CLAUSE 15.—(Revival of Parts of Naval Discipline Act.) (Hansard, 9 March 1915)

Mr. HEALY

I desire to ask a question on this Clause. I have a most vivid recollection of the Statute Law Revision Act of 1893. In that Act there is a provision that the Preamble of the Naval Discipline Act shall stand repealed, and the Government after twenty-two years propose to repeal that repeal and declare that the Preamble has never been repealed, whereas the very forcible draftsmen or printers of the Naval Discipline Act have never regarded the repeal as having any effect at all, and they bring in a drag-net Clause into every one of their Bills providing that in spite of that repeal there is to be no repeal whatever. If there is anything that would produce want of respect for the law and for lawyers it is the system of Statute Law Revision whereby you solemnly repeal all the laws. I remember when there was a proposal to repeal Magna Charta, made in this House by some person of a repealing mind who said that it was obsolete, but by a vigorous effort the proposal was stopped. When I sat on a Committee on Statute Law Revision, of which the present Prime Minister was a member, there was a proposal made that the priority of salary of the Lord Chief Justice should stand repealed, and the Prime Minister made an emphatic protest against that repeal taking place, and with great difficulty succeeded in preserving that most splendid relic of the Constitution. Here we have the most absolute absurdity demonstrated, not merely to this House, but to the public, and I ask what respect there can be for lawyers or for legislation when it is proposed here to repeal the repeal of a Preamble which every lawyer concerned in it for the last twenty-two years has never deemed to be repealed at all.

It is certainly one of the most curious instances connected with legislation. For twenty-two years, notwithstanding the repeal of the Preamble of the Naval Discipline Act, you have ignored the repeal, and this couple of sentences has continued, as I understand, to ornament and adorn the forefront of these Bills. Why should we now in a time of war suddenly wake up to the consciousness that this repeal, of which nobody hitherto has taken the smallest notice, has taken effect. I always wish to meet Treasury clerks to see what sort of persons they are. One would like 1352 to meet the kind of man who has discovered this, and who sat up for nights, I suppose, planning that he would give the House of Commons some judicial entertainment by suddenly providing that the ghost of this repeal shall be finally laid by a Statute declaring that the repeal has never taken place at all. I would like to meet the gentleman responsible. Read the Clause, I think it is a classic instance:

"So much of the Statute Law Revision Act, 1893, as repeals the Preamble to and part of Section 86 of the Naval Discipline Act shall cease to have and shall be deemed never to have had effect."

Whoever drew that had the courage of his convictions. What is the fact? That everybody connected with the Navy has insisted upon this Preamble continually, as if no repeal had taken place at all.

Why cannot you leave it so? Because you have really this position: So far as my experience in Courts of Law has gone, every time you said to a Court that the Statute Law Revision Act has repealed a particular provision, the Courts took no notice of it. I remember complaining that no attention was being bestowed on the revision of the Irish Statute and, for my sins, the then Government, about twenty-five years ago, appointed a man who has mottled and dappled Irish legislation, so that when you require to consider the effect of bankruptcy laws, land laws and other things of difficulty and doubt, nobody can construe the Statute Law Revision, and consequently the Irish Courts have come to the sensible resolution that they will pay no heed whatever to the Statute Law Acts. I remember Lord Chancellor Ashbourne asking me, "Why on earth does the House of Commons pass such Statute Law Acts?" and I said that they were intended as a codification of the law, in order to make the law clear to the working man. That is the only explanation which I have ever been able to get of this system of legislation. To pass this Section now would mean a legislative declaration by the Government that the Statute Law Revision Acts have force, because they themselves, having refused to recognise the force of the Statute Law Revision Acts, now find it necessary to declare, as they do by this Clause, that in fact they believe that they have had force, whereas it was known to everyone that they had no force whatever.

Therefore, when by the blundering of the gentlemen connected with the Statute Law 1353 Revision some Act is repealed, you can always say "that is a blunder and the drag-net Section will cover it, and therefore no harm has been done." But can you do that now? Because the moment you say, "Oh, the Government for twenty-two years never took any notice of the repeal and they put the Preamble forthwith into the Section," then it would be said immediately by somebody that there was a revival and a re-enactment. When you yourselves have given no effect to the repeal you should not now prejudice other legislation by this proposal. I have no doubt whatever of the reason of the repeal. This is only a dive back to the past. In the old days there used to be a question that the Preamble could be postponed, and you could debate that. Then there was a Standing Order passed that the Preamble should stand proposed with the Question. Then as Preambles had gone out of fashion it was possible, under the Navy Acts, I take it, to have a Debate on the Preamble, and so it came under the notice of the naval law revisor and he abolished it altogether for the sake of what he thought was Parliamentary convenience, and when he had done that the Navy, with glorious persistency, treats the repeal as having had no effect whatever. We have lived in that happy state of things for twenty-two years and now, in the midst of a vast war with the Teuton or the Hun, or whatever it is called, supposed to be threatening at our gates, we declare that we shall run up the flag once more and that the glories of the Navy shall stand blazoned upon our banners, notwithstanding the repeal of the Preamble of the Naval Discipline Act. I only hope that the Gentleman responsible in doing what he has done in this case will not leave for future times a puzzle for lawyers like the puzzle which was propounded in the case of the fly in the amber, as to how the mischief he got there.

§ Sir J. SIMON

Whatever else the Naval Discipline Act has produced, all of us are grateful that it should have produced the speech of the hon. and learned Gentleman. He has told us a number of things which we are greatly interested to know, including the part which he has played in appointing those officials who in Ireland look after the revision of the Statutes, and also his opinion of the law. But my immediate reason for rising was this: he said that he wants to see the man who will admit that he has got any sort of responsibility for putting this Clause in this Bill

1354 at this time. I am, I hope, a reasonably retiring person, but, that request having been made, I feel it necessary to stand up and say that I am the man. We have enjoyed the hon. and learned Gentleman's review of the Statute Law Revision Act, but I am sorry to say that I do not entirely share his view that it could have no effect on anything whatever. Ireland, indeed, is a fortunate country in many ways, but in no way so fortunate as in matters of this kind; at any rate, last Monday, in our own Courts here, a judgment was being considered with respect to which I had to argue. It was given by three judges of our own High Court, a short time back, in which they agreed unanimously that a Section in another Statute Law Revision Act had, in fact, altered a very important part of the prerogative of the Crown. I am glad to say that before the Court of Appeal we found that to be groundless, and we restored ourselves to the position in which we were before. There are two reasons why this Section should be put in, and I hope they will commend themselves to the House. The first is, at any rate in the view of those who are responsible for advising the Admiralty, that there is some doubt as to whether the Statute Law Revision Act here referred to has not thrown doubt upon some decisions already given by the Admiralty authorities in respect of courts-martial. Everybody will agree that when you are administering naval discipline through naval courts-martial you do not want a court-martial to be upset on the ground of a pure technicality. That is one reason why the Clause is put in at this time. There is another reason. Generally speaking, the Preamble of an Act of Parliament is found very dreary reading, more dreary than the enacting Clause, and the more we get rid of those Preambles of old Statutes I dare say the better; but there is one exception, and it is that which is traditionally to be found in the Naval Discipline Act. Its pedigree goes right back to Charles the Second, and it is a simple and splendid Preamble which existed until the Statute Law Revision Act framed by those who cared nothing for these things, cut it out of the Statute Book. I think it is proper that we should restore it:—

"Whereas it is expedient to amend the law relating to the government of the Navy, wherein under the good 1355 providence and protection of God, the wealth, safety, and strength of the Kingdom is so much concerned."

I do not think we are in the least to be reproached, even in the event of war, because, when we had on various urgent matters to improve and amend the law with respect to naval discipline, we should, in set terms, restore to the Statute Book that traditional and splendid expression, "Wherein under the good providence of God." I am the guilty person who has put in this provision, and I ask the House to accept it.