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Clause Ii—(Saving In Respect Of Acts Done Under Prerogative And Statutory Powers)

Volume 439: debated on Friday 11 July 1947

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I beg to move, in page 9, line 48, to leave out from "for," to "issue," in page 10, line 1, and to insert "defence of the realm."

During the Second Reading Debate i raised the question of the conclusive certificate provided for by Clause 11 (2), and I ventured to suggest that the Subsection be dropped altogether, that in any event the terms were far too wide, and that great embarrassment would be caused if matters of this kind were left entirely to the certification of the Service Departments, particularly when we are getting on to such an obscure topic as the width of the Prerogative. It occurs to me that a satisfactory compromise with the Service Departments might well be that when we are dealing with such matters as the defence of the Realm, where they have peculiar responsibilities, they might be allowed to decide the case for themselves; but when one is only dealing with matters such as training or maintaining the efficiency of the Forces in peace time, I see no reason why the powers of the courts should go and why the Service Depart- ments should be put in a position to decide matters of that sort without question of appeal. In view of the lateness of the hour, I will not expand my argument, but I hope that the Attorney-General will make some concession.

It is by no means the case that the prerogative powers of the Crown are restricted to matters concerning the defence of the realm. If that were the case, there would be great substance in the submissions made by the right hon. and learned Gentleman, but whilst the prerogative is undefined, there are a great many other matters not connected with military Forces at all which come within the scope. Questions about aliens, harbours, patents, and the right of the Crown to suppress disorder and maintain peace are matters of prerogative. It is true, however, that the prerogative power also covers, in time of peace, the whole of the maintenance, the training and efficiency of the Armed Forces of the Crown. It is commonly supposed, I know, that as a result of the passing of the annual Army Act the Armed Forces rest for their existence upon that statutory authority and are maintained by the Crown exclusively under that Statute. That is not the case. The discipline of the Forces depends upon the Act, but the efficiency of the administration of the Army which the Crown is authorised by Parliament to maintain depends entirely upon the prerogative powers. That also applies to the Navy.

The prerogative powers cover the training and arming of the Forces, the setting up of fortifications round the coast—even in times of peace—the training of the Forces in the use of armaments in these fortifications, and so on. To take one particular instance—the fortifications at Shoeburyness—the firing of the guns in practice there, is carried out under the prerogative powers of the Crown. It is essential that nothing in this Bill should take away from that prerogative or any of the other undefined prerogative powers which the Crown possesses. This Bill does not in any way enlarge the prerogative. It leaves it as it is and it leaves the courts able, as they are now, to define what is the nature or extent of the prerogative in any particular case. All that the certificate here does is to provide that some particular act may be certified as having been done in the course of a prerogative. It would still be for the courts to say whether that particular prerogative had any legal existence or not. I hope that the right hon. and learned Gentleman will be able to withdraw his Amendment.

I certainly cannot agree with the argument of the Attorney-General, particularly in regard to the last part where he says that it is for the courts to define the nature and extent of the prerogative and that that will remain with them if this Clause is passed. I cannot believe that, because the certificate here will be to the effect that the matter was properly done or omitted to be done in the exercise of the prerogative and it will, therefore, take that matter out of the hands of the courts altogether. I regret very much that this Subsection should be insisted upon. I feel sure that it does alter the powers of the court but, as has been pointed out by other hon. Members, this is not an occasion when we wish to divide the Committee. I feel that this goes very much further than the Attorney-General has admitted, and I hope that he will look into the matter again. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.