Clause 2. — (Supplementary provisions as to Orders.)

– in the House of Commons at 12:00 am on 16th July 1963.

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Photo of Mr Robin Turton Mr Robin Turton , Thirsk and Malton 12:00 am, 16th July 1963

I beg to move, in page 3, line 5, to leave out subsection (3).

My right hon. Friend the First Secretary will notice that there is a strange alliance. I have welcomed the adherence to the Amendment of the right hon. Member for Middlesbrough, East (Mr. Bottomley) and his two colleagues because, although normally we do not agree on all aspects of this Rhodesian problem, this is a constitutional problem and all of us are worried about the constitutional aspect of this subsection.

Clearly, when we are dealing with alterations of a constitution, it is right that Parliament should use the normal procedure of examining the proposals in draft and approving them—in other words, that they do not use the negative procedure. Here the First Secretary is departing from the normal constitutional methods if an Order is made at any time before 1st October. My view is that these Orders will be of such tremendous importance for the future of the Commonwealth, for the future of the three Territories and, in particular, for the future of the Federation public servants who were discussed in an earlier Amendment, that Parliament should use the draft form method for any matter whenever it is introduced. It would be wrong for Parliament to say that we should use this rather less effective way of looking after our responsibilities by the negative procedure during August and September. Surely the disappearance of the Federation and the constitution of the three Territories is of such great Commonwealth importance that Mr. Speaker would recall the House of Commons to consider any such draft Order if it were proposed at that time. That is the first point which I make.

7.30 p.m.

My second point is whether this subsection is necessary. Chapter X of the White Paper makes the timetable quite clear. It states that it is the general wish to set a target date of 31st December. The Committees are to complete their work by about mid-September, and the White Paper suggests that the Governments concerned will then have to collaborate, and these collaborations should be finished by about mid-October.

Therefore, in his own White Paper the First Secretary is not envisaging any draft Order before mid-October at the earliest. This provision operates only during the months of August and September. It is clearly inconceivable that an Order would be introduced in August, or indeed in the first fortnight of September. We are narrowed down to the last fortnight of September. I hope that my right hon. Friend will appreciate the great importance of the work he is doing and that it is vital that Parliament should be responsible.

If the negative procedure is used, what will be the position? Once the Order was made, whatever view either side of the House of Commons took about the dissolution of the Federation, it could not repair it by the negative procedure. This is not like an Order of a minor character which can be prayed against after 10 o'clock. This is of major constitutional importance. In my view, it is the failure of a very great experiment. Members of the Labour Party and some of my own colleagues think that we should have taken this step a long time ago. I do not mind this difference of opinion. I believe that both sides of the Committee would regard this as a major constitutional step and want to be quite clear that the Order was correctly made. Therefore, in my view it should be laid in draft and should not be in operation until the draft has been approved by Parliament. I earnestly ask my right hon. Friend to consider whether this subsection is necessary.

Photo of Mr Dingle Foot Mr Dingle Foot , Ipswich

On this occasion I find myself very much in sympathy with the right hon. Member for Thirsk and Malton (Mr. Turton). The great difficulty with which the House of Commons is always confronted when dealing with delegated legislation is that we have no power of amendment. We may have, and sometimes do have, Measures of the very greatest importance embodied in an Order in Council or in a set of Regulations, but in the ordinary way we must pass them or we must negative them en bloc. That signally derogates from the power and authority of the House of Commons.

The matter can be got round in various ways. For example, the Government of India Act, 1935, on which we spent a great deal of time some years ago, contains a provision enabling Parliament to amend the Orders in Council which were made in relation to the Indian Constitution. I know that that raises certain difficulties between the two Houses, but, as the right hon. Gentleman said, we have from time to time managed to get round the difficulty by laying the Orders or the Regulations in draft. If I remember rightly, the first time this was done was in relation to the Military Training Act when we introduced conscription in 1939. It is a device to which the House has resorted from time to time.

When dealing with the negative procedure, when we can only pray to annul an Order in Council which has already been made, and a fortiori an Order in Council which is already in operation, the House of Commons is deprived of any effective control. As the right hon. Gentleman said, we are not dealing here with minor and consequential matters. We are dealing with matters of the highest importance to the people of all the three Territories concerned.

Therefore, I support the Amendment. We should on this occasion ask the Government for an assurance—I will not say an assurance of a substantial character, but at any rate an assurance—that it is not their intention to bring forward any Orders in Council during the Parliamentary Recess. The difficulty could be circumvented if we could be assured that the Government do not intend, at any rate in the absence of an emergency, to use this form of delegated legislation until the House returns in October.

Photo of Mr Arthur Bottomley Mr Arthur Bottomley , Middlesbrough East

Again I join with the right hon. Member for Thirsk and Malton (Mr. Turton) in making a plea to the First Secretary of State. This is not the first time that the right hon. Gentleman and I have joined forces on a matter concerned with Africa, and I am delighted to have the opportunity to do so again. The right hon. Gentleman is probably picking up something to which I referred on Second Reading. The right hon. Gentleman will recall that I said then that it was an inconvenience to Parliament and it was undemocratic to give these powers in this way. I said that we had to recognise that at times an Order in Council may be necessary but that we should surely all agree that, whenever possible, legislation should be passed by an Act of Parliament and not by an Order in Council.

I also said that it was particularly unsatisfactory that Parliament should allow delegated legislation of this kind, even if it is subject to the approval of the House, by which an Act of Parliament can be amended by an Order in Council. I said that on this occasion it was reasonably safe to do that, because all the Governments concerned were agreed, but I still think that it is undesirable and should be avoided, if possible.

I gave an example of how the House of Commons on one occasion inadvertently enabled a territory to do something which was not quite in accordance with the wishes of the House of Commons. This was done because of the Order in Council procedure. Once the Government have taken a decision, all that the House of Commons is called upon to do is to give assent to some- thing already accomplished. We all know that it is difficult to upset something once it is established. It is better, if there is the opportunity, to make representations before a decision is reached. I hope that it will be possible for the First Secretary of State to accede to this joint approach and accept the Amendment.

Photo of Mr R.A. Butler Mr R.A. Butler , Saffron Walden

My right hon. Friend the Member for Thirsk and Malton (Mr. Turton) drew a clear distinction between subsection (2), which is the affirmative procedure and deals with the draft of the Order, and subsection (3), which gives permission to introduce an Order before 1st October and then for it to be annulled by Parliament on resumption. We were fully aware of the striking difference between these two proposals when we inserted subsection (3) into the Bill.

I want to explain exactly what is intended in subsection (3) and what is not intended. My right hon. Friend drew attention to the timetable in the White Paper. He very rightly pointed out that some of the main committees cannot have reported by the time that this provision under subsection (3) expires. The earliest that any of them could have reported would have been the middle of September, and that would barely give time for laying an Order.

Therefore, I want to make it clear to my right hon. Friend and to the Committee that subsection (3) is not designed to deal with the major issues, on which we shall wish to get the approval of Parliament. It is not designed to deal with the assets and liabilities, or the public debt, or the public services, or any of the major issues in the White Paper. I give that undertaking to show that the issues upon which the affirmative will of Parliament will be sought under subsection (2) are all likely to be reserved till later in the autumn, and indeed it will be getting into the winter before we can possibly have the work ready. I give the assurance that in any case we should not use subsection (3) for all these major issues.

It may be asked what use it has; and this leads me to the one difficulty I have in meeting the Committee on this point. When we were in discussion with the Governments at the Falls there was a strong wish, led by the territories—particularly Northern Rhodesia—that functions should be transferred at as early a date as possible. This provision, therefore, is taken solely to facilitate the transfer of a function upon which there is agreement between the Federal and Territorial Governments, and to transfer such a function provided that the men, that is the public services, and the money, referred to in the White Paper, are available for the function to operate properly. I should find it difficult to omit the subsection because it would mean that I could not transfer any function before 1st October and, very likely, not before the end of October or November or whenever Parliament may meet in the autumn.

Our work on these major issues will not be ready until that date and if we were not to have subsection (3) in the Bill it would not give us an opportunity to transfer a function before the late autumn or winter. That might lead to considerable anxiety on the part of the territories. In view of the representations that have been made today by hon. Members I had better have a further consultation with the territories to see whether they think they still attach importance to what they said about the early transfer of functions.

If I find that there is not the same insistence as I thought, we can remedy this matter in another place. However, I would not like to take any further step tonight in view of my undertakings to the Governments concerned regarding the transfer of functions. I hope that these remarks indicate that we understand the Parliamentary anxiety on this point. What I have said will give me a little further rein to continue my discussions with those intimately concerned and, at the same time, safeguard the interests of Parliament.

Photo of Mr Robin Turton Mr Robin Turton , Thirsk and Malton

I thank my right hon. Friend for the way in which he has commented on the arguments that have been adduced. It may be that the territories will still want to have this power for that limited use of the transfer of functions in the period between August and 1st October. If so, would my right hon. Friend consider, in another place, making that clear in the subsection; in other words, limiting this power to orders dealing with the earlier transfer of func- tions? That would be a drafting matter and I do not expect my right hon. Friend to give me a reply to this suggestion immediately. I hope that he will consider this along with the wider question and, having thanked him for the helpful way he has responded to the points made, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

Bill reported, without Amendment; read the Third time and passed.