§ 10.10 p.m.
§ Mr. Erroll (Altrincham and Sale)
I beg to move:That the Control of Turbo-Alternators (No. 1) Order, 1947 (S.R. & O., 1947, No. 2386), dated 7th November, 1947, a copy of which was presented on 13th November, be annulled.The purpose of this order is to achieve the standardisation of the sizes of large turbo-alternators intended for the generating stations of this country. The standardisation is intended for two main purposes, as far as can be understood. First, it is to speed up the manufacture of equipment which is very urgently required, and, secondly, because of the result of the increasing use of the grid, it is not so necessary to make individual generators of particular sizes to meet the needs of particular localities. The tendency is all in favour of large centralised stations provided, as far as possible, with standardised equipment. Therefore, the intention behind this order is quite laudable.
On the other hand, the method of execution of this intention is deplorable. As most hon. Members know, there are only about 12 manufacturers of large turbo-alternators in this country, and there is only one customer in this country—the British Electricity Authority. Surely it should have been possible to obtain the effect of this order by agreement between this relatively small number of manufacturers and the one customer. There is, indeed, a valuable precedent for this type of agreement. The British Standards Institution was able to secure between manufacturers and customers in this country a very important standardisation in the sizes of large 157 transformers which was, and still is, of great value. I suggest it would have been even easier to achieve the necessary measure of agreement to standardise turbo-alternators without any order at all. Nevertheless, the method of compulsion was adopted and this order was produced.
It is compulsion of a particularly reprehensible character, because the order is retrospective in its effect. I see that the Joint Parliamentary Secretary to the Ministry of Supply shakes his head. I draw his attention to the order itself. In paragraph 2 (1, a) it is pointed out that a defence against infringement of this order can be accepted only if it is proved that the contract under which the order is being executed was made before 1st November, 1946. I was somewhat puzzled at this, and I put down a question to the Minister which was answered on 15th December last. The Minister gave as the reason for the retrospective effect of this order the fact that 1st November, 1946, was chosen as the operative date since, owing to the production time cycle, the specifications could still be altered. It will be noted that the Minister, in his reply, admitted that the order was retrospective in its effect.
However, the order itself was issued only on 7th November, 1947. Thus there was a period of over a year during which contracts could be placed which were subsequently to be rendered inoperative by the retrospective effect of this order. The parent Act under which this order was issued conveys no power whatever to the Executive to introduce retrospective orders. My hon. Friend the Member for Sutton Coldfield (Sir J. Mellor) will deal at some length with that aspect of the matter.
As a result of the order, manufacturers will have to modify or, in some cases, cancel sub-contracts already placed for supplies of components and materials, and a great deal of loss or inconvenience will undoubtedly be caused. Even if there is no great loss, it is surely a thoroughly undesirable principle for contracts, freely entered into between two private persons or bodies, to be rendered null and void by the retrospective effect of orders issued, as in this case, many months later.
§ 10.16 p.m.
§ Sir John Mellor (Sutton Coldfield)
beg to second the Motion.
158 My hon. Friend the Member for Altrincham and Sale (Mr. Erroll) has described this order as having retrospective effect, and, apparently, the Ministry of Supply took the same view when a Question was answered on 15th December. I have searched the Supplies and Services (Transitional Powers) Act, 1945, and the Extended Purposes Act, 1947, under which Acts this order was made, but I can find no authority whatsoever for making orders having retrospective effect. I support my hon. Friend in the view that this order has retrospective effect. Its effect is to invalidate a large number of contracts made between November, 1946, and November, 1947. Indeed, it would make the performance of those contracts illegal unless they conform with the specification contained in the schedule to the order. Therefore, in my submission, this order should be annulled as being ultra vires. It is retrospective in effect without having the appropriate Statutory authority for being retrospective.
I would refer the House to what was said by the Attorney-General on this point on 19th February, 1946. He said:I entirely agree with the general proposition that unless a Statute expressly gives retrospective powers, delegated legislation ought not to take effect retrospectively. Indeed, in most cases one looks at, the particular Statutory powers acted under cannot take effect retrospectively. That is a general principle to which the Government will certainly adhere.Then, a little further down, he said:But, although that is a very sound rule of policy in the exercise of delegated powers, it does not always follow that the powers themselves do not, in law, enable retrospective orders to he made. One has to look at the powers themselves and see the exact manner in which they have been exercised in a particular case."—[OFFICIAL REPORT, 19th February, 1916; Vol. 419; c. 1053–54.]In my submission, if one looks at the Supplies and Services Acts and also looks at the terms of this order, one should come to the conclusion that the order is retrospective without any authority from the Statute. That statement by the Attorney-General was followed up on 21st June, 1946, by a Treasury Circular which went to all Departments for their instruction. Paragraph 10 of that circular ran as follows—The attention of Departments is directed to a recent ruling of the Law Officers of the Crown that as a matter of construction it may be said, in general, that unless the Act of Parliament which confers the power to make 159 subordinate legislation clearly confers power to give retrospective effect to it, the subordinate legislation cannot be made retrospective, and if it purports to be so made it will be ultra vires. Care should accordingly be exercised by Departments to see that subordinate legislation is not made with retrospective effect unless there is clear authority so to make it in the Act under which it is made, and that in case of doubt legal opinion is taken.I feel that this is a case where the Ministry of Supply have come to grief. I hope very much that there will not be put forward the argument which was advanced by the Minister of Health shortly before Christmas. On 16th December, when a draft order which was made by the Minister of Health was challenged in this House on the ground that it was ultra vires, the Minister of Health replied as follows:—The hon. and learned Member spoke about this order being ultra vires. If it is ultra vires we need not bother about it. It would have no effect."—[OFFICIAL REPORT, 16th December, 1947; Vol. 445, c. 1624.]I submit that it is not right for this House to take the view that if an Order is ultra vires it can be left to the courts, because they will ignore the order if it is ultra vires. This House should scrutinise delegated legislation that comes before it, to ensure that it is regular and that it is intra vires. If we are right on the point, that this order has retrospective effect, and if we are also right that there is no authority in the parent Statute for it to be retrospective, I submit that it should be annulled tonight.
§ 10.22 p.m.
§ The Joint Parliamentary Secretary to the Ministry of Supply (Mr. Jack Jones)
In coming to this Box for the first time, I would like to inform the House that if I were able to pick my subject I am certain this would be the last on which I would choose to speak. I am equally certain that there is no person more capable of doing battle on this subject than the hon. Member for Altrincham and Sale (Mr. Erroll).
This order was introduced in good faith for a specific purpose. One thing which rather amazes me is that the Opposition, who pray for power in all shapes and forms, and who on this occasion have been offered power of a certain type, now seek to pray against it. This order was made for the specific purpose of producing the greatest amount of power at the earliest possible moment and at the cheapest possible rate, the idea being to 160 standardise the production of generating plant so that we should be able to provide at the quickest possible moment all the power which our country needs to assist us to get out of our economic difficulties.
For a considerable time there had been talk of standardisation, but as is common with the Opposition, there has always been plenty of talk about doing things without any real progress. So an order was put into operation which was definite and specific, and which was intended to do, and is doing, a job of work. To some extent, there had been a measure of agreement with regard to the need for standardisation, but there had been no real progress. In March last my right hon. Friend the President of the Board of Trade accepted responsibility for phasing and getting ahead with the necessary deployment of raw materials in order to make progress in the production of heavy electrical plant, and I am sure we all felt that steps to solve these difficulties would be a good thing. It was agreed on all hands, and particularly by the experts in the electrical industry, that this standardisation and this order would expedite delivery of generating plant to an extent of something like six or nine months, and if we can get plant six or nine months sooner rather than later all the evils to which the country has been subjected, according to the Opposition at least, will be removed at an earlier rather than at a late[...] date.
I want to tell the House that the best possible technical advice was sought, and not all on this side of the House. The Minister took upon himself the obligation of consulting the best brains of the country about this problem. The Opposition may well ask why this particular date was decided upon—1st November, 1946, and why the order actually became operative on 13th November, 1947. There is a reason for that. It is not because it synchronised with the local elections or with Guy Fawkes day or anything of that description, but because it synchronised with the time, which it was agreed, would disturb to the least possible extent the progress that was being made at that time.
I want to tell the House that every consultation took place in a friendly atmosphere and that a most careful and detailed examination of the whole pro- 161 ject was made before a decision was taken. Manufacturers themselves were consulted and, indeed, were given some idea as to what the draft would be and they agreed. So I want to impress upon the House, and particularly upon my good friends who are raising this question, that everybody who knew the subject was consulted, the idea being to bring this order into operation with the least possible disturbance and with the least possible cost. I want to submit to the House, at all events to all practical thinking men and women, that no order of this type could be put into operation without to some extent hurting somebody somewhere. It is a physical and technical impossibility to make certain alterations without somebody feeling hurt, but this order was so arranged and so designed as to create the least possible amount of disturbance, having regard both to the manufacturers' point of view and to the country's economic position. The standards that have been arranged are important.
It would appear, if we listened to the Opposition point of view, that something terrible has been done. All we seek to do is to standardise new projects and new plants. In the case of an extension to an old plant, where the new standard cannot be synchronised with existing plant, then the Minister has power at once to give a licence for the production of a non-standard set or part of a set to fit with existing plant. This elasticity is necessary and we would be foolish to remove it. In regard to any new venture, where it can be proved to the satisfaction of the advisers of the Minister that it is impossible for the standard to meet the requirements of a particular part of the country or industry, licences will be willingly and readily granted to allow a non-standard set to be proceeded with. Sets for ships, as the hon. Member for Altrincham and Sale knows, and sets for export, do not come within the terms of the order, nor do sets of 30,000 to 60,000 kilowatt production.
In looking into this I have been careful to see that we do not seek to standardise the whole of the production throughout the whole length of the country. What we do seek to do, and indeed what the order sets out to do—and it is intended to keep the order in being so that it shall do it—is to standardise the 162 production where the principal manufacture is concerned. Therefore, we suggest to the Opposition that the order allows the fullest amount of elasticity and that the greatest amount of attention has been paid to the points of view raised by manufacturers, and indeed by potential buyers.
As I said before production of this type of plant could at no stage he so arranged as not to disturb the manufacturers to some extent; but in no case, so far as my right hon. Friend the Minister is aware, was there a stage of plant in production that could not at that time be changed to meet the terms of the order. That is important. I am seeking to prove, and believe I am proving, that the manufacturers themselves were subjected to the least amount of dislocation in their job, and taking a short-term view, as I have said, one has to hurt somebody. But taking the long-term view, we feel this order should be welcomed by the House and by the country as a whole.
I would say, in conclusion, that I will not deal with the details of the law. I have with me my hon. and learned Friend, the Solicitor-General who will deal with that aspect far more ably than I could hope to do. But I am bound to say we were advised right throughout the consultations that this order was not retrospective, as suggested, and was well within the terms of the law as laid down. As a matter of fact, when this order went to the Committee responsible for scrutinising any Bill or order for its retrospective effect, we received no comment upon it and we were advised, I repeat with emphasis, that we were well within the law. I feel the order was designed and accepted a[...] a move in the right direction. I am hoping that as a result of the statement I have made and because of the elasticity that has been allowed within this order to manufacturers and potential consumers, that my hon. Friends opposite will not seek to press the Motion, and indeed will withdraw it; but, as I have already indicated, my hon. and learned Friend will have something to say about the legal aspect, and following on that, I hope that the Motion will be disposed of by its withdrawal.
§ 10.33 p.m.
§ The Solicitor-General (Sir Frank Soskice)
I would not endeavour, after that exposition, to add anything on the merits of this matter. I feel the House is 163 fully in possession of the case so far as the merits are concerned, but an invitation has been extended to me to add something on the purely legal aspect of the case as to whether this order is retrospective in the legal sense. I would advise the House that, in my opinion at any rate, it is undoubtedly not retrospective. The effect of the order is that, as from the time the order comes into force, namely, on 13th November, 1947, nobody shall continue in process of manufacturing other than the permitted types of set, that is to say, other than sets above 10,000 kilowatts, unless they are 30,000 kilowatts or 60,000 kilowatts, and conform to the specifications in the schedule to the order.
The exception, however, to these general provisions is this: if a set is being manufactured in performance of a contract made before 1st November, 1946, manufacture can continue, and likewise, it can continue if the set is being made in performance of a contract for shipping or export. What the order says is that from the time the order comes into force, no further manufacture shall continue; in other words, the manufacture shall stop. That does not make illegal anything entered into before the order comes into force, nor does it invalidate any contract. Nobody has committed an illegal act in making such a prohibited set at any time before the actual moment the order comes into force. It is purely prospective in its effect.
§ Sir J. Mellor
Would not the Solicitor-General agree that it would make the performance of contracts made between November, 1946, and November, 1947, illegal if their terms were not in accordance with the schedule to this order?
§ The Solicitor-General
I could not agree with that. If their terms were in accordance with the schedule, there would be nothing illegal done in pursuance of those contracts before the date the order came into effect. If, however, after the date on which the order came into effect, further work has been done under the contract, and this has not been specifically licensed, it becomes illegal. That is why I say, in a purely legal sense, which is the sense in which I am personally concerned, it is not retrospective and not ultra vires.
§ Sir J. Mellor
But would it not make the completion of the contract illegal according to the original contract?
§ The Solicitor-General
Certainly, and, as my hon. Friend the Parliamentary Secretary has pointed out, the order has been so timed, and the date, 1st Nov., 1946, so fixed, that it should be possible in the case of any contract made after that date to be altered with the minimum of loss and inconvenience to any manufacturer to make it comply with the schedule and the order. That is a reason why this order is not retrospective. It does not make anything done before the order comes into effect illegal, and I should have thought this simple conception would explain why it is not retrospective. I do not feel that I can add anything to what has been said by the Parliamentary Secretary on the merits of this order, which is perfectly intra vires. Not being ultra vires, the only question concerns the general merits, and this I feel has been thoroughly answered by my hon. Friend the Parliamentary Secretary.
§ Mr. Erroll
May I say a word by way of reply? This has been an interesting discussion, and I would like to emphasise that, as far as we on this side are concerned, we have no quarrel with the idea of standardisation. We agree that it is a desirable step forward for the time being. There is no dispute about that. The dispute is about the retrospective character of the order. One must disagree with the reply of the Solicitor-General. There might be an original contract placed on 1st December, 1946, for a complete turbo-alternator, and not at a stage of completion on 1st November, 1947. It is necessary to break the contract or proceed illegally if the contract is to be fulfilled. There is, furthermore, some degree of disturbance and inconvenience caused to the manufacturers. To say that a date has been chosen to give the least disturbance is no defence at all. Disturbance is being caused, and it is admitted that it has been caused. I can suggest how less disturbance could have been caused, and that is by not introducing an order of a retrospective character.
§ Mr. J. Jones
It was admitted there was a minimum of disturbance, and no practical man in this House would suggest that an order of this description could be brought about without some degree of disturbance. This order was designed to bring about the least disturbance.
§ Mr. Erroll
It is surely obvious that this order is retrospective, since it gives dis- 165 turbance to contracts already envisaged. It remains only for me to say that it has been a great pleasure to hear the Joint Parliamentary Secretary on his first occasion at the Despatch Box, but I regret that the matter has been one that is more legal than technical. Nevertheless, we appreciate his exposition on this subject of standardisation. The matter, however,
§ remains extremely unsatisfactory, and we shall have to divide the House on it.
That the Control of Turbo-Alternators (No. 1) Order, 1947 (S.R. & O., 1947, No. 2386), dated 7th November, 1947, a copy which was presented on 13th November, be annulled.
§ The House divided: Ayes, 32; Noes, 199.167
|Division No 56.]||AYES.||[10.40 p.m.|
|Agnew, Cmdr. P. G.||Hollis M. C.||Scott, Lord W.|
|Assheton, Rt Hon. R.||Hurd, A.||Spence, H. R.|
|Baldwin, A. E.||Legge-Bourke, Maj. E. A. H.||Stanley, Rt. Hon. O.|
|Buchan-Hepburn, P. G. T.||Lennox-Boyd, A. T.||Stoddart-Scott, Col. M.|
|Carson, E.||Manningham-Buller, R. E.||Studholme, H. G.|
|Challen, C.||Molson, A. H. E.||Taylor, C. S. (Eastbourne)|
|Conant, Maj. R. J. E.||Mullan, Lt. C. H.||Thorp, Lt.-Col. R. A. F.|
|Crosthwaite-Eyre, Col. [...]. E||Neven-Spence, Sir B.||Wheatley, Col. M. J. (Dorset, E.)|
|Gage, C.||Odey, G. W.||TELLERS FOR THE AYES:|
|Gomme Duncan, Col. A||Raikes, H. V.||Mr. Erroll and Sir John Mellor.|
|Hannon, S[...] P. (Moseley)||Ramsay, Maj. S|
|Haughton, S. G.||Rayner, Brig. R.|
|Acland, Sir R.||Fairhurst, F.||Marshall, F. (Brightside)|
|Adams, W. T. (Hammersmith, South)||Farthing, W. J.||Mathers, Rt. Hon. George|
|Allen, Scholefield (Crewe)||Field, Capt. W. J||Medland, H. M.|
|Anderson, A. (Motherwell)||Forman, J. C.||Middleton, Mrs. L.|
|Attlee, Rt. Hon. C. R.||Fraser, T. (Hamilton)||Mikardo, Ian.|
|Austin, H Lewis||Ganley, Mrs. C. S.||Millington, Wing-Comdr. E. R.|
|Awbery, S. S.||Gibbins, J.||Mitchison, G. R.|
|Bacon, Miss A.||Gibson, C. W.||Moody, A. S.|
|Baird, J.||Gilzean, A.||Morgan, Dr. H. B.|
|Barstow, P. G||Glanville, J. E. (Consett)||Morley, R.|
|Barton, C||Gordon-Walker, P. C.||Morris, Lt.-Col. H. (Sheffield, C.)|
|Bechervaise, A. E.||Granville, E. (Eye)||Mort, D. L.|
|Belcher, J. W||Greenwood, A. W. J. (Heywood)||Moyle, A.|
|Berry, H.||Grenfell, D. R.||Murray, J. D|
|Binns, J.||Grey, C. F.||Nally, W.|
|Blenkinsop, A.||Grierson, E||Neal, H. (Claycr[...]ss)|
|Blyton, W. R.||Griffiths, Rt. Hon. J. (Llanelly)||Nicholls, H. R. (Stratford)|
|Boardman, H.||Guy, W. H||Noel-Baker, Capt. F. E (Brentford)|
|Bottomley, A. G.||Hardy, E. A.||Orbach, M.|
|Bowden, Flg.-Offr. H. W.||Hastings, Dr. Somerville||Paling, Will T. (Dewsbury)|
|Bowles, F. G. (Nuneaton)||Haworth, J.||Palmer, A. M. F.|
|Braddock, T (Mitcham)||Herbison, Miss M.||Pargiter, G. A.|
|Brook, D. (Halifax)||Hewitson, Capt. M||Parker, J.|
|Brooks, T. J. (Rothwell)||Hobson, C. R.||Paton, Mrs. F. (Rushcliffe)|
|Brown, George (Belper)||Holman, P.||Paton, J. (Norwich)|
|Burden, T. W.||Holmes, H. E. (Hemsworth)||Pearson, A.|
|Burke, W. A.||House, G.||Platts-Mills, J. F. F.|
|Butler, H. W. (Hackney, S.)||Hubbard, T.||Porter, E. (Warrington)|
|Champion, A. J.||Hudson, J. H. (Ealing, W.)||Porter, G. (Leeds)|
|Cobb, F. A.||Hughes, Hector (Aberdeen, N.)||Pritt, D. N.|
|Collindridge, F.||Hughes, H. D. (W'lverh'pton, W)||Pursey, Cmdr. H|
|Collins, V. J.||Hutchinson, H. L. (Rusholme)||Reid, T. (Swindon)|
|Colman, Miss G. M.||Hynd, J. B. (Attercliffe)||Robens, A.|
|Corbet, Mrs. F. K. (Camb'well, N.W.)||Isaacs, Rt. Hon. G. A.||Roberts, Goronwy (Caernarvonshire)|
|Corlett, Dr. J.||Jeger, G. (Winchester)||Rogers, G. H. R|
|Davies, Edward (Burslem)||Jeger, Dr. S. W. (St. Pancras, S.E.)||Royle, C.|
|Davies, Ernest (Enfield)||Jones, D T. (Hartlepool)||Sargood, R.|
|Davies, Hadyn (St. Pancras, S.W.)||Jones, Elwyn (Plaistow)||Segal, Dr. S.|
|Delargy, H. J.||Jones, J H. (Bolton)||Sharp, Granville|
|Diamond, J||Jones, P. Asterley (Hitchin)||Shawcross, C. N. (Widnes)|
|Dobbie, W||Keenan, W||Shawcross, Rt. Hn. Sir H. (St. Helens)|
|Dodds, N. N.||Kenyon, C.||Silverman, J. (Erdington)|
|Driberg, T. E. N.||King, E. M||Simmons, C J.|
|Dumpleton, C. W.||Kinghorn, Sqn.-Ldr. E||Skeffington, A. M|
|Dye, S.||Kinley, J.||Skinnard, F. W.|
|Ede, Rt. Hon. J. C.||Levy, B. W.||Smith, C. (Colchester)|
|Edwards, John (Blackburn)||Lindgren, G S.||Smith, H. N. (Nottingham, S.)|
|Edwards, W. J. (Whitechapel)||McAdam, W.||Smith, S. H. (Hull, S.W.)|
|Evans, Albert (Islington, W.)||McGhee, H. G.||Snow, J. W.|
|Evans, John (Ogmore)||Mack, J. D.||Soskice, Maj. Sir F|
|Evans, S. N. (Wednesbury)||McKinlay, A. S.||Stamford, W.|
|Ewart, R.||Mallalieu, J. P. W.||Steele, T.|
|Stewart, Michael (Fulham, E.)||Turner-Samuels, M.||Williams, J. L. (Kelvingrove)|
|Summerskill, Dr. Edith||Ungoed-Thomas, L.||Williams, W. R. (Heston)|
|Sylvester, G. O.||Usborne, Henry||Willis, E.|
|Taylor, H. B. (Mansfield)||Vernon, Maj. W. F.||Wills, Mrs. E. A.|
|Taylor, R. J (Morpeth)||Viant, S. P.||Wilmot, Rt. Hon. J|
|Taylor, Dr. S. (Barnet)||Walker, G. H.||Wise, Major F. J|
|Thomas, D. E. (Aberdare)||Wallace, G. D. (Chislehurst)||Woods, G. S.|
|Thomas, I. O. (Wrekin)||Wallace, H. W. (Walthamstow, E.)||Wyatt, W.|
|Thomas, John R. (Dover)||Webb, M. (Bradford, C.)||Yates, V. F.|
|Thomas, George (Cardiff)||Wells, W. T. (Walsall)||Younger, Hon. Kenneth|
|Thorneycroft, Harry (Clayton)||Wheatley, J. T. (Edinburgh, E.)||Zilliacus, K.|
|Thurtle, Ernest||Whiteley, Rt. Hon. W.||TELLERS FOR THE NOES:|
|Tiffany, S.||Wigg, George||Mr. Popplewell and|
|Timmons, J.||Wilkins, W. A.||Mr. Richard Adams.|
|Titterington, M. F.||Willey, O. G. (Cleveland)|
|Tomlinson, Rt. Hon. G||Williams, D. J, (Neath)|