Local Government, Leicester

– in the House of Commons at 12:00 am on 23 April 1959.

Alert me about debates like this

10.0 p.m.

Photo of Major Sir Robert Conant Major Sir Robert Conant , Rutland and Stamford

I beg to move, That the Leicester (Amendment of Local Enactments) Order, 1959, dated 18th March, 1959, a copy of which was laid before this House on 24th March, be annulled. I should like to apologise for detaining the House, and, in particular, for detaining my right hon. Friend the Minister of Housing and Local Government, who has already done two days' work in the last twelve hours. This is the only method, and the only opportunity, by which this Order can be examined by the House. I feel that the method is quite unsuitable for this task, and I am sure that right hon. and hon. Gentlemen will agree that the time is most inconvenient.

I want to say very little about the Order itself beyond asking my right hon. Friend for his assurance that it is what it purports to be, namely, an Order to amend the Leicester Acts over a long period, and that it contains no new impositions upon the citizens of Leicester. I would not be able to find this out for myself even if I spent a month among the archives of the City of Leicester. As the Order becomes effective next Monday, I will not start that operation.

Although the Order is laid in accordance with the law, some of us feel that it brings to light an issue of some constitutional importance. One must be careful not to exaggerate because the procedure under which the Order is laid has been in use for a long time. It began in 1945. It has been in greater use since 1949, and no one, so far as I am aware, has suffered injury.

Rather more than 100 years ago, with the development of local government and local social legislation, Parliament found it necessary to change the Private Bill procedure in certain instances. That was done not only in the interests of speed and economy, but in the interests of Parliamentary efficiency because Private Bills often contain diagrams and maps and are not suitable for detailed consideration on the Floor of the House.

Accordingly, the Provisional Order procedure was introduced in 1845 and it was extended to many other Acts by the Public Health Act, 1875. In this way a great deal of time and money was saved and Parliament, at the same time, was able to keep itself informed and ensure that its responsibilities for scrutinising legislation were carried out through its opposed and unopposed Private Bill Committees.

Over the years local legislation grew and the need for amendments to old local Acts became more frequent and urgent. In 1943 or 1944 the Coalition Government prepared a Bill which became law in 1945 as the Statutory Orders (Special Procedure) Act, 1945. This Order, the Leicester Order, was laid before the House under that Act.

Under the Statutory Orders (Special Procedure) Act, 1945, the special procedure was only applied to Acts, with, I think, one exception, passed after 1945. By an Order in Council in 1949, under what I believe is called in legal language a substitution Order, it was extended to cover many Acts passed long before 1945. As a result of this Measure a great deal of time has undoubtedly been saved. We all thought at the time that Parliamentary power of scrutiny would be adequately preserved. There was one hon. Member, however, I see through perusing the debates, who expressed some doubt, my right hon. Friend the present Chairman of Ways and Means.

When we were discussing the substitution Order, my right hon. Friend said: I understand that there will now be no Committee procedure on these unopposed Bills. That is, under the special procedure. And further, after an interrogatory intervention, he said: My point was … that the Unopposed Bill Committee could if it liked take action against them, as it has done, although that is very unusual."—[OFFICIAL REPORT, 9th November, 1949; Vol. 469, c. 1354–5.] I feel that few hon. Members have been able to secure a reputation as a prophet, a major prophet, in so short a time as ten years.

Perhaps I may explain how this special procedure works. Under the 1945 Act, Orders are laid by my right hon. Friend and other right hon. Gentlemen on the Table of each House. Petitions can be presented within 14 days. The Chairman of Committees in another place and the Chairman of Ways and Means in this House then report to the House the number of Petitions and whether the Petitions are Petitions of general objection or Petitions for Amendment. Then, if the Order is opposed, that is if there have been Petitions, it may be sent to a Joint Committee of both Houses. I imagine it is by that procedure that a great deal of time is saved.

At the time when this special procedure was adopted I believe we felt, as some hon. Members may feel now, that an opposed Bill which goes before the Joint Committee of both Houses receives sufficient Parliamentary scrutiny. I am not sure that that is so, because I am told that the Joint Committee can only amend a Measure if requested to do so by Petition. That does not seem adequate. It has no power to inform us if an Order contains completely new provisions, or, if Parliament is anxious to secure uniformity in some particular matter between the Acts of different boroughs, the Joint Committee has no power to inform us whether, in fact, its wishes are being regarded.

In the case of an unopposed Order, no one has power to scrutinise it on our behalf. Fourteen days after it has been laid, the Chairman of Ways and Means in this House and the Chairman of Committees in another place reports that no Petitions have been received, 14 days later the Order becomes effective unless some hon. Member by chance, puts down a Motion praying for its annulment. Fourteen days is not a very long time. I believe that under most Statutory Instruments the time for a Prayer is 40 days.

It so happens that as the business of the House has been arranged by the Government this week, this is the only night during the 14 days of this Prayer period—the Resolution period—on which a Prayer could be moved. If it had happened that we had been discussing exempted business tonight, this Order would have become effective without any hon. Member having the opportunity of finding what it was all about.

Finally, I do not want to imply in any way that I do not trust my right hon. Friend the Minister of Housing and Local Government. I am sure that other hon. Members will wish to say the same. I am sure that he and his officials take the greatest trouble to see that no matter is included in an Order which he may lay under special Pariamentary procedure to which Parliament could possibly take exception. I am quite sure of that, but surely it is quite wrong that Parliament should in any sense delegate its responsibility to a Minister of the Crown. My reading of history leads me to think that the Parliamentarians of old would be horrified to think that we had taken any such course, although, of course, they had not quite so much legislation to deal with as we have.

I feel that it is necessary that the 1945 Special Procedure Act should be amended in such a way that either Committees or the Chairmen should be able to examine on our behalf not only Petitions, but all Orders which may be laid under special procedure. It does not seem that such a course would lead to any appreciable delay in private legislation.

I hope that my right hon. Friend can appreciate the importance we attach to this issue and that he will be able to say it will be urgently and carefully examined.

Photo of Mr Lynn Ungoed-Thomas Mr Lynn Ungoed-Thomas , Leicester North East

Do I understand that the point the hon. Member is raising is not directed to any particular provision in the Leicester Order as such, but against the Statute under which the Leicester Order is made? If that is so, does he not recognise that all he has been saying has nothing to do with this Order, but is entirely directed to the Statute?

Photo of Major Sir Robert Conant Major Sir Robert Conant , Rutland and Stamford

The point is that it is our responsibility to ensure that an Order like this does not inflict hardship on the constituents of the hon. and learned Member.

Photo of Major Sir Robert Conant Major Sir Robert Conant , Rutland and Stamford

We are not able to see that as the Statute stands. I have no knowledge of what the Order itself means, nor can I find out without considerable search. I trust my right hon. Friend the Minister and have little doubt but that the Order is perfectly all right.

Photo of Mr Fred Blackburn Mr Fred Blackburn , Stalybridge and Hyde

I beg to second the Motion.

A few days ago I was interested to read in a recent publication called "Parliamentary Reform 1933–1958," published by the Hansard Society, the following words: The Provisional Orders system which had, since the 19th century, been replacing the Private Bill system was itself largely replaced in 1945 by the introduction of the Special Procedure Orders; and this new system is so young as to be without critics". I think that it has become a juvenile delinquent.

The position has been brought to a head by the fact that the Leicester Corporation has, under this Order, brought forward what is in essence a small Private Bill of 20 Clauses. I am not blaming the Leicester Corporation for taking advantage of the law as it stands, but I hope that it will not be taken as a precedent for other small Private Bills.

As hon. Members are aware, there are five kinds of private legislation—Private Bills; Bills for confirming Provisional Orders; Bills for confirming Provisional Orders under the Private Legislation Procedure (Scotland) Act, 1936; Special Orders; and the Special Procedure Order under the Statutory Orders (Special Procedure) Act, 1945; and the Statutory Orders (Special Procedure) (Substitution) Order, 1949. Of all these, the least satisfactory from the point of view of Parliamentary control is the last—the Special Procedure Order. In fact, Parliamentary control is practically non-existent.

When he was moving the Second Reading of the Statutory Orders (Special Procedure) Bill in another place the then Lord Chancellor, Lord Jowitt, said, on 22nd November, 1945: I think that the true friend of Parliamentary proceedings is not the man who thinks they ought to remain absolutely unchanged, but the man who thinks we must move with the times so long as essential Parliamentary control is in all respects preserved."—[OFFICIAL REPORT, House of Lords, 22nd November, 1945; Vol. 137, c. 1150.] There is no real Parliamentary control. It has been handed over to a Government Department. Like the hon. Baronet the Member for Rutland and Stamford (Sir R. Conant), I am not saying that the Government Department has not done its job carefully, conscientiously and correctly, but I think that all hon. Members will agree that it is the responsibility of Parliament to keep control over legislation and not the responsibility of a Government Department.

The position at present is that the Chairman of Ways and Means and the Lord Chairman of Committees are brought in only if there is a petition against an Order, and surely it is more important that they should examine the actual orders to see that they are proper to be received than that they should examine a Petition. It is true that hon. Members can pray against an Order, as we are doing tonight, but in general it is everyone's job to keep an eye on this type of legislation, and I think that hon. Members will agree that when it is everyone's job it becomes no one's job.

This Order starts on the wrong foot. In spite of the expert legal advice which I have been given, I still consider that the italicised words at the heading of the Order are wrong. They read that the Order is laid before Parliament under the Statutory Orders (Special Procedure) Act, 1945, s. 1. But Section 1 of that Act reads: Where, by any Act passed after the passing of this Act, power to make or confirm orders is conferred on any authority, and provision is made requiring that any such order shall be subject to special parliamentary procedure, the provisions of this Act shall apply in relation to any Order so made or confirmed. That is, any Act passed after the passing of this Act. I understand that this Order is laid down under the Statutory Orders (Special Procedure) Act, 1945, and the Statutory Orders (Special Procedure) (Substitution) Order, 1949.

Next, we have the heading "Statutory Instruments." One might imagine that such an Order would be subject to inspection and examination by the Select Committee on Statutory Instruments, but that is not so. As the hon. Baronet said, unlike other Orders, this is laid before the House not for 40 days but for only 14 days. The only similarity which I can find between this and other Statutory Orders and Instruments is that it is not capable of amendment.

Another point is that no Standing Orders are applicable to these Orders, but the 1945 Act contains provisions for advertisement etcetera. The duty to see that it is carried out rests not on Parliament, but on a Government Department. I am certain that the Government Department has seen to it that this provision has been carried out, but the responsibility ought to be that of Parliament and not of a Minister or Government Department.

When the Leader of the House moved the Second Reading of the Statutory Orders (Special Procedure) Bill, in 1945, he described it as an experiment. While much could be said about the simplicity and the speed of the Special Procedure Order, the experiment has failed to provide the necessary safeguard of Parliamentary control. It is true that such Orders are noted in Votes and Proceedings, but, as I have said, it is no one's specific task to examine them. I venture to say that no hon. Member reading through this Leicester Order can say whether it is in order or not.

Hon. Members will be aware that prior to 1945 the procedure was by a Provisional Order Confirmation Bill, which dealt fairly quickly with minor additions or rectifications but which was subject to the normal procedure of the House in dealing with Private Bills. All that we can do on this Order tonight is accept it or annul it. Let us have a look at the Order. There are 21 local Acts and one local Order which are being repealed, in whole or in part, starting with the Leicester Improvement Act, 1846. There are 16 references to an Act which was passed as recenty as 1956. Has the Ministry made certain that none of the amendments of the 1956 Act are matters which were rejected by the Committee on that Bill? I am sure that it has, but I should like to have confirmation. There are Amendments to the Leicester Order of 1953. Where can hon. Members find a copy of that Order to compare the new with the old?

Let us take Articles 12 and 13. I wonder whether the Minister is aware that a Committee of this House has been rejecting in Private Bills Clauses dealing with weights and measures because it feels that it is not a matter which should be dealt with piecemeal by Private Bills but by general legislation, and that it has made a special report to that effect to the House. I should like to know whether this Committee's decision can now be vitiated by means of Special Procedure Orders.

I do not wish to get out of order, but I hope I may be allowed to say, in passing, that much of the need for Private Bills and Orders of this kind could be dis- pensed with if we could have a new Weights and Measures Bill, a new Health Bill, and a new Local Government (Miscellaneous Provisions) Bill. Whatever the composition of the Government in the next Session, I hope that these Bills will be among the first to be brought forward.

I will not say more about the provisions of this Order, because other hon. Members wish to speak. I think that I have said enough to show the difficulties that hon. Members are in. If we do not vote against this Order tonight, I hope that other local authorities will not regard it as a precedent and think that they, too, can get through small Private Bills by means of a Special Procedure Order.

Finally, I think that the House will agree that there are serious deficiencies in the present procedure, and I hope that when the Minister replies he will assure us that amending legislation will be introduced so that in future it will be possible for there to be adequate Parliamentary control over these Orders.

10.23 p.m.

Photo of Mr John Arbuthnot Mr John Arbuthnot , Dover

First, I should like to congratulate my hon. and gallant Friend the Member for Rutland and Stamford (Sir R. Conant) for having put down this Prayer, and for the way in which he has expressed the views that are held by many hon. Members on both sides of the House about it.

This is a Prayer on a matter of principle. We feel that the procedure of Parliament for the scrutiny and, if necessary the amendment, of these Orders is inadequate or even non-existent and that there is a need for doing something about it. Nothing that I am going to say this evening reflects in any way on my right hon. Friend the Minister or on his Department. The only thing I should like to say about him is to commiserate with him on the length of time he has had to sit on the Front Bench to answer the various points put in debate right throughout the day. I hope that we shall not delay him much longer.

On both sides of the House Members feel that the Minister and his Department have, in the case of this Order, as is their normal custom, carried out their duties conscientiously and with care. Those of us who have been in the Chair on Private Bills would wish to pay them a special tribute, and I have no doubt that the scrutiny which has taken place in the Department on this Order has been just as thorough as the scrutiny which we have been accustomed to the Minister and his Department exercising on Private Bills that come before us.

We all feel that this Leicester Order is, in fact, harmless, but that this Prayer is necessary in order to draw the attention of the House to the matter of principle involved. My right hon. Friend the Chairman of Ways and Means was not present to hear the eulogistic terms in which my hon. and gallant Friend the Member for Rutland described him, as a major prophet, and as being the one Member of the House who, when the Bill that enabled this new procedure to be followed was being discussed, warned the House that difficulties and dangers might be involved, and that the House might start losing control. May I repeat those congratulations now?

As my hon. Friend has said, this Order amounts to a 20-Clause Private Bill. But whereas a Private Bill would be scrutinised either in the Opposed Private Bill Committee or in an Unopposed Private Bill Committee and would be subject to amendment, an Order of this type receives no scrutiny by anyone and cannot be amended. Not only does it not come under examination, but no Officer or Committee of the House has the right—let alone the duty—to call for an explanation of any Clause. It is only by the grace of the Minister and his Department that we have had an explanation in this case. I would take this opportunity to thank the Minister and his Department for doing everything they could in this respect, and say how grateful we are to my right hon. Friend for his explanation of the various Articles of the Order.

The object of the Prayer, therefore, is to draw attention, first, to the undesirability of drafting an Order in such a complicated manner that it is difficult for any of us to ascertain its true nature. and, secondly, to the desirability of some Amendment of the 1945 Act, to enable Orders under that Act, and not only petitions against such Orders, to be examined.

The hon. Member for Stalybridge and Hyde (Mr. Blackburn) has spoken of the difficulty experienced by any member of the public who may be affected in finding out whether he is affected and, if so, in what way. These Orders are not bound in any volume that the public can consult, nor are they published in the bound volumes of the Statutory Instruments. Among other things, this Order amends the Leicester Order of 1953, and if any member of the public can find out what that contains he will be extremely clever. It may be—although it is not so in this case—that an Order being amended is out of print, not available in any public library and not purchasable from the Stationery Office. That would add to the difficulty facing a member of the public when trying to find out how he was affected.

A further point is that if this procedure is allowed to continue, any local authority can make errors in a Private Bill and then go to the Minister to have them rectified by this type of Order. That will lead to the slipshod drafting of Private Bills. Furthermore, if this is to be a precedent, local authorities which do not want to promote Private Bills can get round the Private Bill procedure by persuading the Minister to do the job for them by an Order like this.

Both my hon. and gallant Friend the Member for Rutland and Stamford and the hon. Member for Stalybridge and Hyde have referred to the time allowed for praying against the Order. Only 14 days are allowed and that includes weekends before the Order becomes law. Only 14 days can elapse from the time that the Chairman of Ways and Means and the Lord Chairman of Committees in another place lay certificates on the Table stating that there have been no Petitions against the Order. No Order can be prayed against on a day on which there is exempted business, or on which the 10 o'clock rule has been suspended. In this case, the only possible night on which the Order, which comes into force on Monday, could have been prayed against was tonight. Had there been exempted business today, it would not have been possible for any Member to have prayed against it.

Under the 1945 procedure, a public local inquiry may be held. In the Leicester case, one was not held. How can Parliament tell whether there were any objections to the Order and, if so, how they were met? When Petitions are presented, they are usually presented against the findings of a local inquiry. When there is no local inquiry, is the public interest and the private rights of the people properly safeguarded? That is a question we ought to ask ourselves in this House, because we are the guardians of public freedom.

I come now to the provisions of the Order itself. I understand that as it was originally presented by Leicester to the Minister, the Order contained 14 additional Articles. Thirteen of them were not proceeded with by agreement with the Minister when it was found that they would not get past him. Another was deleted by him and a further Article was substantially modified. In other words, Leicester—I am not getting at Leicester in any way; it was a perfectly natural and proper thing to do—tried to obtain what amounted to a Private Bill of 44 Clauses. As I say, I do not blame Leicester in the least for trying to do so.

My right hon. Friend the Minister will perhaps say of all the Articles of the Order that he has done, and will do, nothing that is contrary to anything decided by the House. I draw his attention, however, to Article 14, because it deals with the same subject as is dealt with by a model Clause dated July, 1958. Article 14 does not follow the model Clause. I wonder why not. The House has no explanation. If the Order were not prayed against, we would have no opportunity of obtaining an explanation. I have no doubt that there are good reasons why the model Clause is not followed in Article 14. but none of us knows what they are.

I feel particularly unhappy about the wording of Article 14, because it is difficult for anybody to find out what Act is being amended and how. I understand that Section 59 of the 1884 Act is the one that is being amended, but there is no way in which a member of the public would be able to discover this. Article 15 particularly intrigues me. I understand that it is a modernisation of Section 35 of the 1925 Act. It omits reference to "idiots" and "lunatics" but includes "employees of the Corporation." Is this a sign of the development of modern times?

The case which has been put by my hon. and gallant Friend the Member for Rutland and Stamford and by the hon. Member for Stalybridge and Hyde will, I think, persuade the House that there is a case for reviewing the procedure. We feel that there is a strong case that the 1945 Act and the 1949 substitution Order should be re-examined so that a certain degree of Parliamentary control should be restored. The original Act of 1945 was described by the right hon. Gentleman who introduced it as "experimental" and I believe that the time has come when we should review that experiment and see whether we cannot improve upon it as a result of the experience that we have obtained.

This Order was prayed against yesterday in another place and an assurance was given then that the matter would be reviewed. I believe that that assurance did not go far enough. I hope that my right hon. Friend will now be prepared to go further and give an undertaking not only that the procedure will be reviewed, but that until such a review has taken place he will not introduce another Order of this type, which amounts to a Private Bill by the back door.

10.35 p.m.

Photo of Mr Lynn Ungoed-Thomas Mr Lynn Ungoed-Thomas , Leicester North East

This has been an interesting debate, which has been completely out of order. I do not want to cross swords with hon. Members opposite, or with any of my hon. Friends on this matter, because the concern of my hon. Friend the Member for Leicester, South-West (Mr. Bowden) and myself is to see that this Order goes through, and the concern of hon. Members opposite, and of my hon. Friend the Member for Stalybridge and Hyde (Mr. Blackburn), is, as I understand it, not to oppose the Order but to raise a matter of general principle which applies to all Orders made under the Act.

Now that I have it absolutely clearly that there is no opposition to the Order, I can deal with the point of order Which arises.

Photo of Mr Fred Blackburn Mr Fred Blackburn , Stalybridge and Hyde

There is opposition to the Leicester Order. I can tell my hon. and learned Friend that. But we are afraid that we do not know sufficient about the details of the Order to be justified in voting against it.

Photo of Mr Lynn Ungoed-Thomas Mr Lynn Ungoed-Thomas , Leicester North East

As a practical-minded man, that is good enough for me. The only points taken against the Order refer to Articles 14 and 15, which, as the hon. Member for Dover (Mr. Arbuthnot) said, quite fairly, were replacing other Sections, with minor amendments, which is perfectly justified under the 1945 Statute and the 1949 Order. But we are not in the least concerned this evening with the whole of the procedure under the 1945 Act. That is where the point of order arises.

The position is stated quite clearly in Erskine May, at page 854, when it says: Debate on any Statutory Instrument, whether subject to the affirmative or the negative procedure, is confined to the contents of the instrument, and discussion of alternative methods of achieving its objects is not in order. Nor is criticism of the parent Act permitted. But, as my hon. Friend and I have not been in the least anxious to arouse any ire against the Leicester Order, and are primarily concerned with getting it through, and as the concern of hon. Members opposite and of my hon. Friend the Member for Stalybridge and Hyde is to oppose not the Order but the Act of Parliament under which the Order is made, we have not leapt to our feet to try to suffocate the rather interesting observations which hon. Members have made against the Act of Parliament, which were quite out of order. We have a mutual understanding. They are allowed their debate, provided that we are allowed our Order.

I have quoted from Erskine May. The matter was dealt with by Mr. Speaker

Photo of Mr Raymond Mawby Mr Raymond Mawby , Totnes

On a point of order. As I understand, Mr. Deputy-Speaker, the hon. and learned Gentleman is suggesting that hon. Members preceding him have been completely out of order. I thought that you were in the Chair at this time, and that you made decisions whether hon. Members were out of order or not.

Photo of Mr Gordon Touche Mr Gordon Touche , Dorking

I think that the hon. and learned Member is overstating the case, but it is true that on this Motion we are concerned with the Order and not with the amendment of the legislation under which the Order is made.

Photo of Mr Lynn Ungoed-Thomas Mr Lynn Ungoed-Thomas , Leicester North East

That is exactly the point I was making. As I understand, you are in complete agreement with the submission I was making, Mr. Deputy-Speaker. If the hon. Member wishes it to be put formally, in the form of a submission, then I will put it in the form of a submission, but I am not sure that he will be extremely well-advised to press me to do that. All I am suggesting is that it is a matter of public interest. Hon. Members opposite are concerned for the procedure of the House, and rightly so, and I was not anxious to intervene in their speeches.

It is a matter of general interest and importance, and, as hon. Members opposite, with their concern for procedure would be the first to agree, it is also a matter of general interest for the procedure of the House that points should not be taken against an Act if it is out of order to do so upon this Order. They would agree with that, and now we are in complete agreement, and we have to thank Erskine May.

I should like to quote one other authority on the subject. In 1951, in connection with the Transfer of Functions (Minister of Health and Minister of Local Government and Planning) (No. 1) Order, Mr. Speaker said: I am the servant of the House and I must see that the rules of the House are obeyed. That is precisely the point taken by the hon. Member for Dover (Mr. Arbuthnot) and the hon. and gallant Member for Rutland and Stamford (Sir R. Conant), who moved the Motion. A debate on a Statutory Instrument or a Motion, to annul it, commonly called a Prayer, is limited strictly to the contents of the Instrument. It is not permissible to suggest or to discuss alternative ways by which the objects of the Instrument might have been achieved. I know perfectly well that there has been some desire to discuss whether it was constitutional to change these functions by an order and not by an Act of Parliament, but that of course is, clearly, absolutely out of order on a Prayer, and I could not possibly allow discussion of that subject."—[OFFICIAL REPORT, 22nd February, 1951; Vol. 484, c. 1537.] That is completely in keeping with the quotation from Erskine May.

Photo of Mr Frederick Corfield Mr Frederick Corfield , Gloucestershire South

Would not the hon. and learned Gentleman agree that if we confine ourselves entirely to this Order we find that we are in honour bound to vote against it?

Photo of Mr Lynn Ungoed-Thomas Mr Lynn Ungoed-Thomas , Leicester North East

Not at all. The hon. Gentleman is putting it the opposite way round. One hon. Gentleman is praying against the Order. He must satisfy the House that he has an adequate objection to support the Prayer. He is not doing so, because, as he says, he is in a state of ignorance. The hon. Member for Dover, in his own speech, provided the answers to his own objections.

It is clear that there is an objection to the contents of the Order, but the points which has been raised as a matter of principle against the Act are out of order, however interesting they may be for the consideration of the House. Those hon. Members who raise them as a point of order because they are concerned with the procedure of Parliament should realise that their concern should not allow them to raise that matter under this form of procedure.

10.43 p.m.

Photo of Sir Henry Legge-Bourke Sir Henry Legge-Bourke , Isle of Ely

I have heard the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) speak a sufficient number of times to know that he is proud of his profession of the law. I do not criticise him for that, but he would be the first to give to those hon. Members who support this Motion credit for their anxiety to preserve the procedure of Parliament, even though, in an effort to do so, we may have strayed outside the rules of order. That may merely demonstrate the truth of the old adage about the exception proving the rule.

This is a matter upon which Parliament must decide. Let us look at the Order itself. I see nothing to which exception might be taken about Articles 1 to 4, but I should find it difficult to decide for what we should be voting in favour in Article 5. It would mean an immense amount of research and we might have to go to Leicester for some of the references. I dare say that they are not all to be found even in the Library of the House.

As to cellars and basements, which are the subject of Article 6, the only point which disturbs me is the possibility that what is represented to us as a problem which is slightly different is a problem which must be similar in a great many local authority areas. That is a comment which I would make of a great many of the Articles in this Order.

My hon. Friend the Member for Dover (Mr. Arbuthnot) has mentioned the question of a model Clause of July, 1958, dealing with something which the Lord Chairman of Committees mentioned yesterday in another place, and this arises on Article 14 relating to the sending of interest warrants by post. This Article apparently varies from that model Clause. I would ask the same question which the Lord Chairman of Committees asked: why does it vary? I wonder whether the reason may be that the latest edition of model Clauses available to most people was issued in 1957. At any rate, that is the latest edition that I can find in the Library.

It may be that this Order is the outcome of various consultations going back over many months, and it may be that at the time of introducing this Order they were unaware of the existence of that model Clause, but we are certainly entitled to ask the Minister why there was this variation.

Then we come to Article 7 which refers to Parts of buildings used for storage of inflammable substances. Is this Article consistent with what is done in similar circumstances in other parts of the country It ought to be, but I am not certain that it is. We are moving into an interesting phase in this respect. It may be that with the new forms of explosive which are being discovered, we shall have to amend all this. I do not know whether Leicester is pioneering the way, as so many other local authorities have tried to do in the past, through local legislation, to what may later become statute law applicable to all local authorities. This matter is dealt with also in Articles 8 and 9.

I do not think I would take exception to Article 10 dealing with public nuisances, or Article 11 relating to the burning of leather scraps.

The sale of briquettes by number, dealt with in Article 12, is a matter which is of considerable interest to many local authorities, and there is, I gather, quite a variation in the application of this type of provision throughout the country. It is becoming high time that a new weights and measures legislation, applicable to the whole country, was brought before Parliament as soon as possible. In fact, it is true to say that there are many people who feel strongly that new licensing and public health legislation is much overdue, too. It is causing a great deal of concern to both Houses of Parliament, and particularly to the Officers of both Houses, and it is something which we must ask Ministers to produce as soon as possible.

One of the most serious aspects of Article 12 is paragraph (6). The hon. and learned Member for Leicester, North-East ought to be interested in this, because he will be the first to agree that any criminal offence and any penalty for a criminal offence ought to be easily ascertainable and to be consistent throughout the country. Here we have a new offence and a new fine. Whether it is consistent with the fines levied for offences of this kind which are committed elsewhere, I do not know. Perhaps the Minister will be able to tell us, if there is a variation, why there is a variation.

Personally, I cannot believe that, be it under the special procedure or any other procedure of this House, an Order of this kind is the right way to start introducing Measures of this sort. I defy any hon. Member to rise now and say what Article 13 means. It contains so many cross-references and even references to byelaws that it is to ask hon. Members a lot to ask them to understand it.

In this matter we are taking a great deal on trust from the Minister's advisers. I have no doubt that he has asked them most searching questions on the matter, and I am not asking him to go into all the cross-references tonight, but I think that we are entitled to ask him for an assurance that the matter has been properly examined and he is satisfied that the drafting is correct and ought to be approved.

Interest warrants by post, the subject of Article 14, I have already referred to, and for that there is a model Clause which has not been applied in this case. I suppose that the same may apply to some extent to Article 15. Articles 16, 17 and 18 are not easy to understand, but I believe that their purport could possibly be plain provided one had one thing, and that is a copy of the Order of 1953. But, as my hon. Friend the Member for Dover asked, how do we get hold of one? For all we know, it may be out of print and unobtainable at the Stationery Office. It is not bound in the annual volume of Statutory Instrument for that year, if it was introduced under the special procedure, as, I take it, it was.

Though we may find ourselves in some difficulty in understanding what this means, how about the citizens of Leicester? Are they quite happy about this? Will they be able to get the necessary information to apprise themselves of how their local laws are being changed? I am doubtful if they can, and I commiserate with them.

Article 18 (3) creates an offence, I think. It says: Section 134 of the Act of 1956 (which imposes penalties for certain offences committed by weighing machine keepers and others) shall be amended by the substitution of the following paragraph for paragraph (f) of that section: —'(f) enter in any document intended for issue any particulars of the weight of any vehicle (with or without the loading thereof) which he has not personally ascertained'. Is a new offence created or not? Is it ending an old offence? If so, is this sort of Order the right way to do that sort of thing? I am doubtful.

I have said enough, I hope, to make it clear that really this Order is one which will involve us, if we pass it, in an enormous amount of trust in the Minister and his advisers. While I have never for one moment doubted that Ministers are advised by their advisers for very good reasons—and that nearly always there is a good reason—I think it is only right to say that it is exceedingly doubtful whether this is the right way to proceed.

Even in a procedure where cross-examination takes place of expert witnesses, with examination in chief and re-examination, and there are questions by the Select Committee, and the Select Committee comes to a decision and recommends to the House that a view different from that recommended by the Minister before the Select Committee should be adopted by the House, the Minister may decide, because of the advice he is given, to go against the wishes not only of the Select Committee but also of one or both Houses of Parliament.

I understand that it is in the process of happening at this moment. On a recent grouping of Bills we sat for 36 days, spread over nine months, and came to a certain decision. It would be out of order to go into the details, but I understand now that the Minister will recommend in another place that that decision should be reversed. He surely has good reasons for doing so. I have no doubt that he has, but if he can do it under that procedure, what enormous scope he has under this procedure. I am not suggesting for a moment that the reasons would be unsound ones, but it is at least the duty of the House to hear what those reasons are. If it had not been for the Prayer tonight we should not have been able to ask the questions which have been asked about the Order. It was only by pure chance that this was brought to my attention. No one is obliged to draw attention to it.

I suggest that this matter could be put right by a simple Amendment to Section 9 (c) of the Statutory Orders (Special Procedure) Act. 1945, which reads: for regulating the proceedings of the Chairmen in connection with the examination of petitions under this Act"—

Photo of Mr William Morrison Mr William Morrison , Cirencester and Tewkesbury

The hon. and gallant Member must not go behind the Order to the Act.

Photo of Sir Henry Legge-Bourke Sir Henry Legge-Bourke , Isle of Ely

I appreciate the point, Mr. Speaker. I will not pursue it. We had already been disputing that matter before you returned to the Chair. I will merely say that this can easily be put right and that we can avoid a debate in the circumstances in which this debate has taken place. I look forward to that time and I would support my right hon. Friend the Minister if he tried to do something about it.

10.57 p.m.

Photo of Mr Frank Hayman Mr Frank Hayman , Falmouth and Camborne

I should like to thank the hon. and gallant Member for Rutland and Stamford (Sir R. Conant) and my hon. Friend the Member for Stalybridge and Hyde (Mr. Blackburn) for setting out so clearly the reasons for this Prayer and the feelings of those who have put their names to it. I take the liberty of speaking because I was Chairman of the Committee on Opposed Bills which dealt with Leicester Corporation Act, 1956, Sections of which are amended or repealed by this Order.

The Committee spent days in the late summer of 1956 dealing with Clause points. I have the great fear that it is possible for a Ministry to over-ride the decisions of a Committee of this House on a Private Bill by later allowing the authority concerned to bring forward a statutory instrument of this kind. I shall vote against this or any Order of the kind brought forward unless provision is made in our Standing Orders for the Officers of the House to be able to check the instrument and not have to rely entirely on the Minister or on his officers.

This is delegated legislation of the first order. Although we are all convinced that delegated legislation is essential in a modern Parliament, I feel, as I think would most hon. Members, that our constituents and the general public should be protected against any encroachment by any Ministry or by the Executive itself. I feel very unhappy that in this Order decisions which were reached by my colleagues and myself after great consideration are now repealed.

I would remind the House that quite often the Committee on Opposed Bills finds it necessary either to amend or reject recommendations by the Minister to the Committee on various Clause points. I hope that the Minister will feel that he can take some action which will meet the points that are causing very great concern to those of us who have put our names to the Prayer.

11 p.m.

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

The general experience of a Minister of the Crown is to stand at this Box and endeavour to rebut criticisms made against him or his Department. On this occasion I have been in the peculiar and gratifying position of listening to tributes to my Department and hearing Parliament criticise itself. That, I think, is a fair account of the proceedings of the past hour. I feel that there should be no discordant note this evening and that it is a very good thing that we should have been doing this.

I say at once to my hon. and gallant Friend the Member for Rutland and Stamford (Sir R. Conant), who moved this Motion, that I think there is a matter here which requires consideration. It is right that Parliament should, as it were, draw its own attention to it. Before sitting down I want to indicate the manner in which I suggest we should endeavour to carry these discussions further. I trust that the House will this evening give its approval to the Leicester Order and not withhold it, because I think it would be extremely hard on the City of Leicester, which has been acting in perfectly good faith, just as I and my Department and everyone else has, if it were to lose the Order at this stage.

Perhaps the House would wish me to go over the historical background. The Order here in question—and I agree that the discussion is on the principle rather than on the detail of the Order, although I shall say a word about that—is made under Section 303 of the Public Health Act, 1875, as amended. That empowers the Minister of Housing and Local Government to repeal, alter or amend by order provisions in the authority's local Acts referring to the same subject matters as the Public Health Acts.

As has been said, originally the Orders made under these powers were Provisional Orders and did not come into force until they were included in a confirming Act. However, in 1949 an Order in Council was made. To prove my complete innocence may I say that I was not a Member of this House either when the 1945 Act was passed, or when the 1949 Order in Council was made. The 1949 Order in Council was made with Parliamentary approval. It applied to these Section 303 Orders and some other matters the Special Procedure legislation in the 1945 Act.

I want to tell the House all the facts. Since then there has been a small but steady trickle of these Orders, five or six a year. Most of them have been quite short. What distinguishes this Leicester Order is that it is unusually long, although it is not the only long Order. I have been inquiring into that and find that there was a New Sarum Order in 1955 which was about the same length. It contained a greater number of Articles and was principally devoted to amending and modernising an Act of 1785, so it went even further back than this Leicester Order.

The length of the Leicester Order is the only way in which it is exceptional. I assure the House of that. It is long, I think, because Leicester has a long list of local Acts dating back for more than 100 years. The Order is designed to simplify that complicated mass of local legislation which Leicester enjoys, and it does so by repealing a number of obsolete provisions, by re-enacting some provisions in more modern form, by making minor amendments based on precedents that have been approved by Parliament in recent local Acts and by making minor amendments to others which have been found in practice to be defective.

I can assure the House that all this has had most careful scrutiny by my Department and that the Order before us now contains no new legislation whatever so far as I or my Department can ascertain. Leicester brought forward its proposals in good faith and complied with the procedure which has been approved by Parliament. My Department, too, has acted strictly within that procedure, and I stress that we have been careful to take into account views which Parliament has expressed in considering other Private legislation.

The hon. Members for Stalybridge and Hyde (Mr. F. Blackburn) and for Falmouth and Camborne (Mr. Hayman) were concerned lest this Order might in some way undo the work which had been carefully done by the Committee in connection with the 1956 Act. I assure both hon. Members that in the Department we have been especially careful not to approve any amendment which might even be considered to run counter to views which were expressed by the Committee on the 1956 Act. Indeed, Leicester had no desire to bring forward any such amendment.

Replying to my hon. Friend the Member for Dover (Mr. Arbuthnot), 14 of the proposals originally brought forward by Leicester were turned down and have not been included in the Order. Let me hasten to say that Leicester was not trying to get through by Order a Private Bill of 44 Clauses, because this is not new legislation; this is simply a tidying up process, although on a major scale. Under this Order there is an obligation on the local authority to advertise these proposals locally. Leicester did that, and as a result of the advertisement only two objections were received. Those objections were attended to. As a result of them, one proposal was deleted from the draft Order and another was amended.

I should like to refer to some of the detailed points which have been raised although, as I have only 22 minutes in which to reply, I may not be able to deal with them all at length. My hon. Friend the Member for Dover commented on Article 14. Attention was called to its departure in small respects from the model Clause. The explanation is that what appears as Article 14 was advertised before the 1958 model Clause was promulgated, and that being so, and the differences being very small, it did not seem essential in those circumstances subsequently to bring the Article into absolutely identical form.

Reference has been made to Article 13 and Article 18 (3). There has been a feeling that new offences might be created by those Articles, and that it would be extremely difficult to discover precisely what those offences are. The effect of both those Articles is, in fact, favourable to the subject. The effect of Article 13 is favourable to the person charged and the effect of Article 18 (3) is favourable to the subject who, but for the Article, might be charged with an offence which he could hardly be said, in truth, to have committed.

Article 12 deals with the sale of briquettes by number. My hon. and gallant Friend the Member for Isle of Ely (Maj. Legge-Bourke) asked whether we were imposing an unusual fine or creating an offence. We are doing nothing except to correct what I agree was an error in the Act, which, as it stands on the Statute Book, does not permit the sale of briquettes by number. The Article corrects that. It makes the necessary provision, but it does not include any provisions as to fines or offences which in any other way differ from what is laid down in the Act. The only difference is that it makes it posible to seel briquettes by number, which had been inadvertently estopped by the Act—

Photo of Sir Henry Legge-Bourke Sir Henry Legge-Bourke , Isle of Ely

Is it virtually identical with what is being done by other local authorities?

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

I think that the question was asked in another place as to why this could be done by Order when another corporation was having to proceed by Bill. The answer is that the other Bill—and I think that some hon. Members have in mind the Bootle Bill—is for the first time attracting the Weights and Measures Acts to various fields and, in doing so, makes an exception of the selling of briquettes by number, while this Order deals with provisions in the Leicester Order of 1956 which already attracts the Weights and Measures Acts, erroneously, to the briquettes. That is why I stress that there is no new legislation involved, but solely the correction of an error.

I will gladly do my best to answer any further detailed question that is raised on the Order, but I think that the House would wish to know what advice the Government give as to where we go from here. It has been amply demonstrated this evening that the House of Commons feels that it has genuine cause for concern over the fact that the existing procedure really allows of no opportunity for Parliamentary scrutiny. Of course, a Petition may be received, and that will attract Parlimentary attention, but where no Petition is received the only way in which any point can be raised on such an Order as this is by such a Motion as this for the annulment of the Order.

The procedure has been working for ten years without having attracted any attention, without giving cause for complaint, and, I hope, without serious consequence, but the Government would certainly not adduce that as a reason for dismissing the considerations raised tonight. Because it has gone on for ten years unnoticed does not mean that there is no need now to review the procedure. The Government readily accept that this procedure deserves to be re-examined and an inquiry will at once be set in train to consider whether changes should be made in the procedure, and, if so, what is the best way of acting.

When I say "changes", I am not prejudging anything. We will have a thorough inquiry, and I for one would not attempt now to prejudge what might come out of that examination. It is a complicated matter which will require a good deal of attention. It will involve the 1945 Act as well as the 1949 Order. It will concern many Ministers other than myself, and it will also involve the House authorities. I therefore trust that the House will forgive me if I cannot make detailed proposals tonight.

The Government will certainly pursue, in consultation with the House authorities, the question of principle that has been raised. I am quite sure that that is important—

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

I think that it must be for the Government, in the first instance. Frankly, this has been raised at very short notice, and I have hardly had time to consult my colleagues. I only say that we must go into this. I recognise that this is a matter not solely for the Government, but for the House as a whole, but, clearly, the obligation rests upon the Government to initiate examination. The Government will initiate that examination, and will call the House authorities into consultation.

No doubt a statement will be made later, either by myself or by my right hon. Friend the Leader of the House—because although I and my Department are concerned with this Order, I am sure that the House will recognise that the issues raised go far beyond any one Department. I am quite sure that it would also be the wish of the Government to achieve a solution which would be universally acceptable to all parties; or, at least, as acceptable as it possibly could be. After all this is a House of Commons matter; it is a matter for Parliament.

My hon. Friend the Member for Dover has asked if I could refrain from bringing forward any further Orders until this examination is completed. I cannot go so far as that. For instance, there is one Order in the "pipeline", if I may use that expression, at this moment. It has been advertised, and the Corporation concerned has been told that we are prepared to grant the Order. Therefore, it would not be right suddenly and without further notice to reverse that information which has been given.

What I propose is this. I should like forthwith to arrange that if ever I am proposing to make an Order, under Section 303 of the 1875 Act, to send a copy of the Order in draft to the Lord Chair- man of Committees and to the Chairman of Ways and Means, with an explanatory note; and that, I think, would be appreciated. I am not putting that forward as a permanent solution, but it is the one action which I can take by administrative action of my own. I would hope that that might go some little way at least towards stilling the anxieties that, even tomorrow, Parliament might be letting this through.

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

That is precisely why I say that I am not offering this as a final solution. It might be suggested that the procedure might need some alteration. There is no formal provision for ensuring that any comments which the Lord Chairman of Committees or the Chairman of Ways and Means might have will be attended to; but I would pay attention to anything which was said.

The point here is that this 1945 procedure also refers to other Orders which can repeal or amend other legislation that is the responsibility of other Ministers. I cannot speak for them, but I will bring this matter to their attention.

Photo of Sir Henry Legge-Bourke Sir Henry Legge-Bourke , Isle of Ely

On a point of order, Mr. Speaker. This surely raises the question of the existing Act; and in Section 9 we have this: Without prejudice to any other powers exercisable in that behalf by the House of Lords and the House of Commons respectively, Standing Orders may be made for any purpose connected with the provisions of this Act, and in particular—(a) for regulating the manner in which petitions against an order to which this Act applies shall be framed and presented… But only Petitions. Are we not asking the Chairman of Ways and Means to do something which the Statute does not empower him to do?

Photo of Mr William Morrison Mr William Morrison , Cirencester and Tewkesbury

I gather that the Minister is proposing a more extended review of the circumstances than merely some amendment of the Act. Therefore, I do not think that that point of order, although valid, need hold up the Minister from continuing his discourse.

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

I am grateful to you, Mr. Speaker. All I can do is to make sure that each of these draft Orders is in the hands of the Lord Chairman of Committees and the Chairman of Ways and Means. I can do no more than that and I hope that what I have said is an indication of the Government's sympathy towards the point of view of those hon. Members who have raised this matter tonight; and I am ready to do what is in my power to do forthwith. I hope that I have given an indication that the whole question will be thoroughly examined.

11.20 p.m.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

The Minister said that Parliament had shown great interest in the procedure of which the Order is an instance. I must point out to him that those of us who had considered the matter thought that the debate this evening would be confined to the contents of the Order and that for that reason we have been in no position to discuss the propositions that the right hon. Gentleman has now been making, rather at the end of a debate which was conducted largely, but not entirely, from one side of the House.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

I said "largely, but not entirely".

I want to make two points. The first is that I earnestly hope that people who are concerned with the possible dangers of this type of procedure, whoever they are, will bear in mind that it has limited but useful purposes which I do not believe afford a real opportunity for any encroachment on the rights of Parliament and, if they are kept limited, will save local authorities a great deal of expenditure. The reason for the introduction of this procedure was the cost of private Bills.

My second point is this. I sat some time ago on a Committee about Private Bill legislation in 1955. Another such Committee is sitting now and it is a Joint Select Committee. It is considering questions relating to Private Bill legislation. It is a difficult subject. It becomes more difficult if parts of it are dealt with separately, because I believe that the common object of the House is to let local authorities get their proposals through with satisfactory checks, but as cheaply as possible. It sounds sordid, perhaps, to talk about the expense, but it comes back on the rates and it is a very considerable sum, particularly for the smaller authorities, and the cost of even a small Bill on these lines would have been far greater than what is being put forward now.

I hope that the right hon. Gentleman, when he is considering what should be done about this matter, will not rule out the possibility that it might be referred to the Joint Select Committee which is now sitting.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

I see the hon. and gallant Member for the Isle of Ely (Major Legge-Bourke), who is also a member of the Joint Select Committee, nodding his assent. It seems rather odd to consider a matter of this sort, which is so closely related to what that Committee is considering, without at least taking that possibility into account.

I need hardly say to the Minister that this is an agreed House of Commons matter, but it is also something which is of vital interest to the local authorities and to the associations which represent them.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

In reply to the hon. and gallant Member, I add "and to another place," since that is concerned, as we are, under present procedure, with these Bills.

Photo of Major Sir Robert Conant Major Sir Robert Conant , Rutland and Stamford

I would like to thank my right hon. Friend the Minister for all the trouble he has taken and for his sympathetic reply. I feel quite satisfied with the assurance which he has given about an immediate inquiry, and I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.