HC Deb 29 October 1965 vol 718 cc499-507

Considered in Committee.

[Sir SAMUEL STOREY in the Chair]

Clauses 1 to 45 ordered to stand part of the Bill.


Question proposed, That the Clause stand part of the Bill.

11.15 a.m.

Mr. Graham Page (Crosby)

I am sorry if the Minister without Portfolio thought that he would be able to get away with the whole Bill formally, but I must refer to Clause 46 (3) which provides: This Act shall come into force on such day as the Lord Chancellor may appoint by order made by statutory instrument. Apparently, this subsection delays the coming into operation of the Bill, and I can see no reason why a Consolidation Measure of this sort should not come into operation at once. Is there good cause for the delay? Is this Consolidation Bill merely a draft Bill for some future amending Bill? That is the suspicion raised by a provision of this sort. It seems that this Bill may, perhaps, be put on the Statute Book as a sort of draft for some further amending Measure. Is it a draft for a full-scale revision of the law of husband and wife and divorce or is it, perhaps, in preparation for more minor amendments?

When the Bill as originally drafted was before the Joint Committee, before it reached us on Second Reading, there was an effort to slip several controversial reforms into it. The Government should be frank with the House. Is this Consolidation Bill to take effect as it stands or will there be some amending Measure by reference to it which may be brought in simultaneously with it? If such an amending Measure is not a complete reform, is it to be a reform of some of the anomalies which came to light during the proceedings of the Joint Committee? At least three anomalies in the law came before the Joint Committee, and the decision was that, although we are entitled to use the consolidation procedure, that is, precluding the House from debating the merits of a Bill of this sort, for consolidating enactments—I emphasise the word "enactments", which I understand to mean Statutes and Statutory Instruments—we are not entitled to include the consolidating of case law unless it involves only a minor correction or a minor improvement to the statute.

One point which arose in the proceedings of the Joint Committee related to Clause 16 (1,c). I use this merely as an example to show in what way anomalies can come out of the proceedings of the Joint Committee and in what way the Government ought to do something about it before putting such a Consolidation Bill on the Statute Book. It appeared that there was a decision of a court of first instance that the words in the very last line of Clause 16 (1,c) should be interpreted not as they read, an order requiring the husband to pay to the wife such lump sum as the court thinks reasonable", but in the following way, an order requiring the husband to pay to the wife such lump sum as the court, having regard to the matters aforesaid, may think reasonable". The Joint Committee said, This is a matter of substantial importance. However desirable it may be, we are not empowered to make this sort of Amendment to statute law. I think that when that situation has arisen in the Joint Committee dealing with a Bill before the Bill comes to the House, the Government should not only take note of it but should act upon it and should tell the House whether they intend to introduce an amending Bill to deal with those anomalies and, if they do not, why they do not propose to bring in such a Bill. In three cases before the Joint Committee anomalies were disclosed which were of such substantial importance that the Joint Committee would not admit them to the Consolidation Bill. Because they were of substantial importance, the Government ought to do something about them, and Clause 46(3) gives the opportunity to do that before this Bill comes into operation.

I therefore ask the Minister, why postpone the operation of the Bill until the Lord Chancellor makes a Statutory Instrument bringing it into operation; secondly, when is it expected that a Statutory Instrument will be laid before the House bringing the Bill into operation; and thirdly, in the meantime is there to be any general reform of the law or any amending Bill upon the anomalies disclosed in the Joint Committee?

The Government have some responsibility in connection with Consolidation Measures. They cannot just bring them before the House and assert that "The Joint Committee says this is the law. The House can have nothing to say about it. It must pass it"—and leave it at that. After all, the Government take credit for these Consolidation Measures. They are a window dressing to show the present Government as a busy Administration producing a lot of tidying-up legislation. If they are to take credit for it, then the House deserves a statement about what is to be done when it finds a Clause of this sort in the Bill postponing the operation of the Bill. It is not good enough merely to put the Measure before us and to hope that it will go through without any question.

I remember hearing Dr. Beeching on one occasion explain his policy by saying, "It is rather like sawing a woman in half. If you get through to the backbone before she says 'Ouch', you have done pretty well".

The Minister without Portfolio (Sir Eric Fletcher)

The hon. Member for Crosby (Mr. Graham Page) has raised a very interesting question with which I will endeavour to deal. In the course of his remarks he has given the House some indication of the scope of these Consolidation Measures, which from time to time come before the House. I agree with him that the Government claim credit, and are entitled to credit, for the very considerable efforts which they are making in producting Consolidation Measures.

The House is probably aware that under the Act of 1949 for the first time in a Consolidation Measure it became possible not merely to consolidate the whole of the existing law on a particular subject but also to introduce corrections and minor improvements. That involved the introduction of some new machinery, in order to ensure that the rights of the House were preserved.

Prior to that, on a pure Consolidation Measure the only matter for the House to consider was whether it was desirable that a certain number of Acts dealing with a particular subject should be consolidated into one Act. As hon. Members appreciate, that hardly ever gave rise to any controversy at all, with the result that consolidation Bills almost invariably went through without any debate.

That old procedure was found to have this inconvenience—that in the process of consolidation before 1949 it was impossible to make corrections and small improvements, which were obviously necessary, as part of the operation of consolidation. Thanks to the initiative of the then Lord Chancellor, Lord Jowitt, a Measure was passed which enabled corrections and minor improvements to be introduced into a Consolidation Measure. But in order to ensure that the rights of the House were not infringed in any way, and in order to ensure that the House had preserved to it the full right to consider any alterations of substance in the law, it was provided that in the first place there should be a memorandum by the Lord Chancellor considering all the corrections and minor amendments which were proposed and certifying with regard to them.

That was not the end of the matter. The Lord Chancellor's memorandum then had to be considered by a Joint Committee of both Houses. In connection with this Measure, the Matrimonial Causes Bill, there was a very interesting and, if I may say so, a very useful discussion in the Joint Committee to which the hon. Member for Buckinghamshire, South (Mr. Ronald Bell), whom I am happy to see in his place, made a very notable contribution. In the course of the deliberations of that Joint Committee, doubts were expressed, I think quite rightly, whether some of the improvements proposed in the Bill could properly be regarded as minor and therefore appropriate or whether they raised questions of substance which were not appropriate for a consolidation Measure. The members of the Joint Committee, as their Report shows, reported that certain Amendments—one of which, as the hon. Member for Crosby indicated, related to Clause 16—could not properly be regarded as minor Amendments but should more properly be regarded as introducing substantial changes in the law. As a result, those three proposed Amendments are not contained in the present Bill.

The hon. Member for Crosby asked me why in Clause 46 the Bill is not brought into operation immediately and why it is provided that it shall come into force on such date as the Lord Chancellor may appoint. The short answer to that question is that this is not an uncommon provision in a Consolidation Measure. It is contemplated that my noble Friend the Lord Chancellor will make a Statutory Instrument bringing this Consolidation Bill into operation at an early date.

The hon. Member then asked me what were the Government's intentions about the three matters to which the Joint Committee drew attention. As he knows, as a result of the Law Commissions Act passed recently by Parliament, a Law Commission has been set up; and he will have read with great interest the first programme produced by the Law Commission, which has received the Lord Chancellor's approval, which was laid before Parliament yesterday, and which is widely reported in today's Press with, if I may say so, very favourable comment. The programme produced by the Law Commissioners indicates that they have set about their task of law reform with energy, with zeal and with enthusiasm.

11.30 a.m.

They have indicated a very impressive programme of law reform which will include, among other matters, questions of family law. It is also contemplated that now we have, for the first time in our history, a Law Commission specifically charged with the responsibility and duty of bringing to the attention of the House anomalies and anachronisms in our law, we may hope to receive a number of Bills—most of which I hope will be uncontroversial—which will facilitate the whole process of law reform.

The House earlier this week passed a Resolution in favour of setting up a Second Reading Committee, and it is the Government's hope and belief that that change in our procedure will enable Measures that emanate from the consideration of the Law Commission as well as other Measures, to be introduced into this House, and thereby escape the bottleneck of Parliamentary time which has for so long frustrated the process of law reform.

There is still a great deal to be done. There is a tremendous backlog of useful changes that can and should be made to bring the laws of England up to date. It is our hope that, in the course of time—and this may take several years—we shall be able to have the whole of the law on any particular subject contained in one Act of Parliament, instead of, as is the case now, scattered through a variety of different Statutes, making the work of understanding the law, knowing it and explaining it, difficult for practitioners and citizens alike.

I have no doubt that as a result of the considerations of the Law Commission on the subject of matrimonial causes and family law in general, other changes will in due course come before us, including the three specific matters, be they minor or be they matters of substance, that were considered by the Joint Select Committee in its Report. The House will probably agree that the most convenient method of legislating and getting our Statute Book into a satisfactory shape is first of all to consolidate the existing law into one Statute, thereby replacing a number of earlier Statutes dealing with the subject. Quite often it will be found that the process of consultation is an essential preliminary to making alterations of substance.

I am sure, therefore, that the House will agree that the right procedure for us to adopt is, as in this case, first to consolidate the law and then, on the basis of the examinations that have taken place during the course of consolidation, and as a result of representations that have been made from a number of sources with regard to the whole subject of matrimonial causes and the law of divorce generally, in due course to bring forward alterations in the law; and that, when they are brought forward, those alterations should at the earliest possible date be consolidated in the Bill to which I am now inviting the House to agree.

Mr. Graham Page

I am grateful to the Minister without Portfolio for that explanation, but I am afraid that he did not quite answer my specific question. I want to know, particularly having regard to the announcement that the programme of the Law Commission will include reform of family law, is there any intention of delaying the Statutory Instrument bringing the provisions of this Consolidation Bill into force until the reforms have been carried out?

Mr. Ronald Bell (Buckinghamshire, South)

I speak on this matter only because, as the hon. Gentleman knows, I played a considerable part in the proceedings of the Joint Select Committee on this Bill. We are having a good deal of law reform, in its narrow sense, either coming forward or projected. The reason why we had these somewhat extended discussions in the Select Committee, for which I am afraid I was largely responsible, is that I think it extremely important that if law reform of this kind is to be carried through, the process should be kept very clearly in two separate channels. There should be no confusion about the dividing line between them, and no overlapping.

I say that because it has appeared to me occasionally, as a member of the Joint Select Committee, that in this Session there has been an increasing tendency to put minor reforms of the law—which are yet not so minor as truly to come within the consolidation procedure—through the Joint Select Committee. That calls for vigilance, because the procedure under which we discuss these matters in the House, or in Committee of the whole House, is extremely restricted. What is in order is very limited. We must therefore be careful that in such a Bill as this there is contained nothing which is really a substantive change in the law.

As my hon. Friend the Member for Crosby (Mr. Graham Page) has said, the consolidation procedure under which this Bill comes to us is being stretched a little. We are starting in this Session to consolidate Statutes and statutory enactments. I suppose it is all right. We are starting to consolidate Statutes and introduce statute law revision in the same Bill. I suppose it comes inside the Statute and Standing Orders. I do not formally take the point, but mention it in passing merely as an aspect of this general point. For instance, my hon. Friend has raised a point in relation to the suspensory powers contained in Clause 43.

Obviously, we must keep an absolutely clear line between consolidation of enactments and this law reform which may be of a technical character but nevertheless raises the question, which is a matter of opinion, what is an anomaly within the meaning of the Consolidation of Enactments Act. That is the point we wish to make, and I feel sure that the Minister without Portfolio will see that those who are responsible for proposals coming before us in future will bear that closely in mind.

Sir Eric Fletcher

I am very grateful to the hon. Gentleman for what he has said. One should just add this corollary to it. It is partly due to the fact that for years past there has been considerable difficulty in making minor changes in our law that there has been a tendency—perhaps rightly, perhaps not—under the Act of 1949 to use Consolidation Measures for the purpose of making corrections and minor improvements. It was a convenient procedure because, as all hon. Members will know, there has been great difficulty in finding sufficient Parliamentary time for a number of small, useful Bills which are necessary to put right certain anomalies that occur from time to time in our law as a result of judicial decisions or otherwise. Therefore, there may have been a tendency in the past to use Consolidation Bills to alleviate that difficulty.

I very much hope that, now we have for the first time set up a Law Commission and now that the House has approved a change in our Parliamentary procedure designed to facilitate anomalies in the law being corrected, there will be less need to use Consolidation Measures for anything other than matters of pure consolidation. To that extent I entirely agree with what the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) has just said. There may still be legitimate differences of opinion as to whether any proposed improvement in a Consolidation Measure is "minor", to use the word of the 1949 Act, or substantial.

Since the Committee ought to know the kind of point with which we are concerned this morning, I think that it is right to remind hon. Members of the matter which was deleted from the Bill as a result of the recommendations of the Joint Select Committee, so that hon. Members can see where the dividing line falls. The position under the existing law is that under Section 20 of the 1950 Act, in a case of judicial separation the court can order the payment of permanent alimony to a wife. If it is not paid, the husband can be made liable for his wife's necessaries. By a subsequent Act, the Matrimonial Causes Act, 1963, the court has power not merely to make an order for payment of permanent alimony, but to order a lump sum. There is nothing in the law at present to say that if the husband makes default in the payment of a lump sum he should be liable for necessaries, although some people thought that that was a natural consequence of the change which was made in 1963.

The Joint Committee thought that it was not a minor improvement but a matter of substance. There were legitimate differences of opinion about that and, because of the views expressed by the hon. Member for Buckinghamshire, South and others, this change in the Matrimonial Causes Act is not to be found in the Consolidation Measure.

In answer to the hon. Member for Crosby (Mr. Graham Page), I can say that it is obviously the intention that there should be no delay in the making of the necessary Statutory Instrument to bring this Consolidation Measure into force, and it is my hope and belief that, thanks to the existence of the Law Commission and the programme on which it is now engaged, these matters to which attention has been drawn this morning and other matters relating to matrimonial proceedings will be considered by the Commission and that in a substantive Bill we shall have an opportunity to remove other anomalies in due course.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

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