CRIMINAL APPEAL BILL [Lords] (Hansard, 23 April 1968)

§ The Solicitor-General (Sir Arthur Irvine)
I beg to move, That the Bill be now read a Second time.
This is a consolidating Bill which consolidates relevant Statutes commencing with the Criminal Appeal Act, 1907, which first established the Court of Criminal Appeal. Since that Act there have been, as the House knows, several enactments amending the law dealing with criminal appeals. Among these I may mention the Administration of Justice Act, 1960, which provided, inter alia, for an appeal to the House of Lords in a criminal couse or matter from the Court of Criminal Appeal, with the leave of that court or of the House of Lords, where it was certified that a point of law of general public importance was involved.
There was also, as the House will remember, the Criminal Appeal Act, 1964, which introduced the power to order a new trial on an appeal against conviction on the ground of fresh evidence, and in the same year there was the important Criminal Procedure (Insanity) Act.
Again, in 1966, there was passed the Criminal Appeal Act which abolished the Court of Criminal Appeal and transferred its jurisdiction to the Court of Appeal, which exercised it through its Criminal Division.
There were, therefore, in these circumstances a number of separate enactments which can most usefully for all concerned be consolidated.
The Joint Committee on Consolidation Bills has made certain Amendments which 175 seem to it necessary to improve the form of the Bill and to bring it into conformity with the existing law. It considers that the Bill is pure consolidation and represents the existing law. In these circumstances, I recommend the Bill to the House.

§ Mr. Graham Page (Crosby)
As the Solicitor-General has told the House, the Joint Committee on Consolidation Bills has reported that this Bill is pure consolidation and represents the existing law. The House is concerned only, therefore, with the question whether this is the right time to consolidate this branch of the law.
The Long Title to the Bill reads: An Act to consolidate certain enactments relating to appeals in criminal cases to the criminal division of the Court of Appeal, and thence to the House of Lords. If one turns to the table of derivations at the end of the Bill, one sees that it seeks to consolidate Statutes stretching over the period 1907 to 1967. It is in connection with the last Statute mentioned there, the Criminal Justice Act of 1967, that I think some problems will arise over this consolidation. Schedule 4 of the 1967 Act——

§ Mr. Speaker
Order. With respect, the hon. Member cannot argue that one of the Acts which is to be consolidated should not be. He cannot argue that on Second Reading. The hon. Member can argue whether the Acts which are to be consolidated should be consolidated or left as separate enactments.

§ Mr. Graham Page
With respect, Mr. Speaker, I was not proposing to go into the merits of the 1967 Act. This is not an easy argument to put forward, but I am endeavouring to put it forward logically. Under a provision for the commencement of this consolidation Measure it is declared that it shall take effect from some past date, and not in the future. I have to follow this through step by step, and I hope that I may do it logically.
The 1967 Act removed doubts and anomalies in the existing law, and was a useful preliminary to consolidation. That Act received the Royal Assent last July, and Schedule 4 carried out a preliminary to this consolidation Bill. That was admirable. That is what I have so frequently advocated in connection with con- 176 solidation Bills, and what the Government have so frequently failed to do. They have failed, before consolidation, to introduce amending legislation to the existing law so that the consolidation would be a tidy operation, and would not consolidate anomalies in the law.
That was done by the 1967 Act, but that Act is not wholly in operation yet. Under Section 106 it will come into operation on a date to be appointed by the Home Secretary. The Joint Committee was informed that the intention was that the 1967 Act should come into operation at the same time as this consolidation Bill, but simultaneously would be repealed. On page 2 of the Minutes of Evidence before the Joint Committee the draftsmen of the Bill told the Committee: The section of the Act of 1967 which introduces these amendments"— that is to say, disposes of the anomalies in the existing law— has not yet been brought into force; it will come into force on the 1st September this year and will simultaneously and automatically bring into force the three consolidations before the Committee this afternoon. That section and the greater part of the amendments in Schedule 4 will be automatically and instantaneously repealed. In fact, that Section is not to be brought into operation on 1st September, 1968, but has already been brought into operation. It has been brought into operation by Statutory Instrument No. 1234 of 1967 which was made on 7th August, 1967. Schedule 3 of that Order brought into operation Section 98 and Schedule 4 of the 1967 Act. It brought them into operation on 1st April, 1968.
Now comes the problem and I apologise for having to do this sort of detective work on a consolidation Bill. Turning to the Bill itself, by Clause 55, which is the Clause which deals with the Short title, commencement and extent", it is said, in subsection (2): This Act shall come into force on the day appointed under section 106(5) of the Criminal Justice Act 1967 for the coming into force of section 98 of that Act. But that day has already been appointed. Here it is in black and white by the Statutory Instrument No. 1234. The Instrument starts by saying: In the exercise of the powers conferred on me by section 106(5) of the Criminal 177 Justice Act 1967(a) I hereby make the following Order:— (1) The provisions of the Criminal Justice Act 1967 specified in the Schedules to this Order shall come into force on the dates mentioned in the headings of those Schedules. One turns to Schedule 3 for the dates of the provisions coming into force and the date is 1st April, 1968. So, the consolidation Bill before us states that it shall come into operation on 1st April of this year, a date which has already been passed.
It seems perfectly clear from Statutory Instrument 1234 that Section 98 has already been brought into operation, whereas Clause 55(2) of the Bill says that this Bill will come into operation on the (late when Section 98 of the 1967 Act is brought into operation. I hope that the Solicitor-General will be able to explain whether the position is as I have tried to set it out.
The second point in regard to the form of the consolidation by this Bill arises on Clause 47. That Clause deals with legal aid on appeals. One reads solemnly through six subsections——

§ Mr. Speaker
Order. The hon. Member knows that he cannot on the Second Reading of a consolidation Bill discuss the details of the Measures being consolidated. What he can argue is that we should or should not consolidate the Measures.

§ Mr. Graham Page:
With respect, that is what I am trying to do. By subsection (7) of Clause 47 of this Bill that Section is repealed. It is enacted by the Bill and is then repealed as from the day appointed under Section 106(5) of the Criminal Justice Act, 1967. The day appointed under that Act, again by Statutory Instrument 1234, is 1st October, 1968, with the result that this Clause of the Bill will be in operation for a few weeks and then will be repealed by itself. I think that this is a good reason for saying that it is inappropriate to put this provision into a consolidation Bill.
178 The day appointed as stated in subsection (7) of Clause 47 is not a day which has been fixed by Statute, not a day laid down by Parliament, but a day which has been set down by the Home Secretary in a Statutory Instrument. I should have thought the right thing to do was to make the Statutory Instrument operate so that an unnecessary Clause should not be put in a consolidation Bill. Why cannot Part IV of the 1967 Act be brought into operation at once and the new conditions as to legal aid on appeal be inserted in this consolidation Measure?
If the Bill remains as it is, it will contain a useless Clause, Clause 47, as to legal aid on appeals, a Clause which will operate for a few weeks and then die. One will then have to look outside this consolidation Measure for the current law on the subject. This is a fatal defect in a consolidation Measure of this kind.

§ The Solicitor-General
May I have leave to speak again? The point which the hon. Member for Crosby (Mr. Graham Page) has raised on Clause 55, if there be substance in it, which I do not acknowledge, would be appropriately treated by an Amendment which the hon. Gentleman could put down at the Committee stage. Similar considerations appear to apply to what he has said about Clause 47, which, even, on his acknowledgement, has at least a short-lived value.
I see nothing in the points which the hon. Gentleman has raised which makes me desire to derogate in the slightest from my recommendation to the House to give this valuable Bill a Second Reading.