HC Deb 14 November 1967 vol 754 cc377-88

Order read for resuming adjourned debate on Question [9th November]: That the Lords Message [7th November] communicating the Resolution, That it is desirable that, in the present Session, the following classes of Bills be referred to a joint Committee of both Houses of Parliament:

  1. (1) All Consolidation Bills (whether public or private);
  2. (2) Statute Law Revision Bills;
  3. (3) Bills prepared pursuant to the Consolidation of Enactments (Procedure) Act 1949, together with any memoranda laid pursuant to that Act and any representations made with respect thereto;
  4. (4) 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 now considered.

Question again proposed.

Mr. Speaker

I have not selected the Amendment on the Order Paper.

10.20 p.m.

Mr. Graham Page (Crosby)

I was rising, I thought, before you put that Question, Mr. Speaker. I was a little late perhaps because I was considering what you said before that about the Amendment.

Mr. Speaker

Order. Does the hon. Gentleman wish to debate the Question, That the Lords Message be now considered?

Mr. Page


Mr. Speaker

I will forget what I said.

Mr. Page

I am sorry, Mr. Speaker, if I was late in rising. I do wish to debate the Question, That the Lords Message be now considered. We on this side are concerned about paragraph (4) of the Resolution— 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 a joint committee. This is a repeat of a Sessional Order which came before the House late last Session, on 26th June. It came before the House for the purpose of dealing with a particular Consolidation Bill, namely the Sea Fisheries (Shellfish) Bill, with which it was desired to include, to make a good Consolidation Bill of it, certain recommendations from the Law Commissions. We on this side agreed that it was a very sound idea to include in Consolidation Bills recommendations from the Law Commissions if, by that inclusion, we would produce a better Bill. We made the reservation that such recommendations should be debated by the House.

Mr. Speaker

Order. Perhaps the hon. Gentleman will help me. There are two Motions before the House. One is that we consider the Resolution from the other place. The other is that we concur with it. It seems to me that the hon. Gentleman is addressing his remarks to the Motion which has not yet been moved.

Mr. Page

I think that I am, Mr. Speaker. I ought to have waited for you to put the second Motion. I am obliged to you, and I apologise.

Mr. Speaker

I am grateful to the hon. Gentleman.

Question, That the Lords Message [7th November] be now considered, put and agreed to.

Lords Amendments considered accordingly.

Question proposed, That this House doth concur with the Lords in the said Resolution.—[Mr. Armstrong.]

Mr. Graham Page

I need not repeat what I have already said wrongly on a previous Motion, because the House knows the point. We reserved our right to raise this matter again when we had seen how the procedure would work. When the proposal was put before the House on 26th June that we should include in Consolidation Bills recommendations from the Law Commissions, we were given an undertaking by the Attorney-General that the House would have an opportunity of debating any of the recommendations so included.

The right hon. and learned Gentleman said this: 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 to that proposed in the Bill. 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 that 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"—[OFFICIAL REPORT, 26th June, 1967; Vol. 748, c. 23–4.] I think it was clear from that that we understood from that debate that amendments of the law inserted in the Consolidation Bill on the recommendation of the Law Commissions would be debatable by this House, despite the fact that they were in a Consolidation Bill. But, for some reason, our Sessional Order must have been defective in its wording because when the Sea Fisheries (Shellfish) Bill—this terrible tongue twister—came before the House on Second Reading we observed that a recommendation from the Law Commission had been included in Clause 5(7).

I do not think I need go into the details of the recommendation, but it was recommendation No. 3 of the Law Commission, and it appeared in lines 3 to 5 of Clause 5(7) of the Bill. In Committee an Amendment was on the Order Paper to leave out those very lines. If this was not within the undertaking given by the Attorney-General, I do not know what could have been. All that the Amendment sought to do was to leave out the very recommendation which the Law Commission had made, which the Committee had inserted into the Bill and to which an Amendment was tabled, for the purpose of debate, to leave out that recommendation.

I am not questioning in any way the fact that that Amendment was not selected. I asked the Deputy Speaker at the time for a Ruling, and he said that it did not come within the type of Amendment which could be debated on a Bill of this sort. If that is so, then the Sessional Order of the last Session must have been wrong in its wording because it did not carry out the Attorney-General's undertaking, and if we repeat it in the same words in this Session we may be faced with the same thing again in a Consolidation Bill. It was certainly not what the Joint Committee itself had understood.

The Joint Committee debated this point for some time. I think I should quote the Chairman of the Committee in summing up what the Committee understood it was doing when it put the Law Commission's recommendations into the Bill. I quote from page 3 of the Joint Committee's Report: I think it is, and if I may say so, neither House is bound in the same way as you are under the 1949 procedure, because if you approve the Lord Chancellor's Memorandum, that does in fact alter the law and it cannot be debated; whereas here all the alterations to the law which are recommended by the Law Commission and approved by us remain open for debate, so that the House are in a much freer position than they are under the 1949 Act where they are bound. The Committee understood, when it was putting the Law Commissioner's recommendations into the Consolidation Bill, that it would be open to this House to debate them. The whole problem could be solved if it were clearly recognised that a Bill which includes recommendations from the Law Commission is a Bill to consolidate the law with Amendments. The House would then be free to debate those Amendments which are new law, coming before the House for the first time.

As the House will know, there are three types of Consolidation Bills. First, there is the pure Consolidation Bill none of which is open to debate in this House. We only debate whether it is right to consolidate or not. We do not debate the details of the Bill. Second, there is the Consolidation Bill with minor corrections and improvements under the 1949 legislation. We accept those minor corrections and improvements as existing law and we are not entitled to discuss or debate them in the House. The third class is the Consolidation Bill with Amendments, when it is open to the House to debate the Amendments.

I hope that we can have an assurance that a Consolidation Bill which includes recommendations from the Law Commission will in future be treated as a Consolidation Bill with Amendments and that we shall be assured that the Sessional Order will be so worded that the House will have the power to debate any additions to the law which are made on the recommendations of the Law Commission.

10.31 p.m.

The Solicitor-General (Sir Arthur Irvine)

It is understandable and entirely right that careful attention should be paid to a new procedure for consolidation with Amendments recommended by the Law Commissions. I therefore welcome the attention that is being paid to this matter by the Opposition and by the speech of the hon. Member for Crosby (Mr. Graham Page). I should make it clear that the interpretation of this procedure given by my right hon. and learned Friend the Attorney-General in his speech on 26th June last, to which the hon. Member has referred, is still our interpretation. There is no kind of intention to withdraw from that.

The difficulty arises, I understand, that whilst that interpretation remains our interpretation, since my right hon. and learned Friend spoke about this matter there has been the experience of the House in connection with the Sea Fisheries (Shellfish) Bill. As I understand the position, however, it is not perhaps easy for me to deal with that matter because of the extent to which any treatment of that problem might encroach upon the matter of Rulings which came from the Chair.

Perhaps the most useful thing that I can do in this situation is to reiterate, as, I trust, I can very shortly, the Government's objective in this procedure. I think and I very much hope that both sides of the House will be at one in their approach to this matter in their sense of the potential value of the procedure if it develops properly. It has at present an experimental character, as we can all recognise. I suggest to the House that the right course is to see how this matter develops on future occasions. I would not at present be disposed to accept that the existing situation in any way necessitated or made desirable an amendment or revision of the terms of the Sessional Order.

The target in this procedure—there is, I think, no controversy about this—is to achieve satisfactory consolidation. That is not achieved by what has been called scissors and paste consolidation without any amendments of the law, nor in many instances, in our view, can it be achieved by the 1949 Act consolidation with corrections and minor Amendments. On the other hand, a consolidation Bill which is described in its Long Title as a Bill to consolidate with Amendments will, in the nature of things, often take an inordinate amount of time, and give rise to a state of affairs which will discourage consolidation altogether.

It is in this situation that it seems desirable to the Government to follow a via media and to introduce the type of consolidation referred to in the Resolution from another place with which this House concurred on 26th June last, that is, consolidation with amendments recommended by the Law Commission.

The merits of the Resolution were considered in some detail by the House then, and by virtue of the Resolution the Sea Fisheries (Shellfish) Bill was referred, as the hon. Member for Crosby has just reminded us, to the Joint Committee, and the latter stages of that Bill were concluded just before the end of last Session. It worked out, as it seemed to us, on the whole very satisfactorily. The hon. Gentleman who raised points on the Bill did not, I think, attempt to nullify amendments which were attributable to the Law Commission's recommendations.

It had been hoped that in the circumstances the House would have thought it right to pass this Motion now without further ado. This is because the process referred to paragraph (4) of the Motion is regarded as a valuable and constructive step forward in the process of satisfactory consolidation, and it would be welcome to have at the back of us, so to speak, the authority of the House to refer to the Joint Committee Bills to consolidate enactments with amendments giving effect to Law Commission recommendations. It is not as if we have any particular consolidation Bill in mind at the present time and for which this procedure is specially appropriate. It is only, as I say, because we regard this method of consolidation as constructive and valuable that we bring this Motion before the House so that the procedure may be available should the need arise.

The House, under this procedure, is free—here I venture to reiterate what my right hon. and learned Friend said in the debate in June, and which has been referred to—free to reject recommendations of the Commission which the Committee has accepted, to accept a recommendation which the Committee has rejected, or to give effect to a recommendation in a manner different from that proposed in the Bill as reported by the Joint Committee. There is, in other words, considerable elbow room for important amendment without our running into the quicksands of delay and uncertainty which attach to consolidation with amendments at large and not limited to commendations by the Law Commission.

I suggest that the House would do well to see how it works. When we have the recommendations of a body like the Law Commission, and the scrutiny of the Joint Committee, and the House free to follow the courses I have referred to, we really do have a good many very important safeguards which would, I hope, allay the anxieties of hon. Members. The endeavour to achieve satisfactory consolidation is one which we should pursue with diligence. The method referred to in paragraph (4) of the Motion is one method. I remember that another method was usefully applied to the highway law in 1958. In that instance the Minister appointed a Departmental Committee to advise him, and I had the privilege of serving on it. There are different ways of tackling the problem, but the method referred to in paragraph (4) has great promise, where the Law Commission is, as it were, doing what the Departmental Committee did in the case of the highway Bill which I have instanced.

I hope, therefore, that the House will support this Motion, and I hope that the hon. Gentleman the Member for Crosby and others who have expressed anxiety about this will feel that here we are concerned with an objective upon which we are all agreed, that the safeguards are substantial, that the nature of the thing is inherently experimental, and that by and large it will be best to go forward in the way proposed in the hope that, as we think will be the case, advantages will accrue.

10.40 p.m.

Sir John Hobson (Warwick and Leamington)

This is the first opportunity that. I have had of conveying publicly to the Solicitor-General my pleasure at his appointment to an ancient and honourable office and to wish him not long tenure of that office, but, at any rate, a happy one while it lasts.

We are grateful to him for the care which he has given to this matter, but, while I share with him entirely the belief that both sides of the House are anxious to find a convenient method by which we can put into legislative form consolidation Measures with Amendments proposed by either one or both of the Law Commissions, I am unable to share his confidence that this procedure will work out in future satisfactorily.

I would much prefer to have seen the Sessional Order provide that such consolidation Measures, after reference to the Joint Consolidation Committee, should be treated, at least in this House, in the same way as ordinary Bills to consolidate the law with Amendments, whether such Bills are proposed by the Law Commissions, the Transport Commission, or by anybody else.

In the last Session we had the unhappy experience of my hon. Friend the Member for Crosby (Mr. Graham Page) trying to move an Amendment and being prevented. As I understand it, the advice given by the Officers of this House to the Lord Chancellor before this procedure was ever embarked upon was upon the basis that Members of this House would not be able to move Amendments which disagreed with proposals to amend the law made by the Law Commissions. That means that this House will be left in the awkward position of either rejecting the proposals of the Law Commissions and leaving the law in what they may regard as an unsatisfactory state or of accepting a proposal made by the Law Commissions which may, I frankly concede, in 80 per cent. of cases be correct and sensible, but which may not on the whole be very satisfactory on other occasions.

It is not satisfactory, in my view, that this House, which is responsible for legislation, should either have to accept a proposal which it does not like or leave the law in a condition which it regards as unsatisfactory and cannot itself, by its Members, put forward its own proposals for ways in which the law may be improved.

This could be done if Bills of the nature which we are discussing tonight were treated for all purposes in this House in the same way as other Bills which are intended to consolidate and amend or to consolidate with Amendments. I very much regret that the Government have not felt it possible to arrange for a Motion that would give that liberty for dealing with these Bills in this House when this procedure is followed in future.

If the Joint Consolidation Committee proposes certain Amendments, it still seems doubtful whether we are able to disagree in this House with, for instance, the proposals of the Law Commissions and adopt proposals which have been put forward by the Joint Consolidation Committee. That must be an unsatisfactory procedural position for this House to find itself in. It is an abnegation of the powers of this House to control legislation and say what ought to be done if we either have to leave the law as it is, though unsatisfactory, or adopt a proposal of the Law Commissions which may also be regarded as unsatisfactory.

I am sorry that the Solicitor-General has not been able to suggest a method by which we can be certain, before we part with this matter tonight, that such procedural difficulties will not arise in future.

10.45 p.m.

Mr. Michael English (Nottingham, West)

Like the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson), I should like to congratulate my hon. and learned Friend on his new and honourable appointment. I should like, too, to congratulate the hon. Member for Crosby (Mr. Graham Page) on raising this issue. I see why he has raised it. He is endeavouring to ensure that the House is able to debate Amendments of substance which go rather beyond mere consolidation, but it comes very ill from him, and he has put himself in a peculiar and foolish position tonight, because only half an hour ago I was forced to withdraw an Amendment on the same lines, because of the objections of the Opposition Front Bench.

Whether the hon. Gentleman realises it or not, it is a fact that, solely because of the actions of the Opposition Front Bench, for the first time in history it has become possible for a Bill containing wholly new legislation, not merely consolidation, with Amendments recommended by the Law Commission, to be passed by the House without discussion on the Floor. That was not the desire of the Government. It was not the desire of back benchers on this side of the House, or on the other side.

I wholly approve of the comments of the present occupants of the Opposition Front Bench, but they ought to get together with some of their colleagues, because during the latter half of this evening, at the behest of the Opposition Front Bench, we have been arguing that the House should debate something, while earlier this evening, again at their behest, we prevented ourselves from doing the same thing. They ought to get together and decide what they want.

10.47 p.m.

Mr. Charles Fletcher-Cooke (Darwen)

I was mystified by the opening passages of the Solicitor-General's address, but I would like to add my small amount of congratulation to him on his appointment.

The hon. and learned Gentleman adopted the view that it was the desire of his right hon. and learned Friend and himself to fulfil to the utmost the pledge which was given in June, that he wished the House to have the full right not only to reject the Law Commission's Amendments, but to move Amendments of its own on that topic. The Solicitor-General is in the seat of power now, and he who wills the end must provide the means. It is not good enough to say, "This is what we want, but we do not know whether we can give it". That was the hon. and learned Gentleman's attitude, but he is now in a position in which he can amend the Standing Order, or cause it to be amended, in such a way as to put it beyond doubt that the undertaking solemnly given, and reaffirmed today by himself, will be available to hon. Members when we come to discuss consolidation with Law Commission Amendments as is proposed.

I cannot understand the veiled references to the fact that the Solicitor-General would be treading on delicate ground if he went further into that matter, there having been a Ruling from the Chair in the contrary direction. There has been a Ruling from the Chair in a contrary direction, and that makes it necessary to have a new Standing Order to see that it does not happen again. What is the difficulty about that? Will the Solicitor-General tell us frankly why we cannot have what we want to put this matter beyond doubt and in accordance with his wishes and those of his right hon. and learned Friend?

10.49 p.m.

Sir Hugh Lucas-Tooth (Hendon, South)

I cordially agree with the desires and intentions expressed by the Solicitor-General, but I still feel some disquiet about the effect of this Motion. The Solicitor-General said that my hon. Friend did not attempt to nullify the Amendment proposed by the Law Commission during the debate on the Sea Fisheries (Shellfish) Bill. As I understand it, my hon. Friend did make an attempt. He put down an Amendment but that Amendment was not allowed, as being out of order. If that is the case the point made by the Solicitor-General is a bad one. The fact that he may think that the Chair was wrong—which is what he was saying—does not take us any further. The Chair having made this Ruling the effect is to rule out the possibility of Amendment.

That means that it would be possible for legislation to pass through this House without its being considered by any Member in the House, either on the Floor or in a legislative Committee upstairs. This is quite wrong in principle, and for that reason I hope that the Government will have another look at the wording. As I understand it, it is purely a question of wording, and of enabling the Chair to call suitable Amendments in order that a discussion can take place when necessary. In principle this is essential.

10.51 p.m.

The Solicitor-General

If I may speak again, by leave of the House, I thank the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) for his kindly reference to myself, and I thank other hon. Members also in that respect.

In answer to the points raised I shall give the most careful attention to the kind of Amendment to the Sessional Order which the right hon. and learned Gentleman appeared to adumbrate. There is no doubt about that. What I feel about the character of the proposal that he has in mind is that it would carry a risk of resulting in there attaching to this procedure the disadvantages which attach to consolidation with Amendments at large.

It is a genuine difficulty. One considers the arguments on either side on a point of this kind, and recognising that in this matter there is a large element of the experimental we are quite satisfied, on the whole, that the best course at this stage is to go forward in the manner proposed in the Motion.

I hope that all hon. Members who have given their thoughts upon this matter will recognise that the view taken is not taken out of lack of sympathy with their viewpoint but results from the sense that we think that this is an experimental process and that, as things are now, the best course is to go forward in the terms of the Motion.

Question put and agreed to.

Resolved, That this House doth concur with the Lords in the said Resolution.

Message to the Lords to acquaint them therewith.