§ Lords Message [5th June] communicating the Resolution, That it is desirable that in the present Session all Bills to consolidate any enactments with amendments to give effect to recommendations made by one or both of the Law Commissions, together with any Report containing such recommendations, be referred to the Joint Committee on Consolidation, &c., Bills, to be considered forthwith.— [The Attorney-General.]
§ Lords Message considered accordingly.
§ 10.5 a.m.
§ The Attorney-General (Sir Elwyn Jones)
I beg to move,That this House doth concur with the Lords in the said Resolution.
§ Mr. Speaker
I am not selecting the Amendment in the name of the hon. Member for Crosby (Mr. Graham Page) to the Lords Message, to leave out from ' That ' to the end of the Question and to add instead thereof:'it is undesirable at this stage in the Session to enter on consideration of a subject relating to Consolidation Bills which will be better 2 undertaken when the Law Commissions have considered whether recommendations by them as to amendments to be embodied in Consolidation Bills should apply only to amendments which relate to the enactments intended to be consolidated by the relevant Bill and whether both Houses of Parliament should be enabled to debate, accept amend or reject such amendments and to debate, accept, amend or reject such other amendments as relate to the same subject as that of the amendments so recommended'.
§ The Attorney-General
The purpose of this Resolution is to enable the Sea Fisheries (Shellfish) Bill—a bit of a tongue twister on a Monday morning—which was introduced in another place on 10th May, to be referred to the Joint Committee on Consolidation Bills. The Resolution is drafted in general terms but there will in fact be no other Bill this Session to which it could apply. The Bill was prepared by the Law Commission in the discharge of the duty to prepare consolidation Bills which Parliament laid upon them by the Law Commissions Act, 1965.
In its First Programme on Consolidation and Statute Law Revision the Law Commission referred to the technical difficulty of producing a satisfactory consolidation without any change in the law, or even with changes, within the necessarily narrow limits of the Consolidation of Enactments (Procedure) Act 1949, and to the practical difficulty of getting a Bill passed which, though not proposing to change the law very materially, is open to amendment on any point.
They expressed the hope that Parliament would be prepared to give a Bill 3 largely the same treatment as a strict consolidation Bill if it consolidated the law… with only such amendments as, after due inquiry and consultation, appear to the Law Commission, as a body independent of the Executive, to be required not for the purpose of reforming the substance of the law but for the purpose of producing a satisfactory consolidation.The Sea Fisheries (Shellfish) Bill falls within none of the three types of consolidation Bill with which the House is familiar. Perhaps I may remind the House what these types are. First of all, there is consolidation pure and simple, the bringing together into one Act of provisions relating to the same branch of the law which are scattered between a number of Acts. The existing law is reproduced without alteration. This has been called "scissors and paste" consolidation. A Bill setting out to do this cannot be amended so as to change the law.
Next there is consolidation with corrections and minor improvements under the Consolidation of Enactments (Procedure) Act, 1949. The 1949 Act procedure enables the existing law to be amended in the process of consolidation in order to resolve ambiguities, to remove doubts, to bring obsolete provisions into conformity with modern practice and for other purposes specified in the Act. Amendments on the floor of the House are precluded by the terms of the Act. However the purposes specified in the Act are limited and it not infrequently happens, when a consolidation Measure comes before the Joint Committee on Consolidation Bills, that there are differences of opinion as to whether an amendment that has been proposed can properly be made within the narrow limits prescribed by the Act.
The third type of consolidation Bill is a Bill which is described in its long title as a Bill to consolidate with amendments. Where a Bill is so described there is no restriction upon the amendments that may be proposed to it in the same way as there is where the Bill is pure consolidation or is a consolidation under the 1949 Act procedure. Because of the additional Parliamentary time that may have to be set aside in order to deal with Amendments that may be proposed to the Bill there are practical difficulties, as the Law Commission pointed out in 4 its first programme, to getting such a Bill passed, and time, despite appearances occasionally to the contrary, is a Parliamentary commodity in short supply.
In the preparation of the Sea Fisheries (Shellfish) Bill the Law Commission has sought to overcome the difficulties in each of these three types of consolidation Bill. As its title shows, it is neither a strict consolidation Bill, nor one prepared under the Act of 1949, and least of all is it a Bill to consolidate with a completely unrestricted range of Amendments.
It isa Bill to consolidate with Amendments … to give effect to recommendations of the Law Commission and the Scottish Law Commission.These recommendations are set out and explained in a Report which the two Law Commissions have made jointly to my noble Friend the Lord Chancellor and to the Secretary of State for Scotland and the Lord Advocate. It was published as a White Paper and no doubt hon. Members will have seen and studied it. The Commission said that most of the amendments recommended by it would clearly fall within the definition of corrections and minor improvements under Section 2 of the 1949 Act. With a few of them this was not so, or not so clear, but even those amendments did not amount to changes substantially greater than could be authorised under that Act.
The Resolution with which the House is asked to concur will secure that both the Bill and Report are referred to the Joint Committee, which no doubt will study them together, more or less as with a Chancellor's Memorandum and a Bill prepared under the 1949 Act. It will not, however, be put to what might be the discomfort and heart and brain searching that is occasionally necessary in order to decide whether any proposed change falls within the difficult definition of "corrections and minor improvements" in the Act.
It will simply have to consider the recommendations on their merits and, if it thinks that effect should be given to them in the way proposed in the Bill, it will pass the Clause or Clauses in question without Amendment. It will be 5 open to the Committee, if it thinks fit, to amend the Bill so as to reject any of the recommendations or to give effect to them in a manner different from that proposed in the Bill.
§ Sir John Hobson (Warwick and Leamington)
Would the Attorney-General explain how the Committee can do so, because the Bill will already have been presented in the House of Lords for First Reading, and it will have no statutory power as under the 1949 Act to amend it?
§ The Attorney-General
As I understand it, there is full power to make amendments within the limitations that I have indicated.
§ Mr. Ronald Bell (Buckinghamshire, South)
This is rather a double-barrelled interruption, but I am interested in what the Attorney-General has just said, that the Joint Select Committee will doubtless do this. As a member of some years' standing of this Committee, can he say how we will be able to do this?
§ The Attorney-General
I do not anticipate that there will be any difficulty. The nature of the Bill is as described. It is an act of consolidation with amendments to give effect to recommendations of the Law Commissions. Presumably those amendments will be examined seriatum, and they can be accepted or rejected or amended in a manner different to that which is proposed.
§ The Attorney-General
No, the nature of the Resolution which I am moving makes possible the procedure that I have indicated for the Joint Committee to follow. If one looks at the Resolution it is:That it is desirable that in the present Session all Bills to consolidate any enactment with amendments to give effect to recommendations by … the Law Commissions …These recommendations are clearly set out in the Bill, and in the Report, and I would expect that the procedure will be very much as it is now in regard to the situation of the Lord Chancellor's Memorandum and a Bill prepared under the 1949 Act.
6 With regard to my indication to the House that it will be open to the Committee to amend the Bill so as to reject any of the recommendations or give effect to them in a manner different from that proposed in the Bill, this would be possible because most of the recommendations are in the form of broad propositions, capable of being given effect to in more than one way. As to procedure, and what indications would be given to the Joint Committee, I am told that the Chairman of the Joint Committee was present in another place when this Resolution was discussed, and I understand that he indicated no feeling of difficulty in following what is contemplated and proposed.
The Committee will naturally want to satisfy itself that apart from such Amendments as give effect to those recommendations with which it concurs, the Bill reproduces existing law and no doubt it will report whether it is satisfied. When the Bill reaches the House the fetters imposed by the 1949 Act will not apply and the House will be free, if it thinks fit, to review the decisions of the Joint Committee and discuss Amendments designed to reject the recommendations which the Committee has accepted, accept a recommendation which the Committee had rejected, or give effect to a recommendation in a manner different to that proposed in the Bill as reported by the Joint Committee.
It will not be open to hon. Members to move Amendments designed to change the law in a manner that would take the Bill outside its Long Title. I hope that the new procedure will commend itself to the House. I appreciate that some misgivings have been expressed that, in the absence of the restrictions imposed by the 1949 Act, a Bill of this kind might be used to make changes in the law that ought to be the subject of a separate enactment. I am sure, in the first place, that the Law Commissions would never seek to propose such a change, but if there was any room for doubt in a particular case, and the Joint Committee thought that a change which the Law Commissions had recommended should be made only by a separate enactment, it will not be reluctant to say so, and to amend the Bill.
The House will be the final judge when the Bill reaches the Floor so that in my 7 submission there will be ample safeguards to ensure that nothing is done behind Parliament's back. The Sea Fisheries (Shellfish) Bill is the only one this Session which will fall within the terms of this Resolution. It is very much in the nature of an experiment, but it is significant, and if it succeeds we may hope that the Law Commissions will be able to produce more satisfactory consolidation Bills than would otherwise be possible.
A great deal has still to be done. As my noble Friend remarked in another place, as long ago as 1549 the House of Commons sent to another place a proposal that the statute lawsshould be digested into a body under titles and heads, and put into good Latin".The Young King, Edward VI, when he thought about this said:I have showed my opinion heretofore of the Statutes I think most necessary to be enacted this Session. Nevertheless, I would wish that beside them hereafter, when time shall serve, the superfluous and tedious Statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them; which thing shall much help to advance the profit of the Commonwealth".Bishop Burnett observed that this was… too great a design to be set on foot or finished under an infant KingThe work is not finished yet. I hope and think that this procedure will help a little and, accordingly, I commend it to the House.
§ Mr. Speaker
With the approval of the House, the intelligent thing to do will be to discuss this and the subsequent Motion together.
§ 10.20 a.m.
§ Sir John Hobson (Warwick and Leamington)
The Opposition are quite prepared to accept the Motion for the experiment, which can be of only the most limited nature since it concerns only one Bill in this Session, a Bill which, I would have thought, would have gone through all its proceedings in both Houses on the nod in any event, as there is nothing in it to be discussed and such proposals as the Law Commissioners would have made would have been only sensible and acceptable. I cannot imagine that there would be any discussion at any stage of that Bill. Therefore, to some 8 extent passing this Motion for this single Bill is not a matter of great importance.
On the other hand, it is important that we should make it clear that by agreeing to this procedural device on this occasion we are not committing ourselves in future, when it might be said that we had agreed to this procedure for the Shellfish Bill and ought therefore to agree to it on some future occasion. I do not want this experiment to be regarded as a precedent.
We agree that it is convenient and desirable that steps should be taken again to face the 400-year-old, if not more ancient, problem of the extent to which Parliament should keep control over alterations in the law, while endeavouring at the same time to see that improvements in the law go through the House with speed, and that, if possible, we consolidate our Statute Book with elegance and with speed and with the help of the Law Commission. But we have some anxieties about what the implications for the future may be if this procedure is employed in other Bills with a wider content and with more politically controversial Amendments although still largely consolidation Measures.
Speaking for myself, I am content that where, at the instance of the Law Commission or anybody else, it is desired to consolidate the law and make Amendments to it which are outside the scope of and greater than the 1949 Act, Parliament itself should discuss only those additional Amendments, with complete liberty to do what it pleases with them, proceeding as to the rest of the Bill as with other consolidation Measures which are pure consolidation.
This proposal does not meet that problem and so far no one has devised a solution to the problem of how Parliament can consolidate the law in a single Measure, as it does at present, but combining that with a form of procedure which would give it complete freedom to make any Amendments where it was proposed that the law should be altered.
I should like to ask the Attorney-General one or two questions, particularly about the position of the Joint Committee on Consolidation, when under this proposal it has one or more Bills referred to it. It is quite plain that it will not then be acting within the terms of the 9 original Motion which appointed it on 16th May, 1966. On receiving such a Bill, it will be acting only under this Motion which we will pass today arid which the Lords passed on a previous occasion, and that is singularly uninformative as to directions about how the Committee should proceed, the principles on which it should proceed, its powers, and exactly what it has to do. I understand that the Motion will give that Committee no powers except to consider a Bill which will already have had a First Reading in one or other House and to make a report thereon which will agree with the proposals of the Law Commissioners or say that the change should he made on some different principle, or that it is a matter for separate legislation.
I am still puzzled about how it will be possible for the Committee actually to amend the Bill which will already have then been presented. At the moment, it can alter Bills which are sent to it by the force of the 1949 Act, but it will have no power of any sort, once a Bill has been presented to either House, to alter that Bill in any direction. All it will be able to do will be to make a report to the two Houses making such comments as it thinks fit on the Bill, on the consolidation part or on the proposals to amend the law which the Law Commissioners have put forward, or to say that it thinks that additional Amendments should be included. So far as I can see, this proposal does not limit the Committee's powers to comment or report on the Bill in any direction it pleases, but it gives it no power to alter the Bill, or to do anything except to express its own opinion.
The other important point is what would be the position if the Joint Committee decided, as it could under the 1949 Act, that one or other of the proposed amendments ought to be dealt with by separate legislation. In the other place the Lord Chancellor gave an assurance to the noble Lord, Lord Dilhorne, that it would be possible for the Committee to act, as it does under the 1949 Act, and to say that a certain proposal ought to be dealt with by separate legislation, but it has no power under this Motion to leave out a proposal. It could make that report to either House, but, as I understand it, that would be the total extent of its power.
10 The Attorney-General explained that when a Bill which had been through this procedure arrived at this House, it would be possible for the House only to accept the proposed amendments of the Law Commissioners, or to accept the alternative proposals of the Joint Committee, or to leave the law as it was, but not to adopt a solution which it thought suitable. While we all admire the members of the Law Commission, who would not knowingly or intentionally do anything which was unacceptable or ridiculous, it is possible to have different views about Amendments to the law and twice in the present Session the Committee has rejected proposals in Bills which had a very respectable origin.
I would have thought that the one essential principle was that, however respectable the parenthood of a Bill, whether it came from a Government Department, a nationalised industry, from private legislation, or from the Law Commissioners, or any citizen of the realm, Parliament was expected to be supreme and to have complete power when it was proposed to alter the law to see what alterations should be made, and that we ought not to be placed in a position in which we had to leave the law as it was, or accept the proposals of the Law Commissioners when we liked neither situation. If the House is to be limited by the Long Title of the Bill and I have never understood that, because I have always thought that it was the scope and not the Long Title of a Bill which bound the House—the Long Title will refer only to Amendments proposed by the Law Commissioners.
Therefore, if the Joint Select Committee on Consolidation, having had such a Bill referred to it, proposed an amendment which was not within the principle which the Law Commissioners had proposed, it would not be possible, as I understand the Attorney-General's argument, for this House and the other House to adopt the Joint Select Committee's proposal. If that Committee is limited to accepting the principles or the general proposals within the scope of the Amendment which the Law Commissioners proposed, and if this House is to be similarly limited, Parliament will find itself in the position of leaving the law as it is or adopting the Commissioners' proposal 11 when it thinks that neither is sensible and finds itself unable to adopt that course.
This point will arise for your decision, Mr. Speaker, when such a Bill comes before the House. But I remind the Attorney-General that Erskine May expressly states at page 554 that on a consolidation Bill with Amendments it is open to this House to table any Amendments to it, even as to the consolidation parts, which it pleases, and Erskine May does not limit that power to the occasions when some person other than the Law Commissioners or other official body propose the Amendments. If the principle is that a consolidation Bill with Amendments can be amended in any direction which this House desires, that principle applies whoever the person was who originally proposed the Amendment.
I believe that the authority upon which those who take the view that the hands of this House would be tied rely is the precedent of the Highways Act, 1959. But it was said from the Government benches during the proceedings on that Act that there was an agreed procedure under which the House applied a self-denying ordinance to itself not to put in Amendments of principle to what was substantially a consolidation Measure. But it was certainly never ruled from the Chair during the proceedings on that Measure that Amendments were out of order because they went beyond the scope of the proposals. Many Amendments were moved and none was objected to. In Committee, the Chair never ruled that the power of hon. Members to amend that Bill in any way was limited.
While this point will not arise on the Shellfish Bill, because I cannot imagine that anybody is likely to table a major Amendment to it, if we are to have this procedure, then the freedom of the House to ensure that legislation is in accordance with its wishes and is not left in a position in which it must choose between alternatives neither of which it likes should be preserved so that the supremacy of Parliament in legislation is a reality and is not bound by technicalities.
This is an interesting experiment. I am sorry that it will not prove of great utility during this Session. We do not desire to oppose it, but we do not wish it to be treated as a precedent that we 12 necessarily agree that all the respects in which might be used should be accepted by the House.
§ 10.34 a.m.
§ Mr. Graham Page (Crosby)
I have been looking in vain at the Message from another place for any mention of shellfish. The Resolution goes very much wider than the consolidation of the law relating to shellfish. It may be that the Shellfish Bill is the one Bill which will be affected during this Session, but for all we know some other Bill may come forward dealing, not with shellfish, but with something which the House thinks is of far greater importance than shellfish which is affected by this Resolution.
Therefore, let us dispose of the point once and for all that we are discussing only the consolidation of the law relating to shellfish. We are discussing the consolidation of any law. Once we have passed a Resolution of this sort, although it may be limited in time to this Session, it will stand as a precedent which it will be very difficult to break if we find that there is a mistake in it.
The Message, with great respect to those in another place who drafted it, leaves a great deal to implication or even to imagination. The Amendments to which it refers are unlimited in scope. The Resolution does not state the type or nature of the Amendments with which it intends to deal. The Joint Committee to which the recommendations are to be referred is not informed by the Resolution of its function in respect of these Amendments. Its function is left undefined and its terms of reference concerning the recommendations are unstated. As my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) said, they cannot be the terms of reference which were given to the Committee at the beginning of this Session. Those terms of reference do not cover recommendations from the Law Commission.
The third point of vagueness about the Resolution is its effect on the deliberations and debates of this House or its intention concerning those debates.
Therefore, there are three matters which I feel the House should consider with great care before accepting the Message. First, what kind of Amendments are we talking about in the 13 Resolution? In that respect, the Resolution is not happily worded in that it speaks ofamendments to give effect to recommendations made by one or both of the Law Commissions…As my right hon. and learned Friend the Member for Warwick and Leamington said, one would not expect some strange Amendments unrelated to the consolidation Bill under consideration to come from the Law Commission. There may be a very great difference of opinion about whether some recommendation from the Commission is within the scope of the Bill.
The Lord Chancellor was asked in another place whether the wording of the Resolution referred to Amendments relating directly to consolidation or whether it included Amendments to reform the legislation which were not absolutely or directly related to the process of consolidation. His reply was:Yes, the Amendments proposed in this or any subsequent similar Bills will all be related to the consolidation. They deal merely with difficulties which are found to arise when the Parliamentary draftsmen attached to the Law Commission start to consolidate."—[OFFICIAL REPORT, House of Lords, 5th June, 1967; Vol. 283, c. 196.]This was the assurance of the Lord Chancellor, but it does not appear in the Resolution. In no way are the Amendments limited when mentioned in the Resolution.
I therefore ask the Attorney-General to give as an undertaking in such form as the Lord Chancellor gave in another place, namely, that the Amendments will relate only to matters closely within the scope of the consolidating Bill which is under consideration. Without such undertakings, the House ought not to accept the Resolution.
My second point concerns the function of the Joint Select Committee in dealing with recommendations from the Law Commission. I had assumed when I first read the Resolution that the intention was that recommendations from the Law Commission should be in the nature and have the effect of the memorandum from the Lord Chancellor which goes before the Joint Select Committee when it is desired to make minor improvements and corrections to the law. That was what I thought must be the 14 intention of the Resolution. That must have been muddled thinking on my part, however, because one cannot possibly accept that position without a change in the law.
It was necessary in 1949 to put on the Statute Book an Act empowering the House and Parliament to deal with legislation in that way. Once the Joint Select Committee accepts the Lord Chancellor's recommendations, what is then embodied in the Bill must be treated as existing law when the matter comes back to this House and can be discussed only on that basis. We cannot give recommendations from the Law Commission the same force as the memorandum from the Lord Chancellor. That memorandum is supported by the 1949 Act. If it was intended that recommendations from the Law Commission should have similar force, this should have been stated in the Law Commission Act.
The third point which should be carefully considered before we accept the Resolution concerns the limitation of debates in this House upon a Bill which is stated to contain recommendations from the Law Commission for Amendments. Is it intended to limit the scope of this House in debating such a Bill? It must have been so intended when the Resolution was passed in another place, otherwise I cannot see the purpose of it.
There are three forms of consolidation: pure consolidation, consolidation with corrections and minor improvements under the 1949 Act, and consolidation with Amendments. As I understand the law, there are no limitations upon the powers of this House merely because a Bill has been referred to and considered by the Joint Select Committee on Consolidation. This process does not in itself restrict the House from debating the contents of a Bill and making Amendments to it.
One therefore has to consider which of the three categories embraces a Bill of the type included within the Resolution and containing Amendments recommended by the Law Commission. It obviously does not come within the category of pure consolidation, to which the Attorney-General has referred as scissors and paste, because it would be intended to include something more than consolidation.
15 As I have tried to point out, it could not come within the 1949 Act so that the recommendations were to be assumed to be law before the Bill comes back to this House. That could be done only by legislation. Therefore, we are left with the position that it must come under the third category of consolidation with Amendments. If that is the case, it is open to debate in the House and to Amendment without any restriction.
The Lord Chancellor, in another place, referred to the Highways Bill as showing that in the event of consolidation with Amendments there is some sort of restriction on the powers of this House to debate and amend the Bill. With respect, I think that the Lord Chancellor was entirely wrong. I recollect taking part in the debates on that Bill and endeavouring to amend two Clauses, and I was never ruled out of order on those Amendments.
There is, therefore, no restriction on the power of this House to debate and amend a Bill which consolidates with Amendments except so far as concerns the Long Title, but that is a restriction which applies to all Bills presented to this House.
The debate may be narrowed to some extent by the fact that the House will have before it a Report from the Joint Select Committee which will, no doubt, point out the new law which it is desired to include in the Bill, and the House will, no doubt, direct its attention to that. The Report of the Joint Select Committee might be of great assistance to the House in narrowing the issues and time might be saved, but if it is suggested that the mere reference of a Bill to the Joint Select Committee restricts the powers of this House, that assumption is wrong and we should not confirm it in any way when passing the Resolution.
Therefore, if we are to accept the Resolution in the terms in which it appears on the Order Paper, I ask the Attorney-General to give the House an undertaking that Amendments which are recommended by the Law Commission will be closely within the purpose of the consolidation Bill in question, that the Joint Select Committee will not, without legislation or a new reference or an alteration in our Standing Orders, be empowered to make Amendments which go 16 beyond consolidation and thirdly, that the Government will not seek to restrict the House in the form of debate upon a Bill the purpose of which is consolidation with Amendments.
§ 10.48 a.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
I am very unhappy about the Resolution. It comes before the House towards the end of June as being applicable only to the present Session, and we are told that it is applicable only to a certain Bill about shellfish which I have not seen. I understand that if the Resolution is passed, that Bill will be referred to the Joint Select Committee.
All this is very attractive, but there are, to me, two fatal objections to it. I would be happy if I could oppose it effectively and even take it to a Division, but it is useless to do that because I am addressing only half a dozen or so hon. Members and, if a matter like this were voted on, it would be voted on late at night and nothing that is said between 10 and 11 o'clock in the morning could have any bearing upon the decision. That is one of the great defects of morning sittings.
Nothing is worse than that hon. Members should not know where they are on procedure. The Attorney-General said that as a result of the Resolution, there was no danger of anything being done behind the back of Parliament. Let us be frank about it. Everything that goes through the Joint Select Committee on Consolidation is done behind Parliament's back with the statutory concurrence of Parliament. Hon. Members of this House—over 600 of them—know that a matter has been referred to the Joint Select Committee. They assume that it is simply lawyers' stuff, that it is purely consolidation and that if anything which is not consolidation is attempted, the Joint Select Committee will pick it up and deal with in it some way and that they need not, therefore, concern themselves with Bills of that nature and they do not do so.
The rules for speaking in debate on consolidation Measures in this House are such as to discourage even the most ingenious and persistent hon. Member. That being so, the procedure works so long as it is strictly defined as a statutory authority and everybody does his job. Once we begin to blur the outlines, 17 I am sure that what, in practice, will happen because of the pressure of time and business on hon. Members will be that they will assume that the Joint Select Committee is doing its job, whereas it is not and will not be in a position to do so. That is my principal objection.
It was said by the Lord Chancellor in the House of Lords that, after all, there are safeguards against anything untoward happening. He said that he was sure thatwe can rely on the good sense of the Law Commissions"—[OFFICIAL REPORT, House of Lords, 5th June, 1967; Vol. 283, c. 183.]The noble Lord said that the reason for that was that if the Law Commissions proposed changes which were controversial and took up a great deal of time on the Floor of the House, the Government Whips would say "Never again". I am sure we can rely on the good sense in legal matters of the Law Commissions.
How far we can rely on the Government Whips is perhaps a more controversial matter, but, of course, the good sense of the Law Commission is a specialised good sense. They are people who, by experience and knowledge, are particularly suitable for suggesting changes in the law which are of a legal, technical or a professional kind, not the kind of good sense at would know how much political significance there was in them. They, I do not doubt, put forward very good reports on those branches of the law which are recommended to them, but, of course, the changes they propose can be brought into force only by the exercise of the legislative authority of Parliament.
The second safeguard was that Parliament can rely on the experience of the Joint Committee to which these matters are proposed to be referred. I am very flattered by that. I served on that Committee for about 10 years, but I say this about the Committee. At the moment, we operate under a statutory procedure which is laid down in the 1949 Act. That Committee is set up each Session to be the Committee under this Act, and its functions are known. Even the words in which it should report are set out in the Act. If we make a report it has some significance.
This Session, for the first time, I think during the years I have served on the Committee, we have, in effect, rejected 18 two Measures because they were not consolidation Measures. This, taken alone, might seem an argument in favour of the Resolution because it would be said, "These people turn back things which ought not to get through." But there was a good deal of argument and exchange on at least one of those occasions. The Lord Chancellor was by no means happy about what we were doing and memoranda went back and forth as to the proper functions of the Joint Committee.
That Committee held a special meeting to consider those memoranda and their proper functions and it was urged on us very strongly by the Lord Chancellor that we ought to take a robust view of consolidation. When I tell the House that the matter on which it was urged that we should take a robust view on consolidation was a proposal in the capital allowances Bill to withdraw from ship owners the right to depreciation allowance on ships which they have been enjoying and are enjoying, I think that the House will realise that we were being asked to take a robust view.
We were being asked to reverse by a decision of the Joint Select Committee on Consolidation an established practice of the Inland Revenue and to impose on some of Her Majesty's subjects taxation which, in some cases, must run into six figures. The point I am making is that there should never have been any doubt about that and that some of us should have had to fight for the doctrine and that this was monstrously outside the scope of the Joint Consolidation Committee. The other Bill—I have even forgotten its title now—was one on which we made a special report to the House saying that it was not a consolidation Bill. These are the pressures operating on the Joint Select Committee. Against that background it is proposed to refer to us Bills embodying improvements in the law which are recommended by the Law Commission.
As my right hon. and learned Friend the Member for Warwick and Learning-ton, and my hon. Friend the Member for Crosby (Mr. Graham Page), said, the terms of reference given by the House on 16th May to the Committee will have no relevance for this. They cannot have. They are the ones which are appropriate 19 to the 1949 Act and the consolidation and state of the law revision work of the Committee. So all that we can look at is the Message from the Lords which is on the Order Paper today. All that the Message says isThat it is desirable in the present Sessionthat the sort of Bill to which I have been referring shouldbe referred to the Joint Committee on Consolidation &c. Bills …I do not doubt that as the Attorney-General said, the Committee will deal with matters which are referred to it by Resolution of both Houses. The Committee will feel it its duty to do so, but how is it to deal with them? This will not fall under its statutory procedures. The Committee is given no guidance in the Resolution about what it is to do. It is given no powers to do anything. So presumably it will deal with this matter according to the law of common sense and do the best it can, do what seems sensible.
Where do we get in a matter like this if a Committee has to use its commonsense and the whole thing relies upon a doctrine of inherent jurisdiction or inherent power in some Committee set up by some Resolution of this House? Once we start on that course, hon. Members will not know where they are. The Committee will not know what report to make. Whatever report it makes will have no effect. As I understand, when the Committee reported that the provision in the capital allowance Bill was not consolidation, the Bill could go no further through the consolidation procedure. The report had some effect, but a report coming back from the Committee on a Bill referred to it under this Resolution will have no effect at all, apart from that which it may have on the mind of any hon. Member who reads it.
This brings me to my last point, which is that it is very attractive for proposals to be made to this House for business to be taken off the Floor of the House and sent to some Committee upstairs. It is always said that this will save time. It is quite another matter to get people to attend these Committees, and do the work. I know that the Joint Committee is in constant quorum trouble, and this 20 proposal is one to add enormously to its work.
When, at Question Time some months ago, the Attorney-General was pressed on a proposal of this kind, I suggested that he should be very careful in his consideration of it, at it would so greatly add to the burden of work of that Committee. He was then kind enough to say that this was a factor to be borne in mind. It does not seem to have been borne in mind very effectively, because it is not just a matter of shellfish—there is probably nothing in a shellfish Bill.
The trouble is that in the next Session a similar Resolution will come forward which will attract as much enthusiasm and as large an attendance as this one, and it will then be said, "We had this the last Session. We tried it out then. There was one Bill. It all worked very happily." I do not think that it could work anything but happily in relation to a shellfish Bill. But it would become part of the procedure.
The trouble is that this proposal has not been thought through. No one seems to be quite sure what the House will be able to do when the Bill comes back here. Bodies outside the House itself can be helpful, whether they be Law Commissions or others. Reference has been made to the Highways Bill. That was drawn up by a Committee under the chairmanship of the Marquess of Reading. I was a member of the Committee. We just drew up a Bill consolidating highways law with minor amendments. When we had done that, there was the Bill and that was that. It did not have any status or any particularity just because it had been drawn by the Reading Committee. It was presented as an ordinary Bill, and those who wanted to make wider Amendments to it could propose them.
But what is now suggested and, indeed, what is growing up is a kind of Bill which the House would do very well to watch carefully—the Bill of which the Long Title is such that the House cannot give proper consideration to the Bill. If these Bills are referred to the Consolidation Committee, it is not the fact that they are so referred or that the Committee makes some kind of report—goodness knows what—to the House—that has nothing to do with it, as I understand it. It is simply the form of the 21 Long Title—a Bill presented to the House as a Bill to consolidate the law with Amendments proposed by the Law Commission. Even if this Resolution were not on the Order Paper, and even if this procedure were not proposed, I understand the position to be that the House would be very gravely inhibited in its consideration of the Bill.
I therefore believe that we must pause to think where we are going with these anomalous procedures which are beginning to spring up. I realise that the Lord Chancellor has a great gusto for consolidation—having been at the receiving end for a couple of years I am well able to evaluate it—but while consolidation of the Statute Book has a very useful function, we must be very careful that we do not find ourselves legislating in the committee room without the proper political pressures which keep us all in order in this Chamber.
That being my view, Mr. Deputy Speaker, I could not have supported the Resolution had it been taken to a Division, but I take the opportunity now of adding these reservations, because I serve notice on the right hon. and learned Attorney-General that if a similar Resolution is moved during the next Session of Parliament he will have a little more trouble on his hands than he has now.
§ 11.5 a.m.
§ The Attorney-General
I duly note the cautionary concluding words of the hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell), but I should like at once to challenge his proposition that what is proposed in this Resolution and in relation to this Bill has simply not been thought through. That is not the case. It has been given the most careful consideration by the Law Commission and by my noble friend the Lord Chancellor in another place. There have been discussions about it in direct conversations between hon. Members on both sides and those concerned with these matters, and officials of the House have been involved and consulted. The most meticulous consideration has been given to the subject before it came here. But, as the hon. and learned Member has pointed out, this Resolution affects the present Session only, and it will be open to him to return to the topic next Session when a similar Resolution is moved.
22 This is a modest and useful experiment, and I am glad that a fair wind has been given to this application in regard to the only Bill which it is contemplated will be subject to the procedure this Session. I give that undertaking and assurance to the hon. Member for Crosby (Mr. Graham Page) if it will give him any comfort, as I understand it will. I may also give him the undertaking for which he asked, and which was given by my noble Friend in another place, that the amendments proposed by the Law Commission in this or any subsequent similar Bills will all be related to the consolidation. The proposed amendments will relate only to matters closely within the scope of the consolidation Bill then under consideration.
Complaint has been made that the Resolution is vague in its terms, and does not give sufficient guidance as to procedure, etc. to the Consolidation Committee, but perhaps I might remind the House that the original Motion is also silent as to how the Committee is to proceed.
§ The Attorney-General
I appreciate that it is dealt with in the context of that Act. But it is clear that the Joint Committee can deal with a Bill brought forward under these procedures as, indeed, with any other Bill within its proper scope.
I do not think that the Committee will have any difficulty in dealing with the matter. If it rejects a particular proposal of the Law Commission it will amend the relevant Clause, as it has power to do as the Committee to which the Bill has been referred by the House. I understand that the Joint Committee on the Highways Bill made several amendments without the benefit of express powers in its terms of reference, and I should have thought this to be an inherent power of a Committee to which a Bill is referred.
§ Mr. Graham Page
If the Joint Committee were presented with a Bill which contained recommendations for Amendments by the Law Commission and those Amendments altered the law, would the Committee under its present duties have to remove those Amendments from the 23 Bill, or report to the House that it had made new law? Is that the course it would take? Does it remove the Amendments from the Bill, or report to the House that it is, in fact, including new law into the Consolidation Bill?
§ The Attorney-General
The Committee would remove them from the Bill at that stage, and that would be the end of the matter. It has the power of exclusion and rejection, and would exercise that power in an appropriate case.
That is why I was somewhat surprised to hear the anxieties expressed by the hon. and learned Member for Buckinghamshire South as to the inadequacy of the supervision by the Joint Consolidation Committee. It is very experienced in these matters and very astute to see that a "fast one" is not being pulled by any Executive, whatever the political party nature of the Executive of the day, and this is a valuable contribution which the Joint Select Committee has rendered throughout its existence.
The powers of the House to amend will follow the ordinary rules of order. The ambit of an amendment will be restricted in that, I am told, the authorities of the House will take the view that, with the Long Title as it is, they will not accept Amendments at large, but only those relating to the Law Commission's proposals, so there is that degree of limitation upon the power of the House when the matter comes before it.
§ Sir J. Hobson
What happens to a Bill which contains Amendments not proposed by the Law Commissioners, but put in by the Joint Committee? It will then be a Bill to consolidate the law, with Amendments, some proposed by the Law Commissions and some by the Joint Committee.
§ The Attorney-General
But any amendments placed in the Bill by the Joint Committee will, in turn, relate only to Amendments proposed by the Law Commission itself. It would not be open to the House to embark upon fresh matters. The restrictions of this procedure are undoubted. It would be open to the Committee, if it thought fit, to amend the Bill so as to reject any of the recommendations of the Law Commission, or give effect to them in a manner different from that proposed in the Bill.
24 When the Bill reaches the Floor of the House, it will again be within the competence of the House to review the decisions of the Committee and discuss Amendments designed to reject a recommendation which the Committee had accepted, accept a recommendation what the Committee had rejected, or give effect to the recommendation in a manner different from that proposed in the Bill. That will be the extent of the powers given to the House when a Bill comes back to it.
We shall see how the procedure operates. Certainly, there is no intention on the part of the Government to rough-ride the House in this matter. It is important that we should get on with the process of tidying up the state of the Statute Book and I am sure that no view will emerge from this discussion to suggest that the House of Commons will stand in the way of reasonable experiments of this kind designed to improve the state of the Statute Book.
§ Mr. Graham Page
I cannot understand that restriction on the powers of the House. How is it that the powers of the House are to be restricted to accepting an Amendment, rejecting an Amendment, or moving an Amendment within the recommendations? This is consolidation with Amendments and up to now the House has always been allowed to discuss any Amendments to a consolidation Bill which was consolidation with Amendments.
§ The Attorney-General
I have given the House the view which has been conveyed to me by the officials of the House, who have given the matter the most careful thought. The view which will be applied is that, with the Long Title as it is, the Table will not accept Amendments at large, but only those relating to the Law Commission's proposals. I cannot assist the House more than that. In view of the anxiety of hon. Members opposite that the Government are seeking powers to short-circuit Parliamentary procedure, I would have thought that that assurance would be reassuring. That is the view which is taken and that is the approach which is made in dealing with these matters.
§ Mr. Ronald Bell
Surely a limitation on the powers of the House is not a 25 safeguard to the House. It is the other way round. We would like the House to be fully competent to review a Bill. Will the right hon. and learned Gentleman confirm that what will limit the powers of the House is the Long Title of the. Bill which, to come within this Motion, must be expressed to be a Bill to consolidate with recommendations? Is not that how the limitation will arise?
§ The Attorney-General
That is quite accurate. Accordingly, I hope that the House will give its support to the Bill.
§ Question put and agreed to.
That this House doth concur with the Lords in the said Resolution.
§ Message to the Lords to acquaint them therewith.