STATUTE LAW REVISION (SCOTLAND) BILL [Lords] (Hansard, 22 July 1964)

§ Mr. G. R. Mitchison (Kettering)
The Statute Law Revision Bill [Lords] for England has been passed with little or no discussion, but that for Scotland is so much more voluminous that it requires a little explanation, and the only Minister I can see who is likely to give it to us is the English Solicitor-General. There may be some other legal expert who will tell us exactly what some of it means. It is a voluminous list of Statutes starting in 1424 and continuing at the rate of two or three a year down to at any rate the Act of Union and a little beyond.
These Statutes deal with matters which are of great current importance. For instance, one of them deals with the common good, and I should like to know what the effect of repealing a Statute about the common good is. I understand common good to be a Scottish institution for assisting the pleasures and enjoyments of the representatives of Scotland in local government, and no doubt for other good purposes connected with Scottish local authorities. What happens if the substratum of the common good is removed, as it appears to be removed by the Bill?
In addition to that, there is a variety of Statutes about horning. What will happen to horning if half-a-dozen Statutes about it are repealed? There are a number of other matters some of them a little difficult for any mere Englishman to understand but which no doubt have a perfectly clear meaning.
Other Statutes are being equipped with short titles. These are very interesting. We find that the Confession of Faith Ratification Act, which appears to date from the time of John Knox and about 1560, is being continued and equipped with a Short Title. Perhaps it is just as well, because it appears to have had an uncommonly long one before.
626 The question which occurs to me is where all this comes from. What is the original source which suggests these alterations in the law of Scotland? Are we sure that we are repealing enough and not repealing too much? Last year there was an equally extensive list of somewhat incomprehensive titles, some of which were repealed in whole, and some in part, while others were assured of immortality by being given a Short Title.
Whatever they were, I think that the House is entitled to know what steps are taken in preparing a list of this sort, and how it is that when we have one long list one year, and a year or two afterwards we have another long list. After all, successive Governments have had since 1424—plenty of time—to consider the whole Act that is called "Of crufis and yaris". It has not been repealed before. What sudden impulse—is it the General Election?—is causing the Government to repeal "Of crufis and yaris" this year of all years? The next but one after that has a title only in Latin, to make it more difficult.
One wonders what is the process of statute law revision in Scotland. The English Bill—and I mention this only for comparison—contains a comparatively intelligible and understandable sort of list. It is true that it contains something about repealing the Act about the American colonies, which given the existence of the United States was somewhat obviously out of date, but it does not contain this extraordinary selection of incomprehensibilities dating back for centuries.
I therefore wait with some anxiety to hear how it is that the law of Scotland has received this belated attention now and not previously, whether the Government can assure us definitely and for certain that there is not another packet coming next year and the year after, and whether they can give us the number of obsolete statutes relating to Scotland which are not dealt with by this Bill, but will be dealt with by a subsequent one.
I had considerable difficulty in finding the Acts of Scotland. I brought in only one volume. I do not propose to read it, but it is pretty formidable, and to an Englishman—and oddly enough this Parliament contains quite a number of 627 English Members—quite incomprehensible.
It is in the nature of the political situastion that there is no Scottish Law Officer in the House competent to explain in any detail why this selection has been made and not any other. I hope that the hon. Lady, who looks as though she is going to reply to the debate, will give an answer as graceful as it is comprehensive to the questions that I have asked.

§ Mr. A. Woodburn (Clackmannan and East Stirlingshire)
Will the hon. Lady tell us the authority for the selection and verification of this list so that we can be sure that no important law is being repealed or cancelled? The Bill is merely a blunt statement. Some authority must have considered this matter.
When a Consolidation Measure is passed, we get some sort of certificate that it is not really interfering with the law as it stands. Which authority has certified that in this long list, which nobody can possibly examine without years of study, something that is valuable is not being repealed? Has this list been drawn up at random, or has it been produced after consideration by an authority which the House can accept as justification for this list?

§ The Under-Secretary of State for Scotland (Lady Tweedsmuir)
The authority is the Consolidation of Enactments (Procedure) Act, 1949, whereby a Joint Committee of the House of Lords and House of Commons is appointed to consider all Consolidation Bills, Statute Law Revision Bills, and Bills presented under the Act to which I have referred.
The hon. and learned Member for Kettering (Mr. Mitchison) comes from South of the Border. I imagine that he finds it a little difficult to decipher some of these enactments, but they have been considered by a very distinguished Committee, which included Lord Guest, who comes from North of the Border.
The purpose of the Bill is to repeal obsolete, spent, unnecessary, or superseded enactments of the pre-Union Scots Parliament. One of the objects of the Bill is to facilitate the inclusion of the old Scots Acts which are still in 628 force in the Chronological Table of Statutes and in the Index to Statutes in Force with which the hon. and learned Member has armed himself. This will be of considerable convenience to practitioners and others, and I am informed that the Bill simplifies the old Acts by assigning short titles to each of those which remain.

§ Mr. Mitchison
Why does the hon. Lady assure us that these are pre-Union Acts? I notice, on page 13, an Act Ratifying and approving the Treaty of Union". which apparently is being repealed. What is to happen to the Treaty of Union between England and Scotland if the Act ratifying it is repealed? There follow three other Acts, ending up, appropriately enough, with an Act for preserving the Game". I am not sure what kind of game this is. Is it a sporting game, or is it some obscure joke? Why are all those in, if this ends at the Act of Union?

§ Mr. Woodburn
On page 5 the Bill repeals an Act For punishment of the committaris of disordouris in the kirk in tyme of divine seruice…". Is this a retrospective condemnation of Jennie Geddes or the suffragettes, or is there some other law that takes its place?

§ Lady Tweedsmuir
I assure the hon. and learned Gentleman that the Union will be quite happily preserved, despite this provision. The right hon. Member for Clackmannan and East Stirlingshire (Mr. Woodburn) need not worry. I am certain that nothing in the Bill would do anything against the women of Scotland.

§ Mr. John Robertson (Paisley)
It seems to me that there are one or two rather important matters that have not been considered. We have been told that a very distinguished Committee met to consider this matter, of which Lord Guest was a member. Am I to believe that he was the only Scottish member of the legal profession who gave the matter consideration? We all know that much of the Scottish common law is based on these old pre-Union Statutes. Before Parliament thinks of passing the Bill it should have the opinion of a Scottish legal body on the matter.
629 I do not want to go into some of the rather remote Measures, but the Bill seeks to amend the Act of Union and the Act ratifying it. Therefore, it raises a question of constitutional law. We must consider the right of this Parliament to amend and repeal any part of that Act, except in so far as the Treaty itself permitted that to be done.
The Court of Session has already considered this matter in relation to a rather famous law case. It came to the conclusion that this Parliament did not have any constitutional right to alter or amend the Act ratifying the treaty except in so far as the Act itself permitted this. As the Bill is presented, we have no opportunity to consider whether or not this is for the good of the people of Scotland. Far too little consideration has been given to the matter. I suggest that someone, somewhere, thought it would be a jolly good thing to get rid of these obsolete and archaically-worded Statutes that seem to have no meaning today.
I think that here we are tampering with the basis of Scottish law, and I should like better assurances than the hon. Lady has been able to give us about the effects of this. I can tell her that not all the members of the legal profession in Scotland agree with Lord Guest, if he accepted these Amendments. Many are anxious about what is being done. They say that in certain respects, about which I will not go into detail, this could have a fundamental effect on the common law relating to Scotland. If this is so, if there is even a shadow of doubt about which the Government have no knowledge, the best thing would be to refer the matter to a group of distinguished Scottish legal people in order to obtain expert advice.
I do not think that this has been done properly. There are fundamental aspects of this Bill which I question whether the House has the right to pass. I refer particularly to those parts ratifying the Treaty of Union which it is sought by this Bill to abolish or to repeal. I do not know whether it has any significance now, but I do not know about the future. I cannot look into a crystal and foretell what will happen. It may be that the Government seek to repeal something in the Treaty of Union which may prove important at a future date. What really worries me is that the hon. Lady and her right hon. and hon. Friends are, seemingly, not the least concerned, and not 630 even properly briefed. They do not bring a reasonable story to the House and they have not taken proper legal advice. I suggest therefore that the Government should have another look at this matter.

§ Mr. D. C. Anderson (Dumfries)
I have to declare an interest as a member of the legal profession in Scotland. I wish to make one observation about the remarks of the hon. Member for Paisley (Mr. J. Robertson) with regard to the bearing of these old Statutes upon the common law of Scotland. When going back in time to the periods dealt with by these old Statutes Scottish lawyers place far greater store on the writings of what we in Scotland term the institutional writers—Stair and Erskine to give two examples. The amount of times when, in considering the foundation of our law, these institutional writers are quoted and relied on is infinitely greater than the number of times the ancient Statutes have to be referred to.

§ Mr. J. Robertson
I support what the hon. and learned Member for Dumfries (Mr. Anderson) is saying; he is an expert. But is it not the case that the writings of the experts to which he refers are based on these very Statutes which we are now seeking to repeal?

§ Mr. Anderson
The writings of the institutional writers, although necessarily referring to some extent here and there to Statute law, are based to a far greater extent upon the Roman law and other sources of old common law which their writings were crystallising. I make the point in order that there should not be any misapprehension about the significance of what we are doing in this matter.

§ Mr. William Ross (Kilmarnock)
I am glad that we have had a certain amount of discussion. There seems to have been a certain amount of humour, too, but we are dealing with ancient Statutes which we should not discard too readily and too easily, and certainly not without examination. I wonder whether someone will rise after Second Reading and move that the Committee stage be taken on the Floor of the House, or whether there is any possibility of the Bill going to the Scottish Standing Committee. How long should we be allowed by the Government to consider these matters? There 631 is a wide field for amendment here, and for examination, and I do not think that the Solicitor-General would be any great help to us in these discussions, because so far he has not responded to any appeals to come to help us in very important legal matters and I doubt very much whether he would do so in relation to this.
This is not the first time that we have seen this type of Statute, because this was due to come before us earlier and was held over because of time. Yet we are in the last gasp of this Parliament, when the Scots have not been the most idle in respect of legislation and subjects for discussion. We were up on Monday until 2 a.m., and we finished our business last night on a Scottish Bill at 11.20 p.m. after we had been all day in the House and all morning in the Scottish Committee. I begin to wonder what the Leader of the House thinks the Scots are.
This is an epoch-making Bill. Many of these Acts were relatively important in their day. Some were terribly important, although many no doubt were unimportant. In respect of some of the aspects of the Treaty of Union which are being dropped, it would have caused civil war in Scotland had there even been a suggestion at that time that they would ever be dropped.
As the Bill started in another place, we have not the advantage of the usual explanation, but in the Long Title we read that the Act is to revise the Statute of Scotland by repealing obsolete, spent, unnecessary or superseded enactments. I ask the hon. Lady which of these are obsolete, which are spent, which are unnecessary and which have been superseded. Some of the Statutes could not possibly have been superseded because they contain the words "and for all time". It is not a thing we tend to put in statutes today because we reserve the right to incoming Governments to make changes. But it may well be that there are certain things here which we have not had time to examine.
Surely the hon. Lady and the Scottish Department could have given us a paper outlining the whole procedure. Is there a report, quite apart from the statute, from the Statute Law Revision 632 Committee in respect of this? That might prove to be a little more helpful. The hon. Lady knows that when the first of these Bills came forward there was considerable comment in the Scottish Press about it. It is interesting to go through the Acts and to discover the subjects discussed. There was an Act for winter herding. I wonder whether its provisions way back through the centuries were any better than the winter keep which enrages the farmers in Scotland and led them to come down from the furthest north to interview the Prime Minister when he was a candidate in Perth and Kinross and whose anger he did not entirely remove by what he said on that occasion.
I am wondering whether the revision is sufficiently up to date. On page 13, there is the Act of 1706— settling the manner of Electing the Sixteen Peers and Forty Five Commoners to Represent Scotland in the Parliament of Great Britain". The noble Lady will remember the celebrated poem of Robert Burns addressed to the Forty-five: In gath'rin' votes you were na slack; Now stand as tightly by your tack; Ne'er claw your lug, an' fidge your back, An' hum an' haw; But raise your arm, an' tell your crack Before them a'. Every Scotsman should appreciate that when he goes on the hustings and remember that, whatever he says or does, he should carry out his pledges and promises. Those who tend to consider that Scots are at times a little pernickety in examining legislation should remember also that we got some good advice from that same source: Some o' you nicely ken the laws To round the period an' pause, An' with rhetoric clause on clause To mak harangues; Then echo thro' Saint Stephen's wa's Auld Scotland's wrangs". I have noticed that sometimes when we do this there is a certain restlessness among the English and we tend to be told that we really should not do it. But this is precisely what we are doing now. We are examining the laws which are to be dropped.
I take the example of the 1706 Act which refers to the 45 Members. We passed an Act not long ago which enabled us to acquire a Prime Minister from 633 another place. Under that Act we wiped out the provision about the Scottish peers, a diminishing number and not to be confused with peers of the Realm. They had to meet at the beginning of a new Parliament and select from among themselves representatives. Now, that has gone. It is not a question of 16; they can all come now.
Is the extent of the repeal sufficient?— In the title the words from 'manner' to 'Forty Five' and The remainder of the Act, except the words from ' It is always' to the end. As the noble Lady knows, we have now removed altogether the need for any reference to the Scottish peers. But what is the effect if we leave in the words "Forty Five"? According to the way I have been taught to prepare Amendments—my Scottish colleagues and I have had plenty of experience of practice at it—when one says "from ' manner' to ' Forty Five'", one leaves in the word "manner" and the word "Forty Five".

§ Mr. Deputy-Speaker (Sir William Anstruther-Gray)
Order. The House is in danger of finding itself discussing Committee points which, on Second Reading, would not be proper.

§ Mr. Ross
But the difficulty is that we are here dealing with a whole Schedule, Mr. Deputy-Speaker. The substance of my argument on the principle is that the Government should take it back for examination, giving us time to scrutinise the Schedule. I am giving only one instance—I could give many instances, but I am sure, Mr. Deputy-Speaker, that you have no wish that I should—about whether these words "Forty Five" should be left in, because there are now more than 45 Members of Parliament for Scotland. The present figure, I think, is 71. The only thing that is declining is the number represented by the party opposite, and it will be still further decreased in a few months' time. The noble Lady will appreciate that when we make these changes, we are making changes of considerable historic interest.
As far as I know, no great harm has been done by the continued existence of these Statutes. I gather that there has been trouble concerning codfication and setting them out in new form.
634 I have found it of convenience to delve into these Statutes. I have a vested interest, because these things are important in the Committee stage of Scottish Bills, particularly when the Government appreciate the true merits of Scotland and that in the Act of Union we were given the pledge that the Scottish law would remain as Scottish law.
The result is the reason why the Scottish Grand Committee has become a Scottish Standing Committee. There was a time when every Scottish Member of the House was entitled to sit in the Scottish Grand Committee and deal with the Committee stage of Scottish legislation. In this Parliament, new Members will no longer have had that experience, because we wiped it out during the lifetime of this Parliament and we created the Scottish Standing Committee. That stems from the fact that there being a separate and existing body of Scottish law, certain Acts of Parliament cannot reasonably be welded with English law. There is a National Health Service Act for England and Wales. There is a separate and better one for Scotland. There is a Food and Drugs Act for England and Wales and there is a Food and Drugs Act for Scotland, a very much better Act. That is because we examine legislation in our Committee. It is part of our disputatious heritage that we do so.
My concern is that over the lifetime of this Parliament, and certainly over the last two years, we have seen a tendency to forget the rights of Scottish law as enshrined in one of these Acts of Parliament that is being tampered with tonight. In the Session of Parliament which is now ending, we have had an important Bill dealing with Scottish housing, a subject on which we have Statute after Statute that is purely Scottish. Now, it has been welded into an English Statute, to the dissatisfaction of my hon. Friends and to the dissatisfaction of their English colleagues, who found that they were dealing with two separate Bills. The same thing happened with the police. We prevailed successfully upon the Leader of the House to extract the Scottish part of that and take it to the Scottish Standing Committee.
I am showing how Scottish legislation has been dealt with during this Session. 635 The other day, we started the Committee stage of a Bill at half-past ten in the morning and finished at two o'clock the next morning.

§ Mr. Deputy-Speaker
Order. I am reluctant to interrupt the hon. Member, but I find it difficult to connect what he is saying with the Second Reading of the Bill.

§ Mr. Ross
The point I am putting, Mr. Deputy-Speaker, is that the attitude of the Government to Scottish law is such that we cannot always trust that what they say, especially in relation to a Bill that is completely unintelligible, like this one, is what is being done.
As I understand it, we are dropping Acts of the Scottish Parliament prior to the Union, Acts which are obsolete, unnecessary, but the way in which the Government have disregarded Scottish law and the rights of Scottish Members, during this Session particularly, is such that we have no reason to rest confident that what they are doing is right or properly related to the Statute. As you know, Mr. Deputy-Speaker, it is very difficult to amend a consolidating Bill of this nature, very difficult indeed. Indeed, Second Reading is about the only time one has anything like a proper opportunity to discuss it at all. I should not be at all surprised if the Government were to suggest taking all stages of this Bill tonight. It would be very wrong of them to do so, because since you reproach me with broaching on Committee points I am bound to ask whether we shall have a proper consideration of the Bill in Committee so that my hon. and learned Friend will be able to remove from the Schedule certain Measures which he thinks are important and for which there is certain justification.
Committees outside do not necessarily prove to be infallible in consideration of these matters, and I sincerely hope that the Government will have taken note, on this occasion, of Scottish opinion when this Bill was first presented and when it was held back, particularly in relation to those parts of the repeal which relate to the Treaty of Union.
I apologise if I have delayed the House, but this is, from the point of 636 view of Scotland, an historic occasion, and we should not do things with our eyes shut or with our mouths shut. I know what the hon. Lady or the hon. Gentleman will say, but consider how little interest has been shown in Scottish Bills during the whole of this Parliament by hon. Gentlemen on the other side of the House. On Friday we discussed an important Bill; there was not one of them here. We have gone through whole Bills without a word being said by hon. Members opposite. I had hoped that when we were dealing with an historic matter like this we should have had at least a word from one of them. This may be the end not only of one "auld sang" but of a few "auld sangs".

§ Sir James Duncan (South Angus)
The speech we have just heard justifies the procedure which the Labour Government set in force in 1949. The 1949 Act amended the previous procedure on consolidation legislation by allowing on the authority of a certificate from the Lord Chancellor minor alterations of the law, to make sense. As a result of that, a Joint Select Committee was set up in every Session to deal with this sort of Bill, and Members of this House and those of the other place sat together.

§ Mr. Ross
Not in this case.

§ Sir J. Duncan
On this one, so my noble Friend says. It went through the procedure under the 1949 Act. This applies only to obsolete, spent, unnecessary or superseded enactments.
When one joins one of those Joint Committees—and I have done so in my time—and one is faced by a Bill such as this, it has been gone over with a very fine toothcomb by a group of officials, either from the Scottish legal Department or the other legal Department, and the job of the Committee is to look into every recommendation which is made by the officials. There is nearly always a Lord Chairman, and a distinguished Lord Chairman.
If I might digress for a minute, I remember amending and consolidating the Income Tax law in 1962. We had a very distinguished legal lord, who eventually became the Chairman of the Radcliffe Commission. We had people of that quality. The only job of the 637 Committee, which is not really political at all, is to verify and to question the officials as to whether the proposed provisions of consolidation Measures deal with obsolete, spent, unnecessary or superseded enactments. We go through them with a very fine-toothed comb.
This is the Second Reading, and I do not think it is the time to mention any of these points. I appeal to the House. If we are to repeat what our own Joint Select Committee has done, repeating exactly what it has done on the Floor of the House in Committee, it will be the end of the consolidation procedure under the Lord Chancellor's 1949 Act. It would be impossible for Parliament to work. Parliament has enough to do without dealing with these things.
If we are to do ourselves justice and keep up to date with our normal legal and administrative duties, we must trust the Committee which we set up with another place. There was a Scottish Peer on it. It is only a small Committee, with four from the Lords and four from the Commons, I think—I may be wrong about that. It may be a criticism that there was not a Scottish Member of this House on it, but there was a Scottish lord who happened to be a legal lord. If we are ever to do our job in Parliament we must trust the Committee to go through these things, which have not been prepared overnight. The proposals in the Schedule have probably been the subject of consideration for the last five years by a body of legal experts and have been gone through with a fine-toothed comb to make certain that no law is dealt with which has any validity under modern conditions. We must trust the Committee. Otherwise Parliament will be completely bogged down and unable to do its day-to-day duties.

§ Mr. Woodburn
rose.—

§ Mr. Deputy-Speaker
The right hon. Gentleman will appreciate that I cannot call him to make a second speech. If he has a question to ask before somebody sits down, that is a different matter.

§ Mr. Woodburn
With due respect, Mr. Deputy-Speaker, I asked a question but did not make a speech. I do not propose to make a speech now. I merely want to ask a question. My hon. Friend the Member for Kilmarnock (Mr. Ross) 638 said that these Acts are of great historical interest, which is true, and people would like to know what is happening about many of them. Would the Government consider issuing a White Paper? It could be very entertaining. Several points ought to be cleared up. For instance, my distinguished constituent, the Earl of Mar, is affected by these Acts. I notice a reference to the ratification of the benefite of pacificatioun grantit to Alex Lord Home". If there is something affecting Alex Lord Home in these Acts we ought to be told what it is all about. It would be most interesting if the Government would issue a White Paper.
I agree with the hon. Member for South Angus (Sir J. Duncan) that it is impossible for Parliament to go through these Acts. Most of us would probably not understand the language anyway. But we ought to be satisfied that the work has been done. It was a mistake on the part of the Government not to give some explanation to the House about how it was done and why it was done and some explanation of the Acts which were being discarded. I remember that during the passage of the Criminal Justice (Scotland) Act we did away with some wonderful Acts about whipping, torture and outlawing. It was interesting to note what was being done.

§ Mr. Deputy-Speaker
Order. I am afraid that the right hon. Gentleman is trying the limits of the question to the full.

§ Lady Tweedsmuir
I will briefly reply, by leave of the House, Mr. Deputy-Speaker.
I would like to reassure hon. Members who are concerned, quite rightly, that some Acts which they describe as being of great historical importance to our country should not pass from the scene without their disappearance being questioned, but I think that my hon. Friend the Member for South Angus (Sir J. Duncan) put his finger on the point that after all, under an Act of the Labour Government, it was decided that it was necessary to have a Joint Committee of Members of both Houses to go into detail and hear evidence about those Acts which the Bill itself describes as "obsolete, spent, unnecessary or superseded."

§ Mr. Mitchison
rose.—

§ Lady Tweedsmuir
I do not think I can give way to the hon. and learned Member for Kettering (Mr. Mitchison) because I am speaking by leave of the House and I wish to reassure my Scottish colleagues in particular.
As the House will realise, evidence is given by members of the Lord Advocate's Department about these Acts and very many pertinent questions are put to them by members of the Joint Committee. Lord Guest was asked whether there was any question he wished to raise at the end of the proceedings and he replied: No. The fact that I have asked no questions indicates that I am quite satisfied. I have had an opportunity of considering the Bill along with the report of the last proceedings. I am perfectly satisfied as to the form which the Schedule takes. It was therefore agreed that a report should be made to this House in the following terms: That the Committee have considered the Bill and have heard evidence thereof. The Bill is confined to the repeal of obsolete, spent, unnecessary or superseded enactments and there is no part to which the Committee thinks that the attention of Parliament should be drawn. I hope that, with that assurance, the House will give the Bill a Second reading.

§ Mr. Mitchison
Are we to have a similar Bill next year? What I asked, and what the hon. Lady has not answered, was why this large bunch of obsolete statutes was not included in a similar Act a year or two ago. How many more of these parcels of spent statutes are we to have? Why not deal with the lot at once?

§ Lady Tweedsmuir
Although this is a modernising Government, we do not consider that everything can be done at once. I can give the hon. and learned Gentleman no assurance that in the next Parliament, when we again have the authority of Government, we shall not do exactly the same thing again.