HC Deb 02 August 1965 vol 717 cc1216-24

10.50 p.m.

Mr. Graham Page (Crosby)

I beg to move, in page 107, line 47, after "date", to insert: (not being less than six months after the date of the passing thereof)". This would mean that subsection (3) would read: This Act shall come into force on such date (not being less than six months after the date of the passing thereof) as the Minister may by order appoint. This is about the only type of Amendment that can be made to a consolidation Bill, but it is none the less important for that. We find it justified in Erskine May's "Parliamentary Practice" as being an Amendment which can be proposed if it is inconvenient for the Bill to come into operation on the date stated in the Bill or if it is desirable that the appointed day should be delayed, so that the Bill should not come into operation until after a certain period.

In looking matters no to see whether I should be in order on this point I found that it was confirmed as long ago as 1921, and that the date on which it was confirmed in this House—in dealing with an education consolidation Bill—was 15th August, 1921. I notice that in those days the House sat right into the middle of the month of August.

The purpose of the Amendment is to delay the Bill's coming into operation until the Government have carried through Parliament an ordinary Bill—not a Consolidation Bill—converting a number of Clauses at present in this Bill into Statute law. Until the Bill comes into operation those Clauses are Statutory Instruments, and the Bill converts them into statute law. I would hope that the Government would first bring forward an ordinary Bill embodying these Statutory Instruments and converting them into statute law, so that we might debate those Clauses before they are put into a consolidation Bill.

The Committee will remember that in the Third Report of the Joint Committee it is said: The Committee are further of the opinion that there is a point to which the attention of Parliament ought to be drawn, vizt., whether it is desirable to incorporate existing statutory instruments into a consolidating Act having regard to the fact that these instruments are subject to a different form of Parliamentary supervision than Acts of Parliament. Indeed, a very substantial body of law has been lifted from Statutory Instruments and embodied in this consolidation Bill. They are set out conveniently in Clause 16 and in Schedule 12. In the Second Reading debate I referred to them in more detail. The substance and importance of them can be seen by the titles of the several Clauses which are mentioned by number in Clause 16.

The House, or this Committee, is unable at any stage of this consolidation Bill to discuss the merits of those Clauses. That is the very reason for the Amendment. I want to give time to the Government to bring these matters forward in a Bill which can be debated in the House.

On Second Reading, the Solicitor-General sought to justify this form of procedure of embodying Statutory Instruments in a Consolidation Bill first by saying that there was precedent for this. He quoted the Agricultural Wages Act, 1948, and the Auxiliary Forces Act, 1953. But the former is not a very good precedent, in that it was passed a year before the Consolidation of Enactments (Procedure) Act, 1949, under which the House now acts in consolidating Bills. The Agricultural Wages Act, 1948, was passed in July, 1948, and the consolidation procedure Act was not passed until May, 1949. The Long Title of the Agricultural Wages Act, 1948, made no mention of consolidation of Statutory Instruments into a Statute. It is true that the fact was drawn to the attention of the Joint Committee which dealt with that Act, and the Joint Committee did not seem to show much interest in the fact.

I looked up its Report and found that only three questions were asked when this was drawn to the Committee's attention, and the last of those questions was asked by a member of the Committee of the Parliamentary counsel who was giving evidence before it. The question was: These Regulations really are part of the Act of Parliament, are they? The Deputy Parliamentary Counsel said: Yes, it is a mere accident that they happen to be called Regulations. That is an astonishing proposal to put before the Joint Committee, and certainly to put before this Committee. Apparently, it was accepted by the Joint Committee at the time, and it reported that there was no point to which it thought that the attention of Parliament ought to be directed. So Parliament never had its attention brought to the fact at that time that Statutory Instruments were being embodied in a Statute.

The other precedent was the Auxiliary Forces Act, 1953, which was quite frank in its Title. It said in its Long Title that it was an Act … to consolidate certain enactments and Orders in Council relating to the Territorial Army and the Royal Auxiliary Air Force with corrections and improvements made under the Consolidation of Enactments (Procedure) Act, 1949. Although it mentioned that in its Title, the matter was not specifically mentioned before the Joint Committee, and was not reported to the House.

So on neither of these occasions did any report come to the House of this procedure having been adopted. There has been this substantial gap between 1949 and the present time, with no other similar precedent, except, perhaps, occasions when Parliament had previously given a Minister power by Order to alter a Statute, where the Minister has taken that power and altered the Statute in some respect and the Act, as altered, has been consolidated. That, of course, is very different from the present case before the Committee.

The second of the grounds on which the Solicitor-General sought to justify this procedure on Second Reading was: … even supposing that this is a novel idea, I suggest that it is a very good idea. And, later: It is far better, not only for the legal profession but also for the general public, to be able to find the whole law on a subject in one instrument, preferably in one statute. I entirely agree, but that is not the point. That could and should have been done in two stages, and it is the purpose of the Amendment to give the Government a chance to do it in the two stages. Otherwise, Parliamentary debate preceding legislation is entirely precluded by the Statutory Instrument now being embodied in a Consolidation Bill.

11.0 p.m.

The third way in which the hon. and learned Solicitor-General endeavoured to justify this procedure—and again I quote him—was … when we have, as here, a very considerable body of law which has been built up over the years partly by Statutes which have been passed through Parliament in the ordinary way and partly by Statutory Instruments made in pursuance of those Statutes, and those subordinate Instruments have been in force for a considerable time, it is an admirable thing if we can embody it all in one statute. …"—[OFFICIAL REPORT, 28th July, 1965; Vol. 717, c. 635.] On two other occasions in his speech he mentioned that these Statutory Instruments had been in operation for a considerable time. That is not so.

The position is that under Section 76 of the National Insurance Act, 1946, which is now Clause 107 of this Bill, certain Orders have to be preceded by a draft approved by Parliament; a few of the Orders are under the Act, and the rest of the Orders and Regulations are laid before Parliament and are subject to annulment on a negative Resolution. Under the present Standing Order, the 40 days for a Prayer may pass without the House completing its business before 11.30, and without its being possible to bring a Prayer against an Order subject to the negative procedure, as happened, for example, during the discussion of the Finance Bill this year. So one cannot say when such an Order has not been debated by the House and has not been brought before the House on a Prayer that no hon. Member wished to debate it. It may well have been that an hon. Member did wish to debate it, but under Standing Orders there was lack of time for such debate within the 40 praying days.

The fact is that when one looks at the Statutory Instruments which are to be embodied in this consolidation Bill, of the 18 Statutory Instruments mentioned in the 17 paragraphs of Schedule 12, only one has been debated by this House—No. 11. These are not Orders that have stood the test of time. The first five, it is true, date back to 1948, but the next seven were made between 1951 and 1958, then there are four in 1959, one in 1960 and one is as late as 1961. So the hon. and learned Solicitor-General was not correct in saying that these had stood for a considerable time and had been unchallenged; some are of quite recent years, and well deserve to be debated by this Committee or by the House.

The case here is that the Government, using consolidation procedure for what I say is a very wrong purpose, are depriving Parliament of the right to debate the merits of certain Clauses which are now to be embodied in statute law. They should take a further step before undertaking this consolidation procedure, namely, the step of putting the Statutory Instruments into an ordinary Bill which can be debated by the House.

The Amendment would give the Government time to take that further step during the next six or seven months. If it were in order to discuss the merits of the several Sections which are shown in Clause 116, I could persuade the Committee of the desirability and the need for a proper debate of those Sections before they become permanent law, but as this is a Consolidation Bill I cannot go into their merits, and so cannot use that persuasive argument.

When this matter was raised in another place, the noble Lord Chancellor, in answer to the noble Lord, Viscount Dilhorne, made some very cogent remarks. The question which he was asked by the noble Lord, Lord Dilhorne was: I shall be glad … if he can say something to allay my anxieties about the possibility of this kind of thing happening in the future. If it could be established, for instance, that this was a single occasion, unlikely to be repeated, and that Governments in the future, if this is approved, would not be tempted to include matters in regulations, then I should feel that a satisfactory and useful purpose had been served by raising this matter. In answer to that question, the noble Lord, the Lord Chancellor, said: I think this is to large extent a unique case. I believe the reason why it has never arisen in anything remotely like this scale before, and the reason why it is never likely to arise in anything remotely like this scale again, is because this is a quite exceptional group of Acts". He went on in other places to say, "This is unique" and "This is quite exceptional". He finished by saying: … it is a most unusual case; and I hope very much that the noble and learned Viscount will be able to be satisfied with that assurance."—[OFFICIAL REPORT, House of Lords, 12th July, 1965; Vol. 268, c. 20 and 21.] I am not quite certain what he meant by that assurance. Indeed, the noble Lord, Lord Dilhorne, said he was not quite certain what the assurance was.

The Solicitor-General (Sir Dingle Foot)

He accepted it.

Mr. Graham Page

He accepted it on his own interpretation of it, that it would not be treated as a precedent for future conduct. I am not so sure that the noble Lord, the Lord Chancellor meant it in that form. But, if the hon. and learned Gentleman the Solicitor-General will repeat that—that it will not be treated in future as a precedent—I will not press the Amendment further. But I should like to know what this assurance means. It certainly recognises that something extraordinary is being done, and I would say that it is not only extraordinary, but it is an error, and the Government have been in error in bringing forward these Statutory Instruments in a Consolidation Bill instead of in a normal Bill which we could debate and on which the House would not be gagged, as it is in the case of a Consolidation Bill.

The Solicitor-General

Oliver Cromwell once described the laws of England as "a tortuous and ungodly jumble". I was reminded of that phrase when I came to examine the Insurance Acts and the Regulations which had been made thereunder. Those Regulations are fully set out in Schedule 12, to which the observations of the hon. Gentleman the Member for Crosby (Mr. Graham Page) were directed. The hon. Gentleman will see that there are no less than 17 sets of Regulations which have been made between 1948 and 1961 under the Insurance Acts. What the Consolidation Committee has done, taking no doubt a somewhat unusual course, is to take the whole of the law, whether it is embodied in the Statutes or whether it is embodied in the Regulations—and I would remind the House that when it is in the Regulations it is still part of the law of the land—and it has put it into one Statute.

The point that the hon. Gentleman takes is that a large part of this law which is now sought to be consolidated is to be found in subordinate legislation. That is perfectly true, but, over a long period of years it has been part of the law, and I think I am right in saying—indeed, the hon. Gentleman himself said—that only on one occasion has a Prayer been moved. In earlier years, the Prayer could have been moved at almost any hour. Since 1957, there has been some limitation on the time during which it is possible to move a Prayer in the House, and my information is that only on one occasion has anyone endeavoured to move a Prayer against any of these Regulations.

Here is a part of the law of the land which has been accepted without query over a very long period of time. I repeat what I said on Second Reading. It is obviously for the convenience of everyone; not only for the legal profession, although that does not much matter, because lawyers are hired to study this type of thing. It is for the convenience of the public and those members of the public who are particularly affected, so that if they want to find the law, they can find it in a single Instrument. This is an admirable Measure of consolidation which I commend to the Committee.

As regards the assurance that was given in the other place, I think that if the hon. Gentleman will re-read what was said by the noble Lord, Lord Dilhorne, and by my noble Friend the Lord Chancellor, the assurance becomes abundantly clear. We are dealing here with a very exceptional state of affairs. We are dealing with very complex legislation and with very numerous Regulations made in pursuance of that legislation over a period of years. It is sought for the general convenience to put that into one Instrument, and it is extremely unlikely that anything of that sort will ever occur again.

I want to make it clear that this Bill does not include all the Regulations which have been made under the Statutes but only a very small selection dealing with particular matters—matters which are dealt with in the corresponding statutes which deal with industrial injuries and with family allowances. It is so that we shall have legislation dealing with such matters as appeals—for example, where benefit is refused and matters of that kind—and legislation dealing with National Insurance which corresponds to the legislation which is already on the Statute Book with reference to industrial injuries and family allowances.

I accept that this is a somewhat unusual consolidation Measure. It is none the worse on that account. I think it was agreed by the hon. Gentleman himself and by everybody else who spoke on Second Reading that it is a very useful Measure, and therefore I submit that we should give it a Third Reading.

Mr. Graham Page

Because I cannot discuss the merits of the several Clauses to which I have referred and which embody Statutory Instruments, I can only base my argument on the fact that the denial to the House of an opportunity to debate the new Statute law is a bad precedent. The Solicitor-General has gone some way to assist me by saying that it is most unlikely that this procedure will be used again. I cannot entirely agree with him that it is unlikely. Once a procedure has been used in this way it will obviously be quoted as a precendent, and if any Government in future wish to take a short cut to the Statute Book they will be able to pass an enabling Act, quite a short Act, and get through a number of Statutory Instruments under that Act, embody them in a Consolidation Bill and get them on to the Statute Book as an Act of Parliament without any real debate.

However, having put on record the objection to this procedure, and having got some sort of assurance from the Solicitor-General that this is an unusual occasion and that it is very unlikely to be used again, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Schedules agreed to.

Bill reported, without Amendment; read the Third time and passed, without Amendment.