MATRIMONIAL CAUSES BILL [Lords] (Hansard, 25 July 1950)

§ Mr. Manningham-Buller (Northants, South)
On a point of order, Mr. Speaker. I desire, even at this late hour, to raise two points with regard to this Bill—points which, I venture to submit, are of considerable importance; at any rate, the first point, for what is done or is said to be done under this Bill may be regarded as creating a precedent.
I think I am right in saying that before the passage of the Consolidation of Enactments (Procedure) Act, 1949, one of the difficulties with regard to consolidation was that it was impossible to eliminate anomalies between different statutes and—if I may use the expression—marry them up together without making some changes in the statutes. That was the argument advanced in moving the Second Reading of the Consolidation of Enactments (Procedure) Bill last year. As that Act says, it was an Act to facilitate the preparation of Bills for the purpose of consolidating enactments relating to another statute. Under Section I of that Act, with that object in view, and with that object only in view—that is to say, in order to 388 facilitate the consolidation of enactments—corrections and minor improvements can be made in the process of consolidation.
Now, the Act itself, of course, contains a definition of the phrase "corrections and minor improvements," and I am sure, Mr. Speaker, your attention has been drawn to the phraseology of that definition. My submission is that that definition cannot extend the operative Section, which is Section I (1); that is to say, that, in my submission, the only corrections and minor improvements that can be made are corrections and minor improvements in statutes for the purpose of facilitating consolidation.
Under that Act a memorandum has to be laid before Parliament as to the particular corrections and minor improvements that it is proposed to effect. In this case it is quite clear from the Memorandum that two of the proposals relate to more than mere consolidation of statutes. It is said, in relation to the second proposal, in the Explanatory Notes attached to the Memorandum, that it is proposed to codify some of the old ecclesiastical jurisdiction inherited by the courts; that is to say, if I may put it shortly, to put into a statute something that has never been in the statute before. The same question arises in connection with the third proposal contained in that Memorandum.
The first point I desire to submit to you is this. Any proposal for the codification of the common law by including it in a consolidation statute is beyond the powers conferred by the Act of 1949. It may well be—indeed, I think, it is desirable—that in one section of an Act one should find a full statement of the jurisdiction of the High Court with regard to alimony; but that cannot be done without putting into the statute something which is not contained in the statute at all at the present time. To put it in by way of a Consolidation Measure means that we can get the statute law made without this House having the normal opportunities of considering the proposals that are put forward.
I will put my point with regard to that as shortly as I can. It may be that it would be a minor improvement of our statute law if we could import into it a great deal of what is at the present time common law, but it cannot be said 389 that such importation is necessary for the purpose of the consolidation of the existing statute law. I think my submission is supported by what was said by the Attorney-General in moving the Second Reading of the Consolidation of Enactments (Procedure) Bill. He said: In the process of improving and clarifying the state of the law generally—and it is very important that it should be improved … there are two necessary stages, the first one, the consolidation of the existing statute law, and, the second, the reform and codification of the law as it ought to be. The right hon. and learned Gentleman was there drawing a very clear distinction between consolidation on the one hand, and codification on the other. He went on: This Bill is concerned with the first of those two processes—the consolidation process."—[OFFICIAL REPORT, 6th May, 1949; Vol. 464, c. 1362.] I submit that it is clear that it was not the intention of this Act to give any power of inserting in the statutes the common law never contained in any statute up to the present time. I say that not only was that not within the intention of that Act, but in my submission it is beyond the powers contained in that Act.
I will put shortly the second point on which, Mr. Speaker, I would seek your ruling. The memorandum which is laid before Parliament is laid with the intention of enabling Members of Parliament to make representations if they wish to the Joint Select Committee. I am not at all sure that in the past adequate steps have been taken to bring the attention of Members of Parliament to this memorandum and I hope that further steps may be taken in the future. But that memorandum does at least indicate quite clearly what corrections and minor improvements in the law are contained in statutes which it is proposed to make. In each case the Joint Select Committee have presented a report in which they approve the changes proposed in the memorandum, which goes on to state that they have made certain amendments which seem to them to be necessary to the improvement of the form of the Bill.
It is quite impossible for any hon. Member of this House to know from reading that report what are these further changes. It is equally impossible for any practitioner to know what are these 390 changes, and in my submission if the argument put forward for the Consolidation of Enactments (Procedure) Act was right in the first place, the only power of making these changes arises in the procedure of the Consolidation of Enactments (Procedure) Act, 1949. By that Act it is provided by Section 6 (1) (vi) that if the corrections and minor improvements approved by the Joint Committee differ in any respect from those proposed in the memorandum laid before Parliament these corrections and minor improvements shall be appended to the report of the Joint Committee. That has not been done.
The only way we can find out what the Joint Committee has done is to read through the minutes of evidence, which, fortunately now have been published, and it is quite clear, in my submission, that they made changes to several clauses of the Act which clearly come within the definition contained in the 1939 Act on corrections and minor improvements.
I submit that, in those circumstances, the report of the Joint Select Committee does not comply with the 1949 Act, and I further submit that it is really very desirable that these changes made by the Committee, in addition to those contained in the memorandum laid before Parliament, should be identified in their report, so that not only Members in this House, but those who have to look at these Acts in the course of their work, should be able to find quite easily and exactly the changes made.

§ Mr. Speaker
I am obliged to the hon. and learned Member for Northants, South (Mr. Manningham-Buller) for having given me notice of his intention to raise these two points, and though I do not invite cross-examination upon the exercise of the discretion which the House and Parliament have from time to time entrusted to me, I will answer his points because I realise the importance of the strictest scrutiny of a procedure which diminishes the opportunity of the House to discuss possible amendments of the law, and because this is only the third occasion on which this procedure has been used.
I must begin by apologising to the House that by mistake the Lord Chancellor's Memorandum was not printed by this House on 26th May when it was presented to it. I realise that this may 391 well have been the cause of the hon. and learned Member's attention not having been called to the Memorandum in time for him to make representations to the Joint Committee. I am sorry it happened, but I do not anticipate it will occur again.
I agree that the 1949 procedure must not be so used as to convert a consolidation Bill into a codification Bill, but I do not construe the word "facilitate" as narrowly as the hon. and learned Member does. I take the words "facilitate the consolidation" as meaning something like "enable the consolidation to be done better," and I take the words "minor improvements" as being in harmony with this view. Minor improvements must of necessity subtract from or add to the existing law and if, as in this case, they add something, it does not seem to me to matter from where it comes, whether from the common law or elsewhere, so long as it is minor and makes for better consolidation.
In the case of proposals 2 and 3 of the Lord Chancellor's Memorandum, although the word "codification" was used in the Memorandum and before the Joint Committee, I did not think—and after careful reconsideration still do not think—that they did more than facilitate improvement in the form or manner in which the law is stated by removing all possible doubt as to how far the existing enactments have had the intention or effect of expressing or excluding the remedies available.
As to the hon. and learned Gentleman's second point, while it is not for me to defend the Joint Committee, I must stress that, however convenient any other procedure would be, the Act only requires the Joint Committee to append their amendments to their report when they differ from those proposed in the Memorandum. In this case they made their amendments under the ordinary powers of a Joint Committee considering a consolidation Measure, namely, to express more clearly the law as it stands or to rectify mistakes or omissions in the restatement of the law. Though I do not agree that the hon. and learned Member's fears are justified in this case, he can rest assured that I will not overlook the discharge of my statutory duty under the Act Of 1949, and my duty to the House of protecting its rights.

§ Mr. Manningham-Buller
May I thank you, Mr. Speaker, for the full consideration you have given to the points on which I sought your guidance.

§ Lieut.-Colonel Lipton (Brixton)
rose—

§ Mr. Speaker
I cannot have my decision argued. I have given my Ruling, and it would not be right that the Speaker's decision, formally given, should be argued in any way. I am not a lawyer, and I have had to take expert legal advice, and it would be quite impossible for me to argue legal points on this occasion. Therefore, I would say that it is out of order to challenge my Ruling in any way.

§ Lieut.-Colonel Lipton
I was not proposing to challenge your Ruling, Mr. Speaker. I was hoping with your permission, to draw your attention to the fact to which you made reference in your Ruling, that the memorandum relating to this matter was not available to hon. Members in the Vote Office until as late as yesterday, which of course does place us in a very difficult position in carrying out what hon. Members conceive to be their duty in connection with this Bill. If I may suggest it, Mr. Speaker, the only point I am seeking to make is that hon. Members of this House have been placed at a considerable disadvantage.

§ Mr. Speaker
The presentation of the memorandum is hardly my affair. The memorandum was printed in another place, and was available there, and I dare say hon. Members knew that. I cannot stop proceedings of that kind, I am afraid.

§ Mr. Eric Fletcher (Islington, East)
rose—

§ Mr. Speaker
The hon. Member understands that he cannot oppose the Bill except on the ground of opposing consolidation, and on no other.

§ Mr. Fletcher
As I understand it, this is the only opportunity the House has of considering in any respect the changes in the law that are made in this consolidation Bill, and it is open to the House on this occasion to consider not merely the pre-existing law which is now being consolidated into one Measure, but also the changes in the law which were the 393 subject of the Lord Chancellor's memorandum, which were considered by the Joint Committee, and are now being considered—

§ Mr. Speaker
I am afraid this is quite out of order. What is the object of this new procedure on consolidation Bills, if we may proceed to discuss what is being consolidated? I am bound by the title. The Bill consolidates certain enactments. One can only argue whether to consolidate or not. There can be no other argument.

§ Lieut.-Colonel Lipton
I want to oppose this consolidation Bill as it stands, because in my view it consolidates bad law.

§ Mr. Speaker
We cannot discuss existing law, good or bad.