§ Order of the Day for the House to be put into Committee on re-commitment of the Bill read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The LORD STANMORE in the Chair.]
§ Clause 1:
§ Power to extend purposes of certain Defence Regulations.
§ 1.—(1) If it appears to His Majesty to be necessary or expedient that any Defence Regulation to which this section applies should have effect for the purpose of so maintaining controlling and regulating supplies and services as—
- (a) to secure a sufficiency of those essential to the wellbeing of the community or their equitable distribution or their availability at fair prices; or
- (b) to facilitate the demobilization and resettlement of persons and to secure the orderly disposal of surplus material; or
- (c) to facilitate the readjustment of industry and commerce to the requirements of the community in time of peace; or
- (d) to assist the relief of suffering and the restoration and distribution of essential supplies and services in any part of His Majesty's dominions or in foreign countries that are in grave distress as the result of war;
§ 4.21 p.m.
§ THE LORD CHANCELLOR (LORD JOWITT) moved to omit the last seven words in subsection (1)—"the purposes for which it was made"—and insert "the purposes specified in subsection (1) of Section one of the Emergency Powers (Defence) Act, 1939." The noble and 965 learned Lord said: When we were discussing this Bill before, the noble and learned Viscount, Lord Maugham, said with regard to the words that were there then that he had read them four times over and, having done so, was still not quite clear as to what they meant. It is very desirable that we should at any rate be able to achieve such precision of language as makes it possible for the noble and learned Viscount to understand it after reading it four times; and, although I do not suggest that the Amendment makes any alteration in the sense, I do think it is an improvement in the language. I showed this suggested Amendment to the noble and learned Viscount, and, though I do not saddle him with any responsibility for it, I think he was inclined to take the view that the Amendment was an improvement.
§ The effect is to make it quite plain now that so long as an existing Regulation—and all existing Regulations, of course, have to be for one of the four specified purposes in the Emergency Powers Act—which is brought into effect by this Bill is within one of the specified powers in this Bill, that is to say, (a), (b), (c) or (d) of Clause 1 (1), it cannot be said against that Regulation that it is no longer valid because it no longer complies with one of the provisions of the Emergency Powers Act. I have endeavoured to achieve that by this Amendment, and I hope that the Committee will agree that it is an improvement in the language.
Page 2, line 9, leave out ("the purposes for which it was made") and insert ("the purposes specified in subsection (1) of Section one of the Emergency -Powers (Defence) Act, 1939.")—(The Lord Chancellor.)
§ VISCOUNT MAUGHAM
I should like to disclaim the idea which has been promulgated by the noble and learned Lord Chancellor that my understanding of a particular clause is of any great importance. At the same time, as he has referred to me and to my difficulties in connexion with the previous form of words, I should like to add that on a single reading I have been able to understand the words which he now proposes.
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.966
§ Clause 2:
§ Power to make Defence Regulations for controlling prices.
§ 2.—(1) The powers conferred on His Majesty by the principal Acts to make such Defence Regulations as appear to him to be necessary or expedient for the purposes specified in subsection (1) of Section one of the Emergency Powers (Defence) Act, 1939, shall include power by Order in Council to make such Defence Regulations as appear to him to be necessary or expedient for controlling the prices to be charged for goods of any description or the charges to be made for services of any description, whether or not such Regulations are necessary or expedient for the purposes specified in the said subsection (1).
§ 4.24 p.m.
§ VISCOUNT SWINTON
I should like to ask for a ruling on a point of procedure. I have an Amendment down to Clause 4 to meet a point with which the Lord Chancellor said on the last occasion that he had great sympathy, and to which he promised to give special consideration. On reflection, I am not sure whether that Amendment would not come more properly as an Amendment to Clause 2, which deals with the power to make Defence Regulations for controlling prices, whereas Clause 4 deals with the laying of Orders and Regulations and instruments. I do not want to pass Clause 2 and then find that I ought to have moved an Amendment to it. I should be grateful therefore for the ruling of the Lord Chairman or for the opinion of the noble and learned Lord Chancellor as to which is the appropriate clause on which to take my Amendment to insert a proviso.
§ THE LORD CHANCELLOR
So far as it lies with me to say anything, I should have thought that Clause 2 was a more appropriate place for this Amendment than Clause 4.
§ VISCOUNT SWINTON
Would the right place to take it be at the end of subsection (1) or at the end of subsection (2), or at the end of the whole clause?
§ LORD SOULBURY moved, in subsection (1), to leave out "of any description or the charges to be made for services of any description," and insert "or charges to be made for services so long as the production of such goods or the provision of such services is inadequate to satisfy 967 the requirements of the community." The noble Lord said: The effect of this Amendment, if it is accepted, as I hope it will be, is to give the Government power by Order in Council to make such Defence Regulations as appear to them necessary or expedient for controlling prices and charges so long as, and only so long as, the production of these goods or the provision of these services is inadequate for the requirements of the community. In short, so long as the community has sufficient goods and sufficient provision of services, the Government will not, have power to control the prices or charges for those goods or services.
§ In explaining this Bill, the noble and learned Lord Chancellor laid emphasis, and rightly, on the immensity of the powers which it confers upon the Government; and from 'his subsequent observations it seems clear that he was becoming increasingly perturbed at the extent and compass of this Bill and the powers therein contained. He almost gave the impression of a man who was being astounded at his own immoderation. He said that he did not want to have conferred on the Government very wide powers which the Government might use in a wholly unreasonable way. I am sure that the wish of the Committee coincides entirely with the wish expressed by the Lord Chancellor. If he feels, as he apparently does, that this clause as at present drafted does provide a temptation to use powers in a wholly unreasonable way, then the best service which can be rendered to the Government is to remove the temptation from them, and to restrain any tendency that may lurk in the depths of the Ministerial sub-consciousness to use these powers in a tyrannical or arbitrary fashion. One of the reasons which the noble and learned Lord Chancellor gave for these powers to control prices, and one of the main reasons, was, and quite rightly, shortage of supplies. He pointed out that if goods were in short supply, prices might tend to rise, and that some powers such as those proposed here would be justified. He said that so long as shortages continued the principle of "fair shares" must go on. I think that that principle will be generally conceded in present circumstances.
§ Of course, so long as shortages continue and the principle of "fair shares" is to 968 be continued, controls are justified; but what is the position when supplies are adequate and when the provision of services is adequate? Are controls equally justified in such an event? High prices are promoted by scarcity, and when there is scarcity prices, of course, may go rocketing. But if production is adequate, as my Amendment assumes, prices surely fall and under the marketing conditions which come into operation they find their level. Surely, in such circumstances, what would otherwise be a justification for exercising the powers of control herein described must fail. In fact, so long as there are inadequate supplies control is justified. When there are adequate supplies, control is no longer justified. It is for that reason that this Amendment seeks to provide that restraining influence which I believe the Lord Chancellor himself would welcome. I agree that it is possible to promote artificial scarcity by rings and cartels, but surely if that is feared, or if that occurred, a condition of that sort should be taken care of by a specific enactment framed to deal with it and to prevent the cartels or rings from exercising improper influence on the price level. Let there be anti-trust legislation by all means, but not legislation of this general character, to deal with such a situation.
§ As the Bill stands the Government have power to control prices or services quite 'irrespective of the state of supplies—unless I have misread the Bill entirely. So far as I can discover, the only test or criterion which the Government need apply is whether in their opinion their action is necessary or expedient. There appears to be no other test. I submit that that is far too wide and far too all-embracing a power to concede. Surely, the Lord Chancellor would agree that if possible—and I believe that it is possible—it would be better to substitute an objective test, such as I have endeavoured to outline in this Amendment, which can be factually and statistically determined, in place of the purely subjective test of Ministerial opinion. As the Bill stands, the necessity or expediency really depends, as it were and as the phrase goes, on the "length of the Lord Chancellor's foot." It is far better that it should depend, as my Amendment would make it depend, on the actual facts of the situation at the time, facts which are ascertainable and 969 can be made known. The Lord Chancellor in the course of some observations which lie made yesterday expressed the view that none of us like this Bill. I do not believe that any member of your Lordships' House would disagree with that observation. I submit this Amendment with a view to making the Bill slightly more palatable.
Page 2, line 41, leave out from ("goods") to ("whether") in line 42, and insert ("or charges to be made for' services so long as the production of such goods or the provision of such services is inadequate to satisfy the requirements of the community").—(Lord Soulbury.)
§ LORD RANKEILLOUR
I am in full agreement with what my noble friend Lord Soulbury has said, but I would ask him whether he would not be prepared to accept in place of the words, "charges to be made for" the words set out in an Amendment which I have put down. My Amendment is to leave out the words, "charges to be made for" and insert "costs of." I ask my noble friend and the House to accept this because of the extraordinarily wide meaning of the word "charges," and especially that usual connotation which, as I have pointed out, is that "charges" are charges on the Exchequer. Now there are charges on the Exchequer of two kinds. One kind appears on Estimates and they can be cut down in another place if they are excessive. The other kind are charges on the Consolidated Fund, which cannot ordinarily be altered without legislation. But this particular clause and these particular words, I submit, would enable charges on the Consolidated Fund to be cut down by Order in Council, and, as I pointed out before, it would go very wide; it would include, for instance, salaries of Judges and possibly items in the Civil List. Therefore I do say that we should hesitate before we allow these words to pass.
There is another matter in connexion with the subsequent words: "services of any description." We constantly hear the words "charge for the service of the Debt." That is the National Debt. I believe that it would be possible under these words for a Government, by Order in Council, to suspend the Sinking Fund and even to cut down the interest on any Government Loan. They could do that, so far as I can see, in the case of any public authorities' loan or in the case of 970 a company's loan. This is, of course, a very serious and extraordinary power. I quite understand that the present Government will not use it. I have no doubt that they will disclaim any intention of doing so. But I submit that there is great danger in allowing these words to appear in an Act of this description. I am afraid it is an example of a tendency by the Departments to draw clauses of this description as wide as they can be made. I am by no means one of those people who find no good in civil servants. I think that very often they are unjustly attacked, and they have my special sympathy when they have, to put into operation ill-judged proposals of their transitory masters. All the same they are apt, like everybody else in this world, to seek their own convenience, and I am sure that they often say to the draftsman: "Make this as wide as you can. We may not want it now but we shall want it, or we may want it, some day." This is a dangerous tendency. There was a flagrant example of it in the Education Bill, which would have enabled them to take away either their own rights or powers or rights given to various descriptions of local authorities earlier in the Bill. That, to a great extent, your Lordships put right. But this is a tendency which I suggest ought to be checked. Therefore I submit that the word "charges to be made for" should go and that "costs of" should be substituted.
Before I finish, may I just ask the Lord Chancellor to clear up this point? He told us that no order under Clause 2 could be made after February 24 next. I presume that is because Clause 2 is bound up with Clause 1, and that what cannot be done after that date under Clause r, cannot be done under Clause 2. But it is not very clear and if that could be cleared up I think it would be a help.
§ 4.41 p.m.
TIIE LORD CHANCELLOR
Let me deal with the last point first. Clause 2 starts in this way:The powers conferred on His Majesty by the principal Acts to make such Defence Regulations as appear to him to be necessary or expedient for the purposes specified in sub-Section (1) of Section one of the Emergency Powers (Defence) Act, 1939, shall include power…to do certain things. The powers conferred by the principal Acts come to an end on February 24. Therefore it is quite 971 obvious that there can be no power under Clause 2 to make Regulations after February 24. Let me now come to the first matter raised. I state quite frankly that I do not like this Bill. I do not like this Bill or this sort of legislation, but no one likes the emergency which makes this legislation necessary. Unfortunately, we are living in the aftermath of war and we all realize that some legislation of this sort is necessary.
With regard to the Amendment moved by the noble Lord, Lord Soulbury, I am sorry but I cannot accept it. I quite sympathize with his desire, which is also mine. I do not want to have very wide powers conferred on me—powers to do ridiculous things—but so long as I can have powers to do all sorts of things which may arise, I am satisfied. The point was very fairly put by the noble Viscount, Lord Swinton, on the last occasion. If I have powers wide enough to deal with any emergency, I must have powers to do all sorts of ridiculous and impossible things. The Leader of the Opposition asked me to consider whether I could think of any limiting words. I have tried to do that in conjunction with the Parliamentary draftsmen and I have failed. I can give you this considerable measure of satisfaction. Under Clause 2, the proposed Regulation in its final form has not yet been finally polished but in its rough form I know what it is. It is in the most general terms. Before it can be used for any purpose, assuming that such a Regulation is approved by both Houses, it will have to be brought up by virtue of a subordinate instrument.
Let me get this statement quite accurate so that there shall be no confusion. These subordinate instruments fall into two categories. There are those which are quite frankly legislative, applying to the whole country. These at the present time we find published in the Statutory Rules and Orders. There are those, on the other hand, which are merely executive in their nature and these we do not find in the Statutory Rules and Orders. It is not always very easy to draw a distinction between the two and the Rules Publication Act, under Clause 4, provides for the method of determination as follows. Supposing there is a controversy as to whether a Regulation falls into one or other category, in the last resort it is for the Treasury to decide with the concurrence 972 of the Lord Chancellor and the Speaker. If I have any doubts whether it was executive, in which case it would not be published, I should always lean on the side of saying that it is legislative in order that it shall be published, and it follows as a corollary that it has to be subject to the approval of both Houses.
I think we shall find that there is a very satisfactory remedy here in practice. If, for example, we were minded to do anything so extraordinary as to fix doctors' fees or teachers' fees on the Burnham scale, such things would have to be done by a subordinate instrument which would come before your Lordships and would be subject to a prayer. Your Lordships would, in that case, knock it out. There is some guarantee on the lines which Lord Swinton mentioned on the last occasion, that your Lordships' House will have control. I say quite frankly I am most anxious that your Lordships should have control. The last thing I want is to have power to do all these stupid things, always providing that I do have the power to meet an emergency.
There is one other difficulty about the Amendment. I cannot accept the view that we have got an objective test. The words of the Amendment are:or charges to be made for services so long as the production of such goods or the provision of such services is inadequate to satisfy the requirements of the community.First of all, be it observed that if this Amendment is agreed a judge will have to determine that and Heaven help the poor Judge who has to determine it. It is so obviously a political decision that it is very difficult to ask a judge to do it. But there is another objection. After all, the demands of the community for any good article depend very largely on the prices at which that article is being sold. If you charge £10 a pair for boots you will find that the demand of the community for those boots is very easily satisfied. You will have the boots at £10 a pair in the shop windows and people will not buy them. But if you reduce the price from £10 to £1, at once you will find the demand goes up proportionately and I cannot admit the possibility of an objective test—
I think I ought to say that the word is not "demand," it is "requirement," which is a very different thing
§ THE LORD CHANCELLOR
Even the word "requirement" is subject to the same difficulty. Supposing a Judge has to determine this point and you were able to say that there was a large number of boots at £10 a pair which the community was not buying, could you say that the existing supply was adequate for the community? Obviously you have got to have consideration of what is to be the fair price to be charged, and the lower you get the charge, other things being equal, the greater will be the requirements of the community for that article. It happens even with tram rides. If you reduce the price by ½d. 1d. you will have many more people riding on the trams. Apart from the price you have to be satisfied about your requirements.
I am sorry I cannot accept these words, and equally I may say—although I am rather anticipating the next Amendment—I do not see how I can accept an Amendment to substitute the word "costs" for the word "charges." Again I think that would make the thing more obscure. The word "charges" is in a similar set of words in the Price Control Act to-day. If I were to substitute the word "costs," then I think I should be in the region of considering the internal costs of the business, the costs, the overheads and the profits and all that sort of thing, and I should be directing my attention not merely to what the buyer has to pay, but to what the seller has to charge and how he should conduct his business to reduce his costs. All I can tell your Lordships is that I hope I have shown I am not unsympathetic, and that I am at one with the desire of the noble Lord, but I ask him to agree that the real way to deal with this difficulty is to adopt the way I have suggested—let us have subordinate instruments which are subject to attack, so that this House has an opportunity of control.
§ VISCOUNT MAUGHAM
May I add a word or two on this subject without, I hope, being in any way dogmatic? I want, first, to say a word about the meaning of the word "charges." To a lawyer the word "charges" will be affected in this clause by the fact that, in the previous line, we have the past participle "charged for goods of any description," so that, undoubtedly, "charges" in the words we 974 are considering means charges made by individuals and companies for services rendered.
The next thing I want to point out is that I cannot follow my noble and learned friend in his view as to what the words proposed will do, because it is impossible for a Judge to deal with the question where there is a deficiency of goods or where the provision of the services is inadequate to satisfy the requirements of the community. The reason why I do not think that is really going to be the trouble is that under this clause the Minister has power—or the people who make the Order in Council have power—to do these things. Prima facie, the only way of attacking them is to say that the power contained in the clause is being exercised in bad faith. Anybody who knows anything about actions of that nature knows perfectly well that, except in very rare occurrences, which take place once in a generation, it is quite impossible to show that the Minister who certifies that he has taken a particular view, is acting in bad faith. It is only in the most exceptional cases that a Judge could possibly say that, in his opinion, it was a case where the requirements are not being properly met in the circumstances.
Frankly, I venture to think that the noble and learned Lord is not accurate in that part of his criticism of the suggested Amendment. On the other hand, as I, like the noble and learned Lord, am trying to act perfectly fairly and to tell the Committee, for what it is worth, my view on this clause, I am not satisfied that the word "costs" would meet the Lord Chancellor's case, or what the Government are aiming at. In many respects, I think it would not be a very safe word to put in. Having said that, quite frankly I strongly object to the phrase "charges should be made for services of any description." It seems to me extraordinary that this House should be asked to hand over to the Government the power, subject only, as I say, to that power being exercised in good faith, to halve the fees, we will say, of solicitors and barristers, and to cut down—I am speaking here about something I am very well acquainted with—the fees charged by doctors, medical attendants, and various things of that kind.
975 I submit that the Lord Chancellor, though he may be right in saying that he cannot completely define what he means by "charges"—and, for my part, I do not in the least know what charges they are that the Government have in mind under this clause—might put in some word after the word "charges," to show that the charges he has in mind are not ordinary, normal professional charges made by professional men in the normal way. It cannot be that it is intended that the Government should have power to regulate all the things which the noble and learned Lord has mentioned. So far as I know, the charges that are sought to be made for services of any description here do not include those things at all. That is the main point I have to make on this clause. I agree that it is very difficult to carry out what the Government admit to be their legitimate wishes, but I think it would be possible to add something to make the clause a little bit less astonishing than it is at the present moment.
§ LORD SOULBURY
I cannot say that I feel quite convinced by what the noble and learned Lord has said. I am willing to admit that the objective test which I propose may be open to some criticism, but far less criticism, it seems to me, than the subjective test upon which the Government propose to work. However, one sympathizes with the Lord Chancellor in his dilemma. The picture of the Lord Chancellor's dilemma is always distressing, and he has successfully taken on the role of the good man struggling with adversity. Therefore, I do not propose to press this Amendment. I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 4.57 p.m.
§ LORD RANKEILLOUR moved, in subsection (1), to leave out "charges to be made for" and insert "costs of." The noble Lord said: After what the noble and learned Lord has said on the word "charges," I shall be very brief. I cannot help thinking that the objection he took to the word "costs" would apply to the word "charges" equally, because, in estimating whether a charge is reasonable, I should have thought he would have had to consider the very same things that he spoke of when he referred to "costs"— 976 what was a fair return, what was an excessive charge, and the like. I confess I fail to see any difference between the two arrangements. In view of the obvious objections which have been taken to the word "charges," I cannot but hope that the noble and learned Lord will even at this late stage of the Bill settle the question on the lines that the noble and learned Viscount, Lord Maugham, has suggested. I beg to move.
Page 2, line 42, leave out ("charges to be made for") and insert ("costs of").—(Lord Rankeillour.)
§ THE LORD CHANCELLOR
I agree with what was said, and I was going to deal with the Amendment more fully. The words here, "appear to him to be necessary or expedient for controlling the price to be charged for goods of any description or the charges to be made," make plain the sense in which the word "charges" is used—namely, the charge which is to be paid by the buyer. As I have said, these words are borrowed from the Price Control Act, and I do not think we could make the matter any simpler. Indeed, I think we should be introducing another obscurity if we were to depart from the word "charges," hitherto used, and substitute the word "costs." I do not think I have anything further to say.
§ LORD RANKEILLOUR
I am afraid it does not appeal to me that the Act was that of the last Government. I never accept the infallibility of the last Government, or the Government before, but as I find the heart of the noble and learned Lord remains hard, I will not press the Amendment.
§ Amendment, by leave, withdrawn.
§ VISCOUNT ADDISON
My Lords, may I interrupt the proceedings for a moment in order to facilitate a question by the Leader of the Opposition and an answer by my noble and learned friend on a highly important matter? I move that the House be resumed.
§ Moved, That the House do now resume.—(Viscount Addison.)
§ On Question, Motion agreed to.
§ House resumed.