Clause 40.—(RELIEF FOR CHARITABLE AND OTHER ORGANISATIONS.) (Hansard, 28 February 1967)

§ Mr. Graham Page
I shall endeavour to keep in order in connection with Clause 40. In particular, I refer to subsection (2), which embodies Statutory Instruments. We have on many previous occasions discussed the effect of including in a consolidation Measure a Statutory Instrument which, until it is so included, is open to challenge by an individual in the courts.
Clause 40(2) has to be combined with Clause 117(1) and Schedule 8, which refers to the Statutory Instruments which are embodied within Clause 40, and in addition paragraphs (5) and (6) of Schedule 8. Without referring in any way to the merits of this Clause or even to the subject matter, I submit that I am in order in saying that that Clause embodies Statutory Instruments and to that extent alters the law in that, in future, if the Bill becomes law, no one will be entitled to challenge the validity of these Statutory Instruments.
The Bill includes in Clause 117(3) the preservation of existing Statutory Instruments under Acts which may be repealed by this consolidation Measure and I would have submitted that this would be the proper way to deal with the Statutory Instruments which are embodied in Clause 40(2) and that we should not deprive the individual of the right to challenge these in the courts. It would have been quite simple to leave them to take effect under Clause 117(3) rather than to embody them within the consolidation Measure and thereby deprive 410 the individual of the right of challenging them in the courts.

§ Mr. Graham Page
Exactly the same argument arises on Clause 55(1). I would have hoped that, at some stage in these proceedings, I would not have been left to make all the running myself, but that the Solicitor-General might have had the courtesy to reply to these points, which are points of substance and not merely pedantic points of some legal phraseology. They affect individual people, particularly in this case, which concerns every owner of property in his liability to rates.
This is an embodiment of a Statutory Instrument within a consolidation Measure which will deprive the owner of the right to question a resolution of a local authority in charging him with rates. I am sure that I must be in order in this case in quoting what the Solicitor-General said on Second Reading, when he dealt with this question of Statutory Instruments being embodied in this Bill. Referring to a point which I had made, the hon. and learned Gentleman said: He made a somewhat separate point about Statutory Instruments being embodied in legislation. I take the point and appreciate what he says about challengeability of Statutory Instruments in courts, but Statutory Instruments have formed part of the law for a considerable period, which no one has challenged up to now. We are not depriving the citizen of a right of any value when we consolidate the whole of the law. When I raised a question about Part 2 of Schedule 14 which had two references to 1965 and 1966, the hon. and learned Gentleman said: But even in those cases, there would have been ample time for anyone to challenge them, and no one has done SO."—[OFFICIAL REPORT, 22nd February, 1967; Vol. 741, c. 1650–1.] 411 Of course, in the example of Clause 55 there would have been no case to challenge until a local authority had passed a resolution adopting the provisions of the Statutory Instrument, so that argument falls on that ground.
I object to Clause 55 standing part of the Bill when it deprives an individual of the right to challenge a Statutory Instrument.

§ The Solicitor-General (Sir Dingle Foot)
I hope that the hon. Member for Crosby (Mr. Graham Page) will acquit me of any discourtesy, but I suggest that what he is trying to do on this, as on earlier consolidation Measures, is to persuade the Committee to do over again the work which has been done by the Joint Committee.
The hon. Member has raised an issue which he raised on Second Reading. He has pointed out, perfectly correctly, that Statutory Instruments can be challenged in the courts, but that if they are embodied in a Statute, then they are beyond challenge. Of course, I take the point that if a Statutory Instrument is embodied in a Statute then to that extent the right of challenge in the courts is lost, but the hon. Gentleman will find that the Order with which we are here concerned, the Rating of Owners Order, 1962—and this applies to all the Statutory Instruments which are mentioned in Part 2 of Schedule 14—does not make any substantive change in the law except as regards figures and categories.
For example, there are three Statutory Instruments dealing with the rating of charitable institutions and they deal with the exclusion from certain exemptions of particular institutions, mainly universities, and by them the Minister may add to the list by adding names of particular colleges or universities. In this case we are dealing merely with a change which was made by an Order in Council, a Statutory Instrument which substituted £56 for the sum of £18 or £25 as a limit for the rating of owners instead of occupiers. That is all that is done and that is all that can be done under the powers which are preserved in the Bill.

§ Mr. Graham Page
The hon. and learned Gentleman says that that is all that is done, but that is to change the whole liability of an owner for rates as 412 against the occupier's liability. That is a substantial alteration in the law.

§ The Solicitor-General
All that is done is to substitute one figure for another. I am not saying that it does not matter to the persons concerned; of course it does, but it is not an alteration in the whole text of the Order or of the Statute, but simply says that the Minister may in certain cases substitute one figure for another. I cannot conceive that that could be the subject matter of a challenge in the courts and I will make the same observation of all these other Statutory Instruments which are mentioned in Part 2 of the Schedule.
If we regard this as a matter of substance, there is no right of challenge which is being lost, because one cannot imagine that any of these Instruments could be successfully challenged in a court. Therefore, it really makes no difference. What we are doing here is simply a consolidation Measure. We are dealing with Statutory Instruments which were already part of the law, and we are embodying them for general convenience in a consolidation Measure. This has been very carefully considered by the Joint Committee, and it has come to the conclusion that this is part of the law which should be consolidated, and I suggest that there is no special reason why we should disagree with those conclusions.

§ Mr. Graham Page
The right hon. and learned Gentleman has said that in his opinion, and it must only be his opinion, although I respect it very much, there would be no challenge to a Statutory Instrument such as this which is No. 3 in Schedule 14 to this Measure. Nevertheless, the law allows this challenge and my point was that the occasion to challenge would not arise until a local authority had passed a resolution bringing this into operation, so that the challenge might occur at any time, and it is no argument that this was passed in 1962, and that there has been no challenge since then. Resolutions by the local authorities bringing this into operation are still occurring and there might be a challenge at any time.

§ The Chairman
With the consent of the Committee I will put Clauses 56 to 109 together.