MATRIMONIAL CAUSES BILL [Lords] (Hansard, 26 October 1965)

§ Mr. Graham Page (Crosby)

I had hoped that we should have had an introduction to this Consolidation Bill, because it raises a number of important points. Perhaps I may deal with them as briefly as possible, as I do not wish to delay the House for any length of time.

I feel that the Bill is premature as a Consolidation Bill. In the consideration of the enactments to be consolidated, it appeared that there were certain anomalies in the existing law which were too substantial for amendment under consolidation procedure, and I should like the House to consider whether this is the right time for consolidation of the law relating to matrimonial causes or whether this consolidation ought to have been preceded by a law reform Bill. That is the only argument which I can deploy on the Second Reading of a Consolidation Bill—that it is consolidation at the wrong time, and that the law which is the subject of the Bill ought not at this time to be consolidated.

This Bill seeks to consolidate with the Matrimonial Causes Act, 1950—the last consolidating Act on this subject—five Acts passed since 1950 and one or two Sections of other Acts all relating to matrimonial causes, maintenance, declarations of legitimacy and British nationality. It is a Bill to consolidate those enactments, with corrections and improvements. Having the magic words "with corrections and improvements" in the title, the House is precluded, as a House and in Committee, from discussing any law contained in the Bill on its merits.

The reason for limiting the powers of the House is that on a Consolidation Bill the contents of the Bill must be presumed to be the existing law on the subject. We must assume that there is in the Bill no new law to be discussed. Indeed, we cannot propose any new law as an amendment to the Bill. If, however, 116 in the course of consolidation, it has been found sensible or desirable that the law should be altered, then it must be done in a normal Bill subject to the normal procedure of the House and not subject to the consolidation procedure—and the House must not be deprived of its right, by the draftsmen of a Consolidation Bill slipping new law into a Consolidation Bill. The House is protected against that by the examination of the Bill by a Joint Committee before it reaches the House for its Second Reading and by the Certificate of Mr. Sneaker.

I regret if I appear to be lecturing the House on the procedure of consolidation, but I do so in order to come to the vitally important point arising from the preliminary procedure on this Measure. As I understand it, the line is drawn between the creation of new law and the tidying up of the form in which the old law is expressed by the Consolidation of Enactments (Procedure) Act, 1949.

In regard to the Bill before us, the Lord Chancellor's Memorandum which preceded the presentation of this Consolidation Measure stated, as usual, the corrections and minor improvements in the law which it seemed desirable should be brought into this Bill to facilitate the consolidation. The Joint Committee had then to approve or disapprove those corrections and minor improvements before the Bill came before us for its Second Reading.

In the 1949 Act what is meant by "corrections and minor improvements" is set out. It states that they must be confined to resolving ambiguities, removing doubts, bringing obsolete provisions into conformity with modern practice and removing unnecessary provisions or anomalies which are not of substantial importance. In the Lord Chancellor's Memorandum upon this Bill, some proposed amendments to the law appeared to be not so confined. They were not just anomalies but were anomalies which were of substantial importance and, as such, they were rejected by the Joint Committee.

Under those conditions I suggest that the proper course to adopt would have been to have put before the House a law reform Bill on those anomalies which had been shown by the Joint Committee's decision to be anomalies of substantial importance, and not to have brought 117 forward this Consolidation Bill until the House had had an opportunity of considering those anomalies on their merits.

It would be out of order for me to discuss those particular cases, those anomalies included in proposals 5, 6 and 18 of the Lord Chancellor's Memorandum, but the very fact that the Joint Committee found them to be anomalies of substantial importance, and was, therefore, unable to make the amendments in this Consolidation Bill, shows that they were matters which it would be desirable—I should have thought almost imperative—to bring before the House now in the normal form of legislation, by means of a reform Bill, and to delay the consolidation of the law on this subject until those anomalies have been disposed of in the normal process of legislation through the House.

It seems to me that if we proceed with this consolidation it will defeat the whole purpose of consolidation, because if those are important anomalies in the law which ought to be corrected, no sooner shall we have consolidated the law than we shall have to defeat the objectives of consolidation by amending the Consolidation Bill. It is a bad precedent that when anomalies appear in the process which leads to the Bill's Second Reading in this House, the Government then proceed with the Bill without delaying that process for a time while the law is properly amended by the normal form of procedure in this House.