HC Deb 15 October 1969 vol 788 cc528-52

Order for Second Reading read.

8.52 p.m.

The Solicitor-General (Sir Arthur Irvine)

I beg to move, That the Bill be now read a Second time.

This Bill is described variably, and usefully it may be thought, in its Long Title. It would be difficult, I think, to find a shorter and more effective statement of what the Bill is about than that Long Title contains. It states that the Bill is to promote the reform of the statute law by the repeal, in accordance with recommendations of the Law Commission, of certain enactments which (except in so far as their effect is preserved) are no longer of practical utility, and by making other provision in connection with the repeal of those enactments". The history of this Bill begins with the Law Commission Act, 1965, which set up the Law Commission and included among its duties the preparation of a comprehensive programme of consolidation and statute law revision. In the Law Commission's first programme of consolidation and Statute Law revision the Commission's approach to revision of the Statute Book is explained at length. The Commission said that the ordinary Statute Law Revision Acts with which we are all familiar have played a very helpful part in facilitating the production of a revised edition of the Statutes by striking out unrepealed provisions which have become inoperative.

The Commission expressed its opinion that there is room for a still more forceful approach and said that it proposed to work systematically through the existing Statutes with a view to recommending the repeal not only of matters which can be treated as inoperative, but also of matters which no longer serve a substantial purpose. It expressed the hope that this new approach to Statute Law Revision will not only reduce appreciably the number of Acts remaining to be consolidated but also facilitate consolidation by getting rid of those unnecessary provisions which tend to make consolidation difficult.

In May this year the Law Commission published its first Report on Statute Law Revision and the Bill we are now considering appeared as an appendix to that Report. I am sure we are all grateful to the Law Commission for the skill and energy with which it has tackled this exceedingly difficult task. I have spoken so far, for convenience, of the Law Commission, but I wish to pay tribute to the assistance of the Scottish Law Commission during consultations about the Bill.

The Bill has been given very careful consideration by the Joint Committee on Consolidation of Bills, which heard evidence on six days. It will be seen from the Report that it subjected the Bill to detailed criticism and made about 30 Amendments. I am sure that this is a guarantee that the Bill carries out what is promised in its Long Title, the repeal of enactments which are no longer of practical utility. I am sure that we would all wish to pay tribute to the members of the Joint Committee for their hard work, which has saved the House having to examine every part of it in more detail.

There must in this type of work be great reliance on the investigation by experts of the content of Bills. Such reliance does not involve the slightest derogation from our obligations as legislators. This theme has interested me, as it has interested other hon. Members. Only this morning, I thought for my own interest that I would pick out two of the long series of Statute Law Revision Acts and I chanced upon those of 1927 and 1963. Taking these at random, I found that the 1927 Act, which was extremely extensive, passed without a single word of comment, criticism or even observation in the House, on the basis of what, I suggest, is a perfectly intelligible and correct reliance upon expert work.

I put forward that view of the matter anticipating—it may not occur—possible comment upon what is proposed in a Bill of this kind and to express the hope that the House will very much consider the merits of the whole matter in the context of the recommendations which we have from so distinguished a body as the Joint Committee.

Of course, there has been a great deal of consultation about this Bill. The Law Commission's Report records that the Church of England authorities were consulted, and it will be observed that nearly three pages of the Repeals Schedule is taken up with ecclesiastical enactments. The Report also records discussions with various other bodies, including those representing professional and academic lawyers.

The Bill, which begins by repealing a statute of 1297 and continues through the centuries, repealing on the way many Statutes of considerable historical significance and importance, is, of course, a veritable storehouse of legal treasure. The aim of all those who have been concerned with the preparation of this Bill has been to ensure that that treasure becomes something of historical interest only, which we believe can be properly and rightly effected. The repeal of an enactment does not mean that it ceases to be part of legal history. We shall have the same regard for these enactments when they are repealed as we have now. They will be available in the Statutes at large. The effect of this Bill will be to enable a slimmer edition of the Statutes revised to be prepared and to make the task of the consolidation of the statute law simpler. This will mean that one will not have to wade through pages of enactments which have no practical utility but which one may mistakenly believe it is still necessary to search.

Therefore, I recommend this Bill for Second Reading, recognising its importance, recognising the reliance placed upon the Joint Committee in the course that I recommend, believing that it is of the very greatest value that wherever possible there should be a paring down of our statute law and the elimination from its corpus of elements that have lost practical utility.

9.1 p.m.

Mr. Ian Percival (Southport)

Let me say at once that I shall end what I have to say by supporting this Motion, but I think it appropriate and desirable first to add something—and not necessarily just a little—to what the Solicitor-General has said. I agree with him that this is an important Measure. It is an important kind of Measure as well as being an important Measure in itself. It is fair to say that there are very few people in this House who know much, if anything, about it. That, I think, the Solicitor-General may also agree with.

Having participated in six out of the seven sittings of the Standing Committee upstairs, I have the advantage of having learned a little about the Bill, and we on this side of the House are also in the happy position that, whatever I say about the Bill today, nobody can say that we on this side of the House are in any way ill-disposed towards it.

If one thing is perfectly clear, it is that but for this side of the House the Lord Chancellor would not have got this Bill. I think it is worth drawing attention to this fact because we on this side of the House hope that this will not happen again.

For those who have not served on the Joint Committee on Consolidation and, therefore, do not know what happens there, let me preface what I have to say by pointing out that in order for there to be a quorum, there must be three of the noble Lords and three from this House present. I should like to echo the Solicitor-General's tribute to the Committee so far as it applies to the noble and learned Chairman of the Committee, who was quite indefatigable and an enormous help to the Committee, and to the noble and learned Lords who are members of that Committee who on every occasion produced their quorum, and more. But by the same token I ought to draw attention to the fact that if the Government want to get a Bill of this kind, they really must ensure that there is a quorum from the Commons, including some of their own Members.

The Solicitor-General does not look very pleased at my saying that. He may not be aware that there were occasions when that Committee met at 10.30 in the morning and, because there was not a quorum on the Commons side—there were Commons Members from this side of the House but the Government had not ensured that there was a quorum on the Commons side—the Committee was kept waiting on one occasion till late in the morning and on another occasion it never did get started. I am sure that the hon. and learned Gentleman would not have wished this to happen any more than others of us, and I hope that he will do what is in his power to see that such things do not happen again.

Because of what happened, the Committee became very behindhand in its consideration of the Bill. At its very last sitting, if the Committee had not completed its consideration of the Bill that day, it would not have been possible for the Bill to go through its remaining stages. I hope that the Solicitor-General is aware that the entire Commons membership present that day was from this side of the House. There was not a Government Member of the Commons contributing to the quorum. Thus, if any one of the Commons Members of the Committee from this side had walked out—there were three of us—the business of the Committee would have come to a halt and the Bill would have died.

As I say, whatever criticisms I may make of the Bill, it will be understood from those facts alone that we, at all events, have shown great good will towards it. I think that we can go so far as to claim credit for what is in it, for if we had not been there there would have been no Bill, and we can also claim credit for what is not in it, for it was Members from this side who were most active in ensuring that there were deletions from the Bill.

I come now to three criticisms. It is all very well our patting each other on the back and saying what a good job has been done. A good job has been done. But, to echo what Mr. Speaker said at one point during our proceedings yesterday, debate can be too good-humoured. If one is to serve a useful purpose on occasion, one looks for criticisms, for the weaknesses and bad things, not always the good.

There were three criticisms in this case. First, we have some doubt about the value of the whole exercise. A good deal of work needs to be done to our statute law. In particular—I think that I can say this safe in the knowledge that there will no quarrel with it—current legislation could do with some improvement. It is common for a Government Bill to have a large number of Government Amendments made to it before it is passed, Amendments to improve the drafting and language, if nothing more. Even so, I do not imagine that any of us would be all that proud of some of the legislation which has passed out of this House in recent years, immediately to become the subject of difficult and protracted litigation.

I throw out the suggestion that such personnel, such expertise and such facilities as are available for considering the improvement of our statute law might be more usefully employed, if machinery could be devised to that end, in ensuring the greater excellence of current legislation than in removing out of the way legislation which ex hypothesi does not matter since the whole basis for removing it from the Statute Book is that it no longer has practical use so that to the practitioner it does not make much difference one way or another. It enables one to tidy up the Statutes revised, and if we could do all the things that need to be done in connection with our Statute Law, that would be a very useful task. But is this really the best use of our resources? Are there not perhaps better uses in the improvement of our Statute Law?

Second, it may well be that all concerned in promoting this Bill have gone too far, too fast, and, in many instances, in the wrong directions. I shall not enlarge upon that now, as it will be more convenient for me to do so in a moment.

Third, I must voice this suspicion. There have been reasons to believe that some of the authors of this legislation have had a rather more far-reaching purpose than merely tidying up the Statutes revised. I think that I can best explain what I mean by adding a little flesh and bones to the history of the matter as recited by the Solicitor-General.

The Bill owes its origin to the Law Commission, acting in pursuance of what it said it would do in its first Report. In March, 1968, it published a draft Bill. It was not one that was presented or printed in this House at that stage. The Law Commission printed it, and issued a Press notice saying that it had been drafted, giving an indication of some of the things it did, and saying where it was available. We on this side of the House warmly welcome this step. One of the troubles with current legislation is that often there is no time for it to be sufficiently considered before it starts going through the procedures of this House. I congratulate the Law Commission on this step, which may well be a precedent to be adopted wherever possible.

It proved its usefulness in this case. In the Press notice the Law Commission announced that it was proposed in the draft Bill to abolish freehold. The draft Bill did have provisions abolishing freehold tenure, and that would have been an absolutely sweeping change. It is difficult to see what connection that had with Statute law repeal, or the purpose of this Bill as correctly outlined by the Solicitor-General today.

We should take warning note of this. If we are to have Statute Law repeal Bills, they should be confined to Statute Law repeal, and we should be careful to ensure that no attempt is made to introduce sweeping changes of this nature, which might well have gone unobserved but for the Press notice, and had not this been noticed by practitioners who spend their lives in conveyancing and the like, and who really know what they are talking about as regards freehold. They thought it was crazy, and immediately pursued with the Land Commission the question of precisely what was proposed.

I am credibly informed by those whom I regard as knowledgeable that the proposal to abolish freehold was absolutely revolutionary, and could not conceivably have been put forward by anyone with any practical knowledge of freehold law and conveyancing.

When I say that, I do not mean to imply any criticism of the Law Commissioners themselves. Obviously, they cannot be responsible for everything that comes from their office and, to do justice and give credit where it is due, as soon as practitioners like Mr. George Newsom, Q.C., Mr. Victor Hallett, and Mr. Ted Nugee, Chancery counsel who have practised for many years in that field, having seen the Press notice, drew the attention of the Law Commissioners to the seriousness of what was proposed, the Commissioners dropped it from the Bill.

Likewise, there were in the original draft Bill Statutes which it was proposed to repeal, important statutes like Quia Eurptores and De Davis Conditionalibus which, though not the sole topic of conversation in all the places we frequent, are, to those who practise in the law of property and particularly in connection with trusts, Statutes which they know to have not just a little practical significance left but to have great practical significance. Again, when this was drawn to the attention of the Law Commissioners and its experts by the practitioners, they were immediately dropped.

So we got the Bill presented to the House and printed in April, 1969, to which a number of substantial changes had been made because of the consultation which followed the adoption of the procedure of making the draft available before it ever became a Bill before this House. A useful purpose was thus served by the adoption of that procedure.

But it leaves behind the question "What were the authors of the Bill thinking of in the first place when they included in their original draft Clauses abolishing freehold which was nothing to do with statute law repeal and would have introduced quite revolutionary concepts into the law of property?" Why were such Clauses included in a Bill repealing a mass of Statutes which were supposed to have no practical effect?

When we got the Bill as presented to the House, as a result of the preliminary conversations, those very important provisions had gone. In addition, quite a lot of other provisions to which I need not refer in detail had also been removed. There were, however, still an immense number of Statutes of parts of Statutes scheduled to the Bill for repeal, and the question arose as to how to deal with a Bill of this kind.

The noble Lord, the Lord Chancellor, courteously consulted us on our side as to what would be an appropriate method to deal with such a Bill because—and I do not think I do him injustice when I say this—our impression is that he felt, as we did, that this was quite a new exercise and that there was no established procedure wholly suited for the task of considering a Bill like this. So, by agreement between the two sides, a resolution was passed referring the Bill to the Joint Committee on Consolidation. But it is not consolidation at all. It is nothing to do with consolidation. That of itself raised the question whether the appropriate course in future is to refer a Bill of this kind to that Committee.

In appointing their members to the Joint Committee on Consolidation both sides have in mind the special tasks which that Committee has to perform. Broadly speaking, it is a Committee with a task which is defined by Statute. When we have a Consolidation Measure which is consolidation under the 1949 Act, what we have to decide is whether minor corrections and improvements are in fact within the definition in the 1949 Act, and that is a lawyer's job. It is therefore perfectly reasonable and sensible for that Committee to be composed entirely of practising lawyers nominated by both sides.

However, when we come to consider a Bill of this kind where ex hypothesi what is proposed is the repeal of statutory provisions which still have some effect in law, but which are said no longer to have any practical use, a value judgment is involved, a judgment as to whether in fact they have any further use. With the consolidation Measures sent to us Session by Session there is no element of judgment. With this kind of Bill there are two stages. First, the lawyers have to say whether a statutory provision has any effect. But that is already done in the case of a Bill like this, because one starts from the proposition that many of the statutory provisions are still effective. The question, therefore, becomes whether they should be repealed although as a matter of law they still have some effect. I question whether that is a matter solely for lawyers.

The other aspect is that, contrary to the usual custom in ordinary Standing Committees, in that Committee we do not have the assistance of one of the Law Officers. I ask the Law Officers and the Lord Chancellor when they are considering how Bills like this should be treated in future to consider whether that is not something to be taken into account. On this Committee we were in some doubt about precisely what our task was and precisely how we should go about it and there were occasions when it might have been of great assistance to have had a Law Officer present.

The Committee had not had a Bill of this kind to consider before—I do not know that any Committee has had—and the first thing we had to decide was how we were to approach all these repeals, how we were to decide whether to allow them to stay in the Bill. There was a question of what we were entitled to do with them anyway, but we concluded that if we did not like them, we should strike them out and leave it to the House to correct us if we were wrong. That does not seem to have done any harm. We had to consider what sort of test we were to apply to each of the proposals in the Bill.

The Law Commission made it clear that it had acted on the basis that the onus was upon anyone wishing to keep any one of these provisions to show that it had some use and ought not to be repealed. The Committee concluded that it could not possibly accept that basis.

I do not think that any Committee of this House could. It would mean that any Committee of the House, or a Committee of the whole House considering such a Bill would have to accept the recommendations of the Law Commission or could only strike out any of them if it satisfied itself that that one had some useful purpose left. That would be an impossible task. The Committee decided that it had to look at every single one of them, but that the onus must be reversed, it must lie on those who sought to repeal a provision to show, at least prima facie, that it no longer had any useful purpose.

I take a little time over this because I hope that what has emerged from the labours of the Bill will be accepted in future, that the onus should be the opposite from what it was when the Bill started. Once we accept that proposition, it makes the whole exercise very different. It means a great deal more work for the Law Commissioners and the parliamentary draftsman who has the misfortune to find himself with a Bill of this kind in his lap. I want to make it clear that nothing I say is in any way a criticism of any individual.

What I am trying to do is to draw the attention of the House to the enormity of the task facing everyone concerned with a Bill like this. There was no one for whom our hearts bled more frequently than the parliamentary draftsman who found himself with this Bill and who gave us such enormous assistance with it. A very detailed note was produced, but despite all the help that the Law Commissioners and the parliamentary draftsman could give us, they could not give us, on their own, all the help we wanted. In this instance we called eight witnesses.

Happily, we had the opportunity to call very knowledgeable witnesses, because a number of practising lawyers had interested themselves in this and expressed their views either to the Law Commission, other lawyers, or the Chairman of our Committee. As a result, we were aware that they might have something to contribute, and their evidence was very helpful. Consequently, 30 alterations were made, 28 of them being amendments, one of them being the deletion of a Clause.

In the Explanatory Memorandum to the Bill, as reprinted as amended, it says: The attached Bill is different from that Bill"— that is the first draft Bill— in that the Joint Committee on Consolidation amended that Bill by removing the original clause 4 and a few repeals. If I had read that without knowing anything about what had happened I would have thought that very little had happened. It is only right that the House should know that there were 30 Amendments, not just minor ones, changing commas or full stops. They were a decision of the Committee that something which it was proposed to repeal ought not to be repealed.

Attention should be drawn to the fact that we left out Clause 4. I call the Solicitor-General's attention to this because we should learn something for the future. Clause 4 as printed read: Any common law right to enclose or approve common land is hereby abolished. You, Mr. Speaker, and the House will be happy to know that it is unnecessary for the making of my point to say anything about enclosing common land, which is a highly technical subject. It says: Any common law right to enclose … land is hereby abolished". I question what that has to do with statute law repeal.

We went into this matter in a little more depth in Committee. A gentleman from the appropriate Ministry explained to us what was happening. But I think that basically the reason why the Clause was deleted was that hon. Members, and certainly myself, found it difficult to see what place the abolition of a common law right had in a Statute Law repeal Bill. The Solicitor-General may care to comment on that later or to bear it in mind and to see that steps are taken to ensure that Statute Law repeal Bills are confined to statute law.

The purpose of all that is to put a little more information before the House about what happened. I venture to think, without disrespect to him, that some of it may be new to the Solicitor-General. That is why I have enlarged on the matter, because the hon. and learned Gentleman cannot be everywhere at the same time, nor can he read the evidence and discussions of every committee. I hope that he will feel it useful to have drawn to his attention some of the things which happened in committees of which he was not a member and at which there was no Law Officer and which may be of importance for the future.

It is to be hoped that from all that, and a lot more which I have not gone into, we have learned a number of things. I should like briefly to list some of the things which I hope we have learned.

First, however respectable the stable from which such a Measure emanates, it requires the closest scrutiny. I say that without a shadow of criticism of anybody concerned. It is a big task about which different people may have such different ideas that whatever comes from the authors must be carefully scrutinised by others. For those reasons I have given, it is doubtful whether the Joint Committee is an appropriate body to deal with this kind of Bill. I do not know at the moment of any better body, but that does not mean that we should not, by discussion between the two sides—because there is nothing party about this—look for some better method of dealing with such a Bill.

To get through the Bill, the Joint Committee had to meet, I think, three days, certainly two days, at 10.30 and on at least one other at one o'clock. Because it is a Committee composed largely of practising lawyers because of the job which it normally does—that job being one which may suitably be done by practising lawyers—it habitually meets at 4.30 to get a good attendance and so that it does not clash with other committees. If a committee formed for that kind of purpose and meeting habitually at that kind of hour finds itself faced with a task which necessitates it meeting at different hours and sitting throughout the day, it is not surprising that on occasion a quorum is not sustained.

Next, we hope that it has been learned and is accepted that in future cases the onus must lie on those who seek to repeal to establish at least a prima facie case that there is no practical purpose in retaining the measures which it is proposed to repeal. Once that is accepted, as it must be, it follows that one cannot expect the Law Commission or the parliamentary draftsmen on their own to do all the research that is needed. Here, if one is to have the onus that way round, it is necessary somehow to bring in the expert practitioner. I am trying to draw the distinction between the academic and the practical.

To give an instance of how it worked in this case, Part II of the Schedule dealt with the repeal of ecclesiastical measures and, at an early stage, a very high-powered committee was established by the Church of England. Mr. Walter Wiggles-worth was a member of it. Each measure in the Schedule was considered by that body. It recommended that some measures which it was proposed to repeal should not be repealed. They were omitted and never appeared in the Bill as it came before this House.

When the Bill came before the Joint Committee, no single alteration was made to that part of the Schedule. It had already been considered in detail by a committee of experts acknowledged by the Joint Committee as knowing what they were doing. Mr. Wigglesworth gave evidence to the Joint Committee. It was necessary for him to add only a word here and there on what the Church of England committee had done, and that part of the Schedule went through without alteration.

If it were possible for that kind of examination to be made of each part of such a Bill so that that kind of evidence was then forthcoming to the Joint Committee, it would be able to deal properly with such a Bill with confidence. One of the lessons which we all felt emerged was that some additional assistance of that kind is necessary to everyone concerned—the Law Commission, the parliamentary draftsmen and the Joint Committee—so that one has the knowledge that every point of view has been brought to bear upon the proposed measure.

To some extent, something like it was done in other parts of the Bill. It was recited in the notes that we were given that a committee of practising barristers and academic lawyers had considered another part of the Bill. It turned out that they had not had the opportunity to consider it in the way in which the ecclesiastical parts had been considered. All that it amounted to was that these interested people had expressed their views about certain provisions. They proved to be very useful, because in many cases they were the basis upon which we in the Joint Committee made our Amendments.

Somehow or other, to complete the proper consideration of a Bill, the expert practical opinion must be mobilised in some way. The view which I formed was that while we had great help from Mr. George Newsom, Q.C., Mr. Victor Hallett, and Mr. Nugee, it is far too haphazard to leave it to the voluntary efforts of a few. They spent a lot of time considering many of the provisions to see whether there was anything left in them, but they could not reasonably be expected to look at every one in detail.

We must consider whether, in future cases, we should not enlist that kind of support at a fee. When we have a number of statutory provisions relating, for instance, to the law of property, which someone suggests should be repealed, should we not do the job properly and instruct lawyers versed in those fields to advise us and should we expect them to do it for nothing?

There are two more lessons which we should have learned from all this. The first, which I hope will be generally agreed, is that we should never ever try such a big one as this. About 250 Statutes were concerned. It was almost impossible. I hope that I am being fair in saying I should think that this must have been an absolute nightmare for parliamentary draftsmen. How can any Committee expect someone to advise it on 250 different Measures, however good he is? It is asking the impossible of those upon whom we rely for advice.

Though the points which I have mentioned would still be relevant, it would certainly assist if in future cases Bills like this one dealt with perhaps just one subject—in this case one part of the Schedule. If we had been dealing only with the constitutional provisions, our task would have been easier. At least, those assisting us, the parliamentary draftsmen and others, could have concentrated their minds on that one section of the law.

Lastly, I suggest that such a Bill should never be started again so late in the Session. If it is to be done, this kind of job must be done properly, and must be started sooner in the Session. This came to the Joint Committee in June. Had it not been for the Committee's great efforts, the Bill would never have reached the Statute Book this Session. I think that the Government asked too much of the Committee—and I am not talking about myself. A member of the other House was its chairman and to maintain a quorum there had to be at least three other members of that House, as well as three from this House.

The Solicitor-General said that he wanted to voice the Government's appreciation of the Committee's work. I go further. I hope that no Government will ever again ask of that Committee what was asked of it in this instance—that it should consider a Bill with this immense number of provisions, beginning in June. If we have learned all or some of these lessons, the exercise will have been worth while.

As I said, I doubt whether it will serve much other purpose, although it has done some tidying on the Statute Book. It will make no practical difference to anyone except to those who use the Statutes revised, and I do not know how many of them there are. Before we embark on such an exercise again, I hope that we shall consider whether all the expertise which goes into it might be better employed, albeit in the same field of improving the Statute.

But I welcome the Bill because in itself it will serve some useful purpose as it has been amended. More especially I welcome it because the exercise of having it passed through the two Houses will have taught all of us who have been or may be concerned with such an exercise a great many lessons which we shall not fail to observe and which we shall remember when we next embark upon it.

Subject to that, I support the Solicitor-General in expressing the hope that the Bill will receive a Second Reading.

9.46 p.m.

Sir Lionel Heald (Chertsey)

I hope that it will not be considered out of place if someone who was not a member of the Committee says a few words on the Bill, which I respectfully suggest has some very important constitutional implications. I should like to join in the recognition of the very important work which has been done by the Committee.

Indeed, it is worth going a little further into what is said in the Explanatory Memorandum. I support my hon. and learned Friend the Member for Southport (Mr. Percival) very strongly in pointing out that the Explanatory Memorandum does not do justice to what the Committee did. Referring to the original Bill, it reads: The attached Bill is different from that Bill in that the Joint Committee on Consolidation amended that Bill by removing the original Clause 4 and a few repeals". It is not wasting time to remind the House, and possibly others who are interested in the matter and who may not have appreciated it, what these "few repeals" included. In the Bill as originally proposed by the Law Commission not only was the Statute of Westminster as first passed to be entirely omitted except for one small part of it but, in addition, the first Article of the Confirmation of Magna Carta was to be repealed. We now find that Articles 1, 9, 29 and 37 are to be retained. As proposed by the Law Commission, Article 1 was to go.

We have been told that the basis upon which these repeals were to proceed was that things should be removed which were no longer of any practical utility. I shall therefore not be wasting time if I read the words of the first article of what is described as the Great Charter of Liberties of England and the liberties confirmed by King Edward in the 25th year of his reign.

I shall read the second part of the first chapter: We have granted also, and given to all the freemen of our realm for us and our heirs for ever these liberties underwritten to have and to hold to them and their heirs, of us and our heirs for ever. It was proposad that that, the foundation of our British liberties, should be removed. Fortunately the Joint Committee did not agree and, after not very much discussion, it was recommended for inclusion. I need not enlarge on the subject, except to add that cynical people might say that if that Amendment had not been made, it would have been removed. However, the Joint Committee of this House and another place reaffirmed that it is still the foundation of our liberties.

It is right and proper, when a Statute of this kind is being discussed, that we should realise the tremendous matters that are involved. Sometimes we let these things go by too easily. It is something to be thankful for and proud of that the Joint Committee of both Houses of Parliament insisted on retaining that Article.

9.52 p.m.

Mr. Tom Boardman (Leicester, South-West)

The Solicitor-General paid tribute to the work of the Joint Committee, of which I was a member. That tribute should, of course, go primarily to the noble Lord, its Chairman, who did great work, and to my hon. and learned Friend the Member for Southport (Mr. Percival), who was diligent in his research and who did much to avoid some of the errors that might otherwise have appeared in the Bill.

The Solicitor-General also expressed the view that the composition of the Joint Committee was such that it guaranteed that no mistakes would be made. I wish that I could share his confidence because, as my hon. and learned Friend pointed out, our task was so great that the Joint Committee was not able to do more than make a superficial check.

At the end of the day nearly 250 Acts were involved. In some cases all, and in others part, of those Statutes were repealed and the time allowed at the end of the Session, of a few days, made it an exceptionally difficult task. It was impossible for the Joint Committee to do more than take on trust the reports that were made to it.

Those reports were made by parliamentary draftsmen whose diligence and effort to get the matters right nobody doubts. However, apart from certain sample checks made on parts of Acts to be repealed. no more could be done. On occasion, those sample checks were disturbing because, as a result of probing, it was found necessary in some instances to make Amendments.

I could not help feeling that we were being treated rather like a rubber stamp that we were required to give a seal of respectable approval to work that had been done behind the scenes, particularly in view of the vast amount of legislation to be repealed. I do not like taking lightly the repeal of Acts such as the Confirmation of Magna Carta and the Statute of Westminster, along with others which have formed part of our history. One wondered whether it was necessary to do it, since the purpose was to take from the Statute Book Acts which were spent or which had no further purpose.

I would ask whether it was necessary to do anything about this. I wonder whether we have probed sufficiently, whether we have made the value judgment as to whether those parts of Acts that were not spent still had sufficient purpose to keep them alive. The reason for removing the spent Acts was given as reduction of printing. However, in view of the problems the Joint Committee had in obtaining copies of some of those Acts, there seem to have been very little expenditure on printing for a long time, in some cases, only one copy of an Act was available. I do not share the confidence of the Solicitor-General that he can guarantee that no mistakes have been made.

I wonder whether we can ever know for sure if part of an Act has any effect now. Can we think of circumstances in which they may have an effect in a few minutes? Obviously, it is unlikely that we can do so. Much of our case law, those parts of it based upon the interpretation of Statutes at any rate, may go once we repeal the Statute which is the root of the precedent.

I wonder why we have such a mixed bag. We have heard of the great variety of legislation included. We dealt with the law of property, various ecclesiastical measures, legislation relating to children, and so on. It would have been possible to have brought many of these repeals into our discussions on the relevant current legislation. For example, we have been discussing the law of property this evening. Would it not have been possible for the repeals now being made affecting property to have been dealt with then?

Another item of legislation being repealed deals with children and again earlier today we have been discussing a Bill dealing with children. Finance Acts are being repealed. We have had sufficient opportunity, with all the Finance Acts that have gone through the House, to have mopped up these repeals then. It is much easier when dealing with specific legislation to concentrate one's mind on that subject and I would suggest that in future we should mop up certain Acts in current legislation.

The Committee did its best within the limitations of time imposed upon it. There was a vast amount of legislation and a limit upon the advice available. That time might have been better spent in looking at some of our current legislation. I doubt whether the Bill will make life better or easier for anyone, or whether it will make our laws more intelligible.

It being Ten o'clock, the debate stood adjourned.

Ordered, That the proceedings on the Statute Law (Repeals) Bill [Lords] may be entered upon and proceeded with at this day's Sitting at any hour though opposed.—[Mr. Denis Howell.]

Question again proposed, That the Bill be now read a Second time.

Mr. Tom Boardman

The time spent on that might have been more beneficial if it were spent on current legislation. I echo the suggestions made by my hon. Friends. I support the Bill subject to the reservations I have made and the doubts I must express about whether we have made some mistakes. I hope that in future such repealing legislation will be considered under a different procedure and taken in smaller packets so that more concentrated thought may be given to it and by that means we may avoid making mistakes which may well have occurred in this instance.

10.2 p.m.

The Solicitor-General

If I may speak again by leave of the House, I take the opportunity of dealing with one or two points which have been raised. I attach the greatest importance, as I know hon. and hon. and learned Members opposite do, to the developing relation between the Law Commission and this House and the developing relation between the Law Commission and the Joint Committee.

I think the hon. and learned Member for Southport (Mr. Percival) did the House a great service in going to the extent he did into a consideration of these matters in his treatment of this Bill, this being a Bill in which, as has been observed during the debate, there is the greatest dependence in the detail of repeals of Statutes carried out by the Bill on the expertise and investigation by members of the Joint Committee and others. I thought the hon. and learned Member made a very valuable contribution in that respect.

What he said and what the hon. Member for Leicester, South-West (Mr. Tom Boardman) said, brought home the amount of work that was done by the Committee. It is true that certain matters were referred to which perhaps I have not fully appreciated. I think the hon. and learned Member was perfectly right—I wish to echo his observation in this regard—to draw particular attention to the service rendered by the noble Lord who served as Chairman of the Joint Committee. I am glad that that was mentioned.

The Government will of course give close regard to what has been said about the operation in respect of this Bill of the developing system of the relationship between the Law Commission and this House and Committees of both Houses. I understand that there were certain difficulties and very understandable difficulties about attendance before the Joint Committee. In the course of the debate I have had some inquiries made and, purely for the record, I think it may be of some interest to bear in mind that in the six days' sessions of the Joint Committee there were five Members of this House who were able to attend. On the second occasion there were again five, as there were on the third occasion. On each of these first three days, I point out just as a matter of comment and record, the attendances were four from this side and one from the other.

I make no point of that because, as the hon. and learned Gentleman said, at the last sitting of the Joint Committee there was an occasion when no hon. Members from this side of the House were able to attend upon the Committee. In those six days, there were 17 attendances from this side and 13 from the Opposition side. It is right to draw the inference that these figures indicate some difficulty that hon. Members must have felt in attending on the work of the Committee. It was, perhaps, a rather mechanical difficulty, but the implications are important and we will study them.

Attention was drawn to the history of Clause 4. It was suggested, as I understood by way of criticism of the existing process, that it is possible for provisions which may be open to the very greatest objection to reach the Committee, and that the very greatest importance therefore attaches to the investigating screen which the Committee supplies. If I may respectfully say so, this was the point which was brought to our attention so helpfully by the right hon. and learned Member for Chertsey (Sir L. Heald), and I readily acknowledge it. What is, perhaps, satisfactory in this part of our consideration of the matter is that the outcome, anyhow shows that the Joint Committee was able, as a matter of narrative, to afford to the House the kind of protection one would hope and expect that it would give.

Another matter rather within this category was referred to by the hon. and learned Gentleman when he spoke of the original Clause 4. For the record, my understanding is that the original Clause 4 was included simply because the Law Commission wanted to repeal Chapter 46, I think, of the Statute of Westminster the Second, which, in effect, extended an early Statute about the enclosure of commons. That earlier Statute was the Statute of Merton which had previously been repealed by the Statute Law Reform Act, 1953, and it was uncertain whether the common law right of enclosure still existed. This, of course, was a highly technical matter, and the understanding of the Law Commission was that the common law right was not exercised, and this formal abolition was simply designed to support the repeal of Chapter 46.

I draw attention to the history of that background simply by way of explaining it and, in a sense, of justifying it, but here, again, is an example of a good result emerging from our existing procedures under which the great learning and scolarship which operates in this field, as in other fields, presents itself within the Law Commission, without inhibition, as it were, for consideration by a Joint Committee, and for the kind of safeguards which the procedures of that Joint Committee may offer.

Mr. Percival

I am obliged to the Solicitor-General for giving way. I pay tribute to his off-the-cuff exposition of the Statute of Merton. The point that I was making was that this was expressed to be the abolition of a common law right. It is questionable what place that has in a statute law repeal Bill, but this was related to the original proposal to do something much more far-reaching, namely, to abolish the freehold. I was hoping that the Solicitor-General would indicate agreement with the principle of what I was saying, if not with the detailed point on Clause 4, that such wide-ranging things should not be introduced on a statute repeal Bill.

The Solicitor-General

I appreciate the point, but my main objective in this connection is to show how, in respect of the very important matter raised by the right hon. and learned Member for Chertsey and with respect to the treatment of Clause 4 by the Joint Committee, the existing procedures under which the Law Commission presents its work for consideration and investigation by the Joint Committee appear to be overall justified by the outcome and the result. That is the point that I want particularly to emphasise.

As I say, I think the debate has been of very great value in indicating the matters which, in the developing relation of the Law Commission with the House and with the Joint Committee, need attention and vigilance. I think they are very important. I think the outcome from what may sometimes have been a rather anxious process is satisfactory.

I think this is a valuable Measure. I am glad that after all the comments that have been made, hon. Members opposite have been able to agree with us that the resulting Bill now before the House is valuable.

Mr. Graham Page

Could the hon. and learned Gentleman not address his mind to what, as I understood, was the most important point made by my hon. and learned Friend the Member for Southport (Mr. Percival) in considering whether the Joint Select Committee is rightly constituted for this job? The Joint Select Committee must be the watchdog for the House in vetting Bills of this sort, even more than on consolidation Bills. This watchdog on this occasion was given too big a bone to chew. Also there is the question of policy arising and, therefore, the matter of the personnel of the Committee—whether it should consist of all lawyers or whether it should have a more general outlook than merely the legal outlook; whether it is the right sort of Committee for this job.

The Solicitor-General

I will certainly consider that matter. I think the point is perfectly clear. It raises interesting issues. My present disposition is to regard the Joint Committee as constituted and as at present carrying out its functions as admirably suited for this purpose. But the hon. Gentleman and his hon. and learned Friend have brought forward under this head matters which undoubtedly deserve consideration, and they will receive it.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Committee of the whole House.—[Mr. Perry.]

Bill immediately considered in Committee.

[Mr. SYDNEY IRVING in the Chair]

Clauses 1 to 7 ordered to stand part of the Bill.

  1. Schedule
    1. cc551-2
    2. ENACTMENTS REPEALED. 157 words
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