HC Deb 29 October 1965 vol 718 cc508-18

Considered in Committee.

[Sir SAMUEL STOREY in the Chair]


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

11.45 a.m.

Mr. Graham Page (Crosby)

One point of principle and two of drafting arise on Clause 1. I hasten to say that it is a point of principle of consolidation and only indirectly of law. I certainly cannot discuss the matter from the aspect of the principle of law and it is only by posing the question—"Ought the law in Clause 1 and the following Clauses be consolidated, or ought it to remain in separate Statutes and in decided cases, as it is at present?"—that I can raise the matter. Perhaps I can dispose first of the drafting issues.

The first arises from the first few words of the Clause: Subject to the provisions of this Act … The main provisions to which that phrase refers occur in Clause 14, because in Clause 14 many people are taken outside the effect of Clause 1 and the other first few Clauses. When reading a Consolidation Bill of this sort, one hopes to get a picture of the law easily from the fact that it is all in one document and in a convenient form. I would have thought that, with the exceptions being so many, it might have been as well to remove them to start with and not to wait until Clause 14, by which time one would have waded through the first few Clauses, got an idea of the general law and then found that the individual in the case in which one was trying to interpret the law came under Clause 14—and then one has to refer to Parts I, II, III and IV of the Schedule and so on. This is merely a drafting point and it is perhaps a matter of opinion or taste as to whether one can find one's law better when exceptions, which are so substantial, are stated first, then going on to the general law.

The second point of drafting is perhaps even more important and occurs in subsection (2) which says: This section shall not apply in relation to any person for whom provision is otherwise made by Act of Parliament or who is specially excepted by the authority of Parliament. This is not consolidation. It tells the reader of the Bill that exceptions are contained in other Acts. This must mean past Acts and to ascertain whether a civil servant Mr. X or Mr. Y is entitled to superannuation allowance, it is not sufficient just to read Clause 1. One has to carry out intense research into Statutes somewhere other than in this Consolidation Bill to ascertain whether he is one of the exceptional persons for whom provision is otherwise made in some other Act.

I would have thought that the right thing to do would be to list those exceptional cases, perhaps in a Schedule, so that one could be certain that one had eliminated all those when one came to deal with Mr. X or Mr. Y. No doubt subsection (2) states the law, but I think that I am entitled to question the form in which the consolidation is effected. It is a rather sloppy way of doing it and not of great assistance to the practitioner, whether accountant or solicitor, who has to administer the Bill.

The third point is one of principle and it occurs in the words in the first and second lines of the Clause, The Treasury may grant any civil servant". I think I am right in saying that Clause of this Bill is a consolidation of a Clause in the Act of 1859. In that Act a different phrase was used to the Treasury may grant to any civil servant". That phrase is a permissive phrase. The phrase used in the Statute which is being consolidated in this Bill, in Clause 1, was that the superannuation allowance to be granted.… which sounded rather like giving a civil servant an absolute right to an allowance. That has been held by the courts not to be so. The interpretation of the phrase has been similar in the courts to the phrase "the Treasury may grant …."

In Clauses 2, 3 and 4, which are consolidating other Statutes, the permissive phrase was used in consolidating. In this Bill what has happened is that the phrase of the 1859 Act has been taken as synonymous with the phrase used in the later Acts, in not giving a civil servant an absolute right. I think that is correct in the face of Nixon's case in about 1931. I wonder whether one ought to consolidate Clauses 1 to 4, which had different phrases originally, under the one umbrella, using the phrase, The Treasury may grant …" or whether one ought to consolidate them under the original phrase The superannuation allowance to be granted by the Treasury.…. or whether one ought to leave the words which have been interpreted by the courts over many years—one set of words applicable to Clause 1, and the others to the remaining three clauses. Perhaps there is a fourth alternative, namely, that we ought not, at this stage, to consolidate at all until there has been some reform in the law.

I imagine it would come as something of a shock to most civil servants to be told that they have no right to a superannuation allowance at all, and that they get it by grace and favour of the Crown. If one looks further on in the Bill it is quite clear that a civil servant has no right whatever to a superannuation allowance. He cannot claim it by right. This is something from the Middle Ages, from feudal times, and is quite out-dated today in the relationship between the civil servant and his master, the Crown. I am dealing with the timing of the Consolidation Bill. We might have taken the opportunity, before enshrining this feudal system in the Consolidation Bill, to reform the law and bring it up-to-date. Must we go on with the legal fiction that a civil servant has no rights against his employer to superannuation allowance when Parliament has said that he shall have it? While that legal fiction exists ought we to consolidate in this way?

Sir Barnett Janner (Leicester, North-West)

I am rather intrigued by the argument put forward, in view of what has already been said on the previous Clause. I think that the hon. Gentleman the Member for Crosby (Mr. Graham Page) must realise that when consolidating it is impossible to alter the law as it has been interpreted and as it stands. Consequently, in this consolidating Measure, what we have done in Committee is to put the law, to the best of our knowledge and belief, in the form in which it exists at present, merely consolidating it for the purpose of having some real understanding, in a simpler form, of what the law actually is.

As a practical lawyer, the hon. Gentleman must know that this is an extremely useful Measure, so far as consolidating the law on this subject is concerned. If we want a change in the law we have to do it, as he knows, by a separate Act. I do not agree with him on the question of timing. Consolidating is an extremely important step so far as our law is concerned, because it gives us an opportunity of having within as reasonable a space as possible all the law that exists on a particular subject.

I understand his objection with regard to other Acts. I do not know what my right hon. Friend the Minister without Portfolio will have to say on this matter, but personally I prefer to see in a consolidating Measure all possible information to avoid the necessity of having to refer to other Acts. In all probability this was impossible in this case, but whatever the reason may be I think the Bill as it stands is a very useful one.

The Minister without Portfolio (Sir Eric Fletcher)

Like the hon. Gentleman the Member for Leicester, North-West (Sir Barnett Janner), I could not help thinking as the hon. Gentleman the Member for Crosby (Mr. Graham Page) was addressing the House that what he was now saying on this Bill was completely inconsistent with the arguments he was addressing on the Matrimonial Causes Bill. He is now suggesting that we should take the opportunity of a Measure of consolidation to make what would be a fundamental change in the law regarding the status of civil servants. There may or may not be a case for that. The hon. Gentleman says that it derived from some mediaeval conception of the relations between the Crown and the Civil Service. Maybe it does and maybe that is out of date. But it surely would not be right to make such a cardinal change in the law of the land in a Consolidation Bill dealing with superannuation. I do not think that that alleged point of substance can be taken seriously.

With regard to the drafting points, here again the only issue before the Committee was whether this measure of consolidation, in Clause 1, should be made in the form proposed. I think that it is the right form in which to make it. If we are to consolidate we must consolidate the law as it is. This is an exact restatement of the existing provisions of the Act of 1859 and the subsequent Acts. I do not feel inclined to agree with the hon. Member in his criticisms of the draftsmanship of Clause 1. This follows common draftsmanship procedure. It may be that the hon. Member still has some difficulty in ascertaining the whole of the law of superannuation when he has read this Bill, but I am sure that he will agree that it is very much easier to understand it now than it was before this proposed measure of consolidation.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 2–14 ordered to stand part of the Bill.


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

Mr. Graham Page

May I ask what is an unestablished capacity, what is an unestablished service, and what is an unestablished civil servant? One might expect to find, since the whole of this part of the Bill deals with unestablished civil servants, a definition of what is meant by an unestablished civil servant. This is a sort of caste system between civil servants established or unestablished, an apartheid between Whitehall and Black-friars, if one can put it that way. It is an ostracism which sounds like some feud between the Established Church of England and the Nonconformists. I think that most Members know it causes the utmost trouble and bitterness in the Civil Service. This is the sort of thing which constituents come to us about. When my civil servant constituents come to me, I have not a clue what an unestablished civil servant is. I should have thought that in a Bill which gave certain full rights to established civil servants and certain lesser rights to unestablished civil servants we would be told exactly what an unestablished civil servant was.

12 noon

When I started to read the Bill and found no definition of that type of civil servant, I thought that the Government had had some change of heart and intended to abolish the distinction between established and unestablished. But later in the Bill there is reference—

The Chairman

Order. The hon. Gentleman is getting rather wide of the subject. He cannot abolish it under the Bill.

Mr. Graham Page

I know, Sir Samuel. I was merely saying that I thought the Government had been trying to do that. I realise that under the consolidation Bill they could not and have not tried to do it. My point is that since the Bill refers not only to the "unestablished civil servant", but to the mixed unestablished civil servant, whatever that may mean—I do not know whether it means mixed in sex, in colour or in what way. It refers to the "continuous unestablished service", and the "discontinuous unestablished service", which is one of the best tongue-twisters in the Statute. Surely there should be some definition in the Bill of the unestablished civil servant.

Sir Eric Fletcher

Subject to correction, I do not think that the words "unestablished civil servant" appear in the Bill at all. What appears in Clause 15 is a reference to a person employed "in an unestablished capacity". If the hon. Member for Crosby (Mr. Graham Page) looks at Clause 99, which is the definition Clause, he will see that "unestablished capacity" is defined in these words: 'unestablished capacity' means employment in the civil service otherwise than in the capacity of a civil servant, being employment to which a person serving therein is required to devote his whole time and the remuneration for which is paid entirely out of moneys provided by Parliament or the Post Office Fund. It may or may not be open to the hon. Gentleman to criticise the definition, but this is a Consolidation Measure. We are reproducing in this Consolidation Bill the existing law on the subject. It is quite wrong for the hon. Gentleman to say that the phrase is not defined. It is carefully defined. It is defined in precisely the same language as has always applied throughout the ages, and it would be improper to make any change, however desirable it might be—and I offer no opinion on that—in a Consolidation Bill.

Mr. Graham Page

I was not ignorant of the fact that "unestablished capacity" is defined in the definition Clause, but it begs the question when it says: 'unestablished capacity' means employment in the civil service other than in the capacity of a civil servant … It still leaves uncertain what is meant by an "unestablished civil servant", "unestablished service" and "unestablished capacity".

If the Minister assures me that the law elsewhere does not define an unestablished civil servant better than this, then I must accept his statement. I was questioning whether the law could have been better stated in the Bill. If the hon. Gentleman tells me that there is no law to state, I suppose that I must be satisfied with that.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 16 to 29 ordered to stand part of the Bill.


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

Mr. Graham Page

Two dates appear in Clause 30(1) and Clause 31(2)-30th June, 1950, and 31st December, 1949, respectively. In no Statute does one find those dates. In this respect, this is not a consolidation of a previous Statute. It is a consolidation of Statutory Instruments. The embodiment of two different Statutory Instruments—one in Clause 30 and one in Clause 31—precludes anyone in future from challenging those Statutory Instruments as being ultra vires. It is not inconceivable that someone might wish to do so after fifteen years, as in this case, after the Statutory Instruments were made.

We should not pass a Consolidation Measure of this sort, depriving the individual of the right to challenge without attention being called to it. I go no further than saying "without attention being called to it", because it was right for the Joint Committee to include this in the Bill in this case. These were cases in which all that the Statutory Instrument did was to fix a date at which the emergency period of the war should legally come to an end and was spent in so doing. But in other cases where Statutory Instruments are embodied in a consolidation Bill they may be very important—especially when the Statutory Instrument is still active, is still in existence and is still in current use.

Precedents like this might lead to quite a major alteration, not in the law, but in the rights of an individual in qestioning the law. An individual cannot question whether a Stature is intra vires or ultra vires, but he is entitled to question whether the Minister making a Statutory Instrument has the power to do so and therefore whether it is law. Once that is embodied in a Consolidation Statute the individual's right to challenge it has gone. It was perfectly in order, after a full discussion of this matter in the Joint Committee, for this to be included in the Bill. I think, however, that this should be put on record so that it does not become a precedent for something more serious.

One further point is this: should not there be some repeal of Statutory Instruments which are embodied in Consolidation Bills? I throw this out as a question. I do not think that I can answer the question myself. The Statutory Instruments do not appear in the repeal Clause to the Bill. Are they still in being? When they have been put in a Consolidation Bill, should there be a specific repeal of them?

Sir B. Janner

I cannot understand why the hon. Member for Crosby (Mr. Graham Page) brings this point before the Committee. The position about Statutory Instruments is this. In the Committee which deals with Consolidation Bills we have always taken into consideration, as far as is possible, for our own human understanding and appreciation of the position, the effect of the Bill itself concerning the law as it stands. The hon. Gentleman admits that we were right in introducing the dates into the Bill. He can be assured that this was done after very careful consideration and that if the Committee is not satisfied that the introduction into the Bill of a point in a Statutory Instrument would be correct we do not accept it.

The hon. Gentleman's fear that this instance may be used as a precedent is quite unjustified. There have been cases in which similar action has been taken. In my experience, which has been a long one on that particular Committee, I cannot recollect an occasion when we have not been extremely careful in ensuring that, unless the wording of the Bill could not be contested in so far as it affected a Statutory Instrument, we accepted the change so that it might be contained in the Bill and be clearly visible to anyone reading it when it became an Act.

Mr. Graham Page

In reply to the hon. Member for Leicester, North-West (Sir B. Janner), who served on the Joint Committee, I would say that when this point previously arose on an earlier Consolidation Bill, it was understood that an undertaking was given in another place that the Joint Committee would mention it in its Report so that the House of Commons would know when it had been done, even if it was in only a minor case like the present one In reading the debate of another place, I certainly understood that to be the undertaking which was given.

In this case, the Joint Committee chose not to report the matter. It is true that those of us who deal with this subject read the proceedings of the Joint Committee and discover this kind of thing, but to meet the case of an hon. Member who does not read the proceedings of the Joint Committee I thought that the undertaking given by the Lord Chancellor in another place was that this matter would be included in the Committee's Report—which is a short one and easy to read—whenever Statutory Instruments are consolidated.

Sir Eric Fletcher

The hon. Member for Crosby (Mr. Graham Page) has raised three points. He raised a purely technical point about whether, if a Statutory Instrument is incorporated in a Consolidation Bill and is not referred to in the repeal Schedule, it is necessary formally to repeal the Statutory Instrument. I am not aware any more than is the hon. Member of the technical answer to that technical question, but I certainly undertake that it will be considered and that if it is deemed necessary to publish a Statutory Instrument repealing the Statutory Instrument in question, that will be done.

I understood the hon. Member not to object to the provisions of Clause 30 of the Bill. He thinks it right, as everybody else has hitherto thought it right, that the provisions of these Statutory Instruments should now be incorporated in this Consolidation Bill. With that we are all agreed. The hon. Member has drawn attention to the fact that in future Consolidation Bills, questions may arise about whether other Statutory Instruments should or should not be incorporated in a Consolidation Measure. There are obviously precedents for doing so if it is convenient in the process of the consolidation.

The hon. Member has referred to an undertaking which, he said, was given in another place, and the text of which I do not have before me, to the effect that where Statutory Instruments are incorporated in a Consolidation Measure, reference should be made to that fact. I do not think that the House of Commons can give instructions to a Joint Committee, but I have no doubt that what the hon. Member has said will be borne in mind in the case of all future Consolidation Bills.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clause 31 to 49 ordered to stand part of the Bill.


Sir Eric Fletcher

I beg to move, in page 43, line 24, to leave out "69(4)"and to insert"110(1)".

The Chairman

I suggest that it might be for the convenience of the Committee if we discuss at the same time the following Amendment, in line 25, leave out "1946"and insert"1965", and the two similar Amendments in Clause 63, page 52, lines 34 and 35.

Sir Eric Fletcher

I am obliged, Sir Samuel. These four Government Amendments are purely technical. They are designed to substitute for references to Section 69(4) of the National Insurance Act, 1946, references to the corresponding provision of the National Insurance Act, 1965, which was itself a consolidation Measure, the relevant provisions of the 1946 Act being now repealed by the Statute Law Revision (Consequential Repeals) Act, 1965.

Those two Acts were not passed in time for these Amendments to be made in another place, because they did not receive the Royal Assent until 5th August, whereas this Consolidation Bill was brought from another place and ordered to be printed by the House of Commons on 2nd August.

Amendment agreed to.

Further Amendment made: In page 43, line 25, leave out "1946"and insert"1965".—[Sir Eric Fletcher.]

Clause, as amended, ordered to stand part of the Bill.

Clauses 51 to 62 ordered to stand part of the Bill.


Amendments made: In page 52, line 34, leave out "69(4)"and insert"110(1)".

In line 35, leave out "1946" and insert "1965".—[Sir Eric Fletcher.]

Clause, as amended, ordered to stand part of the Bill.

Clauses 64 to 106 ordered to stand part of the Bill.

Schedules 1 to 11 agreed to.

Bill reported, with Amendments; as amended, considered; read the Third time and passed, with Amendments.