in the same way as they assist in the case of Private Bills. They would be in the habit of dealing with these things, and they should be considered by them. This is worth trying, and if it does not work we shall be no worse off than we are to-day. They are accustomed to doing this in another place, and it would be well worth our trying it. There must be power to send for persons and to get the Departments to explain things.
§ Mr. Burgin (Luton)
I apologise to the two hon. Members who moved and seconded this Motion for not having been in my place when the Motion was called. I was a member of the original Donoughmore Committee and consequently this subject is one of rather special interest to me. For several months it has been my lot to travel somewhat extensively in military-controlled countries of Latin America. Legislation in a country of that kind under military dictatorship is of the simplest character; something is prohibited and there are consequences of a penal character. It is because, in a liberty-loving country, it is recognised that all legislation is compulsion that this House takes such very great care in dealing with legislation. As is obvious, legislation of an ordinary character is proposed in a manner in which the House can express its opinion upon the proposal as a matter of principle. And then the method of carrying that proposal into effect is discussed in detail, word for word, in Committee, and, what is so very important is, that hon. Members in touch with their constituencies, with their ears close to the ground and receiving communications on matters of fact, are able to bring these to the notice of the Government Department concerned in the discussions in Committee. Many provisions are altered in consequence, not because they were wrong originally but because facts were brought to the notice of the Committee, which saw that the words would go rather beyond what was intended by the legislation.
I ask the House to remember that in delegated legislation, with which we are dealing to-day, in every instance where a Government Department has intentionally set out to go rather further than the case required, there must be a great number of cases where the wording is, in fact, inapt to produce the result required. In legislation, this House has an opportunity of discussing the principle and then of dealing with the wording to carry that principle into effect, but with delegated legislation neither the principle aimed at nor the actual wording comes to the notice of the House at all until the Regulation has been made. The whole matter is a fait accompli, the document is on the Table of the House, and the remedy is a Prayer, if it can be raised, if it can be effected in time, if Parliamen- 229 tary time can be found, and there are a number of other contingencies.
The point I wish to bring out is that, in connection with any matter affecting liberty, the real truth is that there is no effective sanction for the breach of a rule of good behaviour. Let me illustrate it. Where one is dealing with neighbours, personal contacts in a whole realm of human affairs, there are established regulations of good behaviour, but, if one of these regulations of good behaviour is broken by an individual, under our present rules of human society it is very hard to find an effective sanction to deal with it. We all know of instances which occur to us in our ordinary daily lives. Why do I mention that rule of good behaviour? It is because, in delegated legislation, the Donoughmore Committee laid down canons of good behaviour. These canons of good behaviour are known to all the Government Departments. They are followed in greater or less degree according to the respect for the canons of good behaviour that the advisers of the particular offices themselves possess.
Consider how these matters arise. Government Departments, although members of a central governing body, are to a very large extent autonomous institutions. A Department finds it is necessary to secure some Order, to pass some Regulation to give itself some power. The Minister sanctions the necessary preparatory steps and the adviser to the Department brings forward a suggested draft of what, in his judgment, would be apt to carry the Regulation into effect. That will be discussed by the officials of the Department. In all probability, it will be brought before a committee of several Departments, upon which my right hon. and learned Friend the Attorney-General will no doubt be represented. The draft Regulation or draft Order will be subjected to some amount of discussion among heads of Departments and their representatives, all autonomous, all desiring some similar powers in their own particular line of administration, and all, therefore, more or less benevolently interested in what other Ministers and other Departments secure. The matter then may or may not be referred to Parliamentary draftsmen. A draft is prepared, and when the parties find that there is no particular objection to any particular wording, it will ultimately emerge as an 230 Order. At no stage during that preliminary method of discussion—which is what in fact happens—has that Regulation been brought up against its practical application, except to such extent as there may be wise administrators inside the Department who foresee possible dangers.
The experience of a great many of us is that, very often a Regulation, made in all good faith for a purpose which would secure the privileges of this House, is framed in words which, besides achieving that object, achieve a great deal else not asked for by the Department and not necessarily foreseen, and may have very serious consequences upon the liberty of the individual. Whether or not a Government Department follows the canons of good behaviour laid down by the Donoughmore Committee is a matter for the Department. There is no sanction to compel adherence to the canons of good behaviour. Therefore, I would have hoped that the Government would have been able to accept the Motion moved to-day as a minimum. I entirely agree with the hon. Member for Kennington (Mr. Wilmot) who has said that there must be delegated legislation. Of course there must. That is not the point. It is impossible for Parliament to attend both to the principle and to the tiniest detail of every matter. One of the great things we have to educate the public to understand is that the running of a large country is an extraordinarily intricate matter of administration and that there must be great delegation if there is to be speed, which, as the hon. Member has so rightly said, is necessary. But if we are to have this outpouring of delegated authority from Parliament to Minister and then in the form of Regulations, surely it is a very little to ask that there should be some means by which these Regulations which appear to be more likely to be capable of inflicting harm on any individual should be subject to some special scrutiny. That, I understand, from the hon. Member who moved the Motion, is what the object of this Committee is to be. I agree with the hon. Member for Kennington that the Committee will have a very busy time. I myself foresee an extension of this delegated legislation. I believe that inside the Government Departments the Regulations represent a perfect method of drafting. They are honest attempts 231 to keep within the limits of what these Regulations should and should not do. I believe that to be the sincere object, but the inadequacy of actual practical understanding of life is a serious detriment to the carrying out of those rules of good behaviour. I should have thought that the Government would have welcomed the assistance of a Committee of this House that called attention to the possibilities of danger lurking beneath the surface of the wording of certain provisions in certain of the drafts which come before the House for consideration.
I do not think it necesary to detain the House by giving details of any particular Orders which have fallen into disrepute or which have caused particular troubles in local areas, but no one can be a Member for a large industrial community and see the Orders dealing with man-power, small shopkeepers, retail businesses, and with the removal of manufacture from one address to another, without being made conscious a dozen times a day of the fact that there are provisions in these Orders which could never have been intended by the draftsmen. Legislation, being compulsion, must at all times be surrounded by proper safeguards. If we delegate the power to compel, we must also see that an adequate safeguard is provided. I would have thought that the Motion was an absolute minimum, and I hope that the Government will see their way to accept it.
§ Commander King-Hall (Ormskirk)
I am afraid that when one approaches a Debate of the rather complicated nature and of the character of this Debate one often feels obliged to say that one does, not propose to follow the previous speaker in any detail. But in this case I am in a happier position, as, while listening to the right hon. Gentleman the Member for Luton (Mr. Burgin) I recalled some evidence which I read in the Report of the Select Committee on Procedure on Public Business in 1931. To Question 2,151 I find a reply which, I think, supports most exactly—but from a slightly different angle—the main thesis of the argument of my right hon. Friend.
The witness who was then being examined was Mr. E. F. Wise, who had the great advantage from the point of view of the Committee of having been 232 himself a most distinguished civil servant, though he was at that time a Member of the House. His friends will recollect him as a man of singular intellectual brilliance. He was asked what he thought about this business of delegated legislation from his experience on the administrative side, and he used these words, which I think probably would be accurate if used by members of the Departments to-day. Even in those days Orders and Regulations were not being given the attention by the House which many hon. Members thought they should have, and Mr. Wise said:It is not very satisfactory from the administrative side either, because it puts the Department in a position to be criticised and shot at without the protection which some real consideration and approval of those Regulations by the House would give it.That, Sir, I think is an important point which, so far as I am aware, has not been brought out in this Debate. He went on to say:I do not think it is at all a good thing for a Department or for a Minister to have powers which the House of Commons regards, rightly, with jealousy, and the public with suspicion;"—this is the important point which brings out what was said as to the difficulty of foreseeing precisely what is going to arise—… I am bound to say this, that it is quite impossible in my experience to foresee exactly what will he the new social relations created by bringing into operation a very big and complicated Act of this description"—he was referring to one of the Insurance Acts of the time——the sort of Act with which the House is faced so often now—until the Act has actually started and people have begun to sort themselves out; and therefore, short of amending legislation in this House, which would make the bringing into operation of such Acts nearly impossible, it is necessary to deal with it by Regulations.Then he went on to say that the particular solution which he would advocate at that time was the creation of a number of Committees of this House linked up to the different Departments. The House will recollect that as I have been quoting from the Select Committee of 1931, we are discussing to-day something which is no new subject; but I agree very much with the opening words of the speech made by my hon. Friend above the Gangway that we could hardly be discussing a 233 more important subject at the present time than this question of procedure. We are really discussing one aspect of the whole question of procedure of the House, and it is a question which has cropped up from time to time on the Floor of this House for at least the past 100 years. The House has been continually examining its procedure in order to find out whether this procedure at any given time was adequate for the purpose of its functions, and I submit to hon. Members that perhaps the most important of all those examinations was the Select Committee which sat in 1931. It was called the Select Committee on Procedure on Public Business. Now the minutes of evidence of that Committee make rather a formidable mountain of stuff—about 600 pages—but they are absolutely replete with valuable fact and opinion about the subject we are discussing to-day. I suggest that anyone who will take the trouble to read through the minutes of evidence of that Committee will find it very helpful. It received evidence from some 30 persons, such as the present Prime Minister, the right hon. Member for Carnarvon Boroughs (Mr. Lloyd George)—who, I recollect, in one of his observations, said that speaking then with 40years' experience in the House he had come to the conclusion that the House had no real control whatsoever over the administrative action of the Executive and it was a complete fiction to suppose that it had. It also included amongst the 30people examined my Noble Friend the Member for Horsham (Earl Winterton), Mr. Ramsay Macdonald who was then Prime Minister, Sir Austen Chamberlain, Lord Samuel, and a great many distinguished Parliamentarians.
What interested me on reading through this evidence was to realise the fundamental difference of opinion which emerged from the evidence of these very distinguished and experienced Parliamentarians. There was a clear difference between those who regarded the prime function of this House as being the great Debating Assembly, the great forum in which the big issues of the day were discussed, much as they were particularly in the 18th century, the forum where public opinion was ventilated. One group obviously put that function of the House first. There was a second category of persons who put that second and regarded 234 the prime function of the House to be the control over administration and generally keeping a check on the activities of the Executive.
I do not think it would be in Order, nor would the House wish me to argue those two cases, but what is important from the point of view of our present Debate is that it is indeed obvious if one studies these minutes, and the witnesses themselves said that a procedure of the House which is suitable for grand debate is unsuitable for the purposes of keeping control over the Executive, and vice versa. Therefore, a great deal of the difficulty which they thought they were in at that time—which I think we are in to-day—is that our procedure is an attempt to get the best of both worlds. I believe that, unsatisfactory as it is supposed to be to try to get the best of both worlds, the House of Commons is not going to refuse to continue striving to get the best of both worlds; in fact, the House of Commons is not going to say, "We admit the whole thing has got so complicated that we cannot possibly pursue the Executive into the paper labyrinth they have erected around themselves, so we must allow them to go in there and hope for the best. We will confine ourselves solely to the grand debate." I may say, having studied the procedure of both Houses, that in the past 18 months the other place has to some extent "pinched," if I may use a colloquialism, the privilege of this grand debate.
I see you are getting restive, Mr. Deputy-Speaker, so I will get back into Order at once. I will only say that I think the House of Commons will insist on wishing to do two things: it will wish to debate the large issues—and I think the White Paper system is the way we should do that—but, at the same time, the House is not prepared—and I think probably very rightly—to abandon its ancient rights of endeavouring to keep control over the actions of the Executive, in particular as they affect the individual. What I think we must bear in mind—it comes out most strongly from reading this evidence—is that procedure is a means to an end, and the end is a function of some kind. Therefore, we must make it clear to what extent we want to balance up this function of grand debate and examination of detail.
235 I support this Motion, moved so ably if I may say so by my hon. Friend the Member for The High Peak (Mr. Molson) and seconded in a very technical and interesting speech by my hon. and gallant Friend the Member for Cleveland (Commander Bower), because I think it makes a move in the direction of improving procedure from the point of view of supervision. I tell my hon. Friend the Member for The High Peak, and the House, frankly, that I do not think he is going to be able to stop where this Motion suggests we should go. But we have to do these things gradually, and I hope the Government will accept this Motion or something like it, in order that we may experiment and see whether or not it is advisable to move on from the point to which my hon. Friend and his friends who support the Motion want us to get, to the further point which has so often been discussed, that there should be committees of various kinds linked up specifically on a functional basis to the different Departments. I should deprecate that at this stage, until we have carried out some experiments with the Committee which is suggested in this Motion to-day.
There is one point I would venture to make before I sit down. I feel strongly that what I have previously referred to in this House as the Public Relations of Parliament is a subject to which the House will have to give an increasing amount of attention. It is absolutely vital, if Parliament is to continue to enjoy the high esteem in the minds of the people that it has done for centuries, that the outside public should feel that this House is alive and linked up with the things which people are talking about in their own homes, and the Regulations which affect them. I think that if the Government will accept this Motion, or give us some concession on these lines, it will have two good effects. First of all, the creation of such a Committee will ensure a discussion of some of these controversial and difficult Regulations, which will obtain publicity and will show that the House of Commons is doing its job as a watch dog. I also think—for various reasons with which I will not detain the House as they are rather technical matters—that the existence of this Committee, and the delegation of work which the House should be doing and which the 236 House at present is attempting to do through Prayers in a rather spasmodic manner, will have an additional advantage, in that it will release a certain amount of time, thought and activity for this other extremely important business of the House—general debate and discussion on the great affairs of the day.
Therefore, I support the Motion on two grounds; first, for its immediate advantage and purpose in dealing with delegated legislation and, secondly, because I believe it to be a step towards modernisation. It is only a small step but I think the House in the next few years may have to take some big steps in the way of altering its procedure. However, though it is a small step forward in the general modernisation and improvement of procedure, it may also enable the House of Commons in its debating aspect to do its duty more efficiently in that respect.
§ Mr. McGovern (Glasgow, Shettleston)
I have listened to some of the speeches that have been made to-day, and I must say that I find myself largely in agreement with the efforts made by the hon. Members who have brought forward this Motion. I think they are doing a public service in drawing attention to the fact that delegated legislation and Regulations are being very extensively used during the period of this war, not only for the purpose of conducting the war efficiently against the enemy but very often to give the Executive more and more power over the average citizen. I am all for speed in legislation but I do not want speed based on the tommy gun or the prison cell; I want speed based on the quickening of the pulse, the mind, and the State, by the stimulation of the electorate of this country when they feel that ordinary parties are not going ahead speedily enough in the ordinary sphere of social legislation. But if this growing tendency to give the Executive greater and greater power over the individual is to be proceeded with, then I say the nation has to beware of where we are going.
At the present moment we are seeing the speeding-up of legislation and along with that, in the case of the Continental Powers, has gone the complete elimination of Parliamentary government and the voice of the people. If we encourage putting delegated legislation into the hands of an Executive and of civil servants, then we shall find ourselves travelling the same 237 road. Where a man's livelihood or his liberty is at stake, I want the most minute examination of the legislation and Regulations proposed. I want examination of the proposals made by the Executive, and I am in full and hearty agreement with the proposal that a Committee of this House should study and consider any legislation that is proposed. A large number of Members are not attending Parliament, and those who do attend are not paying attention to the legislation proposed. As a substitute for the voting down by the power machine in the Lobbies we should have a reasoned examination of all proposals by a well informed Committee of this House, which would act as watch-dogs. At election time we fight on party issues and party policies, but very often these are not completely accepted by the nation. You may get to the stage where you have a small majority party in office and a powerful minority which has to be listened to, and it may be that after the election the complete policy of the ruling party has to be discarded in favour of a compromise more in accord with the mind and mood of the nation as it was during the time of the election. Therefore, it is up to the House to be careful about entrusting power to the Executive.
We have seen a growing tendency to have rule by Regulation and Order. We have been told by an hon. Member on the Front Opposition Bench that if a Regulation is passed all a Member need do is to pray against it and raise the matter in the House. All honour to the men who watch these things and bring Prayers forward, but suppose a Member does this. The power machine says "You will be driven out of public life because you dare to be the watch-dog of the nation." Further, this growth of power is being given to outside bodies. We saw, in connection with a recent Regulation, that the T.U.C. were the determining body as to what should be passed, over the heads of Members of this House. That is not Parliamentary government. That is shirking Parliamentary government and the duty of Members in this House. We have no right to allow these large trusts to have such power. The masters' federation and the T.U.C. are becoming combines that are prepared to bludgeon down their own members according to the desire of the Executive, with whom they temporarily share control 238 of the nation. I am not for delegating that power. I would go out completely from public life rather than put the destiny of my voice and vote into the hands of any machine that will not pay any heed to the interests of this nation. I will be subservient neither to any Executive nor power that seeks to dominate our political parties.
I have an abhorrence of the methods which are being used to-day, and which are being steadily developed. For instance, there are tens of thousands of small business people who, purely by chance, are not in prison. They are expected to know all the Regulations and Orders which have been passed by this House. I met a sheriff the other day in Scotland and he said to me, "What does Parliament intend to do about it? Are you aware that up to now 868 Orders and Regulations have been published? My room is strewn with these documents and I, as a lawyer, have to try to understand them. Then I get a poor uneducated person in the dock, afraid almost to speak because he feels that the Gestapo has a hold on him, and he is expected to know the law. I say to my business friends at the end of each week, 'Are you still free?'" It is not the large business people, who have their legal advisers to help them, but the small men who are suffering. They are breaking the law every day without knowing that they are doing so. They want to be decent citizens and play their part in the life of the country, but they are amazed and staggered at what is going on. They say "Are we gradually getting to the state of the German race and the other people we are fighting and condemning?"
The development of this procedure by Regulation and Order can be argued by the partisans on both sides. Members of the Labour Party say "We must have speedy government. When we get a majority we must be able to marshal and drive everybody into our own pen." Well, I have not been aware of anything in the minds of Transport House or the Carlton Club that would drive me along that avenue and make me believe that they were the custodians of the rights and liberties of the people of this country. We must get away from the idea that if we get power or majority we have to drive the rest of the nation along the way which we decide is the way for them to go. In spite 239 of the powerful Conservative and Labour Parties there is a community in between which has to be considered. Of course, it is unfortunate from the party point of view that that community should require to be considered. But these people have the power to make and unmake Governments and if you drive them too far they will revolt. The British nation is tolerant and patient in its weighing up of policies and men; it will suffer betrayals and make excuses for betrayals, and what is amazing to me is that it will go on doing so. But there comes a time when betrayal will no longer suffice. It is true that after this war there must be a speeding up of Parliamentary legislation and action to meet the requirements of the citizens who have borne the brunt of the struggle, but Parliament must be very careful to see that it travels along the right road.
There are individuals and one or two officials who say "We will put so and so into prison because he is a nuisance," and it is done. If a Member goes to the Home Secretary or his Under-Secretary, or to an official, and says, "What crime has been committed?" it is not divulged. Yet the man may be put into prison on a false assumption or on anonymous letters that may be quite untrue. If a Member of Parliament brings a case forward he is not at liberty to discuss what the man is charged with. Further, an advisory committee may say "Release the man," but the Home Secretary may say "No." There must be care in these matters. I would rather take two steps than one false step. Whether it be small private interests or anybody else whose life and well-being is likely to be affected, no drastic action should be taken unless there is an examination of their rights and liberties. I claim to be a Socialist, not a totalitarian Socialist but a libertarian Socialist, who is all for reason as against brute force and will resist such force, whether it is for the purpose of restraining men in prison or whether it comes through Act of Parliament, Regulation or Order. As I have said, I find myself in agreement with the proposal to set up a Select Committee, because if Parliament is to continue there must be changes and Parliamentary government must be speeded up. This can only be done by letting the large number of unemployed Members of this House share in the responsibility and 240 power of a democratic nation. [HON. MEMBERS: "Make them come."] Give to these Members the work of examining the proposals that come forward. I believe in defending liberty, and the only way we can defend and perpetuate Parliamentary democracy is to give to the citizens of this country that to which they are justly entitled.
§ Captain Duncan (Kensington, North)
My hon. Friend the Member for The High Peak (Mr. Molson) will be delighted, as I am sure the House will too, with the speech made by the hon. Member for Shettleston (Mr. McGovern). The hon. Member expressed, very largely, my own sentiments in a far better way than I can do, and I rise merely to make three suggestions to the Government. I have not prepared a speech, but I give these ideas, which have occurred to me over a number of years during which I have had a good deal of experience of Regulations and Orders. First of all I was a Parliamentary Private Secretary to the right hon. Gentleman the Member for Luton (Mr. Burgin) at the Board of Trade, where we dealt with Gas Orders, all of which had to be the subject of positive Resolutions of the House. Then there were Import Duty Orders made under various Acts of Parliament. Those which were designed to increase taxation had to come before the House for positive Resolution, while those which reduced taxation were not so subject. At the Ministry of Transport there were Electricity Orders. Then the Ministry of Supply was set up, and the war started and this flood of Orders came along.
I do not object to the flood of Orders, which I believe is necessary in the interests of the country, and I am willing to give the Government all the power they want to win the war, but I have become more anxious about this sort of thing recently because we have begun to pass legislation dealing with post-war conditions. The Education Bill, of course, is the most important, but various Acts have recently been passed, particularly the one dealing with disabled men's employment. In that there were so many Clauses giving the Minister of Labour power to make Regulations of various kinds that really, when one considers it, the Act became a mere skeleton and the substance was subject to Regulations to be made afterwards by the Minister. So 241 it goes on. I have been wondering for some time whether this vast power is necessary or desirable. I agree with the hon. Member who spoke last that we must scrutinise everything that comes before Parliament with the greatest care. I am not so concerned with speed as with the careful scrutiny of everything that comes before us, in the interest of the liberty of our people, so that Members of Parliament can do their duty to their constituents.
There are three suggestions that I want to make. They are not new. Some have been made in the Donoughmore Committee Report while others have come into my mind as the result of the experience that I have related. First of all, I think it ought to be laid down clearly what is a Rule, what is a Regulation, what is an Order and what is a scheme, or any other term that may be used, and let us differentiate clearly between different kinds of Rules, Regulations, Orders and schemes. I have nothing very definite in my mind, but let us say that a Regulation in every case should be subject to a positive Resolution of the House, an Order, being a still more minor thing, should not necessarily be subject to a Resolution of the House but should go to a Standing Committee, and a scheme might perhaps lie on the Table for 40 days; but let us have it clearly laid down for the future by the Government what each of these things means. There should be a self-denying ordinance by the Government that, as far as possible, in their forthcoming legislation there should be as little recourse to Regulations as possible. I do not agree with what has been said about delay. The delays are in the Government Departments before the Bills come here. They are the fault of the Government and the Departments, because they cannot make up their minds what they want to do. Let us have as much in the legislation as we can. The Regulations should be subject to positive procedure rather than negative.
My third suggestion—here I disagree slightly with the mover of the Motion—is that there should be a Standing Joint Committee of both Houses to investigate such Regulations as are laid on the Table of either House. In the case of Regulations requiring positive Resolutions, it would seem unnecessary that the Standing Joint Committee should have a pre-view of what is going to happen in any case 242 before the House, but all Regulations which have to lie on the Table for 28 or 40 days should come before the Standing Joint Committee. Lord Soulbury's letter in "The Times" to-day brings the point out clearly. One further suggestion, on which I slightly differ from the Motion, is that the Standing Joint Committee should have the power to call for persons, papers and records. I cannot see that, if you have a Committee, you are going to sit down together as laymen and enter into the details of these technical Orders and understand them. You will have to have someone to explain them and then the Committee will be able to use its common sense and judgment in coming to its determination on each one.
§ Mr. Manningham-Buller (Daventry)
Just under a year ago we were discussing this question in almost similar terms. The Home Secretary then said that the appointment of a Select Committee would be a mistake and would not work. That was repeated in July. Presumably, from the fact that time has been given for this Debate, the Government have now changed their mind and have some proposal to put forward. I think it is a pity we were not informed of the Government's proposals before the Debate started, because it seems to me that would have been of far greater value. It was upon the assumption that some concrete proposals would be put forward that, on Report and Third Reading of the Education Bill, the President of the Board was relieved of certain trouble with regard to the power of making Regulations. It seems to me that the argument in favour of delegated legislation can be divided into two parts. First, it is said that in war-time the necessity for speed is such, and the pressure on Ministers is such, that the Government must be allowed to rule by a mass of Regulations. The second argument seems to be that in the post-war period speed will be of the essence, and will be of much more importance than the quality of the legislation. The Home Secretary summed up the argument very clearly in one of his week-end speeches when he said that amid the problems of the post-war period democracy must work faster, you cannot get a gallon and a half out of a pint pot and, in short, that Parliamentary time was too short for Parliament to do its job.
243 I am not satisfied that the pressure on Parliamentary time in peace-time will be too much to enable Parliament to do its job satisfactorily. I agree with the hon. Member opposite that we must not overlook the interests of the small man who is oppressed by the mass of Regulations, who does not know from day to day whether he is breaking the law or not, and who is always in peril of suddenly being charged with an offence. It is of vital importance that we should not place too much on the value of speed in passing legislation. Regulations do not win wars and in peace-time will not bring prosperity and happiness to the country. We have to carry out our responsibility. The country looks to us to see that the laws are fair and proper. We may delegate our legislative power to a Minister, but the country still holds us responsible for its exercise. It is of vital importance that, if this power of delegation should go on—I think it must go on in a limited degree—that it should be subject to proper safeguards. I welcome the proposal of the mover of the Motion that a Committee should be set up to scrutinise the Rules and Regulations that are made. If the Committee comes to the conclusion that an Order is one that deserves the special attention of the House, it follows that prima facie it is an abuse of the power given by the House, and the effect of the Order should be suspended from that moment until it has been approved by a Resolution of both Houses. Then, it seems to me that, without giving it executive power it would serve a useful function and be a real check on the exercise of these powers. It seems to me that that would have a deterrent effect, in preventing any abuse of power.
It does not seem to me that, whatever we do, we can shed any atom of the responsibility that we hold towards our constituents for the exercise of these powers of delegated legislation. It is nonsense to say that, because the House has given a Minister power to make Regulations, the House has freed itself from all responsibility for its exercise. I feel that, even if the Committee is set up, we shall have to be careful to see that Ministers do not get wider powers than are necessary, and to see that Regulations do not slip through the net. We cannot sit back and leave it to the Committee to do its job. Our responsibility will remain 244 the same as in the past. I hope we shall be given some indication how we can reduce this enormous mass of war-time Rules, Regulations and Orders which no lawyer finds it easy to find his way through, even if he finally succeeds in doing so.
§ Mr. Silverman (Nelson and Colne)
There has been so far throughout the Debate a considerable amount of agreement. Certain principles appear not to be controversial at all. One is that the delegation to Ministers of Parliament's sovereign right to make laws is to that extent an infringement and an abrogation of the functions of Parliament. The second thing that appears to be agreed is that, even though that be conceded, it is inevitable in our complicated world that, if this House is to function at all, such delegation shall be made. The House is concerned to-day with a multifarious complication of questions and aspects of questions with which the framers and makers of our constitution centuries ago were not concerned and which they did not contemplate. If the House were to insist on retaining its legislative functions in every detail of the application of every principle, the result would be that the House would stultify itself completely and it would have control of nothing. The third point that appears to be not in controversy is that it remains necessary, and becomes more and more necessary, that the House should apply some kind of selective principle. While it agrees that some part of its sovereign authority to make law must be handed over to Ministers, we must, in order that we may retain our control of the laws of the country, retain our own responsibility for what is done. We may delegate the act, but we cannot delegate the responsibility for the act, and, therefore, some machinery should be created that will apply some selective principle to the accumulation of Departmental decrees in order that the House may in the selected instances resume its own responsibility for what is done.
The points of difference appear to be as to the kind of machinery which should be evolved for that purpose, and I dare-say there is no real difficulty about that. It does not much matter what kind of machinery is created so long as the machinery is acceptable to the House as a whole. One understands from hints 245 that have been dropped that the Government are of that mind and are prepared to set up some kind of machinery for the purpose. The more important point is the principle upon which the selection shall take place. How shall the House decide which are matters that can more safely be left to departmental legislative authority, and which are matters on which the House should be very reluctant to part either with its own responsibility or with its actual power. The effect of the Motion and the Amendments is to produce a situation in which the Statutory Rule or Order, instead of deriving its authority only from the Department, shall derive it from the House What are the kinds of matters on which sovereign authority should be retained by the sovereign House of Commons?
In the Amendment which some of my hon. Friends and I hoped might be called, we have endeavoured to draw a distinction between two divisions in which the rights of the subject can be placed. We have drawn a distinction, at any rate by implication, between the liberty of the subject to deal as he himself would wish with his property on the one hand, and all those aspects of the liberty of the subject which concern not his property but himself on the other. We contend that this is a sound distinction. The right of free speech may be abused. Even the right of opinion may be abused. The right of assembly may be abused. The Press may abuse its liberty. There are circumstances, as we all concede, in which the Executive may be entitled, and, indeed, are bound, to infringe what in normal circumstances they would not be entitled to infringe, namely, the personal liberty of the subject without appeal to the courts. However all these matters may be abused, none of them can be abused to the extent to which the rights of property can be abused. The free and uncontrolled right of the individual to deal with his property and apply it in any way that seems good to him has been responsible for more mass human misery than any other principle to which the mind of man has lent support.
The right of the individual person to do what he will with his own is, in the last analysis, the cause of hunger, of poverty, of scarcity, of class conflict, of national conflict and, ultimately, the cause of war. The rights of persons to accumulate property and to apply it in 246 order to exploit the liberties of others is not one of the rights which have advanced the happiness of mankind—quite the contrary. Unless the world is to return to all the miseries and to all the conflicts and unnecessary suffering and tragedy that characterised it between the wars, it is inevitable that this House, elected as it is on a universal suffrage of the people, shall assume power to prevent individuals from so using their own property as to be the cause of misery, suffering and death in others. It is obvious that that can only be done in our complicated society if this House is to retain in its own hands the sole right to apply every principle in the management of property. It is otherwise when we are dealing with more personal rights and liberties. I have conceded, and I concede again, that even those personal liberties may be abused. They have been, and although they may be abused and may have to be controlled, and although there are circumstances in which they may have to be controlled drastically, it still remains true that they have not the power to do the universal harm that the unrestricted rights of property involve. Therefore, it is right that in those matters which go to the very root of democratic ways of living the House should not, unless it can find no other way, part with its own authority.
I do not want to impute improper or unworthy motives to anybody, but I have listened to these Debates more than once. I have heard the indignant protests—coming, not entirely, but very largely, from the other side of the House—about delegated legislation and its evils, and, somehow or other, whenever delegated legislation attacks the liberties of the people, as distinct from the liberties of property, hon. and learned Gentlemen on the other side who get so indignant when property is affected are either not here at all or vote for the Government.
§ Commander Sir Archibald Southby (Epsom)
The hon. Member will not forget, I think, that the protests against the delegated legislation which dealt with the liberty of the subject under Regulation 18B came from this side of the House and not from that side.
§ Mr. Silverman
I am quite prepared to concede that on Regulation 18B there was a good deal of activity coming from 247 Members on the other side of the House. I think that the hon. and gallant Gentleman will, for his part, concede that it did not come from his side of the House exclusively. I hope he will not think I am scoring a cheap or debating point if I say that the protests against 18B, or some of its manifestations, at any rate, were made in circumstances which made it very easy for some Members of the Conservative Party to make them. Some of them may well have said to themselves, "There, but for the grace of God, go I."
§ Mr. Silverman
Some Socialists could say it too, I agree. I am not making any party point about it. I am saying that, in the main, the group of Tory Members who have been so insistent about delegated legislation have been very conspicuous in opposition whenever the rights of property have been affected, and not nearly so conspicuous when the liberties of the subject have been affected.
§ Sir A. Southby
The hon. Member will agree, I think, that the rights of property mean as much to the man who has little property as to the man who has much. Hon. Members on this side are as much concerned with the man who has little as with the man who has much.
§ Mr. Silverman
Liberty is a function of society. It is not an individual thing. What society has to deal with are questions that arise when the pressure of individual rights becomes a social evil. In the case of the rights of property, it becomes a social evil at the point where a man has property which gives him a greater power than his fellow citizens, which gives him power to expoit the lives of others, and which gives him power so to organise the material and economic resources of the State as to land the whole world in disaster and calamity. We are entitled to draw a distinction between the free use of property of that kind and the humble use of humble resources by humble people.
The hon. Member has said repeatedly that activity against delegated legislation is only shown on this side when any question of property has been involved. Can he state any Bill which has been under consideration 248 in the last year in which that was the case? It was not so with the Disabled Persons Bill, which dealt with persons; or with the Reinstatement in Civil Employment Bill, which again dealt with persons. There were also the Pensions Increase Bill and the Education Bill.
§ Mr. Silverman
—I should make a much longer speech than you, Sir, would like me to make. My hon. Friend challenges me to give one instance, and I hope he will take the example I will give as a sample of other instances which I could give, and will give if I am challenged. On Friday, 28th April, the House was debating Regulation IAA. I am not going to say a word about the merits or demerits of that Regulation. [Interruption.] Perhaps I might give my answer and if the hon. Member wants to make any comment I will then give way and allow him to make it. Let me give him the instance he asks for. Without discussing the necessity, or lack of necessity, the rights or wrongs of it in any way, let us see what that Regulation did. It altered the definition of strikes and lockouts. In the result, what was formerly a strike is now a lock-out. It made it an offence for any man to seek to persuade another man to do what it was conceded to be perfectly lawful for the other man to do. It made it an offence, punishable on indictment by five years' penal servitude, for a man to do in one place what another man might do in all innocence in another. It gave privileges under the criminal law to a section of the community which were not enjoyed by other members of the community in like case.
I am not saying a word at this time on whether that was right or wrong, necessary or unnecessary, but I am saying that it was a most revolutionary thing to do. It introduced the most fundamental alterations in the concept of our criminal law, and that was not done by a deliberate act of Parliamentary legislation, with a Committee stage where everything could have been reviewed and alterations suggested. It was done by delegated legislation which made it impossible for this House to do anything except to accept it as a whole or reject it as a whole. It seems to me 249 that persons who were concerned about delegated legislation, about its evils, about the necessity to review it and about the necessity to control the Executive in the exercise of delegated powers, might have taken a very serious view, not merely about the Regulation itself, but about the method chosen by the Government to introduce it into our criminal law.
§ Mr. Manningham-Buller
I would ask the hon. Gentleman in what way he connects Regulation 1AA with property. He said he was going to give an instance where Members on this side of the House had been active only in legislation connected with the rights of property. His own observations about Regulation 1AA made it quite clear that that Regulation had nothing to do with rights of property, but only referred to actions of certain individuals.
§ Mr. Silverman
I thought the hon. Member was inviting me to cite an instance where personal liberty was attacked by delegated legislation in which those who made all this fuss and bother about delegated legislation were not concerned and I have given him his instance. I understand, now, that that is not what he means. He wants me to give him an instance where they have concerned themselves with delegated legislation where property was concerned. Have I got it right now?
§ Mr. Manningham Buller
If I may say so, the hon. Member himself said that Members on this side of the House were only concerned with rights of property, and I challenged him to give an instance.
§ Mr. Silverman
Certainly. I say there is no occasion at all—and I say it in the widest terms and the hon. Member can deny it if he wishes—on which the little group of Tory Members who have attacked delegated legislation—I am not talking about Regulation 18B—and all the other issues on which they raised debates, have been concerned with other than the rights of property. I will give one instance. It was the case where the Minister of Fuel and Power—I think it was—exercised his powers against a colliery owning company which had so exercised its rights of property as to produce a state of labour unrest which did not exist in any other mine anywhere in the country, due to its attitude to trade 250 unionism. A great deal of fuss and bother was raised in this House and elsewhere.
There was the instance of Messrs. Short Brothers, the flying-boat company, which caused a lot of fuss and bother and, indeed, I think that the hon. Members who are cross-examining me about this thing very well know in their hearts that they have repeatedly, and I think almost universally, confined their protests to questions where property was affected. But that is not the real point. The hon. Member has made his speech, and I know he cannot make another, but there are plenty of his friends sitting round him. Apart from Regulation 18B, have they ever raised their voices against delegated legislation when the liberty of the subject was concerned? Did they support us when we had a Prayer against Regulation 2D? Certainly they did not.
§ Mr. Erskine-Hill (Edinburgh, North)
Last July we raised in this House the question of the continuance of the emergency laws. There were many speeches made at that time.
§ Mr. Silverman
I ask the hon. and learned Gentleman, who, I understand, is speaking later in this Debate, to explain where he was on Friday, 28th April, when we were discussing Regulation 1AA.
§ Sir A. Southby
My hon. Friend has raised the question of Regulation 1AA. Some of us, at any rate, on this side of the House were concerned about Regulation 18B because it confined a man to prison without trial. My hon. Friend will appreciate that Regulation 1AA, however objectionable it is, gave the man a trial.
§ Mr. Silverman
The hon. and gallant Gentleman is making a point which I concede, but it has nothing to do with any argument, and he knows it has not. I have told him what 1AA does. The Attorney-General is here and he heard what was said in the Debate on that day. He did not deny it then and, I think, if he speaks in this Debate, he will not deny it now. It does not lay in the mouth of Members who were absent on that occasion, who did not help or support us in any way, to object if I say that their interest is chiefly in delegated legislation where their friends are concerned—where their personal liberty is concerned.
I want to deal with another point. It was said by the hon. Member for The High 251 Peak Division (Mr. Molson)—who made a very interesting, moderate and restrained speech, the last part of which I agree with, though not all of it—that he did not think that the liberty of the subject was properly to be protected in the courts. I am sorry he is not here, because I would not willingly do him an injustice, but I did interrupt his speech on the point. He said he wanted two things. First, he wanted a Select Committee to review the Orders themselves and to recommend certain of them to the special notice of the House, but he was careful to say, expressly, that in the application of any Statutory Rule or Order to an individual, specific case, the Minister ought not to be challengeable in the courts. He ought to be answerable here in this House and this House ought to determine judicially whether, in the specific individual instance, the Minister had reasonably and equitably exercised his powers, or no.
I think this lies at the root of the whole controversy. I say that this House is so constituted that it cannot exercise a judicial function in individual cases. Indeed, unless I have substantially misunderstood the constitution under which we work, it was for that very reason that this country has always insisted on having an independent judiciary so that the individual who has a complaint against the Executive can take his grievance, for third-party judgment, to an impartial tribunal, answerable to nobody for its decision. But once you endeavour to apply that kind of function to this House, you find yourself in a position in which it is impossible for judicial functions to be exercised at all.
How can a judicial function be exercised? Certain things lie at the root of it. You abolish, you distort and you pervert the judicial function unless these conditions exist. What are the conditions on which judicial functions can be exercised? The first is that the tribunal, the judge, shall have no interest whatever in the result of the case he is trying. The second is that he shall be answerable to nobody for what he does. True, his decision may be mistaken, and if it is mistaken there is an appellate tribunal, but he is not to be dismissed by a tribunal: He is not to lose his office if he is wrong. He is not to be expelled. He is to exercise his judicial functions in conditions of complete security. He is not even to be 252 liable to personal criticism for what he does in his court. If he is criticised it is contempt of court which he, himself, may punish by imprisonment, or if anyone attributes to him in the exercise of his judicial functions motives which ought not to influence his mind at all. He is to have no interest in the result.
He has to be free from criticism or penalty for what he does, and he has to be uninfluenced, in his judicial determination of a question before him, by the consequences of what he does. It is not for the court to say: "We will not do justice in this case because the consequences go far beyond the importance of the case." He has to do justice in the case before him, though the Heavens fall. Unless those three conditions are satisfied, judicial functions cannot be exercised at all.
I am sorry I am so long, but this is a very important matter. I want the House to consider how these principles apply to the exercise of judicial functions in this House. They do not. They are not exercised at all. They cannot be exercised at all. Those conditions, which are vital to the exercise of judicial functions, are the antithesis of the principles on which we work in this House. Let me take an instance, and again I say nothing whatever about the merits of it, one way or the other. There was an occasion when the Minister for Home Security exercised his right, his duty, under Regulation r8n, to release Sir Oswald Mosley. I am not saying that he was wrong about that. I am not saying that he was right either. That consideration is irrelevant to my argument, although many people would have preferred, if the right hon. Gentleman was going to release him, that he should have done so for reasons of security and not for reasons that were a rather shabby subterfuge. There is no doubt that this action aroused—
§ Mr. H. Morrison
Do I understand that my hon. Friend is accusing me of a shabby subterfuge? I should like to know.
§ Mr. Silverman
I do not want to debate the merits of the matter but I will answer the question perfectly frankly. There are many people who are not satisfied with the evidence produced by the Home Secretary that the release was justified on medical grounds.
§ Mr. Silverman
It is perfectly true at any rate, and this will not be denied anyway—that the right hon. Gentleman's action aroused strong disagreement. This House was called upon to exercise a judicial function to determine whether the right hon. Gentleman was right or wrong, but-in exercising that judicial function the right hon. Gentleman did what he was entitled to do. He said rightly: "I am making this a question of personal confidence in myself." The Government made it clear that the question was one also of confidence in the Government as a whole. So, Mr. Speaker, what was a Member of this House to do? He might have thought, and there were many who thought, that the release was wrong.
§ Mr. Speaker
I really think that the hon. Member must leave this illustration now. He has spoken for a long time and he must come down to the point.
§ Mr. Silverman
I hope, Mr. Speaker, that you will not persist in thinking that this subject is irrelevant.
§ Mr. Silverman
I am endeavouring to put to you, Sir, the difficulty in which a Member of this House is, in exercising a judicial function where other questions, besides the merits of the particular matter before the House, are involved. I submit with great respect that that is not merely relevant but vital to the issue that we are discussing.
§ Mr. Speaker
The hon. Member may point out the difficulties, but to point them out by discussing the detail of another case is to be irrelevant.
§ Mr. Silverman
I carefully avoided discussing any of these details and I think that the only point at which I transgressed was when I was invited to do so by the right hon. Gentleman.
§ Mr. Silverman
It was the right hon. Gentleman who introduced the details of this particular case, but we will leave the case alone and consider a hypothetical case, if that is preferable. I say that, in- 254 evitably, when the House is concerned to consider whether the Minister is right or wrong in the exercise of his functions under the Regulations, it may have to consider at one and the same time two distinct questions. One is: "Does the House wish the Government to fall?" The other is: "Was the particular exercise right or wrong?" A Member might very well think, and many did think in that instance, that the Government ought not to fall, because the purposes for which they were assembled and continued to exist were far more important than any detail then before the House, but nevertheless they thought that on that detail the Minister was wrong. How can a Member vote, in applying the judicial function to that incident? He had either to do violence to his view that the Government ought to remain in office, or to his view that, in a particular case, the Minister was mistaken. That is sufficient to make my point that the conditions on which alone judicial functions are exercised cannot be exercised in this House. That is the point I make.
I have only one other point, which is on the same lines. It has been said that when a Regulation is made there may be a Prayer against it, and that the House is free to do what it wishes about it, which means that hon. Members are free; but if they do, will my right hon. Friend then go to a meeting somewhere else outside this Chamber, and say to that meeting: "My authority, my prestige and my influence are being undermined by the attack upon this Motion, and unless you withdraw that opposition or prospect of future opposition, penalties will be inflicted upon you." It is not in that way, under the three penalties and sanctions, that judicial functions can be exercised. I know I have spoken for a long time, but I hope I have spoken relevantly for a long time.
I say that these matters lie at the very root of liberty. Power is an intoxicating thing. I think my right hon. Friend does his best to keep sober, but I do not think he always succeeds. I do not think that executive authority, organisations and institutions are really very fond of personal liberty. They regard it as a nuisance and an inconvenience, and a continual thorn in the side. Sometimes they call it a stab in the back. Only if there is persistence of criticism of that kind can liberty be maintained at all. I would end by reminding the House of a couplet from a 255 poem of William Blake's, which a distinguished, but I think a completely wrong-headed, recent author, prefixes to the title page of his book:The strongest poison ever knownCame from Caesar's laurel crown.
§ Sir Percy Harris (Bethnal Green, South West)
My hon. Friend who has just spoken managed to generate a considerable amount of heat in what had hitherto been a rather unanimated discussion. There seems to be something like unanimity for the Motion, and my hon. Friend was in favour of the Motion although he wanted to cover a very much larger field. It is a matter of great satisfaction to me that, in the middle of a great war, we can spend a day deciding to stand up for the rights of Parliament and for control of the Executive. I cannot help remembering that it is something like 14 years ago, in 1929, that the Select Committee was appointed under Lord Donoughmore to report on the growth of Ministers' powers. It was a very distinguished Committee, and represented all kinds of interests, including the present Chancellor of the Exchequer, the right hon. Member for Luton (Mr. Burgin), the present Parliamentary Secretary to the Ministry of Home Security and a number of other distinguished men and women. The Report is known as the Donoughmore Report. It was Lord Justice Sir Leslie Scott who finally signed the Report as Chairman appointed on the retirement of Lord Donoughmore: I think it is common knowledge that Sir Leslie had a lot to do with the final form of the Report. That was published 12 years ago. It has needed a great war to stir the consciences of hon. Members opposite into activity.
I remember a Debate which took place in the House of Commons in 1937. It was on a Friday, when the present Parliamentary Secretary to the Minister of Economic Warfare moved a Resolution which now would have general consent, I suppose that, in the opinion of this House, the power of the Executive had increased, was increasing, and ought to be diminished. I would remind the House that a similar Motion was passed by the House of Commons nearly i6o years ago. In 1937, in the piping times of peace, a number of hon. Members were oblivious to the dangers that lay ahead of us and, on the occasion I have mentioned, the House was counted out.
§ Sir P. Harris
It was a most appropriate topic in those days, because these Orders were being passed in great numbers. I am not finding fault, but it did need a great war to stir hon. Members opposite. The Committee on Ministers' Powers recommended a Standing Committee but this Motion recommends a Select Committee. I agree that there is no very vital difference, except that a Standing Committee is automatically appointed each Session without the intervention of the Whips. When there is a change in this House we want to be sure that the Committee does not fade away but shall come within the Standing Orders of the House. It would be an advantage to have a Standing Committee, whose functions it would be to examine and report on any proposal for delegated legislation, and also to examine Rules and Regulations as they are published by various Departments.
So far so good, but I suggest to hon. Members who take an active interest that they should not be satisfied merely with the setting up of this Committee. The Donoughmore Committee recommended certain other things. It suggested that there should be precise limits set on the law-making power which Parliament intends to confer on a Minister, and that it should be specially defined in clear language by Statute. Secondly, that the use of what was called the Henry VIII Clause, which confers powers on the Minister to modify Acts of Parliament, should be abandoned in all except the most exceptional cases. Thirdly, that the use of Clauses designed to exclude the jurisdiction of courts—a point made by my hon. Friend above the Gangway in a long speech which was so exhaustive that he has had to leave the House—over the legality of the Regulation or Order, should be abandoned, again in all but exceptional cases. Fourthly, that Standing Orders of both Houses should require that any Bill which proposed to confer a lawmaking power, should be accompanied by a memorandum drawing attention to the power and explaining why this power is needed and how it will be exercised.
I hope that when the Home Secretary replies he will deal with these four very important points. He should not feel that the House is satisfied with the setting up 257 of this very excellent Committee, which goes some way to meet our requirements. I want to impress on him that the House is very conscious that these great powers, which the House willingly gave in 1940 under the pressure of war, and in face of danger of invasion, should not go on after the Armistice is signed. No one is more keen that I am on the necessity for important post-war schemes, but Parliament, when the war danger is over, must resume its proper responsibility. It must not run away and hand over to Ministers the working out of details of legislation. I am greatly concerned to impress that on my right hon. Friend, because I think most hon. Members have overlooked a very interesting Annexe to the Report on Ministers' Powers. I specially recommend its study. It is signed by the Parliamentary Secretary, the hon. Lady who so loyally serves my right hon. Friend at the Ministry of Home Security. Some very remarkable things are said there. She makes several suggestions in that Annexe. She says that Parliament can only deal effectively with the principles and general plan of proposed legislation, and she says:In my view it would be better if the Committee stage of a Bill, as we now understand it, did not come before Parliament at all.What is very significant is that Professor Laski, who is, I understand—or was—the principal economic adviser to the Labour Party, agreed with this emphasis on the desirability of delegated legislation. I have picked out a phrase or two, but it is significant that the hon. Lady made 'these recommendations. I want to retain the Committee stage of all Bills. In. spite of the war I think this examination by the representatives of the people, by Members of Parliament, is one of our main duties and responsibilities. We cannot hand over those responsibilities to Ministers to work out in detail, to embody in Rules and Regulations on the offchance that they may be examined by the House of Commons. My right hon. Friend will no doubt tell us that he visualises—I hope he does—great constructive legislation after the war. I am all in favour of it, and I will back him in it, but I do not want to hand over these constructive schemes to individual Ministers of the Executive. I want to keep the control of the House of Commons.
258 We have abandoned the very useful machinery of Grand Committees, it may be inevitably, under the pressure of war, though I do not see why in war there should not be sittings of Grand Committees. After the war, I maintain that the full machinery of Grand Committees should be re-started. Then the need, the necessity and excuse for these Rules and Regulations, the handing over of the details of Acts of Parliament to the Executive, will disappear. I have a shrewd suspicion that my right hon. Friend will accept this Motion; I. hope he will, in addition, give us an assurance on the other points I have made and particularly assure us that he does not propose to extend this bad practice of divorcing Parliament from the responsibility of examining proposals in detail, and handing it over to officials in Government offices.
The nation is now thoroughly stirred, thoroughly alarmed, at the encroachment of the Executive on the liberties of the subject. It has taken a long time to stir them, but there is scarcely a household in the land, scarcely a business man, manufacturer or industrialist, who does not find himself up against the autocratic powers exercised by Ministers under the powers invested in them in 1940. I shall not trouble the House with examples, but I have here some of the Orders issued by the Board of Trade and they are very remarkable. The unfortunate exporter never knows what commodity he can export, where he can export it to, when he can export it and on what condition. These Orders, inevitably, no doubt in war-time, come out like minute guns. But when the war is over we are going to clip the wings of the Board of Trade, and the only way we can do that is to take back to ourselves the rights, duties and responsibilities of examining all legislation, and cutting down to the bone the power of Ministers to legislate by Rules and Regulations.
§ The Secretary of State for the Home Department (Mr. Herbert Morrison)
My right hon. Friend who has just spoken has referred to one or two matters with which I shall be dealing in the course of my speech. It is, of course, the case that the Donoughmore Report was presented in, I think, 1932, and no action has so far been taken about it. I do not know why, 259 because I was not a member of the Government between then and the war, and indeed during a good deal of that period, I was not even a Member of the House. But I remember that Sidney Webb used to say that if a report is unanimous, and on the whole everybody accepts it, and if you find it implemented in 20 years, good progress has, on the whole, been made. So perhaps it is not too bad, but there it is. With regard to Grand Committees upstairs, I quite agree with my right hon. Friend: I would not abandon the Committee stage of Bills, which I think is a valuable and useful stage. We have not decided as a Government that Grand Committees upstairs are not to be resumed. The situation is that the nature of the legislation and the circumstances have not been propitious up to now. But the Government have a perfectly open mind and are willing to consider the matter through the usual channels from time to time.
My right hon. Friend referred to the conferring of powers on officials. The making of these Regulations is not the responsibility of officials but the responsibility of Ministers, and I think I can say broadly that Ministers supervise this function, as indeed is their duty. I think we have had a useful and valuable Debate on a subject which is not free from its difficulties, but it is a subject of the very greatest importance in our constitutional life, and in our Parliamentary procedure. On the whole, it has been a peaceful Debate. The nearest to a little warmth was stirred up by my hon. Friend the Member for Nelson and Colne (Mr. Silverman). He supported the Motion, and apparently, as the price of his support, he was going to have a row about it somehow, or with somebody, and on the whole he succeeded. But his speech, I thought, with you, Sir, was for a good deal of the time rather away from the general course of the Debate, and I am not sure that I need refer to it in detail.
The hon. Member for The High Peak (Mr. Molson) opened this Debate in a speech which, I agree with my hon. Friend the Member for Kennington (Mr. Wilmot) was reasonable, constructive, good spirited and, I think, a very able contribution to this problem, on which I would congratulate him. Indeed, I think that, substantially speaking, I agree with a great deal of what my hon. Friend said. 260 He put to me a number of points which I will cover in the course of my reply. He referred to the necessity for the Committee if it were to be appointed to function in a judicial spirit. To that I shall return. I would emphasise that, as he said, this is a profoundly important aspect of the matter and should be kept in mind. I personally am not disposed to agree that the House of Commons, even the full House of Commons, let alone a small committee, is incapable of manifesting a judicial spirit when the circumstances require it. I agree that it is perhaps not possible for every Member of the House to exercise a judicial spirit, but taking the House by and large, in my experience, when I have had to submit a matter to the House on a sort of quasi-judicial basis I have found the House as a whole responsive and ready to consider the matter fairly and in a judicial spirit.
Therefore, I agree with what my hon. Friend said about this. He referred to my own speech last year, and he indicated points upon which he put another point of view. I hope it will encourage my hon. Friend and give him good cheer if I tell him straight away that I myself, on behalf of the Government, will be able to take a somewhat different view to-day from that which I have taken hitherto. It shows that the Government are always willing to move with the times, and to recognise changes of circumstances and admit that what cannot be done at one time it may be possible to do at another. I think that is the spirit in which we should go along. I say that in order to make my hon. Friend happy as soon as I can. The hon. and gallant Member for Cleveland (Commander Bower) said that there was no real classification of the various instruments of delegated legislation which are now used. I do not know that I would go as far as he went, but I think that he has a point. I think there may perhaps be need for a more logical handling of the preparation of Parliamentary Bills and subordinate legislation. I will undertake to go into that with my colleagues and see if we can reach a rather higher and more uniform standard in that respect. It is not too easy. As the House will appreciate, Bills are handled in different Departments, but it is a fair point, and I will see what can be done about it.
261 My hon. Friend the Member for Kennington, who, I thought, made a very useful and sound contribution to the Debate, also dealt with the problem of classification, not only from this point of view but also from the point of view of the difficulty—to which I will come later—of distinguishing between some of these instruments that should rightly go to a Committee, and trying to make them all go, which, I am sure, would choke the Committee, and would not enable it to discharge its work well. That point will be considered, and I will have something to say about it later. The hon. and gallant Member for North Ayrshire (Sir C. MacAndrew) and the hon. and gallant Member for North Kensington (Captain Duncan) raised the point whether this should be a House of Commons Committee alone, or a Joint Select Committee of the two Houses. What I propose to do is to put the pros and cons of that matter to the House—it is an important point, to which we have given some attention—and I assure the House that the Government will take into account the views that have been expressed and act in accordance with what appears to be the spirit and the wish of the House.
The hon. Member for Shettleston (Mr. McGovern) supported the Motion, which is another sign of the great unity there is between all parts of the House on the matter. My right hon. Friend the Member for Luton (Mr. Burgin) also referred to the Donoughmore Report, and said that he thought that in some ways the framing of these Orders was equivalent to the discussion of Clauses on the Committee stage of a Bill. There is something in that in this time of war, but I think that in the ordinary way, in peace-time, as distinct from war-time, the subject-matter of Regulations is less important than the subject-matter of Bills.
The hon. and gallant Member for Ormskirk (Commander King-Hall) mentioned another Report, which is not unrelated to this problem, namely, the Report of the Committee on Procedure on Public Business, presided over by the present Chancellor of the Duchy of Lancaster. That was an exceedingly important Report, and I entirely agree with the hon. and gallant Member that, if we are to make Parliament the fully efficient, effective instrument of the popular will that we want it to be—and do not let us underestimate 262 how far it is an instrument of the popular will—the procedure of the House will require to be considered in many ways, as well as the issue of delegated legislation. The hon. Member for Daventry (Mr. Manningham-Buller) referred to his Amendment, and, in a short speech, stressed the point that that raised. But, if I may refer to the proposal which he made, in his speech and in his Amendment, I would suggest to him that, on reflection, he may be disposed to agree that it is rather an impossible proposition. Suppose some Order or Regulation comes out, and is operative, and then stands referred to the Select Committee. The Select Committee decides to call the attention of the House to it, and the operation of the Order ceases. Then the Order comes before the House. The Minister may convince the House that the Order is right, and then it operates again. That might lead to great difficulties, and ingenious as it is I think it would not be a workable proposition. If I do not refer in further detail, except incidentally, to the admirable speeches which have been made, perhaps the House will forgive me, as I think I shall, in the course of my speech, be able to cover the various points and suggestions which have been urged.
A year ago this month, there was a very full Debate on this matter, on a Motion tabled by my hon. Friend the Member for Penryn and Falmouth (Mr. Petherick) and other hon. Members, which, in broad terms, declaredthat Parliament should vigilantly maintain its ancient right and duty of examining legislation, whether delegated or otherwise.We heard, in that Debate, very much the same proposal as we are discussing to-day; but at that time the Government felt that, in view of the nature and the quantity of Defence Regulations which were being turned out, we could not return a favourable answer to the proposal. Nevertheless, it was a valuable Debate. It contributed to Parliamentary and public knowledge of the problem; and, in our conclusions to-day, I am sure we shall all have been helped by the discussion that took place then. Let me make it clear that the Government, including myself, are most anxious that delegated legislation shall be subject to effective Parliamentary checks and, wherever necessary, effective Parliamentary control. I hope I am too good a democrat 263 and Parliamentarian to wish anything else; and, even if I were not, there are plenty of my colleagues in the Government who would restrain me if I were to go on a wrong path. Last year, on behalf of the Government, I made some proposals which met with the approval of the House and which indicated the importance we attached to clarity in this matter, so that Parliament might know what was happening and might understand what we were doing. We promised these changes: First, that every effort would be made to make the effect of Defence Regulations and subordinate Orders as clear as possible, and that we would append, where appropriate, explanatory notes to these Regulations and Orders. That we have done, and I think it has been helpful to hon. Members.
§ Mr. Morrison
My hon. Friend does not give me a completely clean bill of health, but I gather that we are not far off. We also said that, where a matter dealt with was one of importance, we would deal with it by Defence Regulation rather than by subordinate Order under a Defence Regulation; and that promise, I think, has been honoured. We promised that we would do our best to see that subordinate Orders under Defence Regulations should be specific in scope. We said that, if there was strong Parliamentary feeling, we would agree to provide time, where we could, for the discussion of important subordinate Orders, even where there was no right of discussing them by Prayer and no right of affirmative Resolution. That, I think, has not arisen, except in one case, on which there was an exciting Debate, to which I will refer later. Another change which we have made is that each Defence Regulation is printed separately and identifiable.
The issue to-day is whether some new and additional check can be introduced, as a practicable proposal. I quite agree that that is a fair request to make. It is, I think, a particularly fair request to make to the present Home Secretary, because I am, quite frankly, an advocate of the proper and adequate use of delegated legislation, under proper conditions. In some of my public speeches I have given expression to those views, and I 264 know that not every Member of the House would agree with them—although some hon. Members have, I think, misunderstood the degree of my swing to the left in this matter. I am still well on the left of the general course of this Debate. But the view that I take, and I think I can fairly say the view that the Government take, and the general, though not the universal, view of the House of Commons, is that delegated legislation, within limits that may be disputable, is necessary and inevitable. Not only is it necessary and inevitable under modern conditions, but I believe that it has been knocking about in one form or another for several centuries.
In modern conditions it is increasingly inevitable, for several reasons. One is that the amount of legislation considered to be necessary has increased; and I think it is likely to continue to increase. I quite agree that there are differences of view among Members as to whether, if we had less legislation, things would be better or worse—that is a fair issue for argument—but I think that the House, broadly speaking, will agree that the tendency is for legislation to increase, and the probability is that, in spite of the wishes of some hon. Members, it will increase. It has been the case that the amount of important legislation that could be got through in a Session has been limited. The question is whether this limitation on the amount of legislation will satisfy the needs and demands of the country in future. The second reason is that the character of modern legislation is changing. I remember the Road Traffic Bill of 1930, which I introduced and got through, when I was Minister of Transport. It was a biggish Bill, and in many places in the Bill there was power to make Regulations. I do not remember that I had much trouble about it in those days; things were pretty quiet on the Regulation front then. It was proper that that Bill should include much regulation-making power. Here was a subject in which technical development, engineering development, was changing week by week. What was right at one time might be wrong six months after.
As my hon. Friend the Member for Kennington very rightly said, where changes are likely to occur, if you have dealt with the matter by Regulation, and it is clear that circumstances have changed so as to warrant an alteration, 265 you can do it easily. Otherwise, the injustice or the silliness would have to go on. I do not think that there is a Minister on this bench, certainly not one in charge of an administrative Department, who could not name 12 matters, coming under his Department, on which the law is wrong and that he cannot change unjust or clumsy legislation as he would like to do. Instead, he has to wait until the time arrives when he can introduce a Bill. Delegated legislation incidentally, may enable the Government to put right matters which affect the interests of trade and commerce as well. When we come to deal with social insurance, I do not know what power there will be to make Regulations, but I am certain that there ought to be a fair amount of regulating power, so that we can adapt as we go along. Therefore, I suggest to the House that it is perfectly fair and legitimate that there should be differences of opinion on the amount of delegated legislation, its nature and its purpose, and, as I advocate and as the Government contemplate, it will have to increase and will tend to expand. I entirely agree that it is perfectly fair for hon. Members to say that the Government have got to find some way, agreed with the House, whereby additional Parliamentary checks can be devised to hold the position more securely.
§ Mr. Montague (Islington, West)
Is not the right hon. Gentleman rather confusing Acts of Parliament with' Regulations and Orders? Are they not two different things?
§ Mr. Morrison
They are two different things, I agree, but I do not think I was confusing them. I was only indicating that it is often more convenient to deal with an administrative matter by a Regulation than by a permanent statutory provision in an Act of Parliament. Indeed, the Donoughmore Committee itself agreed and laid down much of what I have been saying to the House to-day. Next, we must distinguish clearly between war-time emergency powers and peacetime non-emergency powers. Under the various Defence Regulations, for example, I have powers at the present time which it would not be defensible that I should have in time of peace. [Interruption.] I quite agree, especially as regards those bearing upon the liberty of the subject. Moreover, some of the powers in some 266 Defence Regulations are so substantial that in peace-time the House, and quite rightly, would not permit them to be conferred by Regulation at all. That is reasonable, too. There is, therefore, a distinction between war and peace, and to-day we have to bear in mind not only the circumstances of war, but whether the instrument we are setting up is devised for the purposes of peace. Earlier in the war Parliament gave to the Executive very large powers—and I think quite rightly—and a considerable freedom, for which we are grateful, and for which everybody else ought to be grateful too, but which, now, Parliament would be more sticky about. But now we have reached a stage in the war when the House wishes to get things more into its own hands, and it is up to a point natural, reasonable, and perhaps inevitable that this should be so. We can now, in the new circumstances, review the situation. The making of regulations may well be a pressing matter in the transition period, both because of the amount of the legislation which will have to be carried out, and which will probably be needed, and also because the question will be important, in relation to a great number of economic matters, which may be of the greatest difficulty in the difficult and changing situation caused by the transition from war to the greater stability of peace.
In the first place, I want to deal with scope. I do not think my hon. Friend the Mover quite admitted it to be so, but the Motion is naturally framed in general terms, and, technically, it may be interpreted to mean that the Committee should deal with all forms of Statutory Rules and Orders, including those subordinate or minor in importance. I do not think that the House means that every conceivable Rule and Order should go to the Committee, for the very good reason that, as I have said, it would congest the Committee, and if the Committee was congested with the number of instruments it had to consider, it would find it difficult to do its work adequately on those of the instruments which were important and ought to be carefully examined. Therefore, I suggest to the House that there will have to be some classification, if we can find it, and we shall learn as we go along from experience.
We suggest that the Commitee will wish to see two important classes of orders, 267 and I think that, for the time being, that ought to meet the bill. They are classes to which Parliament has obviously attached importance when the Statute has been passed. The first group is the group of Regulations or Orders which Parliament has stipulated cannot be effective unless approved by an affirmative resolution. The Government propose that the whole of these Regulations should go to the Committee. There is a second, and I think, still larger number, certainly at the present time, namely, those against which hon. Members have the right of raisins either a Prayer or a negative resolution. We suggest that they should go to the scrutinising committee as well. I suggest to the House that this does go a long way and covers the big issues of policy. It will be for the Government and the House, as Bills come along, to watch each Regulation to see which is in one category and which in another. There are, I admit, a large number of subordinate Orders under the main Orders in Council, which have to be laid before Parliament but about which there is no provision for Parliament to do anything. I admit that some are of importance, but for the most part they are of rather less importance and do not raise issues of principle. It is interesting to note that the phrase "laid before Parliament" used in Statutes comes from the Rules Publication Act, and, in fact, the purpose of that Act, in providing that Rules shall be laid before Parliament, was in order that the public outside might know about these things—not that Parliament might know about them. That is a by-product of the Rules Publication Act. We suggest that, if the Government goes as far as this the House will have its rights.
Of course, all of these issues connected with subordinate orders can be raised at Question Time, by Debates on the Motion for the Adjournment, on Supply Days and by Motions, if time can be obtained from the Government. I would give one instance already referred to—the decision I reached on the conditional release of Sir Oswald Mosley. It was, as a matter of fact, done by Order. It was not an Order which required an affirmative Resolution of Parliament, or a negative Resolution; it did not even require to be laid before Parliament. It was a purely administrative act—an Order to effect which my signature was sufficient. But it was per- 268 fectly clear, and I was not surprised, that there was strong feeling about it among various hon. Members in the House. The Government willingly gave time for a Debate and there was a vote. So it always will be when there is strong feeling about subjects on which action may be taken under delegated legislation, because always, of course, we come back to the point that no Government can live for long without the goodwill of the House, and that in itself is perhaps one of the best guarantees of our liberties. Thus the Government think that the time has come when we should accept the establishment of—and we should all do our best successfully to work it—a scrutinising committee as proposed by my hon. Friend in his Motion. There are one or two things I would like to say about it. It is of course for the House to determine, but I think the numbers of the Committee ought to be limited. If numbers are large it will inevitably tend to become a debating assembly and it will not be easy for it to maintain that high judicial spirit which everybody has urged it should endeavour to do. It is a question of building up a tradition. If the tradition behind this Commitee is all right, then, after two or three years, we need not worry further about the committee going astray. I think that tradition in these matters, just as in the work of public administration, means infinitely more than Standing Orders or even Acts of Parliament.
It will, be important that the Committee should recognise one or two things. One is that it will be dealing with legislation which the Executive is authorised to make pursuant to an Act of Parliament. There would clearly be an impossible situation if the merits of an Act of Parliament were to be re-debated in the Select Committee, because it would then become an instrument in the party game and perhaps of obstruction against the Executive. It would not be right, and I am sure it is not intended by hon. Members, to propose that, but, it is well that this should be understood by everybody at the beginning, as I feel quite sure it is. The time for arguing about a Bill is when the Bill is before Parliament. Once a Bill is passed and becomes an Act, the Government of the day have to work it, and the rest of you have to put up with it. Yet the House has the right to try and get matters put right by Parliamentary means the same as those by which the Act was passed. 269 The function of the scrutinising Committee is therefore to protect the authority of Parliament and not the interests of a particular party or group. One point raised in this connection—indeed it was discussed last year, and I appreciate the spirit behind the proposal—is that we should not give the Committee the power to send for persons or papers. I appreciate that the motive of hon. Members is to help the Government in all ways possible, and particularly to help them to accept this Motion. But we feel that we ought to be rather more generouseven than the Motion on the Paper and that having come clean, we had better come properly clean.
We think that the Committee should not have the power to send for Ministers. The place for Ministers to argue is at this Box and, moreover, subject to the House, they have to have the last word on the Floor of the House, if the matter comes to an issue. If they have been upstairs, everybody might be embarrassed. But it is important that there shall be at the service of the scrutinising Committee officers from the Departments who can give them information, technical or otherwise, give them the background, and answer questions. I would go further than that. It would be undesirable for the Committee to draw the special attention of the House to any Regulation unless it has either heard an officer of the Department or seen a Memorandum put in by the Department. The Committee should have the right to send for an officer from the Department or ask for a memorandum, and the Department also should have the right to send an officer or a memorandum, if the Committee says, "Look here, we are thinking seriously about this, and we had better know more about it." The Department ought to be warned and have the right to attend. When I say "information" I mean factual information, but I do not mean the files of the Department or the advice of the civil servant to the Minister. Much of the value of the advice of civil servants to Ministers comes from the fact that it is meant for his eye alone and if it is to be seen by somebody else they will cease to be as frank and direct as they often are in their minutes, much to the public advantage. The ordinary departmental files and papers, therefore, must be protected, and we must see that the Committee does not have the right to ask for them.
§ Sir P. Harris
Is the right hon. Gentleman going to move Amendments to this Motion if it is passed in its present form?
§ Mr. Morrison
No, Sir. I will tell the House later what I would like it to do with the Motion, but we are not proposing to move Amendments.
§ Sir H. Holdsworth
Do I understand that the machinery which is proposed to be set up will in no way affect the right of a Member to put down a Prayer? Will that right still remain?
§ Mr. Morrison
No, it will not affect that right at all. Hon. Members, including the hon. Member for South Croydon (Sir H. Williams), who has been something of a pioneer in this matter, have been acting as a sort of unofficial scrutinising committee for quite a time and have kept Ministers busy. As I understand the proposal—that is our interpretation of it, and I think it is the interpretation of hon. Members—the Committee will have these Orders before them and they will examine them in the ways I have indicated. They will decide which they are to make any comment upon and to which they will for some reason or other draw the attention of the House. Their report will be completed and presented to the House. As far as the duties of the Committee are concerned, I understand that that finishes them. They make a report to the House for the reason that it is difficult for Members to keep on the track of all these Orders; it is for the aid and assistance of the House as a whole.
§ Mr. Morrison
Yes, Sir, it operates. There is a report. Then the responsibility for action on the Floor of the House, either by moving a negative Resolution or putting down a Prayer, passes to where it is already—to the individual Member of the House. All this, from the first consideration of the Regulation or Order to the presentation of the report and action by any individual Member, can be arranged to take place within the allotted span of time.
§ Sir H. Holdsworth
I want to be clear whether, when a Member thinks a Prayer is sufficient, there is any obligation on that Member to wait for the report of the Committee.
§ Mr. Morrison
No, Sir, certainly not. It may be that in the arrangement of Business it will be for the convenience of the hon. Member and the House to wait until the Committee report. There is no reason why a Member should not use his own judgment and do it as soon as he likes.
§ Sir C. MacAndrew
I wonder whether this Committee should not have the assistance of Mr. Speaker's counsel and also the assistance of counsel to the Lord Chancellor?
§ Mr. Morrison
I am coming to that later. The next point which has been raised, and to which I will refer, is the question of whether it shall be a Committee of this House or a Joint Committee of both Houses. I want to be quite fair so I will put the pros and cons. There is this case for a Joint Select Committee. At present, another place has a Committee on special Orders in a restricted field—gas, electricity, water Orders, and that kind of thing. I understand it has worked quite well and that the opinion of their Lordships is that it has been very judicial and effective.
If we set up a Committee I do not know whether another place will wish also to set up a Committee similar to ours; it may be so. In that case, there will be the disadvantage that civil servants may be summoned to appear at two committees instead of one. Memoranda, of course, can go to two committees just as easily as to one. There may be some inconvenience if a Committee reports one way to one House and another way to another, and it has to be remembered that, apart from financial matters, another place has just as much power to upset Regulations as has the House of Commons—both Houses are on a basis of complete equality except in regard to financial matters. Therefore, from that point of view, there is a case to be made for a Joint Select Committee. It might simplify the situation and might work very well. On the other hand, it occurs to the Government that, at any rate at the beginning, the House of Commons would sooner have its own separate Committee, subject to reconsideration later on if the House wishes. Hon. Members may feel that there are various matters in this field which are rather specially House of Commons matters, and that they want to 272 have their own Committee. If the view of the House generally is that the House of Commons would prefer to have its own Committee, the Government are perfectly willing to abide by whatever is the general opinion of the House on the subject.
Another question of which my hon. and gallant Friend the Member for North Ayrshire has reminded me—indeed it was mentioned last year by my hon. Friend the Member for Stretford (Mr. Ralph Etherton)—is whether we could not have some assistance for the Committee other than, and in addition to, the House of Commons Committee Clerk, who would, of course, be provided. The House of Commons Committee Clerks are an admirable body of men. We all owe much to them. Their duties are the keeping of records, the keeping of minutes, advice to Chairmen of Committees on Standing Orders, and certain other technical points, but they are essentially recording angels; they do not deal, and quite rightly so, with matters which, may I say, verge upon policy. These would be outside their sphere. I doubt whether the House of Commons Committee Clerk, valuable and excellent as he is, could give to the Committee the kind of help which my hon. Friend the Member for Stretford had in mind and which my hon. and gallant Friend has mentioned to-day. The Government have, therefore, considered whether an independent officer could be present at the Committee's meetings as adviser to the Committee, not a Government man, but there for the purpose of advising the chairman and to give information to the Member on facts, legal background, technical considerations and so on. It has been suggested by my hon. and gallant Friend, as it was by the hon. Member for Stretford last year, that in view of his unique experience and special ability, which is known to a large number of Members of the House, if Mr. Speaker were willing, then Mr. Speaker's counsel might be a most valuable person to act as adviser to the Committee over the field which I have indicated.
In anticipation of that being the wish of the House, I have seen Mr. Speaker, and I am glad to tell the House that Mr. Speaker is agreeable, if the House wishes, to place Sir Cecil Carr at the disposal of the Committee on the lines which I have mentioned. I am sure the House will be grateful to Mr. Speaker. I am glad the 273 suggestion has been so well received by hon. Members. For those who may not know, I should say that Sir Cecil Carr was editor of "Revised Statutes" and editor of "Statutory Rules and Orders"—this is very relevant to this matter—from 1923 to 1943; he has been counsel to Mr. Speaker since 1943 and Chairman of the Statute Law Committee since 1943. His qualifications are thus, I think, admirable for the purpdse, apart from the fact that we know he is personally acceptable to us all in this capacity. I have seen Sir Cecil Carr and he himself is perfectly willing and very happy to give the committee all the assistance he can.
The next question—and with this I come to the end of what I have to say—is the terms of reference. I cannot be final about them. They will present us with some difficulties, because somehow we must avoid getting terms of reference under which the issues of the principal Statute can be argued over again. Some of the terms of reference will have to be specific. It may be that we shall be driven at the end to add an omnibus Clause which will cover a fair variety of other matters which we cannot foresee, but as long as we understand that we are going to function within the limits I have laid down, the terms of reference will not matter so much.
Here are two specific suggestions we make for the consideration of the Committee:
1 Whether the subordinate legislation imposes a charge on the public revenues, or contains provisions requiring payments to be made to the Exchequer or any Government Department or to any local or public authority in consideration of any licence or consent, or of any services to be rendered, or prescribes the amount of any such charge or payments.
That, we think, might be one specific item. The other is:
2. Whether the subordinate legislation is made in pursuance of an enactment containing specific provisions excluding it from challenge in the courts either at all times or after the expiration of a specified period.
A Regulation like this is clearly one which ought to be looked at with care because, if the courts cannot intervene, Parliament must be careful before it finally lets the matter out of its grip.
274 One point I would add is that the terms of reference must be such that the Committee does not try to do the work of the courts of law. It is not for the Committee to decide—indeed, it is not for Parliament to decide what is the proper, legal interpretation of a Statute, or whether Regulations are within the legal terms of the Statute. That is for the courts, and it is constitutionally of the greatest importance that the independence and freedom from Parliamentary interference of the courts, even to the extent of Parliament not trying to interpret the law, should be guarded otherwise we might be in some difficulty. There are other questions which we shall have to consider; for example, whether the subordinate legislation contains any matter so foreign to the intention of Parliament in conferring the enabling power, that the attention of Parliament ought to be called to it. Hon. Members may have other suggestions to make.
In all the circumstances I think the House will agree that, broadly speaking, the Government have met not ungenerously the request which has been made not from one party alone but from all parts of the House. In the circumstances, I hope that the Motion moved by my hon. Friend may, at some appropriate stage in our discussion, be withdrawn by leave of the House, because it does not quite fit what we want to do. What we want to do is broadly acceptable to the movers of the Motion.
In conclusion, may I say that the working, the operation of the British Constitution and the British Parliamentary system is one of the most fascinating subjects of study that one can find. It is our capacity for adapting our Parliamentary institutions, even our Constitution, as we go along, it is our adaptability, which has saved our democracy on more than one occasion; it is the power to give up part of our democracy in times of war and crisis which has saved our democracy for the time when the war or the crisis is finished. Here we are to-day in a friendly way arguing out and discussing how we can contemplate the development of delegated legislation with greater happiness by providing additional Parliamentary checks and Parliamentary information and publicity and light upon the subject. I think the discussion has been admirable in spirit, and we shall bring forward the appropriate Motion as early as possible. The 275 Committee will be set up and its Members must be selected with care. It is necessary that the Committee itself should take a high view of its duties; it should build up a good tradition. I feel certain that, if that be done, we shall have added not a brake upon the working of our Parliamentary and legislative institutions, hut a device and an additional safeguard, which will serve the nation and Parliament in good stead in the future. I thank the House for the good spirit in which the subject has been discussed, and in view of the assurance which I have given and the fact that there is general agreement, I hope that in due course my hon. Friend will see his way to withdraw the Motion which is the subject of our Debate.
§ Sir Herbert Williams (Croydon, South)
I have no desire to make a speech because others of my friends are going to contribute later to this discussion. As I think many hon. Members know, I have taken a substantial interest in this problem over a long period of time. I have had the privilege of presiding over a group of private Members who have tried to watch this problem, I hope impartially. I want to thank the Home Secretary for his very forthcoming speech. I think, in the main, he has met the major problem. He is looking to peace-time rather than wartime, and there will still remain the problem of subsidiary legislation. So far as that is concerned, there is no proper Parliamentary opportunity open for a discussion of it. It may be necessary for my Friends and myself to keep a watch on the subsidiary legislation and to ask various questions from time to time. With that cautionary remark, may I say how very grateful I am to the Home Secretary for his most forthcoming speech to-day?
§ Sir Reginald Clarry (Newport)
I rise for only a short time to deal with a point raised in the discussion by the hon. Member for Nelson and Colne (Mr. Silverman). If I heard him aright he said that Members on this side of the House were concerned only with the protection of property, and not with safeguarding the liberty of the subject. I have taken the opportunity in the last hour of searching the records, so far as I can, and on the basis that Prayers are the touchstone of the interest in the House on Regulations and Orders, I have ascertained that during the 1942–43 Session there have been 10 276 Prayers, one coming from the other side, dealing with venereal disease, and the other nine coming from this side of the House. Among other things, they dealt with shipping and personal restrictions; road traffic, with particular regard to the speed of agricultural vehicles; billeting and the requisitioning of houses for billeting; the Government's nomination of directors to control factories; fuel consumption and inspection; the British Overseas Airways Corporation and its constitution; trespass on agricultural crops; and with fireguard duties.
I put this forward merely to deny the statement made so often by Members on the other side that this side of the House only raises questions of delegated legislation to protect property, and not to protect the rights and liberties of the subject. From the evidence shown I deny that absolutely. There has been only one Prayer during the present Session, and it dealt with road haulage. Although that dealt with property it concerned the small man's property, and was not raised in the interest of big business.
§ Mr. Moelwyn Hughes (Carmarthen)
I am sorry to inject a slight element of discord into the chorus of general approval which has fallen upon the shoulders of my right hon. Friend the Home Secretary, whose proposal for this Committee has been welcomed, particularly in certain quarters of the House. I have always looked upon my right hon. Friend, from his week-end orations over a series of months, as leading forward opinion in this country, as travelling in a Leftward direction. It has been rumoured that by reason of that he has, on occasion, found himself in certain difficulties, and I am glad that by travelling a little to the Right to-day he has restored the balance. But this proposal for a Committee will not solve the problems which have been adumbrated by the mover of the Motion, the hon. Member for The High Peak (Mr. Molson).
I listened carefully to the hon. Member's speech, during which he gave two concrete instances of the application of Regulations which met with tremendous approval and caused considerable ribaldry on the other side of the House. One was the case of a man who had given his daughter two pounds of pork from a pig which he himself had bred, and the other was the case of a baker who was 277 fined for selling doughnuts sprinkled over with sugar. They were both breaches of perfectly intelligible rules. A moment's thought and examination by the people who are now to examine these Regulations and Orders would show that if the Minister of Food were once to concede that rationed goods could be given as gifts then you could drive a coach and horses through the whole rationing scheme of this country. Not even the Committee, with the assistance it has been promised, would have been able to say, on looking at the Regulation, that it was likely to prevent a man giving presents of food to his own family. Where do we get the protection there? The Regulation is quite plain. There must be no sugar decorations on the food that is sold. Would it have occurred in the Committee, with the advice that it is going to get, that this might give rise to the problem that you can put something into a doughnut that you cannot put on top of it? The only specific problem mentioned by the mover would not be countered in any way by the suggested Committee.
The second comment that I have to make is this. The Home Secretary tells us he hopes this is going to form part of the edifice of Parliament. May I remind him of what he said a year ago, when this very proposal was being considered? One of the major reasons which weighed with him and with many others was that the setting up of such a Committee would subject delegated legislation to delay and embarrassment. How is it that this very same machinery is not going to subject delegated legislation to delay and embarrassment to-day? That is the very reason why the proposal was so warmly welcomed and cheered on those benches. They do not want to see post-war legislation run through at the rate that we do. That is why they desire to have something which will provide delay and embarrassment, as the Home Secretary said. I hope, at any rate, that when the Committee is set up, as it will be now that the Government have made up their mind to concede the demand, that will not prevent the progress that has taken place in the making of these Orders and Regulations more intelligible. I am grateful that some improvements are taking place but there is still a great deal to be desired. I wonder what the Committee will do when it gets an Order of the kind of No. 1216 of 1943: 278The Control of Tins, Cans, Kegs, Drums and Packaging Pails No. 5 Order, 1942(a), as varied by the Control of Tins, Cans, Kegs, Drums and Packaging Pails No. 6 Order, 1942(b), the Control of Tins, Cans, Kegs, Drums and Packaging Pails No. 7 Order, 1942(c), the Control of Tins, Cans, Kegs, Drums and Packaging Pails No, 8 Order, 1942(d), and the Control of Tins, Cans, Kegs, Drums and Packaging Pails No. 9 Order, 1942(e), is hereby further varied in the Third Schedule thereto by substituting for the reference 2A therein the reference 2A (i) and by deleting therefrom the reference 2B.This Order shall come into force on the 25th day of August, 1943, and may be cited as the Control of Tins, Cans, Kegs, Drums and Packaging Pails No. 10 Order, 1943,' and this Order and the Control of Tins, Cans, Kegs, Drums and Packaging Pails Nos. 5–9 Orders, 1942, may be cited together as the Control of Tins, Cans, Kegs, Drums and Packaging Pails Nos. 5–10 Order, 1942–3.For the guidance of the House I will read the explanatory note:The above Order enables tin plate to be used for tobacco and snuff tins others than cutter lid tobacco tins.I suggest that there is still room for improvement in the drafting of these Orders so that they may be intelligible. I would also urge that, apart from the Committee, Ministers responsible for delegated legislation should make far wider use of the power that they have to make explanatory statements when introducing Regulations of importance, and that on the major Regulations they should publish White Papers, so that Members should be alive to their import. The explanatory memorandum which I have read is, of course, just one sentence. The Home Secretary is to be commended upon the explanatory memorandum that he issued when the Fire Watching Regulations were published a year ago in order that everyone could understand them. They were not meant to be understood by the public. They were meant to be understood by those who administered them or those interested in them, and that was followed up by explanatory circulars directed to the people specifically affected.
This is, I fear, the thin end of the wedge for the obstruction of necessary post-war legislation. When the Home Secretary said this procedure was being devised for a time of peace there were cries of "No." Why? There will be more obstruction to come. We have heard in the course of the Debate references to increasing delegated legislation, which every sensible person realises must come in a greater spate when the war is over. I could 279 quote the Home Secretary himself on the point.
§ Mr. Hughes
Examination is only an excuse to cover obstruction and delay. It has been said that this kind of procedure is going. to defend the liberty of people—as if delegated legislation were an infringement of liberty. The propaganda in the House to-day has been far more clever and adroit than the general propaganda in the country, with pamphlets and articles in the Press conveying the implication that delegation is something that is trampling the liberty of the individual underfoot. Delegated legislation is to a large extent responsible for the liberty of the individual. Let me give an example. Before the war, before any of this temporary legislation, there is a man working in the tailoring trade. Without delegated legislation he would have liberty to work for the lowest wage, liberty to be employed at any rate that lie would be prepared to take. But the delegated legislation of the trade board guarantees him a minimum. Where is the liberty?
§ Mr. Levy (Elland)
May I ask my hon. and learned Friend as a distinguished lawyer whether he agrees with some of this delegated legislation which is outside the discretion of the courts? The courts have held that if they had the power they would not have convicted, but that they were forced to convict because they had no discretionary power. Is that in accordance with the liberty of the subject?
§ Mr. Hughes
I confess that I do not understand the point of that interruption. I will come back to the trade boards.
§ Mr. Hughes
I will answer it, but 'I will come back to the trade boards. When a statutory wage has been fixed under delegated legislation by the trade boards, an employer who employs a person in contravention of it makes himself liable to a penalty and can be brought before a court. An additional offence has been created. Magistrates may think it regrettable that an employer should be punished for not getting the cheapest labour possible, but still, according to the law, the 280 employer must be penalised for a breach of the law. Is there anything wrong with that? Take another case, that of a man on woodwork. Let him work in a factory where there is no protection on the machinery, where a circular saw is whirling round with no protection. That man has liberty. The woodworking Regulations under the Factories Act, which are delegated legislation, provide that there must be protection for that machinery. Where is the liberty? The liberty to work with an unprotected circular saw, or the liberty to work where the saw by law must be protected? That is delegated legislation. Suppose an accident happens. Suppose a man catches dermatitis. Why should he not have the liberty to be employed somewhere where he can catch the disease without any recovery against his employer? That would be liberty. By delegated legislation under Orders made under the Workmen's Compensation Act, dermatitis is a certifiable disease. How is that an interference with a man's liberty?
Take the house to which the man goes back at the end of his day's work. Why should he not have the liberty to live in a house without any water, with no lavatory and no sanitation? Why should not the landlord be at liberty to build houses of that kind and to let them? But the delegated legislation of the by-laws compels the builder to guarantee that there shall be sanitation and water. In the face of that, can it be said that delegated legislation by itself is an infringement of liberty? It is because I am not satisfied with the motives of those who are now pleading for the need of further restrictions upon delegated legislation, or that their motive is the liberty of the subject, but because I am satisfied that what they want to do is to obstruct as far as they can the necessary social legislation of this country, that I regret the concession which the Government have made.
§ Mr. MacLaren (Burslem)
I have listened to this Debate all day and I must say that the Home Secretary's speech was rather a shock to me. After reading the speeches which he has delivered during week-ends, I wondered where the Home Secretary was going to end. Apparently today he has changed his views, and now a Committee is to be set up. For more years than I care to count, long before I came into this House, I used to take an 281 active interest in this question of the power of the Commons passing into the hands of officials. I have said before, and I say it again, that if the British people should cease to exist and the name of our race became a mere mark on the pages of history, it would have to be recorded that the one great gift which the British people gave to mankind was the British Constitution. Anything that weakens this Constitution of ours, in my opinion, weakens the very foundation of the lighthouse of liberty shining at this moment in a dark world. Let us preserve the power of this House. We have seen delegated authority encroaching step by step. Why? We have heard a speech to-day bringing in this Motion which was very well put and well argued, but may I get behind the Motion and get to the causes that have given rise to this Debate?
I must ask the House to pardon me, but I must say this. This House of Commons has always been afraid to challenge the root causes of the maldistribution of wealth in this society of ours. Therefore, when we have maldistribution of wealth and unjust relationships in society, the House, by the very growth of humanitarian ideas, is forced in the nature of the case to devise this and that scheme to mitigate poverty. While allowing the basic causes of economic injustice to remain, the House of necessity passes one Bill after another to alleviate poverty, and this crop of Bills creates an army of bureaucrats to go round the country to administer them. For instance, instead of removing the causes of unemployment we had a Prime Minister and a Chancellor of the Exchequer who brought in the Unemployment Insurance Act with employment exchanges—
§ Mr. Deputy-Speaker (Mr. Charles Williams)
We cannot go very far with these questions of employment and the distribution of wealth. We are debating a purely technical question of House of Commons procedure.
I beg your permission, Mr. Deputy-Speaker, to point out the cause of this Motion. You will see why I am doing it before I resume my seat. It goes to the root of this enormous growth of bureaucrats, officialdom and delegated authority. We have just heard a speech from the hon. and learned Member for 282 Carmarthen (Mr. Moelwyn Hughes). Was it not significant that the illustrations he gave of the necessity for delegated authority were along the lines of protecting the slave against his own enslavement, protecting him against machinery and from being forced to live in a slum? All this delegated legislation arises from the sheer necessity for defending poverty and slavery against further oppression. Many people in this country, and many hon. Members, are very jealous that nothing shall be done to remove the power of the Executive to use delegated authority. I would beg them to pause, and rather to attack the root causes that necessitate this delegated authority and the growth of officialdom. Let them not continue in the belief that delegated authority and the growth of officialdom will lead them anywhere but to a state of serfdom.
That is why I ask the House to forgive me if I go back a little in order to get to the root causes that I have mentioned. On one side of this House, are those who defend entrenched vested interests. On the other, are those who want the existing state of affairs to be mitigated by all sorts of Acts of Parliament, which necessitate an army of officials. The Motion now before us will not, in the slightest degree, help, because, as things are going, there will be an interminable growth of bureaucracy and officialdom. Some suspicion has been expressed to-day that the Motion has no other object than to impede the progress of other Acts of Parliament relative to peace conditions. I assure those who have that suspicion that they can disabuse their minds of it, because the Executive are in such a state of mental confusion as to what will be the condition of the new world., that there need be no fear that the Motion will hinder the progress of legislation. In view of the line that the Home Secretary has taken, the reflections that one wanted to make are somewhat changed. I am glad that he has made the concession of setting up a Committee. I know that it will act with the good sense and impartiality that will make it function to the honour and credit of the House of Commons.
Before resuming my seat I want to beg hon. Members to look at the facts and not to evade them by political devices. Until this House balances society upon a just basis and we remove the causes of poverty, then, in the nature of things, as 283 the poor have votes and tend to threaten their Members in this House, their votes and power in this House will create an ever-increasing bureaucracy and officialdom. That will tend to drive this country, which has a Liberal conception of liberty, back towards the road of the servile State. I beg the House, whatever its good intentions may be, to keep before it the larger objective of removing the causes which necessitate the growth of delegated legislation, with its necessary officialism.
It. is not more law we want, but less; not more passing of Acts of Parliament, but less. The Home Secretary said just now that there will inevitably be an increase in legislation; of course there will be, if we allow social sores to remain and to necessitate such legislation. Man's liberty will only be fully attained when legislation is at a minimum and man's rights are fully recognised. Only thus will you achieve a true balance in society.
§ Sir Herbert Holdsworth (Bradford, South)
I can claim that, during the past 13 years, I have spoken in almost every Debate of this kind. I am sorry that the hon. and learned Member for Carmarthen (Mr. Moelwyn Hughes) has gone out, because his speech took me back to the days of 1931-35, when we discussed the threat, so ably propounded at that time by the right hon. and learned Member for East Bristol (Sir S. Cripps) of government by Order in Council. Why should the hon. and learned Member for Carmarthen have a suspicion that those on this side of the House are not concerned about the social welfare of the people but are interested in those matters only in order to delay action being taken? There is not a single word of truth in it.
Some of us on this side of the House, and some Members on the other side, believe that there are more important things than social legislation. We believe that freedom of speech, etc., is a far higher ideal than social reform. Give a man the best social conditions, and at the same time deprive him of his own personality, and what have you left to him? Is he richer? Not a bit of it. That is why we are concerned about delegated legislation. I do not think anybody in this House thinks that it is possible to carry 284 on legislation in this country without delegating it. What we demand is that we shall have effective power to examine that legislation. As things are, it is physically impossible for any Member of this House to read one per cent., I should say, of all the Orders that are laid on the Table of the House. When we are able to challenge these Orders it is always at the end of Business and the whole thing is most unsatisfactory.
I challenge the views of the hon. and learned Member for Carmarthen. He links himself with those who would set Parliament on one side and rule by Order in Council, in other words, finally reduce this country to the condition of a totalitarian State. That is what we are concerned about. I have spent all my political life trying to make social conditions better, but I am not willing to exchange my birthright for a mess of pottage. It there is a fundamental right, I believe it is the right of personal liberty, I have appealed, times without number, to the Secretary of State on this matter. I heard him make his speech in Bradford recently, but I was not here, unfortunately, when the matter was raised during the following week. I would like him to explain a good deal more of that speech in detail. I am certain that the speech was misrepresented and that things were put into the speech which I never heard him say.
§ Mr. Deputy-Speaker
I cannot allow the hon. Member to elaborate and discuss the right hon. Gentleman's Bradford speech in detail.
§ Sir H. Holdsworth
I obey your Ruling, Mr. Deputy-Speaker. I want sincerely to thank the right hon. Gentleman for what he has done to-day. I have always been worried because we could never alter these Regulations or amend them. This House has been presented with Regulations with the importance of which we could all agree, yet there has been within those Regulations certain things to which we had very strong objection. I would like to ask the right hon. Gentleman if it would not be possible to consider the possibility of allowing amendments to Regulations? The other point I want to put is this: I could understand the urgency of many questions in 1940. I do not think there is quite the same urgency to-day Would it not be possible, instead of bringing a Regulation into force as soon as it is 285 signed by the Minister, to prevent it coming into force until it is confirmed by this House? Those are the two points I want to make. I congratulate the Home Secretary on taking a step forward, and I trust that he will not be misled as to the real sentiments of this House by the speech of the hon. and learned Member for Carmarthen.
§ Mr. Denman (Leeds, Central)
I wish to congratulate my right hon. Friend from a rather different angle. The previous speaker wished the Home Secretary to go further than he has gone. I congratulate the Home Secretary on having so successfully limited the mischief which the original Motion would have involved. I should like to see it limited further still. The prime point we ought never to forget in this House is that we are in war conditions, and that we are acting under decisions taken in the early stages of the war, and even before the war, in 1939 and 1940, when we gave the Executive all the legislative power they wanted. I think it was our determination that the Executive should exercise that power, subject always to our direction if it was wrongly exercised, or if injury were done to His Majesty's subjects thereby. We are now in some of the most critical days of the war, and we are, apparently, urging the Executive to weaken their powers, to hand back to the House some of the authority which it voluntarily surrendered, and the effect of that act both upon the country and our friends and enemies overseas cannot, I think, be wholesome. If ever there was a time when we ought to maintain quite resolutely the full powers of the Executive to carry on this war, to act first and debate after, then this surely is the time.
As I say, I congratulate my right hon. Friend on having limited the mischief which the original Motion might have done. He has limited it in many ways. The subject matter is limited. The terms of reference we shall, of course, have to examine on paper when we see them, but they seem to me most cautiously framed, and I think no one need have any undue fear that the Executive will be trammelled in the course of the war through the terms of reference that are offered. One very interesting question which the Home Secretary raised, upon which I might be allowed to say a few words, is the participation of the other House, in this Com- 286 mittee. Of course, we have had very long experience of the collaboration of Lords and Commons on a Committee dealing with delegated legislation—that is, on the Ecclesiastical Committee. We have had 15 Members from each House, working together year after year, examining Measures brought before them, and reporting to their respective Houses. I think there is one very particuar advantage which anybody who has had some experience of that Committee will have noted, and that is the prolonged experience of the House of Lords' Members. We here exist, of course, from Parliament to Parliament. We retain a certain number of experienced Members, but there is a larger number of experienced Members in the other House. They bring very valuable expert knowledge into our deliberations. More especially do I observe the value of representatives of the Lords in examining this kind of delegated legislation. The value of people of legal experience and high legal office would be difficult to exaggerate, especially if the terms of reference are made rather strict, as indicated by the Home Secretary.
Though I object most strongly to this kind of supervision of the Executive in time of war, before they have made a mistake, I do not even like it in time of peace, because I think that on these lines we are definitely following The wrong road. Delegated legislation, we all agree, is not to be avoided. We must have it, but why delegate it to the Front Bench? In the years 1931–32 a Select Committee of this House examined the question of procedure. Incidentally, they received evidence on two important schemes of devolution. One was from the present Prime Minister, and the other was the evidence of the actual working of the Enabling Act. We did not report on them for the simple reason that they were outside the scope of our inquiry, but the evidence is there, and it is really most interesting. If I might read one paragraph that was proposed for inclusion in the Report, but rejected as being beyond the scope of the Committee, it is this:Occasional references were made to the Church of England Assembly (Powers) Act, 1919, as providing a precedent for relieving Parliament of detailed consideration of some specialised field of legislation. The evidence received relating to the Ecclesiastical Committee made it clear that under this Act a substantial block of work had been withdrawn from Parliament"—287 exactly the kind of delegation you want—without loss of ultimate Parliamentary control, and had been satisfactorily dealt with in a number of Measures that could not otherwise have been passed into law.We have had now nearly 25 years of experience of legislation being delegated, not by handing it to the Executive but by transferring it to a democratic assembly. No one has ever suggested that that precise experiment can be imitated in other fields of policy, but I think, equally, no one has ever supposed that it does not give a very sound precedent on which further extension of democratically delegated legislation should not be possible. These are the alternatives before us. Delegate legislation to our Executive, and it will grow there more and more, strengthen the arm of the Executive and give them, not only administrative but legislative and judicial powers as well, and make the Executive unduly powerful and over-balanced. Alternatively, we can develop that other scheme of delegating to democratically appointed legislative bodies that are subordinate to Parliament. Give Parliament some satellites, delegate work to those; and you maintain the democratic spirit. Otherwise, you will very easily slide pretty rapidly, into a confirmed system of bureaucracy from which you will be saved not one little bit by all these devices of examining committees.
§ Mr. Keeling (Twickenham)
The hon. Member for Central Leeds (Mr. Denman) has made a very interesting proposal, but he has so widened the field of the Debate that I do not think that, at this hour, with so small a number of Members present, the House would wish me to pursue that subject. I particularly welcome the announcement of the Home Secretary that the Select Committee is to have the services of Sir Cecil Carr, the learned counsel of Mr. Speaker. Many of us have found Sir Cecil Carr most helpful, not only on this subject but on many others. On this matter, we have the advantage of two books by him, both of which are in the Library catalogue but neither of which is in the Library. In those books, which hon. Members will find amusing as well as interesting, Sir Cecil Can- recalls that nearly 100 years ago Queen Victoria asked Lord Palmerston the meaning of the word "bureaucracy," 288 which was a new word to her. He was able to assure her that bureaucracy was exclusively a Continental phenomenon. Those days have gone.
There are two or three dangers of bureaucratic drafting which this Select Committee should watch. The first is legislation by reference, which is not less objectionable in Statutory Rules and Orders than it is in Bills. By legislation by reference, I mean, of course, legistating by altering an existing Act or Order, the Section of which you specify but do not explain or quote. Sir Cecil Carr quotes a Statutory Rule which reads:The provisions of the regulations of 1914 and of the corresponding regulations of 1916 shall, so far as is inconsistent with these regulations, cease to have effect.Such a Rule asks a citizen to attempt feats of interpretation which are really quite beyond him. There was also a Statutory Rule which read:The Minister by virtue of Section—…and all other powers him enabling.…Such a phrase is far too vague and indefinite, and should not ever be employed in delegated legislation. Lastly, the Donoughmore Committee itself draws attention to the Departmental practice of appending to a Regulation or Rule a note explaining it, and it suggests that this practice should be more general. A Committee with which I have the honour to be associated, which is presided over by the hon. Member for South Croydon (Sir H. Williams), and which calls itself the A.B.Bs., or Active Back Benchers' Committee, has endeavoured to make several Ministers sit up on this question, and I hope that the Select Committee will now take over our burden.
§ Dr. Peters (Huntingdon)
I rise only to congratulate the Minister on the steps that he has taken, and to ask one question. Being one of those unfortunate "limbs of the law," I dealt with this matter in a report of 1938. I worked through the various restrictions and licences of marketing boards, paying particular attention to the Milk Marketing Board and the Potato Marketing Board, and I came across one or two very glaring instances. There existed then, and I presume there exists to-day, authority for the Milk Marketing Board to sit in London with two or three men, and in one case which came to my notice, in which I was 289 professionally engaged, not even the Government representative was there when they took away the whole business of a man, simply saying, "Your licence is not going to be granted," and giving no reason whatever. That case is quoted in the report. I want to ask whether, in these cases, where, obviously, there has been some slipping through of something which would never have been passed by this House, there is any chance of those powers being either nullified, or at least amended. In the case to which I have referred, I had to force the matter to the High Court, and then there was arbitration. But for that, the whole business of that man, with thousands of pounds' worth of new machinery, would have been confiscated, without any reason being given and without a penny of compensation. Had this House been aware of that power, it would never have agreed to it. In a number of cases relating to licensing powers, there is very great danger to the liberty of the subject and his property. I think it will be wise for any Committee which has to consider these things to go back a little, and deal not merely with war-time Regulations, but with some of the Regulations which we passed in connection with the marketing boards.
Mr. Petheriek (Penryn and Falmouth)
The speech which I am about to inflict on a somewhat empty House is very different, both in matter and in length, from the one I might have made if we had not been so very well—I might say, generously—met by my right hon. Friend the Home Secretary. One or two points were raised in the course of the Debate, to which I want to refer. The hon. Member for Nelson and Colne (Mr. Silverman) is no longer in his seat. Not for the first time he has laid his rhetorical egg and left the House. In the Amendment which he and some of his hon. Friends put on the Paper, he made a perfectly specific point, which he repeated in the Debate, that delegated legislation examined by this Committee upstairs should deal only with certain specific subjects: freedom from arrest, freedom of speech, freedom of assembly—in fact, those questions which affect the individual—but he and his hon. Friends expressly excluded matters dealing with property. Ever since the time of the Bill of Rights, and, indeed, long before, the holding of pro- 290 perty, large or small, has never been considered a discreditable thing in this country, and, therefore, it seems to me that, unless you take the completely Communist view that all goods must be held in common, the holding of property is one of the freedoms which we enjoy in this country. It is right that this Committee should include in its labours every form of delegated legislation, whether it deals with the freedom of the individual in his own personal life, or the freedom of the individual so far as property is concerned.
There is one other point I should like to make in reference to the speech made by the hon. and learned Member for Carmarthen (Mr. Moelwyn Hughes). The hon. Member suggested that the only reason why some of us here took up the view that we must be very careful to examine all the delegated leislation presented to the House was because we wanted to stop as much legislation as possible, and particularly delegated legislation. I certainly think that we should not look upon all these questions of delegated legislation in the mass. We have all looked upon them, no matter whether presented to the House by Bill or whether by, this system of delegated legistation, on their merits and per se, and the hon. and learned Member made the point that delegated legislation in the mass was a good thing. He pointed to three, which he thought were good Regulations, and drew from them the inescapable conclusion that all delegated legislation was necessarily good. I do not for one moment agree with that view.
The hon. Member for Nelson and Colne, in the course of his speech, suggested that Members of the Conservative Party were only interested in delegated legislation when it affected the rights of property. The hon. Member said we never interfered unless the rights of property were concerned. Regulation 18s was mentioned, and it was at once pointed out that that was a matter in which many Members took a lively interest. I, myself, with other hon. Members, fought during the whole of last year a small measure of delegated legislation which gave the Government the right to stop anybody, even a part-time workman, when his work was over, going to sea in order to fish. Consequently, in discussing 291 Bills and delegated legislation, we have stood up for the rights of the individual, whether those rights are infringed in the form of taxes, on his liberty as a subject, his freedom from arrest without due trial, or a tax upon his property. I believe this is the sole function of Parliament, and long may it remain so.
I am extremely grateful to the Home Secretary for having met us so well. The hon. Member for Central Leeds (Mr. Denman) said that the Home Secretary had, in fact, rather limited the proposals. I think the right hon. Gentleman has been rather generous and has given us, in fact, more than we wanted, and, so far as his Committee is concerned, at any rate, more than the minimum which some of us considered necessary. Since the Private Members Committee, of which I am a member, began to take an active interest in this problem, we have wrung some concessions out of the Government. Finally we got a very important concession, which was not wrung from them, but was given, I believe, quite freely as the result of representations made to them. There are at least eight matters which may have escaped the notice of the House and which we have been advocating for a long time, and which other hon. Members have also advocated and in which concessions have been granted by the Government during the last year.
I think that the keynote of the Debate was really struck earlier by the right hon. Gentleman the Member for Luton (Mr. Burgin), who pointed out the essential difference between the ordinary procedure by Bill and the procedure by delegated legislation. The right hon. Gentleman pointed out the methods by which an instruction on delegated legislation, that is, Rule or Order, was produced, and he pointed out the very important difference that, in the House of Commons, when the procedure is by Bill, you have, in addition to the Government, some 500 other hon. Members, who may be experts on any given subject at any given time. You may have, for instance, a Bill dealing with humane slaughter of animals, and, during the Committee stage, somebody puts down an Amendment and an hon. Member gets up in a corner to say, "I am very sorry to intervene in this, but I do happen to know something about it. I am a butcher, and this simply will 292 not work." That is the sort of advantage we get by proceeding in the ordinary way through Second Reading, Committee stage, Report stage and Third Reading. At every moment, a Bill can be subjected to fierce Parliamentary criticism, and it is known to people all over the country who, if they think their liberty is threatened, write to their Member in Parliament, and, even if he has not been interested before, he is likely to be interested then. This does not happen in a Government Department, where there are no 500 people to say, while the instruction is being prepared, "This is nonsense; it will not work, and, even if it does, it will inflict damage on far more people than it will benefit."
We very much welcome the concession which has been given to us by the Government to-day. I believe that the suggestion made with regard to the setting up and working of a Select Committee, as far as is reasonable, is a good thing, having regard to the necessity, which all of us envisage, for a considerable volume of this delegated legislation, particularly in war-time. I believe that this is not a victory for one group of Conservative Members of Parliament, but a victory for the whole House and for our general Parliamentary procedure. It is certainly a victory for the country. If it can be looked upon in any way as a personal success, I think that personal success is due, more than to anybody, to the hon. Member for South Croydon (Sir H. Williams), the force of whose convictions is only equalled by the strength and determination with which he puts the case here and in the country. My hon. Friend is one of those Members whose great merit as a Parliamentarian has not been recognised, and I only wish he was adorning the Front Bench. In view of the immense volume of legislation which is being put through Parliament under our eyes, it is, I think, wise that all hon. Members should take an interest in this matter. It concerns the whole country, as one can see from the Press, which almost daily, and certainly weekly, prints articles and letters on this immensely important subject.
Once again may I say how very satisfied we are with the Home Secretary's declaration to-day? I think it is most important that this Committee should be regarded only as what in fact it is—a watch cornmittee. When it turns on the red light, 293 that is the signal for Parliament to be vigilant on any Rule or Order presented to it to see that it does not, in any way, delegate its responsibility. The responsibility will remain on the House to watch' all legislation, both in the form of Bills and of delegated legislation. I believe that all our future and the liberties of this country are bound up with the continued determination of Parliament to see that the delicate balance beween the Executive and the Legislature is rigorously maintained.
§ Sir Robert Tasker (Holborn)
There are two questions that I want to ask my right hon. and learned Friend the Attorney-General, who, I understand, is to wind up the Debate. It has been suggested that Ministers can amend Rules. In my view, they cannot. I shall be glad if my right hon. and learned Friend can inform the House whether a Minister can or not. The other question is whether the Executive can hand back their authority. That is an amazing suggestion and indicative of the fact that one Member at least thinks that the Executive rule Parliament and that Parliament does not rule the Executive. These Rules and Regulations and Instructions, call them what you will, are, in effect, the law of the land. They are prepared by the Executive, interpreted by the Executive and enforced by the Executive. The vast majority of the people of this country, since they cannot afford to defend an action brought by the Executive, are in a position of defencelessness.
I object to this encroachment upon civil liberty and I would remind the House that the beginning of the Nazi and Facist Parties was the transference of power from the governing body to the Executive. I hope that the House will bear that fact in mind. I am only giving way because my right hon. and learned Friend wants to wind up the Debate, but I hope that an occasion will arise when I may give the House the result of my own experience in regard to specific cases, particularly in connection with the Inland Revenue, which has not been referred to to-day. I have in my hand a document, eight pages of it, containing from ro to 20 thousand words and figures. The House knows nothing about it; these rules may be interpreted in any way that the Inland Revenue may choose The victims can do nothing. I do not expect my right hon. and learned Friend to refer to the Inland 294 Revenue, because the target has been the Home Secretary—the most powerful man in the country. He is the only man who can release prisoners or who can make a Member of this House, or any civilian, a prisoner and keep him in prison without trial. This affects not only the Habeas Corpus Act, but Magna Charta. These rights have gone and it is the duty of this House to see that we recover these rights for the citizens of this country.
§ Mr. Levy (Elland)
I rise only to bring to the consideration of my right hon. and learned Friend who is to reply one point. He realises that a number of these Regulations take the power of discretion away from the courts. Provided an inspector is satisfied that an infringement of an Order has been committed and wishes to bring a prosecution, whatever opinions the magistrate may hold with regard to it, he has no discretion whatever but is bound to convict. There have been many cases all over the country where magistrates have said that they were impelled to convict although they themselves felt that no crime had really been committed. I bring that matter to the attention of my right hon. and learned Friend, who is very zealous that the powers of the court shall be unimpaired. If he cannot deal with it now I would like him to give consideration to it, in order that some amendment may be made and the courts may have restored to them the rights that have been taken away.
§ The Attorney-General (Sir Donald Somervell)
My right hon. Friend has, I am sure the House will agree, every reason to be satisfied with the reception which his statement has received and the decisions which he announced. There have been one or two discordant notes, and I will say a few words about them. It is unlikely that on any occasion on which a matter of importance is being discussed there will be a universal chorus of approval from the 600 odd Members of this House, representing, as we do, many different points of view. Perhaps the most discordant speech, at all events since the statement of my right hon. Friend, was that made by my hon. and learned Friend the Member for Carmarthen (Mr. Moelwyn Hughes). I completely disagree with the opinion that he expressed as to the result of this Committee. Leaving aside the question of motives at the moment, which has been sufficiently 295 answered by those against whom the attack was made, my hon. and learned Friend was satisfied that the setting up of this Committee would obstruct the delegated legislation, which he believes must play a considerable part in the complicated matters with which this House will have to deal after the war. I disagree with that. The existence of this Committee will, on the whole, make the House, whatever its complexion, more ready to accept a Clause under which there can be delegated legislation than is the case under the present, as I think it, unsatisfactory position.
The criticisms of the present position are really to the effect that, although it is the duty of the House to scrutinise all Orders which require affirmative Resolutions or against which a Prayer can be moved, it is also the duty of the House to-day to consider those Orders, and, if something is wrong, to ventilate the position. As it is, the ordinary Private Member of this House, with the heavy commitments which the House itself makes upon him, and with possibly other duties and obligations outside his actual duties and obligations in this House and in his constituency, cannot possibly look through all these various Orders to decide which ought to receive special attention or which might be objectionable. In so far as that is the criticism—and I think everybody agrees that it is the criticism—that criticism will grow as the legislation which my hon. and learned Friend has in mind is brought before the House, and in every case where there was a power of delegation, that criticism would be voiced with increasing strength as the process went on.
The existence of this Committee will provide an answer. I do not mean to say it will give an unlimited charter to delegated legislation—nobody wants that —but it will provide an answer. Once this Committee has been set up with a secretary and clerk, with a highly skilled adviser—Sir Cecil Carr, to whom reference has been made—it will be able to look at these things and, if we go beyond the limits, whatever they may be, the Committee can report to the House. So I disagree with my hon. and learned Friend. So far as he is anxious about legislation with the power to delegate, I think the existence of this Committee 296 will facilitate its passage rather than obstruct it. He also said that examination by this House was only an excuse for obstruction. Surely that cannot be right. After all, what does the House exist for? It exists to examine proposals, whether made to it by the Government or by Private Members in ordinary times by Private Bills. It exists to examine administration and to examine delegated legislation. Where there is an affirmative Resolution, it is the business of the House to examine it. I think on reflection, my hon. and learned Friend will agree that he went too far.
He gave some examples of what probably everybody would agree to be beneficent delegated legislation, but I drew rather a different moral from that which he drew. I am not at the moment sure whether the examples he gave would be subject to a Prayer or not, but if so, they would be outside the present proposal. However, I will take them as an example of cases in which delegated legislation deals with very important matters—Trade Boards, Factories Acts, workmen's compensation, building regulations. Let us assume that these are matters which come before the Committee. I quite agree that they can do very important and valuable things and, indeed, if one contemplated none of these things we should be very much less civilised than we are. But the fact that delegated legislation can deal with things of such importance to the health and safety of the people, well or inadequately, is surely not an argument against having a Committee to examine these Orders when they are issued.
My hon. Friend the Member for Burslem (Mr. MacLaren) has gone, but perhaps I need not say more about him than this. We all know he thinks that if we would only adopt a particular Measure—to which it would be out of Order to refer—vested interests would disappear, wealth would be equally distributed, we should need hardly any Acts of Parliament, only a few officials, and no delegated legislation. I cannot explore that further, but I thank him for the support he gave, I think, on the whole, to the Home Secretary's proposal. He won our universal approval when he said—I have the sense if not the exact words—that whatever weakens the House, weakens the foundation of our Constitution and our liberties.
297 My hon. Friend the Member for South Bradford (Sir H. Holdsworth) welcomed the Motion and made one or two proposals. I doubt if his proposals are good ones, but I will give them serious consideration. My hon. Friend the Member for Central Leeds (Mr. Denman), who happily is still with us, made an interesting analogy of the Church Assembly. With respect to him, I do not feel that sort of scheme would really apply in the ordinary case, and he admitted it would not be exactly applicable. In the ordinary case the delegated legislation is necessary in order to make it work, to adapt a large statutory scheme for which the Minister must remain responsible to this House. Therefore, I think the responsibility for the delegated legislation must remain with the Minister, otherwise you would say, "Why is it not working?" and he would say, "I am sorry but this body which ought to have made the proper Regulations under Clause 29 will not do anything at all," or, "They are thoroughly bad."
§ Mr. Denman
The evidence we received before that Committee in 1931 showed that the Enabling Act procedure rendered so much delegated legislation unnecessary in the sense in which the right hon. and learned Gentleman is using the term. The Assembly was able, by having ample time and proper Committee procedure, to make it so much more complete that we had not to deal with it in the same way. That is what I meant by democratic legislation as opposed to bureaucratic.
§ The Attorney-General
No doubt we shall have opportunities on later occasions of exploring the possibilities, but at the moment I feel that what, on the whole, we are dealing with are statutory schemes for the general running and administration of which the Minister must be responsible. That being so, the power of covering the ground where delegated legislation can be applied must, I think, on the whole, be left with him.
My hon. Friend the Member for Holborn (Sir R. Tasker) tried to make our flesh creep with a reference to an Inland Revenue document. I cannot defend it or reply to it because I have no idea what the document is. I am bound to say, however, that on the whole the Inland Revenue inspectors and officers have a reputation for general helpfulness in the administration of the very complicated 298 code which they have to administer. He also asked me whether a Minister can amend Rules. Well, if he can make them he can amend them. One of the objects of having Rules is that they can be amended if circumstances show that they were wrong. My hon. Friend the Member for Elland (Mr. Levy) referred to discretion being taken away from the courts, on conviction. I am not quite sure whether he is quite right, but what I think he is thinking of is the kind of case where a Minister has, say, given a direction to a farmer, the reasonableness of which could not be examined. Once you disobey a direction it may be that the magistrate has no option but to convict. It is not that the magistrate has no discretion in considering a criminal offence, but that the criminal offence which arises from the Order or Regulation cannot be questioned.
I agree with Members who have said that we must draw the line between war and peace. It is obvious that in war time the Government must be given certain powers, that we have to submit to restrictions and that the Government can act rapidly in a way which we would not tolerate in peace-time. I agree that in many, cases not only the scope but the manner of control may well be found to be unnecessary in peace-time. My hon. Friend the Member for Twickenham (Mr. Keeling) referred to comments and criticisms made in Sir Cecil Carr's book, and no doubt we can live and learn in the matter of drafting. Speaking on behalf of draftsmen, with whom I have had a great deal to do, I would like to tell the House that theirs is an extremely difficult task, and that draftsmen always welcome assistance or suggestions which may lead to their work becoming clearer, provided it is equally watertight legally. Sensible discussion by people who realise the difficulties of drafting helps everybody, and nobody welcomes it more than I do. With regard to the suggestions made by my hon. Friend the Member for Huntingdon (Dr. Peters) I very much doubt whether it is practicable for this Committee to go into the past. Of course, if Regulations or Orders are unnecessary, Members can always take up the matter with the Minister and ask him to revise his legislation or not to use his powers in a certain way.
With regard to to-day's Debate, sometimes in our discussions we are apt to use expressions which suggest putting Mem- 299 bers of the House on one side and members of the Government on another. We know what we mean, but, of course, it is one of the most fundamental features of our Constitution that the Government are controlled by, and are responsible to, the House of Commons. Not only is that so, but the larger number of their Members are Members of the House of Commons. Therefore, one can overdo, as it were, the suggestion that there is a body of rather sinister men consisting of the Government on one side and a body of enlightened elected representatives of the House on the other. It is, of course, quite right that there should be criticism and scrutiny of the Government's acts by Members of the House, but we are to a great extent members of one body, and it is right and proper that in this question of procedure, how the House should do its work and what the relationship should be between the House and the Government, that we should both work together and that both should feel that the other is behaving reasonably. I think that in that light to-day has been a happy day. The House has felt that my right hon. Friend the Home Secretary has met this Motion'in a way which has commended itself to Members, and I hope that in the working out of this important and interesting innovation we shall preserve this happy relationship.
§ Mr. Molson
The Home Secretary, in his speech, has gone more than half-way to meet us and I should like to say, on behalf of my hon. Friends and myself, that we very much appreciate the attitude which the Government have adopted. In expressing our deep gratitude to them I beg to ask leave to withdraw the Motion.
§ Motion, by leave, withdrawn.
§ The remaining Orders were read, and postponed.