§ 16 Clause 21, page 14, line 3, leave out ("may") and insert ("shall").
§ Viscount DavidsonMy Lords, I beg to move that this House do agree with the Commons in their Amendment No. 16.
§ I do not propose to become involved in a debate with the noble Lord, Lord Houghton of Sowerby, as to whether "shall" should equal "may" or whether "may" should equal "shall", but I certainly took note of the succinct comment of the noble and learned Lord, Lord Scarman. Suffice it to say that I am sure that several noble Lords from all parts of the House will be particularly pleased to see this small but significant change in the Bill.
§ During your Lordships' consideration of the Bill at Committee and Report stages I was urged, especially by the noble Lords, Lord Melchett, Lord Beaumont of 607 Whitley and Lord Airedale, to agree to the substitution of "shall" for "may" in Clause 21(2), which provides for codes of practice relating to the care and accommodation of protected animals and their use in regulated procedures. At that stage we were somewhat reluctant to make such a change, merely because our initial intention was not to issue codes ourselves but to approve those being prepared by experts working under the joint auspices of the Royal Society and the Universities Federation for Animal Welfare. However, after further consideration and in view of the strong and sustained representations made to us on this point, we decided that it would be desirable for the Secretary of State to have this obligation placed upon him, thus ensuring that whatever else happens there will be codes of practice issued under the Secretary of State's name. The amendment, I should add, rightly does not prevent us from approving codes of practice issued by other persons, in addition to those that we must issue ourselves. One way or another, we shall certainly want to take full advantage of the painstaking work being carried out by the Royal Society working party, which I understand is making good progress.
§ Together with the amendments to the same clause which we shall come to next, this amendment, if anything, still further enhances the status of the codes of practice which will provide very necessary guidance to licensees and others on the standards of care, accommodation and other matters expected of them by the Secretary of State. I commend the amendment to the House. I beg to move.
§ Moved, That this House do agree with the Commons in the said amendment.—(Viscount Davidson.)
§ Lord MishconMy Lords, I wonder whether this is the appropriate time and place to mention the matter of "may" and "shall" in a little more detail. If it is not, then as usual my words will fall upon infertile ground. I should like to say that there are many lawyers and non-lawyers in this House who have taken up their own time and that of other Members of your Lordships' House in arguing that "shall" is mandatory and "may" is permissive.
The noble and learned Lord, Lord Diplock, with the authority that he carries, said that the judges will always interpret "may" as if it were "shall" and "shall" as if it were "may". While I am indebted to him for the clarity and brevity of his remark, it seemed to me to predicate to the House a very difficult proposition. I only ask at this stage for the matter to be considered, if someone takes the trouble to read the Official Report. It would save a great deal of time and trouble if an authoritative statement could be made to the effect that in the drafting of legislation it makes not a scrap of difference whether one says "may" or "shall" because both those words are imperative. If that were possible, I believe that there would be clarity in your Lordships' House where at present there is doubt.
§ Lord Campbell of AllowayMy Lords, I think that perhaps the noble and learned Lord, Lord Scarman—not the noble and learned Lord, Lord Diplock—was making an observation which was not serious. I agree that the matter certainly requires 608 clarification if it was intended as a serious observation, but I did not understand it as such.
§ Lord Boyd-CarpenterMy Lords, it was a joke, was it not?
§ Lord Campbell of AllowayI thought it was a joke, my Lords.
§ Lord MishconMy Lords, I crave the leave of the House to apologise for mentioning the revered name of the noble and learned Lord, Lord Diplock, when I meant to say the name of the equally revered (but, thank heavens, with us) noble and learned Lord, Lord Scarman. I believe it was never the habit of the noble and learned Lord to make a jocular remark which might be misinterpreted. He never did it on the Bench, and he has never done it in this House, though we always appreciate his wit. I think that he really meant what he said. We really ought to know whether he did or did not mean it.
§ Lord Houghton of SowerbyMy Lords, I do not want to prolong this discussion at all but perhaps I may put forward a layman's view of this matter. I always understood that if an Act of Parliament lays down that a Minister "shall" do something then failure to do that can be met by a charge of breach of statutory duty; but if it were said that he "may" do something and he fails to do it, he cannot be so charged. The obligation is there but the statutory duty is not quite there. Is this the explanation, or need we not bother?
§ Viscount DavidsonMy Lords, as a very simple layman I certainly am not competent to enter these lists either as a combatant or a referee, but I am sure that what has been said will be noted in the appropriate quarters.
§ On Question, Motion agreed to.