HC Deb 24 March 1876 vol 228 cc568-79
MR. GREGORY,

in rising to call attention to the Report of the Select Committee upon Acts of Parliament; and to move "That, in the opinion of this House, effect should be given to the recommendations of that Committee," said, that the matter had attracted much attention last Session, and a Committee was appointed also to investigate it. The Chairman of the Committee was the right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole), and it examined, among other witnesses, the Master of the Rolls, Mr. Justice Archibald, and some distinguished members of the Bar. After examining those witnesses, it reported that the defects which existed in the present system of legislation were principally included under four heads—namely, (1), the mode in which Bills were prepared; (2), the introduction of inconsistent and ill-considered Amendments; (3), the want of consolidation of statutes on similar subjects; and (4), the absence of any method of classification of public Acts of Parliament. As regarded Government Bills, they had for several years been drawn up by a gentleman appointed for that purpose—Sir Henry Thring—to whom the House was under great obligations for the care with which he executed his work; but there were certain defects which were beyond his control, and for which, it was to be hoped, Parliament would be able to supply some remedy. The result of the revision of the statute law had also been a great improvement, for the Committee, which had now been engaged for a considerable period upon that work, and revised the statute law down to the present reign, had included it all in some six or seven volumes, and when that revision was completed down to 1868, the statute law would be comprised in about 15 or 16 volumes. Still much remained to be done, particularly with reference to two principal defects in the present system, one of which was referential legislation; the other, want of consolidation. Strong evidence was given upon the first of these points by the Master of the Rolls and Mr. Justice Archibald, who referred to the case of the Licensing Acts, which had come before Mr. Justice Blackburn, who said they were pernicious, complicated, and contradictory, and spoke of the difficulty of coming to anything like a satisfactory conclusion respecting them. The Master of the Rolls himself said of the Church Buildings Acts that they were like a Chinese puzzle. The Committee found that this practice of referential legislation was somewhat increasing, and, without troubling the House with many instances which he could call, he would, as an example, refer to two Acts of last Session, to the Peace Preservation (Ireland) Act, than which it would be difficult to find a piece of more complicated legislation. Another example was that of the Explosive Substances Act, the operation of which depended on certain clauses of two other Acts. But if the previous Acts were repealed, he apprehended those powers of the Explosive Substances Act which depended upon them would be gone. For his own part, he could not conceive any difficulty which could have prevented all the powers required from being directly embodied in the Explosive Substances Act, and that would have been a far better course than to refer to the clauses of other Acts. With regard to the question of consolidation, he had said that he hoped the statute law might be reduced to some 16 volumes; but that would bring it down only to 1868. When it was considered that Parliament legislated at the rate of something like 90 to 100 Acts of Parliament on an average every Session, it would be readily conceived how cumbersome and confusing that annual accumulation of legislation must necessarily become, and how great must be the difficulty of reference to the numerous Acts, and of their interpretation, not only by ordinary people, but even by the Judges themselves. Strong evidence bearing upon the benefit of consolidation had been given by Mr. Fitzjames Stephen, who pointed out the fact that the penal code in India had been reduced from 300 Acts to one of something like 100 clauses; but in the consideration of this part of the subject, a question arose as to how Consolidation Bills were to be treated by Parliament, whether they were to be accepted altoge- ther, or to go through the ordeal to which other Bills were subjected in either House. It could hardly be expected that all the Consolidation Bills on important subjects should be accepted on trust, and the question was whether they could be passed in any other manner. Mr. Fitzjames Stephen, whose efforts at consolidation had been attended with so much success in India, told them that great facilities were afforded by the system pursued by the Indian Council of not dropping Bills, but continuing them from one sitting to another, the Bills being taken up from the stage of adjournment. He (Mr. Gregory) would venture to suggest, with respect to certain Consolidation Bills, that some alteration should be made in the Standing Orders, it might be of both Houses of Parliament, so as to enable those Bills to be taken up in one Session at the stage in which they were left in the last. In the meantime, experts and others might have opportunities of considering them further, and of suggesting Amendments. It should be remembered that a good deal of the language of statutes was now out of date; some of the provisions might require alteration so as to bring them into conformity with modern ideas and requirements; and that might lead to a good deal of discussion. There was another source of difficulty which had pressed strongly on his own mind, and that was the way in which Amendments were introduced in the passage of Bills through Parliament. Hon. Members knew how difficult it was to comprehend and deal with Amendments which were on the Paper; but the difficulty was greatly increased when Amendments not on the Paper were proposed on the spur of the moment. Several striking instances of this were brought before the Committee, and a case had recently arisen under the Irish Church Act by which a construction was given to one portion of it entirely inconsistent with the Act itself, and with the views of those by whom it was promoted. Amongst the other recommendations, the Committee suggested that when long and intricate Bills were introduced, a short statement or breviat should be attached, from which hon. Members might learn the nature of the proposed measure without wading through its clauses. He thought such a statement would be a great convenience, and it might be drawn without difficulty. The Committee also suggested there should be a classification of Acts of Parliament into various subjects. For instance, all the Acts relating to licensing should be placed in one group, so that any one in that trade who wished to refer to the laws regulating it, could do so without having a vast number of statutes to go through. The Committee also recommended, though as a matter of minor importance, that Acts of Parliament should be described by the years in which they were passed, instead of by the years of the reign. They further thought that time should be given for considering Amendments in Bills passing through the House after being put on the Paper. They also recommended that consolidation should be proceeded with on a regular system, facilities being given for passing Consolidation Bills by taking them up at the stage in which they had been left in the previous Session. These were the principal recommendations of the Committee. They were all simple and practical proposals, and he hoped the House would show its appreciation of the pains bestowed upon the subject by the Committee, and join him in the declaration that their recommendations should be carried into effect as quickly as possible. The hon. Member concluded by moving the Resolution.

MR. A. MILLS

seconded the Motion.

Amendment proposed,

To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, effect should be given to the recommendations of the Select Committee of 1875 upon Acts of Parliament,"—(Mr. Gregory,)

—instead thereof.

MR. EVELYN ASHLEY

said, that having been a member of the Committee referred to, he begged to support the Motion. The law was a perfect tangle on many subjects, and required reference to a great number of statutes for its elucidation. The Committee made several valuable suggestions, but he would only refer to one, that of consolidation. It was once said that the secret of political organization was "Register, register, register!" but for legislative measures the motto of the House ought to be "Consolidate, consolidate, consolidate!" It was only the other day that the Lord Chief Justice of England told the citizens of London that when statutes were brought before the bench for interpretation a "convulsive shudder" ran through all the Judges. It was not creditable to a great country like this that our Statute Book should give convulsive shudders to persons skilled in the law, and worse than that to those who were not skilled in the law; but consolidation would remove half the evils complained of. One reason why so little had been done in that direction was want of time, and if some Resolution or Standing Order was agreed to, under which Consolidation Acts might be allowed to be taken up in the next Session at the stage they had reached in the previous one, greater progress would be made. The Committee found that there were at least 100 groups of subjects urgently requiring consolidation, and a Government worthy of the name would immediately set about the work. Of course, it must be done piecemeal; but if the Government would at once consolidate the Acts relating, say to highways, to Poor Law administration, or the lunacy laws, all of which were of vital importance to the interests of daily life, they would confer a great blessing upon the country. The remainder might be proceeded with as time and circumstances would permit. In order to carry out the suggestion, a permanent department should be instituted to undertake the consolidation of Acts of Parliament. Private Members could not command sufficient confidence to undertake such work with success; but there was no reason why Consolidation Bills presented to Parliament by a permanent and responsible department should not be accepted with almost as much trust as the annual Bills the House had lately had before them for the revision of the statutes.

MR. DODSON

thought the hon. Member for East Sussex had done good service in calling attention to the Report of the Committee upon the subject, but trusted that neither the House nor the Government would be induced to accede to the Motion to give effect to the recommendations of that Committee as a whole. The recommendations were much more numerous than the hon. Member had led the House to suppose, and his Resolution, if carried, would involve the carrying out of the whole of them. Some of them could hardly be called recommendations, being more in the nature of suggestions; and on others it seemed as if the Committee had not known its own mind. The Committee had, however, pronounced a decided opinion upon one subject. It disapproved of the appointment of a Board to superintend and revise legislation passing through that House, because it would interfere with the Minister who had charge of particular Bills, impair the responsibility of the draftsman, and because it was not thought right that the House should delegate its functions to such a body. The Committee made recommendations as to the advantage of passing an Act to define terms which were of frequent use in legislation; as to simplifying the proceedings in dealing with Bills at certain stages; as to citing Acts of Parliament by Anno Domini, instead of reference to the reigns of different Sovereigns; as to taking up Consolidation Bills in one Session at the stage where they were left in a previous Session; and as to other matters. He trusted that the House would not be prepared to adopt all these en bloc, as it would do if it adopted the Motion of the hon. Member for East Sussex. The Committee recommended the use of breviates, and they no doubt were an old institution of the House; but when? It was before the discovery of printing, and when, probably, a good many Members could not read! In those days it was the duty of Mr. Speaker to inform the House what was the subject and scope of the Bill, and he read that from a "breviate" attached to it. But supposing that were now done, it would not be an impartial statement, but really would be a short summary of the view of the Member who wished to present the Bill to the House, and it would be very apt to be tinged with a particular colour in favour of the Bill, and would at all events incur a suspicion of partiality. Another recommendation, as he had said, was that there should be a general Act defining the terms used in legislation; but the hon. and learned Attorney General would agree with him that such a definition of terms must necessarily be very limited, and it would have to be watched and guarded with extreme care, or it would land them in all sorts of difficulties; and if it were intended to be retrospective, he did not know how any Act could be so framed as not to throw our law into inextricable confusion. [Mr. GREGORY said, he had not suggested any Act for the purpose.] No; but it was in the Report of the Committee, and the Resolution proposed to give effect to the whole of its recommendations. As to model clauses they were no doubt found of great use in Private Bill legislation; but their employment in Public Bills must necessarily be limited to very few subjects, and the drafting of the Bills was now conducted more carefully than formerly, and therefore he did not anticipate that much benefit would be derived from the adoption of the suggestion. The other points were so minute and comparatively so insignificant, that the House would waste more time in considering the desirability of adopting them than would be saved if they were adopted. With regard to the suspension of Bills in one Session and taking them up in another, he regarded it as a very serious subject, and one which, without hearing stronger arguments in its favour than he had yet heard, he was not prepared to give his assent to. It had always been held to be the Prerogative of the Crown to put an end to the proceedings of Parliament by prorogation; but beyond that objection the suspension of a Bill might be used as a means of shelving in one House, instead of assuming the responsibility of passing or rejecting it, a measure which had been carefully elaborated by the other. The suggestion was not a new one, for in 1848 it was considered by a very strong Committee of the House of Commons, who reported unanimously against it. In 1869 a Bill was introduced into the House of Lords for the purpose of enabling Bills to be suspended from one Session to another. That led to a conference of one of the strongest Joint Committees of both Houses that ever was appointed, and that Committee also unanimously reported against the proposition. He trusted that the House would not again entertain the question. If any of these proposals were to be adopted, it must be only after careful discussion, which would occupy time that would be much better employed in getting on with the Merchant Shipping Bill and other important measures. Last Session there were many discussions as to matters of form, one being the Exclusion of Strangers, which was left unsettled, and at present they did not know whether the Resolution then adopted was to be held as a Sessional or adopted as a permanent Resolution. The Prime Minister had intimated that he would bring the subject before the House, and there would doubtless be a discussion upon it. He considered, therefore, that it would be most objectionable to adopt the Resolution of his hon. Friend, which would commit them to the consideration of all the recommendations of the Committee, and would lay a heavy embargo on the time of the Session and on the patience of the Members. He hoped his hon. Friend would be satisfied with having called the attention of the House to the subject, and that he would withdraw the Motion; but if he still desired to press it, he had better defer the attempt and endeavour to obtain an early opportunity next Session rather than secure an imperfect discussion of this question at the risk of interfering with other business.

LORD FRANCIS HERVEY

said, he regretted that the right hon. Gentleman, moved by a spirit of antiquarian Conservatism, had endeavoured to throw cold water on the labours of the Committee which sat last year. That Committee had given great attention and labour to the subjects referred to, and they had taken much evidence from most experienced and able witnesses. The right hon. Gentleman said that their recommendations were very numerous; but, in fact, they were very few, very simple, and very practical. The right hon. Gentleman's objection to the addition of breviates to complicated and lengthy Bills was a little too late, as last Session something of the kind was presented to the House, with the Militia Laws Consolidation Bill and the Public Health Consolidation Bill. Then he treated the recommendation of resuming the consideration of a Bill in the next Session as if it were intended to apply to all Bills; but the Committee expressly limited their recommendation to Consolidation Bills only. They recommended that side by side with the concurrent legislation of the year there should be a system of consolidation that would clear up all difficulties that might have occurred and put our statute law on an intelligible and scientific basis. The statute law was now so intricate, confused, and voluminous that there was a constant wail from Judges and counsel about the difficulty and perplexity in which it involved them. It also caused great expense to suitors, and a delay of justice. Hallam, in his Constitutional History, speaking of the statute law in his time, said—"We walk literally among the gins and pitfalls of the law." He hoped, therefore, that Government would give its assent—he did not say to every single recommendation of the Committee, but to the main purport of them—and thus endeavour to do something to cure the evils that existed in our present system of legislation.

LORD FREDERICK CAVENDISH

said, as a Member of the Committee referred to, he could not help thinking that the most important recommendation of the Committee had been passed over sub silentio. A new machinery for the drafting of Government Bills had been adopted some time ago by the appointment of a Parliamentary counsel, and many of the evils in our legislation having been attributed to defects in that Department, the Committee had taken the subject into consideration, and they summed up the result in these words—"For the sake of uniformity, and also for the purpose of fixing responsibility, it is important that this system should be adhered to." It appeared, however, that the system was not quite strictly adhered to, and that—owing, no doubt, to the great pressure of business—other counsel were employed in the preparation of Government Bills. He now asked the hon. and learned Attorney General, whether the recommendation of the Committee on this point would be attended to, and whether it was the intention of the Government to make the Department of Parliamentary Counsel responsible for the drafting of all Government legislation?

MR. E. JENKINS

said, the question was one of very great importance. Our statute law was not merely a matter of form, it affected substantially the rights and liberties of the people. His opinion was, that valuable as was the Report of the Committee, their proposals were of a somewhat timid and superficial character. On first taking up the Report, he looked to see whether it contained any reference to the overburdening of the House with legislation, and offered any suggestion for relieving the House of that plethora of legislation with which it was afflicted. It had been suggested, in reference to the three nationalities into which the House was divided, that there should be Committees of Nations, to which should be referred the consideration of all Bills affecting those nations. That matter was not, however, referred to by the Committee, and yet it might have an important bearing on the subject under consideration. Again, although some of the ablest witnesses who had been examined had alluded to the relation of the House of Lords to the legislation of the country, the Committee did not recognize the fact that arrangements ought to be made for improving our legislation in concurrence with the House of Lords, and so remedying, to a certain extent, the pernicious system of dual legislation. He submitted that when a Committee omitted all reference to such important matters as these, their Report could not be considered to be a complete one, and the House ought not to be invited to take action upon it. He considered the analysis of the Report to be most illogical, the most important matter being put last. For example, the first point mentioned was "the mode in which the Bill was to be prepared and the extent to which it varies from previous statutes," whilst the fourth, and last, referred to the difficulties arising "from the absence of any better classification of Acts of Parliament." Surely the first point to be considered in reference to the consolidation of the statute law was the existing state of the law and the reasons in that existing state which interfered with the progress of new legislation. Yet the Committee put the cart before the horse, for the first point which they said ought to be considered was how the Bill was to be prepared, whereas to do that properly they should first consider the existing state of the law in relation to the persons to be affected by the Bill. It was admitted by draftsmen of the greatest experience that it was almost impossible to know what was the present state of the law. First of all, then, a register of the existing law should be provided, so that those who had to draft Bills might have something to guide them. The proposition to accompany Bills with breviates was, in his opinion, impracticable, and if it could be carried out would be found to be a most expensive and tedious process. Practically, the effect of a remedy which would naturally suggest itself for these evils would be that at the begin- ning of each Session there should be presented a register of the law as it stood in the form of one great statute, so as to enable the draftsmen and Legislature properly to understand the condition of things with regard to which they were legislating, and that all alterations or additions in the existing law should be introduced in consistent language and in uniform shape as Amendments to this great national statute. They could not properly discuss the subject until some joint Commission of the two Houses had been appointed to undertake an inquiry into it.

THE ATTORNEY GENERAL

said, he thought the House must be deeply indebted to the hon. Gentleman who had drawn their attention to this subject, and also for many of the suggestions thrown out. He would at once admit that the statute law was open to great improvement; but before anything could be done in that direction, it seemed to him desirable that it should be brought within reasonable compass; that each particular subject should be dealt with by one statute only; and that statutes should be so framed as to be easily understood, and to contain within themselves the necessary elements for their construction. At present it was sometimes impossible to understand a statute without referring to a dozen others—a circumstance which not only caused great labour to Judges and others, but involved the risk of erroneous interpretations; and entailed on suitors a vast amount of expense; and some consolidation of the law was, therefore, clearly desirable. He thought it was the main object to which they ought to give their attention, for if the law were consolidated in a satisfactory way, the statute law would be reduced to a reasonable compass, and they would get rid of the great evil which arose from legislation by reference, a system which produced the greatest possible embarrasment. The only advantages of it appeared to be that it saved the draftsman some trouble and curtailed the length of the statutes. Now, he cared nothing for the trouble of the draftsman, and if statutes could be made clearer by being lengthened he did not see why they should not be. But while there was a good deal to say in favour of consolidation he did not think Parliament would ever entertain the other recommendation of the Committee that Bills should be passed on from one Session to another, and taken up at the point where they had been left. The House of Commons, he believed, would never consent to accept Bills on trust, but would insist upon thoroughly examining them when brought before it. It had been objected that if the statutes were generally consolidated, they would become too long; but that, he thought, would be a minor evil compared with the immense trouble of reference. He was aware that the recommendation of the Committee was confined to Consolidation Bills; but in consolidating the law it would be necessary sometimes to alter phraseology, and the question might arise whether in so doing they did not alter provisions as well. Certainly the recommendation was one which ought not to be adopted without serious and earnest consideration. Many of the recommendations were very valuable, and would be carefully considered by the Government; but he hoped the hon. Gentleman would not call upon them to give a decided expression of opinion that effect should be given to the whole of them. He did not think it would be wise and prudent to give effect to all the recommendations; but with regard to the principal ones, and especially with regard to consolidation, they were already under the serious consideration of the Government, and no doubt they would be carried into effect as soon as it was possible to do so. In answer to the question of the noble Lord the Member for the West Riding (Lord Frederick Cavendish), he might say with regard to the system of Parliamentary drafting, which was inaugurated by the Treasury Minute of the 12th of February, 1869, it was an excellent system, no doubt, and one which was being actually carried out as far as the state of Public Business would permit.

MR. GREGORY

said, he was quite satisfied with the explanation, and would not press the matter further.

Question, "That the words proposed to be left out stand part of the Question," put, and agreed to.