Clause 3.—(FUNCTIONS OF THE COMMISSIONS.) (Hansard, 14 June 1965)

§ Sir Eric Fletcher
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment will be welcomed by the House. It gives effect to suggestions which were made during the Committee stage of the Bill both here and in another place.

§ Sir David Renton (Huntingdonshire)
This is an important point which was not raised by any Amendment in this House. We are indebted to Lord Simonds, who sought to insert these words and the Lord Chancellor moved the Amendment on Report. It is worth noting that he said that the effect of the Amendment is to secure that the Lord Chancellor will remain in control of the consolidation programme and be able to ensure that the Law Commission and the Statute Law Committee do not compete with one another in this field. This ensures that the valuable work of the Statute Law Committee will continue unimpaired and the Lord Chancellor will be able to ensure that there is no duplication between the Committee and the Commission.
It seems that in spite of the words in Clause 3 (1,d) the Committee will remain responsible for consolidation and revision. We have that clear now. That being so, it is rather hard to see why the Commission needs power to do this work. However, the matter has been straightened out to an extent and we welcome that.

§ Sir Eric Fletcher
I beg to move, That this House doth agree with the Lords in the said Amendment.
Although no doubt I shall have to move agreement to the two subsequent Lords Amendments separately, it might be convenient if I say a word about them now as all three hang together.

§ Mr. Speaker
If the House so pleases.

§ Sir D. Renton
That would be convenient, subject to the last Amendment to the Lords Amendments being selected. That Amendment would add "or of any former Government" to Lords Amendment No. 12, in page 3, line 3, after "concerned" insert: at the instance of the Government

§ Mr. Speaker
Order. That Amendment to the Lords Amendment is not selected.

§ Sir Eric Fletcher
The effect of the Lords Amendments Nos. 10. 11 and 12, if accepted by this House, would be that Clause 3 (1,e), instead of reading as at present: to provide assistance to government departments and, at the request of the Minister, to ocher authorities or bodies concerned with proposals for the reform or amendment of any branch of the law; would read: to provide advice and information to Government Departments and other authorities or bodies concerned at the instance of the Government with proposals for the reform or amendment of any branch of the law. I hope that I need say no more in support of these three Lords Amendments. They have been introduced as a result of discussions both in Committee in this House and in another place and give effect to suggested improvements made, among others, by the hon. Member for Hendon, South (Sir H. Lucas-Tooth), my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) and, I have no doubt, the right hon. and learned Member for Huntingdonshire (Sir D. Renton). I hope that these Amendments may be regarded as meeting criticisms made of this subsection and as improvements of the Bill.

§ Sir D. Renton
I do not think the hon. Gentleman can get away with it quite as easily as that, because he showed the most stubborn resistance at all stages to what has now been accepted, and accepted, I must point out, without a Division in another place and as a result of Amendments eventually moved by the Lord Chancellor himself.
May I briefly remind the House of wit at happened? In Standing Committee we moved to leave out paragraph (e) and in doing so I described this paragraph as the major blemish in the Bill, mainly because of the use in it of the word 182 "assistance". We had a long and useful discussion in the Committee, but the Minister without Portfolio would not move an inch, and we divided the Committee.
On Report, I moved to leave out the word "assistance" and insert the word "advice" and we had another useful discussion. The Minister without Portfolio again would not budge. Indeed, he said that there was not a shred of merit in this "so-called constitutional point." In Committee, in another place, Lord Dilhorne moved to leave out "assistance" and insert "advice and information" and the Lord Chancellor at once accepted the Amendment.
I think that we are entitled to point out that the Minister without Portfolio, if he had kept his mind open while the Bill was with us here, could have saved a good deal of time, and very late at night on one occasion. However, all's well that ends well, and in spite of that stubborn resistance on previous occasions, we are genuinely glad that the Government have seen the light and removed this major blemish in the Bill.
May I add a word about the effect of the other Amendments which, as I say, were moved by the Lord Chancellor himself in another place. They reveal, at long last, the true intent and purport of the subsection. We now find that the other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law are, as the Lord Chancellor said, not bodies such as the Band of Hope or the Boys' Brigade, but are bodies such as Royal Commissions and Departmental committees.
Now that we have that clarification, that is very helpful, but there is still a snag, and it is only right to point it out. The snag is this. As amended, the Clause will read as follows: to provide advice and information to government departments and, at the instance of the government other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law; That is how the Clause will read if we accept the Lords Amendments.
The question is this. The words "the government" mean the Government at whose instance the Commission provides advice and information to other authorities and bodies. But what happens if there is a change of Government between 183 the order, instruction or request made by the Government to the Commission and the providing of—

§ Mr. Speaker
Order. If I understand what the right hon. and learned Gentleman is saying, it raises immediately the question raised by the Amendment which is not selected.

§ Sir D. Renton
I appreciate that the Amendment is not selected, Mr. Speaker. I was not attempting to move the Amendment, but, if I may say so with respect, am I not entitled to ask what will be the effect of the wording with the Lords Amendments accepted when there is a change of Government? That is what I am attempting to do. I am sorry that I have done it so clumsily.
Obviously, one wishes to ease the transition, where administration is concerned, from one Government to another. That could mean, before very long from the present Government to a Conservative Government. We want to ensure the continuity of the Commission's work when that necessary and beneficent change takes place. Can the hon. Gentleman give an assurance that there will be continuity, that "the government" means the Government now and at any time in the future and that the expression "the government" covers that contingency?

§ Sir Eric Fletcher
The right hon. and learned Member for Huntingdonshire (Sir D. Renton) has raised a matter of some importance in asking me to say what is meant by "the government". When I saw the Amendment introduced in another place I asked myself the same question, because one must confess that it is something of a novelty to find in an Act of Parliament a reference to "the government". Speaking for myself, it might have been more elegant if one had said "the Crown" or "the State" or some such word, because that is the sense in which the word is used. The word "government" does not often appear in an Act of Parliament. One frequently refers to "the Crown" or a "Minister of the Crown" or "the State" and the right hon. and learned Member is, therefore, quite right to ask the question.
184 The answer is that it quite definitely does not mean one political Administration as distinct from another Administration of a different political character. It means the Government in the sense of the State, the Administration as a continuing body of servants of the Crown. If justification were required for the use of the expression "the government" in this sense—and the right hon. and learned Member is quite entitled to ask for such justification—there is adequate precedent for the use of the word in this sense in a context of this kind. The best illustration that I can give to the right hon. and learned Gentleman is the use of the word in the Trade Disputes Act, passed in 1927, when a very learned discussion took place which, if the hour were not so late, it would be interesting to deal with in greater detail.
On that occasion the same objection was raised as the right hon. and learned Gentleman has raised as to whether the word "government" was appropriate. The then Solicitor-General, Sir Thomas Inskip, defended the use of the word and pointed out that it had a recognised meaning as meaning the governing body of the State as a continuing organisation, because in the context of the Trade Disputes Bill, as it then was, the necessity was to describe an offence against the Government of the day, whatever the political complexion of the Government might be. It is interesting to note that, although the use of the word was criticised on that occasion, Sir Thomas Inskip called to his aid the language of Lord Holt, speaking 200 years earlier, in these words: 'The offence was directly of a public nature and levelled at the Government and the gist of the offence was its influence on the public.'"—[OFFICIAL REPORT, 21st June, 1927; Vol. 207, c. 1766.] There is, therefore, sound precedent of considerable antiquity and repute for the use of the word "government" and I do not think that any inconvenience will be caused by reproducing it here.

§ Sir J. Hobson
I entirely agree about the appropriateness of "the government" to describe a Ministry. It means the total of executive officers discharging the functions of the Crown as Ministers, but that does not answer the question put. We are too late to deal with the matter now when we are accepting these 185 Lords Amendments, but I foresee that at some future date it may be said. "You are asked to provide advice and assistance to another body which is concerned with the proposals for the reform of the law at the instance not of this Government. There is only one Government at present and you therefore cannot provide it." If that question arises, no doubt it can be litigated and discussed.