§ 2.54 p.m.
§ Order of the Day for the Second Reading read.
§ VISCOUNT SAMUEL
My Lords, the Bill which I have the honour to submit for Second Reading consists of twelve operative clauses which deal with twelve different matters, but they are all con- 1042 nected because they embody a single principle, the vindication of the liberties of the subject. If anyone were disposed to criticise a Bill so constructed I could offer quite respectable precedents in the Magna Carta and the Bill of Rights. During the last thirty or forty years, imperceptibly, almost unconsciously, here a little and there a little, there have been encroachments upon that great and precious heritage. Only yesterday I had the pleasure of listening to an interesting oration by a distinguished American statesman, Mr. John W. Davis, who years ago had been Ambassador in London, and in the course of his speech he greatly moved his audience by referring to those liberties which were the foundation of the American way of life. He said of these—supremacy of elected assemblies, the rule of law, trial by jury, habeas corpus, freedom of the Press—that not a syllable in any of.them but was drawn from the old law and custom of Britain. I do not suggest to-day that we have lost, or are in danger of losing, those liberties, but I do suggest that they have been again and again impaired, that that process is still continuing, and that it needs to be stopped and reversed.
For this tendency there have been two causes, springing front the two principal events of the first half of the Twentieth Century. One of them has been the two world wars, which brought upon the State many problems of instant urgency, calling to be dealt with without a moment's delay and resulting in the slow procedure of normal legislation having to be brushed aside and almost dictatorial powers conferred, upon the Government of the day. Short Statutes were passed by the assent of Parliament, sometimes through all stages in a single day, conferring immense powers upon the Ministers to make rules and regulations on all manner of subjects which every citizen, under penalties of fine and imprisonment, was obliged to obey. Even now, after the peace, or semi-peace, of the last five years, not all these liberties have been restored, and there is danger that some of these restrictions may be allowed unnecessarily to slip into our permanent system of government.
The second great event of the present century has been the rapid growth in State action. Laissez faire as a universal principle is no longer supported by any 1043 Party in the State, and all have realised that often it may be necessary to have more law in order to secure greater liberty. Much social and economic legislation has been passed, after a time perhaps by general agreement and with general support. And it is realised that measures which were needed must be allowed to work to be effective. Therefore, Bills must be passed without too much delay, and the power conferred must be adequate to prevent evasion by interested parties. We realise that democracy must not only be free government but must also be effective government. Those were wise words said by Alexander Hamilton:In a government framed for durable liberty not less regard must be paid to giving the magistrate a proper degree of authority to make and execute the laws with rigour than to guard against encroachments upon the rights of the community; as too much power leads to despotism, too little leads to anarchy, and both eventually to the ruin of the people.Democrats must learn that adequate power to make and enforce the laws must be granted to democratic Governments if they are to be efficient for their purpose. We have to learn by the events of the first half of this Twentieth Century. We have seen democracy fall in many countries—Germany, Italy and Spain, for example. In others—for instance, Greece and sometimes in France—it remains precarious, because quarrels between the democratic Parties mean ineffective government, necessary tasks left undone, and peoples left to suffer.
Therefore, I am not one of those who believe that we can sweep away at a stroke all the delegated legislation, and expect that Parliament should pay attention to even the minutest details of administration. That would mean the choking of our Legislature and the inefficiency of our Government. It has been the wise practice sometimes to devolve power upon local authorities—who are themselves elected by and responsible to the people, and make great codes of by-laws—and sometimes to authorise the Government to draft Orders-in-Council or to make departmental regulations. The powers must be divided, as has always been recognised by every constitutional theorist, between the legislative, the executive and the judicial; and the distribution of those 1044 powers may need reconsideration and adjustment from time to time.
The consequence of these two great changes, first the impact upon the world of war conditions, and secondly the largely extended activities of the State, has been an increase in the number of those encroachments to which attention was drawn nearly twenty years ago by the then Lord Chief Justice, Lord Hewart, in his book The New Despotism. Following upon the publication of that book, the Lord Chancellor of that day, Lord Sankey, appointed a Committee on Ministers' Powers, who reported in 1932. The Chairman of that Committee was first Lord Donoughmore, and afterwards Sir Leslie Scott, whose recent death we greatly deplore. It is the publication of these Reports, and the general current of public opinion, which is becoming sensitive and alarmed at these encroachments, that have led to the introduction of this Bill.
Three years ago a similar Bill, with some differences, was introduced in this House by my noble friend Lord Reading. When introducing that Bill he used these words:I claim no personal credit for this Bill. I introducing it to your Lordships, I am acting merely as the mouthpiece of the liberal Party, by whom it has been conceived, prepared and sponsored.Lord Reading having, unhappily, left us, I do not think that I should plead guilty to having kidnapped his infant Bill, but rather that he should face a charge of desertion. Nor do I desire to claim any monopoly for the Liberal Party in devotion to liberty, or in anxiety to enact the principles of this Bill. Mr. Churchill said at a great meeting a few weeks ago that he was "much encouraged by the Bill embodying individual rights which the Liberal Party had sponsored and had introduced in the House of Lords." It might at first sight appear that this was one of those blandishments of which we have been the gratified but coy and wary objects since the General Election. But that is clearly not the case, because this Bill was introduced in 1947, before the Election, and was at that time supported by noble Lords on the Opposition Front Bench, and by their votes and those of their followers in the Division Lobby. As to the position of the Government, the Lord Chancellor, in speaking on that Bill, said that of course he approved the 1045 general principles as unexceptionable, though I believe that he took exception to all the clauses one by one.
The Lord Chancellor himself has done much to promote this movement towards the restoration of the liberties of the subject, for it was he who was responsible in 1947 for the Crown Proceedings Act, that great Statute of fifty sections which fully vindicates the rights of the subject in litigation against the Crown. That and other Statutes will make his tenure of office as Lord Chancellor noteworthy in the history of English law. I hope that he will add to his renown by taking the present Bill under his patronage and by co-operating in shaping it, redeeming it from the faults which no doubt it possesses and in curbing any undue ambitions which he may find in it, so smoothing its way to the Statute Book.
For my own part, being anxious to gain general assent to this Bill and to ease its passage, I have omitted two clauses included in the former Bill which evidently gave rise to keen controversy in debate. One was the then Clause 12 which dealt with the highly controversial subject of the closed shop. Those opposed to that clause may well have been justified in voting against the Second Reading of the Bill, as it was a matter of such great importance and high controversy. As my noble and learned friend Lord Simon said:That clause stands rather apart from the rest of the Bill.Indeed, it must be admitted that the matter of the closed shop should be dealt with (if at all) as part of trade union legislation, or in a separate Bill. Clause 10 in the previous Bill, dealing with the Assistance Board, has also been omitted from the present Bill. The late Lord Rushcliffe spoke in the debate on the former Bill, and took strong exception to that clause. Other members of your Lordships' House also showed that they disapproved of it. Therefore, in order that this Bill may be made as non-controversial as possible, that matter has been left out. On the other hand, we have inserted two new clauses in this Bill, Clauses 10 and 11, which have arisen out of experience gained since 1947.
I trust that if the Bill passes Second Reading and goes to Committee we may enjoy the co-operation of all members of your Lordships' House, and particularly 1046 of my noble and learned friends Lord Reading and Lord Simon, in redrafting any clause which may be found imperfect. A highly technical Bill of this character is most difficult to draft, and ought properly to be prepared by the Government draftsman. I need hardly say that if the Lord Chancellor would co-operate by putting the Government draftsman at our disposal, as is sometimes done in regard to Bills that are intended to be non-controversial and have general assent, no one would welcome that more than we should. Such a spirit of accommodation would certainly be shown by the promoters of the Bill, and particularly by myself—it might even extend to absolute subservience if only we could get the Bill through as a measure passed by the whole House as a result of its cornbined wisdom.
It is my duty to give a brief explanation of the clauses. It will be brief, because, after an experience of generations, we have learned, both in this House and in the other House, that we cannot expect to do everything at once. We divide our procedure into stages: certain thins are proper for the Second Reading, and others are properly relegated to the Committee or the Report stages. To-day I shall not attempt to present a full argument in favour of each clause, but will give merely the gist of it and the main reasons for promoting it, although I shall feel obliged in a number of cases to say a few words in reply to the observations of the Lord Chancellor in the previous debate, since there was no opportunity for reply on that occasion. However, I shall do my best not to plunge into a mass of technical detail.
Clause 1, which is perhaps the most important clause of the Bill, deals with the control of Parliament over delegated legislation. As your Lordships are aware, when regulations or other statutory instruments are laid before your Lordships' House, they can be either rejected or approved. There is no intermediate course; they can never be amended. It is the same in the other House. Therefore your Lordships may frequently be placed in a great dilemma, especially at a time of national emergency, when all of a hurry great powers have to be conferred upon the Administration of the day. Among those powers there might be one to which strong objec- 1047 tion is taken, and properly taken. For example, there might be included the power to establish industrial conscription, and for the allocation of labour over the whole country, in all trades and occupations. In those circumstances, this House and the other House would be slow to reject the whole body of regulations, because to do so might imperil the State. On the other hand they would be slow to pass that particular regulation. Consequently, it has been felt by many Parliamentarians for a long time past that there ought to be a power to amend, and that we should not merely have to submit to a dilemma, both horns of which might be dangerous, either to accept or to reject.
The Lord Chancellor objected to this course, saying that the clause was unnecessarily wide and that it brought in certain classes of regulations which need not have been brought in. Consequently, in this Bill, in order to narrow the limits of discussion, we have not made the clause applicable to "any Act," covering a great number of instances in the past history of this country, but only to the Supplies and Services Acts, 1945 and 1947. There, especially in the latter measure, enormous powers were conferred upon the Government. They can make any regulations
your Lordships will mark these words—
- "(a) for promoting productivity of industry, commerce and agriculture;
- (b) for fostering and directing exports and reducing imports, or imports of any classes, from all or any countries, and for redressing the balance of trade;
- (c) generally"—for ensuring that the whole resources of the community are available for use, and are used in a manner best calculated to serve the interests of the community.It is impossible to imagine a wider range of powers than those that have been thereby conferred.
The proposal which is embodied in this Bill is already the law of the land in regard to one particular Statute—namely, the Government of India Act. 1935, Section 475, which declares that when a draft order has been laid before Parliament an Address may be presented to His Majesty by both Houses of Parliament—these are the words:praying that the Order may be made either in the form of the draft, or with such amendments as both Houses of Parliament may have agreed to.1048 That being now the law of the land—although I believe there has never been occasion to act upon that particular provision—the proposal in this Bill cannot be brushed aside as being merely impracticable or quite unnecessary. The Lord Chancellor said that the real difficulty was how this right to be given to both Houses of Parliament concurrently, could be made to work, supposing that one House took one course and the other House took the other course. He indicated that the wit of man had found it impossible to overcome that difficulty. But we overcome it every day in the case of Bills, and whenever one House introduces an amendment to which the other House disagrees, there may be conferences between the two. One or other then gives way, or a compromise is agreed to, and in the last resort each House has to make up its own mind whether by insisting it will lose the whole Bill or by giving way it will enable the Bill to pass into law. Precisely the same procedure should be adopted if it is desired to discover a method for putting into operation this proposed provision.
As to this suggestion being unreasonable and impracticable, I would draw the Lord Chancellor's attention to a statement made in the other House in 1934 by Mr. Attlee, the present Prime Minister, when he was Deputy Leader of the Labour Party. He said on this very matter:I think the system has grown and has got steadily worse; one recognises, in the complicated legislation of the present time, that there must be a means of making Orders applying detailed regulations, but they should come in a form in which the House can amend them.He went on to say:This House should have the opportunity, either on the floor of the House or through Committees, of thoroughly examining regulations in draft and amending them.If the Lord Chancellor again roundly condemns the whole suggestion he will be saying that his present Leader—and then a very responsible one in a very responsible position in the other House—was making a recommendation which was unreasonable or impracticable.
Clause 2 deals with powers to make regulations under a new Act—powers which are embodied in several Statutes—including power to adapt requirements of previous Statutes on the same subject to fit in with the new Act. That has usually been done by Parliament, with full 1049 agreement on all sides, mainly for the adjustment of administrative details. Some new voluminous Statute, very complicated, is brought in to amend a large number of previous Statutes, and then regulations are authorised to fit the procedure of the one into the procedure of the others. But the point is that sometimes these Statutes exclude the jurisdiction of the courts on the issue whether a regulation is itself lawful—not whether a regulation is desirable or not, but whether the regulation does in fact conform to the provisions of the Statute. That is the only point which is dealt with in this clause of the Bill.
The Committee on Ministers' Powers, to which I have referred, said that this practice should be abandoned in all but the most exceptional cases, and then a period of challenge of at least three months and preferably six months should be allowed; that is to say, that within that period the validity, the legality, of the regulation might be challenged in a court of law as being ultra vires. That is a clear recommendation of that Committee, which was appointed to examine precisely into these subjects and consisted of seventeen members of a very representative and authoritative character—Members of both Houses, civil servants, members of the legal profession, including respected members of the Labour Party, Miss Ellen Wilkinson, Professor Harold Laski and Mr. Robert Richards—and all its recommendations were unanimous. I submit that when a Committee of that kind makes unanimous recommendations, Parliament should regard the burden of proof as lying on those who would reject them, and not on those who would accept them. When a representative Committee is appointed and it makes recommendations, you have to give reasons why you should not accept them and not reasons why you should. Since,prima facie, that regulation is reasonable I submit to the Lord Chancellor that when he demurs from it he should give convincing reasons why he should do so.
Clause 3 deals with Statutes which allow Ministers to alter the provisions to the Statute itself and modify other Statutes as well. That is a very strong power to give to a Minister—that he is authorised to say that what hitherto has been the law of the land, enacted by Parliament, is to be altered without the 1050 specific assent of Parliament to such amendment, and that he can alter even the new provisions of Statute itself. Here again, the Committee to which I have referred roundly condemned that practice. It said that (a) it should never be used except for the sole purpose of bringing an Act into operation; and (b) that it should be subject to a time limit of one year from the passing of the Act. That recommendation has not been acted on and eighteen years have elapsed since then. Of course it would be absurd now to pass an Act laying down that this should apply for one year after the passage of each of the Acts to which it applies. Therefore we insert this clause in this Bill to say such powers should lapse one year after the passage of the present Bill.
Clause 4, again, embodies a recommendation of the Committee. Many Statutes authorise Ministers to appoint tribunals, and sometimes these tribunals are called upon to decide points of law, as well as matters lying within the discretion of the Minister, without any appeal to the High Court. This clause proposes that an appeal to the High Court should be authorised in all such cases. That is another recommendation of the Committee. The Lord Chancellor gave no reason against the proposal except that it would give a great deal of trouble and that it had been done once by Parliament in connection with ex-Service men, necessitating the review of a large number of cases already decided amongst ex-Service men. But it was quite right that those cases should have been reopened; and certain test cases having been brought and decided against the Minister, great numbers of disabled soldiers secured pensions. There may be many other such cases—not of ex-Service men but of injured workmen who have suffered disability through their employment and who have been wrongly deprived of their pensions through misinterpretation or maladministration of the law. It is surely desirable that that injustice should be remedied.
Clause 5 deals with a widespread grievance. Many Statutes have provided that local public inquiries should be held in certain matters, and those inquiries are usually presided over by a lawyer of high status or by some senior official of the Department concerned. Evidence may be taken and counsel heard; there 1051 are, perhaps, several days of inquiry and a report is drawn up by whoever presides over it. But such reports need not be published and the recommendations need not be acted upon. The parties concerned, who have taken all this trouble to present their case, may never know whether the judgment has been given in their favour or against them; or, if the decision is not acted upon, what the reasons have been. It is, again, a recommendation of this authoritative committee that such reports should be published, and that when the Minister dissents from the recommendation of an inquiry he should give reasons for his decision. The Lord Chancellor, in taking exception to this clause also, said that it did not precisely conform to the recommendation of the Committee but depended in some degree on the definition of "quasi-judicial." Surely that is a matter of drafting: the question is whether the principle is right.
Clause 6 deals with food control regulations and the right of inspectors of the Department concerned to enter premises in search of goods which are not being handled in accordance with the regulations. Judging from the cuttings I have received from the Press, their observations on this part of the Bill are more numerous than on any other. The Bill is regarded as an "anti-snoopers" Bill—to quote the headlines I have seen. These observations refer to the general power of entering without specific authority which is possessed by these inspectors, who are extremely numerous. This is resented by the population at large. We ask that the same kind of authority should be needed in this case as that which is required by the police when they are making searches. The Englishman's house is still immune from arbitrary entry by the police; they have to go to a magistrate and get a search warrant. These officials are under no such obligation and no equivalent obligation to produce an authority from a high official of their Department. The Lord Chancellor said in this connection that he did not know whether an affidavit would be required. The police do not have to present an affidavit and, similarly, it is not suggested that an affidavit should be required in these instances; but what is necessary for the police, who are enforcing the regulations of criminal law, should 1052 surely be necessary also for the lesser right of entry in connection with a search for possible infractions of the food Acts.
Clause 7 deals with a different kind of point. Your Lordships may remember that during the fuel crisis of two or three years ago, restrictions on the use of power were enforced. Many industries were affected, including the printing presses. No regulation was made, but the Government ordered as part of their proceedings that certain periodicals, which they regarded as unessential, should stop publication altogether. This included certain weeklies, for example the religious weeklies. This was not done by any regulation, though it could have been done under regulation had the Government so desired. But the Press obeyed the instructions of the Government without inquiring into their legality, and the stopping of the publication of these papers was greatly resented. When the Supplies and Services (Amendment) Bill was introduced not long afterwards no provision appeared in it in regard to this matter, and one of my right honourable friends in the other place moved an Amendment to make any such action illegal. That was debated by Parliament and the principle was embodied in the Bill; but it does not apply to the original Act. This clause, which we suggest is a very reasonable one, would cause it to be so applied.
Clause 8 deals with breaches of marketing schemes. It is too technical a matter to go into in detail but the purpose of the clause is clearly set out and its terms made clear in the accompanying memorandum. The Agricultural Act of 1949 retains powers to inflict penalties which are in future to be exercised by a discliplinary committee. That is certainly an improvement. The present Acts give wide powers to non-judicial bodies to impose penalties; but we suggest that there is no reason why the ordinary magistrates' courts should not find a person guilty of an offence—if he is in fact guilty—and should not themselves apply penalties, as they are empowered to do in all the other multifarious regulations which affect (or, as some would say, afflict) our lives. That is the kind of matter which could probably be threshed out in Committee.
Clause 9 deals with the disabilities of litigants when they are proceeding against public authorities. Anyone who brings 1053 a suit against a public authority, or certain public authorities, is subjected to a number of disabilities from which he would be free if the other party were a private individual. This has been dealt with by another Committee, the Committee on Limitation of Actions, presided over by Lord Justice Tucker. Their Report was published in 1949, since your Lordships' last debate on this subject. Here again, that Committee were unanimous that there is no justification for the discrimination now made, and that it ought to be altered. Some question arises as to what should be the period in which certain proceedings have to be taken. That is not a matter for this Bill, but a general matter which should be decided elsewhere. This Bill, however, can lay down the principle and not leave the matter over, perhaps for twenty years, as has been the case with the recommendations of the Donoughmore Committee.
Clause 10 is new. It deals with the very difficult question of a proper Parliamentary control over nationalised industries. There must be sufficient control to prevent industries from being irresponsible and abuse arising. On the other hand, one does not want so much control as to interfere in the day-to-day administration of those industries. When an industry has been nationalised, that having been deliberately done by Parliament and it being the law of the land, the industry ought to be given an even chance to make its administration efficient and successful; it should not be subjected to all kinds of red-tape regulations from which private enterprise is free. To hold the balance even between those two considerations is a matter of difficulty. The course that we propose here is that which has been already adopted by Parliament in one of the earlier nationalised or socialised industries—the Port of London Act, 1908, which gives power for people who consider that they have been treated unjustly by the employing body to invoke assistance from higher authority. We suggest that that might be done quite generally in the nationalised industries.
Clause 11 is also new and is the result of an incident which has taken place comparatively recently, when a very important business firm of retail traders made a regulation that no one who was either a Communist or a Fascist should be admitted to their employment. We may strongly disapprove of Communists or Fascists, but we may also disapprove of 1054 such Communist or Fascist principles as that of making people's employment dependent upon their conformity to the predominant opinions of the country. If it is contrary to public policy that such a condition should be imposed, the making of the condition ought to be prohibited by Parliament, just as in the making of wills or bequests a person who has been excluded from a bequest, or upon whom certain conditions have been imposed, may apply to the courts that it should be held invalid as being against public policy. In the case of employment, that course could not be followed without special statutory provision, and in this Bill we make that provision.
Exceptions have to be made, and exceptions are made in the Bill. If, for example, the Catholic community have some institution and desire that Catholics should be employed in it, that would be quite proper and would be covered by this Bill. Similarly, the headquarters of the Socialist Party might be at liberty to exclude any person who would otherwise have secured employment, on the ground that he was a vehement and active opponent of their Party. Those special cases have to be met. I understand that some objection will be taken to the actual wording of this clause, on the ground that it does not sufficiently permit the religious organisations to employ in their own institutions persons of their own faiths. I need hardly say that we should be very ready to accept any reasonable Amendment in that respect.
Clause 12—and your Lordships will no doubt be relieved to hear that this is the last clause that I shall mention—deals with habeas corpus. The point was fully debated by both Houses at the time when the Visiting Forces Act was introduced. It says that visiting forces in this country, whether from the Dominions or from other countries, established here for strategic reasons shall be exempt from the law of the land and subject to their own military law, and that there shall be no right to sue for a writ of habeas corpus. Again, I do not wish to enter into the pros and cons of this particular argument, but I do urge that it is a matter that is prima facie well worthy of the consideration of your Lordships' House. That is all the more so since the view expressed in this clause of the Bill was ardently supported in another place 1055 by Sir Stafford Cripps when the matter first came before Parliament in 1933. He said that it was a matter of the most profound importance and he moved an Amendment in the very terms of this clause of this Bill. I had forgotten the circumstances myself, but on looking up the debate I found that I had the pleasure of seconding that Amendment, in a very eloquent and convincing speech! Moreover, Lord Buckmaster and many other high legal authorities have held the same view. I would venture to urge the Lord Chancellor that he should not dismiss this proposal out of hand, but should give it further consideration and, above all, should not deny the Bill as a whole admission to a Committee. I may mention that this particular suspension of habeas corpus applies now to the Polish Resettlement Corps which has been established in this country.
Those are the clauses of the Bill and I have endeavoured to deal with them in as concise a manner as was compatible with comprehensibility. The main question now before your Lordships, I submit, is not the propriety, and still less the wording, of any one of these twelve clauses, but whether this Bill should go to a Committee for further examination or whether your Lordships should now throw it out as being a bad or an unncessary Bill, there not being even a prima facie case for the consideration of all these matters. As I said in my opening observations, I earnestly hope that this Bill will receive a tolerant and sympathetic consideration from the whole of this House and, indeed, from Parliament as a whole. We would not venture for a moment to prescribe or even to suggest a procedure for another place in any of their own affairs. We have drafted these clauses with a view to our own procedure, and as a basis for discussion in another place, in their own way, in so far as they feel disposed to examine this matter. Therefore, I hope that both Houses and all Parties, lawyers as well as laymen, will by general assent agree to pass this Bill. I feel sure that, if they do so, such action will be most welcome to the public opinion of the nation at large. It is in that spirit that I beg to move the Second Reading.
§ Moved, That the Bill be now read 2a;.—(Viscount Samuel.)1056
§ 3.39 p.m.
§ LORD LLEWELLIN
My Lords, I am glad to be able to give my support to the general principle underlying this Bill. I should like to say how grateful the whole House must be to the noble Viscount, Lord Samuel, for the full explanation which he has given us of this measure. It was accompanied by certain blandishments and I must say, whatever the attitude of the Liberal Party, that I thought I detected that the Lord Chancellor was looking a little coy and wary when the blandishments were made to him.
On Second Reading we should be discussing, and, if necessary, voting upon, the general principle underlying a Bill. It is only right for me to say that there are certain clauses in this Bill—I will not mention more than one of them—which I, at any rate at the present moment, could not support. I will refer only to Clause 12, which says in effect that habeas corpus proceedings can be taken in respect of Dominion troops or persons of that sort when stationed in this country. The reason why I am against that clause is very simple—namely, that it seems to me that one cannot lightly break an agreement come to at an imperial Conference. The Governments of the Dominions must certainly be consulted first. It is true that in present circumstances no one sitting on this side of the House has the right or opportunity of consulting the Governments of the Dominions. This clause has raised an important point, and it was raised as far back as May, 1947, when the Bill was previously before the House. It would be interesting to know from some Government spokesmen whether the Government have in the meantime made any inquiries of the Dominions upon this matter.
The last time this Bill was before us we had a brilliant introductory speech from the noble Marquess, Lord Reading, whom I am glad to see sitting among us now. I do not think it will be found that he has deserted the Bill. I would not call his recent action desertion of the Liberal Party, but rather a wise exercise by the noble Marquess of that liberty and freedom of expression which is the whole object of the Bill before your Lordships' House at the present time. I have referred to the point about 1057 Clause 12, mainly to ask whether the Government, since this Bill was originally introduced into this House in 1947, have looked into the various points which it raises. Three years ago the noble and learned Viscount who sits on the Woolsack said of the similar Bill that as a manifesto he could support it but as a Bill he could not, and it was not wise to put a manifesto into a Bill. That seems to me to bring us straight up against one of the most difficult things in life—it is, no doubt, an expression often used by marry of your Lordships in the Prayer of General Thanksgiving—namely, that those things to which we Rive service with our lips we should practise in our lives. I would suggest to the noble and learned Viscount on the Woolsack that it is no good giving merely lip service to freedom and saying you will support it in a manifesto, if there is to be no action to see that our freedoms are restored to us. Bearing in mind the wisdom of that course, I hope that the noble and learned Viscount will be able to give the Bill more active support this afternoon.
I do not wish to go into great detail in regard to the various clauses of this measure; that has already been done by the noble Viscount who introduced the Bill. May T. however, say a word about Clause I? I do not see that it is beyond the wit of man to establish some procedure whereby each House may suggest amendments to Orders-in-Council without there being any great degree of Parliamentary obstruction. Not very long ago we had a case of a regulation put forward under the Town and Country Planning Act. I believe that that regulation would not come under Clause I of the Bill as at present drawn, but there was considerable agitation in regard to it in both Houses, and I moved a Prayer in this House to negative it. It is true, also, that the Minister withdrew it because of the representations made to him in both Houses, and, I believe, privately by local authorities. The position, however, is that the only way in which we could deal with that regulation was to pray against the whole Order. It was quite an extensive Order and we wanted an alteration in regard to only one particular point. Similar instances can be quoted, but I give that one because it is 1058 very much in my mind, as I moved the Prayer in your Lordships' House.
As I say, it does not seem to me to be beyond the wit of man to arrange some procedure whereby these genuine points could be raised and an amendment made by either House of Parliament, the Order being passed back to the other Howe to see whether they agreed with the amendment or not. Knowing your Lordships' House, as I have now for five years, I do not think there need be any fear of frivolous points or Obstruction of other kind being taken on those Orders. Of course, it is wrong for me to criticise another place, but I was once there, and I know that sometime; when one wanted to prevent other measures being brought in, one could put down a large number of Amendments to measures to which one had not a great dear: of objection. But I think that difficulty could be overcome. It would' e for the House of Commons to work out in what way it could be overcome, so that only really substantial points in Orders-in-Council would have to be dealt with as at present.
I wish now to pass to Clause 4. I think that in regard to points of law there should always be an appeal to the courts from any of these judicial or quasi-judicial tribunals. We have now a number of these tribunals. Speaking on December 15, 1948, in another place, the Attorney-General said that he thought there were about a hundred of them. It certainly seems to me that where the tribunals, which are by no means ail stalled with experienced lawyers, go wrong on a point of law, they ought to be subject to correction, as indeed judges of the lower courts are by Judicial Members of this House, by members of the Court of Appeal or by members of the Court of Criminal Appeal. Lord Justice Denning put this problem quite clearly, I think, in the Hamlyn Lecture for 1949 when he said:In many of the cases which come before the tribunals you will find that the Government Department or the local authority concerned has already come to a conclusion on it adverse to the individual. A soldier will have had his claim for a pension rejected by the Minster of Pensions, an injured workman will have had his claim for industrial benefit rejected by the Insurance Officer, the Agricultural Executive Committee will have formed the view that the farmer is not farming his land properly, the Medical Executive Council will have thought the doctor should not be con- 1059 tinued in the Health Services, and so forth. The man is therefore appealing against the official view.'Consequently the need is for a tribunal of absolute impartiality and independence. Lord Justice Denning goes on to say:How then is this independence to be achieved? The answer is, by giving a right of appeal on a point of law to a superior Court which is itself known to be independent. The law then which the tribunals will apply will be the law laid down by the superior Court and not by the Government.I am strongly of opinion that something ought to be done on the lines of Clause 4. I must say that, like the noble Viscount, I was not greatly impressed by the arguments adduced against this clause on the last occasion by the noble and learned Viscount who sits on the Woolsack. Surely, if so many cases had arisen requiring to be dealt with because of the decision of the High Court Judge which the Lord Chancellor quoted, then clearly the persons concerned were not getting their rights. It is surely better to have a considerable number of appeals under this procedure, rather than to permit a whole number of cases in which men do not get that treatment and that justice which Parliament laid down merely because there is no right of appeal. I am told that one of the fields in which this is more necessary at the moment than in any other is that which comes under the Furnished Houses (Rent Control) Act. There are a large number of tribunals up and down the country which are giving a bewildering diversity of decisions. As one solicitor who knows quite a lot about that class of work said to me only the other day: "You do not want all these tribunals acting on different principles." It is right that there should be a co-ordinating authority, and the right co-ordinating authority to administer what Parliament has laid down should surely be, as it has always been, the High Court of Justice in this country.
Now I should like to say a word about Clause 5, which deals with public local inquiries. I am convinced that something needs to be done to make them less of a farce than they often are at the present time. Why do I say that they are rather a farce? One remembers the case that arose in connection with the town, the name of which the noble and learned Viscount who sits on the Woolsack has, I believe, attached to his title—Stevenage. Your Lordships may 1060 remember that the then Minister of Town and Country Planning made some extremely outspoken remarks—and I do not know that he was to be blamed, if he thought it right to make them. He said that he was determined to go on with the scheme before ever the public inquiry had been set up, and he was the man to take the decision upon the report which his inspector made. The House of Lords has decided that it is quite unnecessary for the Minister to show any impartiality under the Town and Country Planning Act, because he is not occupying a judicial or quasi-judicial position.
What is more, in this case what the House of Lords decided—that is under the present law, of course—was that the persons trying to get the thing done (I use a neutral expression purposely, because it may cover a multitude of matters) to which objection is taken need never make out their case at all. One finds cases similar to that in which the Army authorities tried to take over a hit of Dorset. There was a public local inquiry, but the Army authorities never had to go into the witness-box, so there was no opportunity of asking them why they could not go to some derelict part of the country, or of putting any questions of a similar nature to them. Surely the right way to conduct an inquiry, when it is held, is to have all parties present and to allow each to question the other's case. When that is done you get a broad basis on which the inspector can make his report.
Another thing I should like to say about these inquiries is that in my view there should be a panel of inspectors appointed by the Lord Chancellor, instead of having inspectors from the different Departments concerned. I recall that in the days when I practised at the Bar I was given a brief, on behalf of the Middlesex County Council, when the Western Avenue was being constructed. The objections that were being made to it, generally speaking, were to the effect that we were taking too much ground, that we were making the road too broad and that it was not going in the right direction. We appeared before a Ministry of Transport inspector. I asked my instructing solicitor what attitude the Ministry of Transport were taking to this matter. He said: "It is a large arterial road out of London, and they are paying 1061 a large proportion of the costs." I have forgotten the exact proportion, but I think he said about 90 per cent. I said: "They will know all about the plans will they not?" He replied: "They have approved the plans; in fact the plans are practically their plans, rather than ours." I. said to the solicitor: "I should think this is going to be one of the most easily earned fees I shall ever take in my life." However, there it was. I was as kind and tactful as I could be to all the objectors, and perhaps I earned my fee in that way. But at any rate there was not the slightest doubt, from the moment the inquiry started, that this road was going through just at it had been planned by the Ministry of Transport in conjunction with the Middlesex County Council.
That really should not be. In cases like that I think an outside inspector would have taken the same view as the Ministry's inspector, and there is no doubt of the view that the Ministry of Transport's inspector would take. It is important that in all these cases the Minister should publish the inspector's report, and in every case where there has been a public inquiry the Minister ought to give the reasons for his decision. He has to do so under the Ribbon Development Act, and if he has to do so under that Act, I do not see why he should not have to do it under any other Act under which local inquiries are held.
Clause 6 deals with the power of officers of entry without a warrant from a justice of the peace, as is normal in the bulk of cases. I believe there are still 18,000 people who have these powers of entry without warrant. It is incredible to think that these inspectors of the Ministry of Food, who form the main portion of this number—
§ THE LORD CHANCELLOR
The number o Ministry of Food inspectors is 750, out of a total staff of 18,800.
§ LORD LLEWELLIN
I am obliged to the noble and learned Viscount. I accept his figure of 750 inspectors of the Ministry of Food, but almost all these 18,000 officers I Live mentioned act in some way under the Supplies and Services Act—the noble and learned Viscount will correct me again am wrong. The astounding thing is that now, in times of peace, it should still be thought necessary to equip inspectors with these powers, when an ordinary policeman en- 1062 forcing the law does not have them. I was led to deal with the Ministry of Food inspectors because on the last occasion the noble aid learned Viscount said that a black market might run riot without such power that when an inspector was looking for black market food it might be roomed by the time he obtained a search warrant. The really prevalent offence in this country to-day is that of receiving stolen goods. There are more housebreakings, burglaries and robberies to-day than at any other time. Yet it is not thought to give the police power to follow up stolen property without a search warrant. I see no reason whatever why we should give this unlimited power of entry to some 18,000 officers, from whatever Department they may come.
I should like to say a word on Clause 8. I do not think we should go so far as to say that any case under the Agricultural Marketing Act should necessarily be taken before the courts of summary jurisdiction. If people think they ought not to be fined behind closed doors, as it were, and should be dealt with in public, I think the way to get round that would be give the offender the right to say that he would sooner be treated by a court of summary jurisdiction than be dealt with by the disciplinary committee of the organisation concerned. There is good precedent for this. I do not know whether at any time any of your Lordships has failed to lake out his motor vehicle licence. It has not actually happened to me, but I know that in some counties when a motorist runs over the date he receives a letter from the county council saying that a road licence has not been taken out and the mitigated penalty will be so many Pounds. If he there and then pays the mitigated penalty, proceedings will not be taken. A wise motorist will pay the mitigated penalty straight away, but if it is desired to contest the matter he can take it to the courts. Let us deal with these agricultural penalties in the same way.
On a Bill like this, one could go on talking at great length on every clause, but I am not going to deal with them arty further. In conclusion, I would go back to the principle underlying the Bill. Over the course of the past twenty years or so, as a result of the effects of two world wars in which we have been engaged, we have tended to whittle away the liberties of the 1063 subject. It is about time we took a look round to see how many we can restore and what restrictions are still essential for the purposes of the State. Those that are not essential ought to be abolished. The noble Viscount, Lord Samuel referred to the speech that Mr. John Davis, a great friend of this country, delivered at the Pilgrims' dinner yesterday. I should like to make another reference to his speech. Mr. Davis said thatOur chief invisible export is liberty.We hope that it will continue to be so, but we cannot build up a good export trade unless we have a good sale for a commodity in our own country. I beg your Lordships to look at this Bill in that light, and to keep our liberty as wide as possible. By all means let us examine the Bill clause by clause, and see which clauses are necessary and which ought to be modified, but I hope that this measure will receive a unanimous Second Reading from your Lordships this afternoon.