§ Wednesday, 28th April, 1971
§ [MR. GEORGE WALLACE in the Chair]
§ The Committee consisted of the following Members:
§ Mr. George Wallace (Chairman)
- Armstrong, Mr. Ernest (Durham, North-West)
- Blenkinsop, Mr Arthur (South Shields)
- Clarke, Mr. David (Colne Valley)
- Cooke, Mr. Robert (Bristol, West)
- Eyre, Mr. Reginald (Birmingham, Hall Green)
- Farr, Mr. John (Harborough)
- Finsberg, Mr. Geoffrey (Hampstead)
- Hall, Miss Joan (Keighley)
- Hardy, Mr Peter (Rother Valley)
- John, Mr. Brynmor (Pontypridd)
- WILD CREATURES AND FOREST LAWS BILL [Lords]
§ 10.30 a.m.
Motion made, and Question proposed,
That if the proceedings on the Wild Creatures and Forest Laws Bill [Lords] are not completed at this day's sitting the Committee do meet on Wednesday next at half-past Ten o'clock.—[The Solicitor-General.]
§ Mr. John Mackie
Before we deal with that Question I should like to raise a point of order on the Bill. This Bill, apart from the two items referring to the Crown, does away with 63 Statutes. It sweeps them away—if I may coin an expression—at a stroke.
No Opposition worth its salt could allow this to happen without taking a good look at it. In order to take a good look at it, many documents have to be read. I understand that it is the duty of the Minister in charge of a Bill such as this to see that these documents are provided. Up to two years ago he had to see that these documents were in the
- Jones, Mr. Gwynoro (Carmarthen)
- Lomas, Mr. Kenneth (Huddersfield, West)
- Mackie, Mr. John (Enfield, East)
- Mather, Mr. Carol (Esher)
- Mills, Mr. Peter (Torrington)
- Morrison, Mr. Charles (Devizes)
- Page, Mr. John (Harrow, West)
- Parker, Mr. John (Dagenham)
- Rost, Mr. Peter (Derbyshire, South-East)
- Solicitor-General, The (Sir Geoffrey Howe)
- Miss J. Beston, Committee Clerk.
§ Vote Office. However, it was found that in the case of some Bills this was rather overloading the Vote Office, so the Minister was asked by Mr. Speaker to see that a list of the documents was put in the Library, so that the Library could have the documents available for hon. Members who wished to do their duty and look into this Bill which, as I say, sweeps away 63 Acts of Parliament in one fell swoop.
§ I and several other hon. Members have been to the Library to try to get these documents and have a look at the list, but no list has been sent there from the Solicitor-General's office, and we have had to try to find the documents that might be relevant. This is not an easy job. This is a lawyer's job. The Bill arises from the Law Commission's Report No. 28—Cmnd. 4433. I thought that that document might convey something, but the Bill is simply a reprint of 601 the Report. There is very little more in the Report.
§ I agree with the Lord Chancellor that much of this—as he so picturesquely put it—is legal lumber cluttering up the statute garret. But although the Lord Chancellor is a delightful gentleman with whom to have a drink and chat in the Smoking Room of the House of Commons, we cannot take it for granted that all this is legal lumber, I have an interest in Epping Forest, and when I looked up some of the legal lumber in the Schedule I discovered four Acts concerning Epping Forest.
§ The first Act in 1871, appointed a commission to look into the running of the Forest. I take it that the Act was passed by an inefficient Government, rather like the present Government, because they had to amend it within a year to provide more powers. They must also have been a little dilatory—like this Government—because they had to have two Acts to give them more time to carry out the business of the commission before they finished it in 1875. I agree that the Solicitor-General probably would not need that Bill.
§ Then I thought that I had better have a look at another Act in which I had some interest when I was at the Ministry of Agriculture, concerning the New Forest. I find that an Act in 1902—fairly recent, parliamentary-wise—gave the public a right to have land in the New Forest "for necessary public purposes", chiefly to provide areas for sewage works for the towns round the New Forest. The hon. Member for New Forest (Mr. Patrick McNair-Wilson) is not here today. I am sure that he would take a dim view of sweeping away that right.
§ I do not know whether there was a later Act which provided that the people round the New Forest could get a piece of land for public purposes. We are not told. I hoped that the debate in the House of Lords would give me some guidance, but so far as I can see all they were concerned about was to protect the Queen's fry on a Saturday night and leave her with her sturgeons, and something to do with swans. Another curious thing was how many oxen it took to shift 602 a dead whale off the beaches. So I got no change there.
§ If we are to do our job prope ly we cannot go on without a little more information from the Vote Office and/or the Library. I suggest that it is pointless for the Committee to continue.
§ Mr. Carol Mather
Further to that point of order. The last Measure of this kind which came before the House was the Statute Law Revision Bill, which covered statutes right back to 1297 and revised such Measures as Magna Carta. In Committee on that Bill it was suggested that so complicated a Measure had not come up in this form before and that if revision of statute law was to be made it ought to be done in a much smaller chunk. I do not consider that this is a small chunk. Here we are dealing with a total of 63 Acts, of which 44 are repealed in toto.
On the last occasion when a Measure of this sort came before the House it was dealt with by the Joint Committee on the Consolidation of Bills. That Committee had six sittings, and made 23 Amendments. Apparently we have no opportunity to go into this Bill in any detail, although it raises wide-ranging and fundamental constitutional questions. We are not dealing with the Bill in the right way.
§ Mr. Peter Hardy
I confirm the point made by my hon. Friend the Member for Enfield, East (Mr. Mackie) about hon. Members on this side not having access to some of the documents. Yesterday I went to the Library and asked to see the copies of Acts relating to Epping Forest. Despite a very diligent search the Library staff, to whom I pay tribute, were unable to find them. I also went to the Vote Office, and they were not available there. It may be that the Epping Forest Acts are quite innocuous. It may be that they are obsolete, and should be removed from the Statute Book. But hon. Members of this Committee have a right to examine the documents which they are supposed to be considering.
Furthermore, if we are to pass an Act to vest no longerthe office of constable of the castle of St. Briavel's in the First Commissioner of His Majesty's Woods Forests, Land Revenues, Works and Buildings".603 we ought to be able to ascertain who will have those powers when the First Commissioner no longer possesses them. Are we to revert to a constable of St. Briavel's castle? I was unable to discover this yesterday. We ought to have an opportunity to obtain this sort of information.
§ Mr. David Clarke
I support my hon. Friends in this submission. It seems to me that in certain quarters there has been unseemly haste in trying to put the Bill on the Statute Book. I have the feeling that due consideration has not been given to certain aspects of the Bill—especially that part dealing with Epping Forest. The Epping Forest Act, 1878, which is not repealed by the Bill, did exacty what the Bill does in toto, in the sense that that Act called for the opening of the forest land the the abrogation of the Royal Prerogative, throwing the forest open to the general public.
I wanted to confirm the point but I found that the Acts which constituted it and which were repealed—the 1871 Act, and following Acts—were not available in, the Library. I submit that we cannot do our job properly, because we have not been able to obtain the relevant documents.
§ The Solicitor-General (Sir Geoffrey Howe)
Perhaps I may comment on the important points that have been raised by hon. Members.
The hon. Member for Enfield, East (Mr. Mackie), my hon. Friend the Member for Esher (Mr. Mather), and other hon. Members are right in saying that the repealing of Statutes is a matter of importance, and not something which the House, any more than the other place, ought to be required to undertake without having an opportunity for detailed consideration. Hon. Members on both sides of both Houses—and, indeed, many other people—have long been concerned about the extent to which the Statute Book is laden with a multiplicity of ancient Statutes. The fact that they are ancient does not mean that they are therefore automatically ripe for repeal; many of them are still important.
At the same time, hon. Members will know from their own experience how difficult it can be to find one's way around, because of the clutter of largely 604 obsolete legislation. The Law Commission was appointed—under legislation passed by the last Parliament but one, I believe—with the object of helping us and the public at large to remove some of the statutory lumber of this kind. I hope that the Committee will agree that in our anxiety to see that we do everything with proper care and scrutiny we should not unduly obstruct that necessary process.
Hon. Members have said that certain of the Acts in question are not available at the Vote Office. They will appreciate that if the Vote Office were to have available on demand copies of every statute of that kind it would need to outstrip the Palace of Westminster in size.
I am talking in general terms. There is such an accumulation of legislation of the kind, that it would be very difficult—and, incidentally, very expensive—to have available copies of every Act that might be relevant.
§ Mr. Mackie
I agree that that point was raised about four years ago. I was a victim myself. Mr. Speaker then ruled that it was the duty of a Minister to put in the Library a list of documents that were likely to be required when a Bill was under consideration, so that hon. Members could look at it. A list of documents that might be required to help hon. Members to decide about this Bill has not been put in the Library.
§ The Solicitor-General
I take the hon. Gentleman's point. I am dealing with the question in general terms at the moment. The list of documents required is contained in the Schedule to the Bill. I do not think that any Measures outside those listed in the Schedule will be required. It is equally important that there should be reasonably readily available, somewhere, copies of these Acts for hon. Members to study. I undertake to do my best to see that what copies can be found are made available in the Library and in the House. The Law Commission has a copy of each of them.
One difficulty is that many of them are local Acts of some antiquity. They are not to be found—I have checked—in the Statutes Revised. They are in the Statutes at Large, which go back over many years. Not all local Acts of this 605 kind have been reprinted. Hon. Members will know that to photocopy and reproduce statutes in the rather longwinded language of long ago would itself be a very expensive exercise.
Having said that, if I bear any responsibility for the non-availability of any of these documents I apologise to the Committee. Hon. Members on the Standing Committee will certainly want to look at them. I shall do my best to see that sufficient copies are suitably available and to meet inquiries or requests made by hon. Members in respect of them at that time. I cannot undertake to produce every one of the Acts here and now. I hope that this Second Reading Committee will be prepared to approach this Bill bearing in mind that in Standing Committee hon. Members will have an opportunity to study each Act as we come to it.
My hon. Friend the Member for Esher said that it was important that the Bill should receive detailed consideration, and he was supported by the hon. Member for Rother Valley (Mr. Hardy), with his understandable concern about the discharge of the functions of the constable of St. Briavel's. There are answers to that interesting and important question. I hope that I shall not be pressed to produce answers to every such question in the course of our proceedings today, because so many questions could be posed. Certainly the hon. Member's point is one that the citizens of St. Briavel's will need to have closely examined when the Bill is considered in Committee.
The point raised by the hon. Member for Enfield, East (Mr. Mackie) about the New Forest Act, 1902, was considered in the other place, though not, I think, on Second Reading. One noble Lord gave notice of his intention to raise the point in the Second Reading debate. An Amendment was moved in Committee in another place to deal with the point, and it was discussed there. The question was raised by the noble Lord, Lord Montagu of Beaulieu—understandably, since it concerns the New Forest. In Standing Committee I am prepared to explain the rather curious reason why the 1902 Act can be considered for this kind of disposition.
I hope that the Committee will feel disposed to proceed with the discussion of 606 the principles involved in the Bill. There are two central questions of principle—first, whether the forest law, as such, needs to survive, and, secondly, the extent to which the Royal Prerogative in respect of royal creatures can properly be varied. I suspect that hon. Members will find that those questions will occupy their time considerably. In Standing Committee I shall do my very best to see that hon. Member's requirements in respect of these Acts, private as well as public, are met so far as it lies within my power to do so.
§ Mr. Kenneth Lomas
On a point of order. I am sure that the hon. and learned Member does not wish to treat the Committee in a discourteous way, but it seems to me that to say we must wait some time before we get the Statutes about which we are to talk is quite wrong. The best course of action would be for the Committee to be adjourned until these are available. How can we discuss the main principles of the Bill without knowing what it is all about? We should consider adjourning the Committee until these Statutes are available to hon. Members, as promised by the hon. and learned Gentleman.
§ Mr. Mather
It must be fundamentally wrong that we in Parliament do not have access to these documents and yet the Law Commission does have access. If we are to do our job properly at all, we must obviously see the documents which we are asked to repeal.
I have spent some considerable time searching for these documents, and I have managed to obtain most of them. Perhaps that is why some hon. Members opposite have not been able to get them. But I have not been able to obtain all of them, and I have not been able to give them the time that Statutes of this date obviously deserve because of the language in which they are termed.
In a way, I hope that we continue with the debate because I have several important things to say about the Bill. But we should very seriously consider whether we give it a Second Reading. Even the Title is fairly meaningless, because the whole of the wild creatures part of the Bill has been removed in another place. All that is left is forest laws. A very important Amendment 607 was made in another place in Clause 1(1)(a) whore we have the words "…except royal fish…". So, royal fish are out. Swans are already out, so that deals with the wild creatures.
The creatures of venery, of the forest, are not wild creatures as such. These are creatures of warren and of chase, and they come under the forest law. So all we are actually considering is the forest law—
§ The Chairman
Order. If the hon. Gentleman will keep to the point of order, we can discus any extreme details later on, if the Committee proceeds. We only want to deal with the point of order which he has raised.
§ Mr. Mackie
The hon. Member for Esher (Mr. Mather) would like it both ways, which intrigues me. He would like to continue the discussion, but he would not like the Bill to have the Second Reading. Even with the ingenuity of the Solicitor-General here, I do not think we could carry that one out.
We are concerned with the question of not being given the time to look at the documents properly—and judging by the pile of documents which the hon. Member for Esher has there is no doubt about where some of them went. As hon. Members know, Manwood on Forests is quoted very liberally by the Lord Chancellor in the Law Commission Reports. I only got my copy from the Library half an hour ago because the staff had to go to another place for it.
Hon. Members received notice of their appointment to this Committee last Wednesday, I think. I received the card on Friday morning that the Second Reading Committee was meeting today. I was busy all Monday, and left yesterday open to prime myself on today's business, and, of course, could not get the various documents I wanted. I think we should vote whether to carry on until we have had a chance to go through the documents. I shall be guided by the vote of the Committee.
I am not a lawyer, but whenever animals or forests are mentioned I am put in charge for the Labour Party. I feel that everybody should have had a better chance than we have had so far to look at these documents.
§ Mr. Hardy
I do not wish to be obstructive. I am not for a moment suggesting that each member of the Committee should be given copies of Acts of 1405 or 1406, but I was particularly concerned that Acts of relatively recent dates have not been made available in the Library. It is reasonable to expect that an Act of Parliament of 1870 or 1906 is available to hon. Members. I appreciate the point made by the Solicitor-General that it would be inordinately expensive if the Vote Office had to stock copies of all the ancient Acts, which we probably would not be able to read or understand anyway. But when we come to Acts of the nineteenth and twentieth centuries we are entitled to expect to have a sight of them before the Committee meets. I support the point made by my hon. Friend the Member for Huddersfield, West (Mr. Lomas).
§ Mr. Robert Cooke
Whilst I have reservations, and support much of what has been said, I hope that hon. Members realise that the Statutes Revised are available in the Library, and in many other parts of this Building, and although some of the Statutes which we are asked to repeal, particularly those of Edward I and Edward III, appear to be written in a language which I take to be Norman French, there is an English translation on the right hand side. Although we have not had time to study these, they are available for study, though, of course, the Private Acts, as hon. Members have already said, are rather more difficult to get hold of, and I have considerable sympathy with my hon. Friends and hon. Members opposite who have had difficulty in discovering where they are to be found.
§ Mr. Geoffrey Finsberg
I am not a lawyer, but it seems to me to be a very simple proposition. We are asked today to recommend giving the Bill a Second Reading, and, if that is agreed, the Bill will then go to Standing Committee. I should not have thought that on the principle there was any need to suggest that we ought to adjourn while these documents are found and made available. The right time to deal with that matter is when we are in Standing Committee, because recommending a Second Reading today does not, as I understand it, inhibit us from deciding, when we are looking at the Bill with even more careful 609 scrutiny in Standing Committee, that instead of repealing in whole or in part some 63 Statutes, repealing only 61. That, surely, is the time for detailed consideration—for the lawyers' and the agriculturists' paradise. I suggest that we proceed with the Second Reading debate, but accepting my right hon. and learned Friend's assurance that the documents we require will be available in sufficient numbers for the Standing Committee stage.
§ Several Hon. Members rose—
§ The Solicitor-General
Hon. Members have appreciated that we are dealing with two different kinds of Statute. There are those which are public Acts but of such antiquity that they are not now printed in sufficient quantities, and there are the Private Acts, of which the Epping Forest Act is a very good example. The hon. Member for Enfield, East (Mr. Mackie) said he had looked at those Acts and found they were legitimately proposed to be repealed because they were all spent. One can therefore understand why few, if any, copies of such Acts, which nobody has had any need to look at for almost 100 years, are readily available.
I hope that the Committee will not feel that I am lacking in sympathy with the feelings that have been expressed. I shall certainly do my best to help any hon. Member; to see that any particular Statute is made available in some way or another. The fact that the Statutes are so little available is in itself, to some extent, a commentary on their lack of utility to modern Britain; and on why it would be right for the Committee to proceed.
§ The Chairman
The Chair is in some difficulty here. There is a point of sub- 610 stance about certain documents not being available. On the other hand, in another place there was detailed Second Reading discussion and copies of the OFFICIAL REPORT are available. I had hoped that the Committee would proceed, but I am in the Committee's hands. I think the best thing is that the Question now before the Committee should first be accepted or rejected. Then I am quite prepared to accept a Motion to suspend on the grounds mentioned, namely, that certain documents are not available.
§ The Solicitor-General
I understand that the hon. Member's Motion for suspending the sitting is not acceptable to you at the moment, Mr. Wallace?
§ The Solicitor-General
Then as I understand that we are considering the sitting's Motion, I should like to say one word in support of it.
I fully appreciate the anxiety of hon. Members that we should not lightly remove statutory provisions from the Statute Book. In fact, the main thing is to do something towards simplification of our Statute Book and our Statute law. These proposals have already been considered in another place. They certainly deserve careful consideration here, and I suggest, therefore, that we ought to proceed with the timetable which I have moved. Thereafter, an infinity of time can be made available to meet the detailed points which must properly be considered.
§ Mr. Mather
Some of us are in considerable difficulty. We have not the documents, but I hope that the debate will go ahead. It will be up to hon. Members to decide how they vote at the end of the debate, and I might say to the hon. Gentlemen opposite that, even when documents are available it takes a considerable time to digest them, whatever happens. Whether people will have the time to do this job is uncertain, and it might be better to go ahead with the debate now to see where we get, and to have an opinion on the Bill at this stage. We are all gathered here together, and I think that we should proceed.
§ The Chairman
Order. I shall put the proceedings Motion first and then I am open to accept a Motion for suspension if this is the wish of members of the Committee.
§ Question put, That if the proceedings on the Wild Creatures and Forest Laws
|Division No. 1.]||AYES|
|Cooke, Robert||Halt, Miss Joan (Keighley)||Rost, Peter|
|Eyre, Reginald||Mather, Carol||Mr. Solicitor-General|
|Farr, John||Mills, Peter (Torrington)|
|Finsberg, Geoffrey (Hampstead)||Page, John (Harrow, W.)|
|Armstrong, Ernest||Clark, David (Colne Valley)||Lomas, Kenneth|
|Blenkinsop, Arthur||Hardy, Peter||Mackie, John|
§ The Chairman
In view of that vote I do not propose to accept a Motion of the hon. Member for Enfield, East (Mr. Mackie).
§ 11.5 a.m.
§ The Solicitor-General
I beg to move,That the Chairman do now report to the House that the Committee recommend that the Wild Creatures and Forest Laws Bill [Lords] ought to be read a Second time.The Committee has already introduced itself—if that is the right word—to the provisions of this Bill and appreciates that it is designed as a law reform Bill with two particular objectives; namely, to abolish certain of the rights of Her Majesty to wild creatures, and some related rights and franchises, and to abrogate the forest law as set out in the Long Title.
The Committee will appreciate that the Bill affects the Prerogative and interests of Her Majesty the Queen and His Royal Highness the Prince of Wales, but I understand that it is not appropriate to signify at this stage the consent of Her Majesty and His Royal Highness in respect of the Prerogatives; that takes place on the Floor of the House.
As my hon. Friend the Member for Esher (Mr. Mather) has pointed out, the Bill is different in one substantial respect from the Bill which was originally introduced in another place, because of the change that has been made in the provisions of Clause 1(1) in relation to royal fish. My hon. Friend will observe that the Long Title refers to the abolition of certain rights of Her Majesty rather than the abolition of all rights of Her Majesty. It may well be that the rubric to Clause 1,
§ Bill [Lords] are not completed at this day's sitting the Committee do meet on Wednesday next at half-past Ten o'clock:—
§ The Committee divided: Ayes 10, Noes 6.
§ which refers to abolition of Prerogatives of the Crown, implies too wide-ranging an interpretation in the light of the changes made in the other place.
I begin by explaining the use of the word "creatures". Other Committees of the House have been considering several times recently the provisions of the Animals Bill. The word "creatures" is designed to be rather wider than the word "animals" because, as the Committee will see, we are concerned with fish and swans and, as part of those, with whales being one of the creatures in respect of which a Royal Prerogative exists. Rather than embarking upon a consideration as to whether a whale is an animal or a fish, because of its mammal nature, we have used the word "creature" in the sense in which it was used in the Book of Genesis, Ch. 1 v. 21,
…and God created the great whale and every living and moving creature".
"Creatures" is an all-embracing term.
§ The Solicitor-General
That is a good point, and I would not claim total response to it. "Creatures" is certainly used in a wider sense than it might be used in the sense of:All creatures that on earth do dwell.We are concerned with creatures that on earth and in heaven and in the waters 613 dwell. Certainly, leaving aside the observations of the Psalmist, I should be prepared to argue that the terms of v. 21 of Genesis Ch. I make it plain that whales must be regarded as ejusdem generis with creatures; that creatures embraced whales.
I shall endeavour not to follow the pattern sometimes set in these matters of embarking on too much mediaeval Latin, because we shall be in trouble enough with Norman French, without having mediaeval Latin as well. The word "creatures" is used in that way.
It is perfectly right, as hon. Members have already pointed out, that the Bill goes further than a traditional statute law revision Bill which is merely repealing spent and obsolete enactments. A statute law revision Bill would go to a Joint Committee for consideration within the narrow terms of the relevant provisions. It does go as far as to abolish the forest law and make changes in the Prerogative rights in respect of wild creatures, and that is why it comes before a Second Reading Committee before going on, if the Committee accepts it, for consideration in detail by a Standing Committee.
The main object, I underline, is to remove as far as possible those Statutes which the Standing Committee finally decides can positively be regarded as obsolete and of no further value. I once again commend to the Committee the general object of trying to remove those provisions which are of no practical value at all, either locally or nationally. I have no desire to get rid of something which survives merely as a tradition, and thereby get rid of the Statute, if the Statute is its foundation. It is only in those areas where the Statute provides no useful foundation for anything that now goes on that one can properly remove it.
§ Mr. Mather
Will my hon. and learned Friend also concede that these Statutes, particularly the earlier Statutes, and particularly the Charter of the Forest, which runs in parallel with the Magna Carta, are the foundation of our Statute Law; and that if one is removing the foundation of Statute Law the whole of the Statute Law is thereby weakened? It is not so much what these laws actually do but the principles they establish which we will be destroying, and have destroyed already in regard to Magna Carta, in a 614 large Measure of this kind. The Forest Charter is a twin with Magna Carta: they have the same date and they establish the basis for English liberty.
§ The Solicitor-General
I take my hon. Friend's point about not wishing to remove the practical foundation upon which anything stands, but against that one must examine the provisions now contained in this Measure. I suggest that the Committee, in respect of many of these Measures set out in the Schedule, will be able to conclude that the actual provisions contained in them cannot be regarded as fundamental to anything subsequently built upon them.
Not all hon. Members may be familiar with the nature of forest law, which is the second and more compact part of the law we are proposing to amend. As my hon. Friend the Member for Esher (Mr. Mather) says, a forest law is, in the sense in which I understand it, a kind of feudal survival, which now serves no practical purpose. It is certainly an extensive body of laws, as the list in the Schedule makes clear.
Its origins spring from the fact that the Crown enjoyed the right to set aside hunting rights and other rights within the designated forests. Even though the piece of land did not belong to the Crown, the Crown was nevertheless able to establish rights in respect of it; to designate over pieces of land which entitled the Sovereign to preserve the hunting rights over that land. The forest law grew up as a response to that, because of the extent to which the Crown was claiming very wide rights to set aside new forests in land which belonged to citizens.
The forest laws were therefore developed in part to curtail the extent of the Royal Prerogative to secure land for the Sovereign and to secure hunting rights over the land. They were also developed in order to deal with particular offences and abuses and grievances that could arise in forests. Rather as the road traffic Acts developed in modern times to deal with the hazards which arise from improper use of the roads, so some of the Statutes dealing with forests provide the same sort of remedies in respect of abuses of that kind. For example, Chapter 6 of the Charter of the Forest provides for what is known as the lawing of dogs, that is to say, the cutting of several claws from the paws of the dogs in order to 615 prevent them from running at deer—something that had to be done once every three years.
§ The Solicitor-General
That is right. One of the difficulties that we have in dealing with mediaeval Statute in identification of the animals they are referring to is that it is necessary to translate the sense of the reference to the particular animal. That is the kind of matter that was dealt with.
A more recent Statute—hardly, I would say, one of breathtaking modernity—was an Act in connection with the abuses in the forests of Wales, passed in 1535, at the same time as the monasteries were forcibly being dissolved. That Act abolished certain long-standing and unreasonable customs and exactions as a result of which the foresters in certain forests in Wales imposed tolls and fines on people going through the forest. In default of paying those fines, a person straying from the highway was liable to lose the joint from one of his hands. The Act in question declares that all subjects might pass through the forest without the exaction of tolls supported by that kind of penalty. The proposed repeal of that Act, which is not now regarded as necessary, does not revive the right of people in the forests of Wales to impose tolls and fines and support their sanctions in that way.
The truth is that in practical terms, and I do not want to overlook the importance of what has been said by my hon. Friend the Member for Esher about the more fundamental nature of these things, the forest law was largely obsolete by the time of Elizabeth I, with the exception of the forest law dealing with the appointment and functions of verderers referred to in Clause 1(2). It is therefore proposed to abrogate the forest law, together with some 63 Statutes which are connected with it. many of them dating back into the Middle Ages.
Perhaps I may now explain quite shortly what the provisions following on from Clause 1(2) do about the forest laws.
Clause 1(3) provides that the rights of common which arise from forest law shall 616 hereafter be free of restriction by reason of the close seasons. Rights of common were restricted during close seasons, which is what is meant by the phrases the "fence month" or the "winter heyning". Under the law in certain places, as it at one time stood, one could not exercise the right of common during those periods which represented the close seasons.
The "fence month" is something which one is advised not to try to define in general terms because it is a different period in different parts of the country, in so far as it survives by tradition at all. I believe that in general terms it is a period of fifteen days on either side of Midsummer's Day, but Midsummer's Day is not fixed at the same date in different parts of the country, because under these traditions not every part of the country adopted the new-fangled Gregorian calendar. So the fence month begins or ends eleven days later or earlier in some parts of the country. The winter heyning is the corresponding winter close season. That provision is to be removed.
Subsection (4) deals with the Schedule.
Subsection (5) says that no existing right of common which originates in the forest law shall be affected, and, similarly, no existing right of pannage—which hon. Members will know is the right to feed one's swine on acorns, as a particular aspect of common law—shall be affected.
Subsection (6) provides for the continued election of verderers in the Forest of Dean as at the passing of the Bill. The election of verderers in the New Forest is, I understand, dealt with by Statutes that are more modern and that are not affected by this Bill.
Subsection (7) preserves any existing power of purchasers of forestal in the Duchy of Lancaster to depute or appoint gamekeepers. It is not entirely clear whether any such people still exist. No doubt hon. Members more closely acquainted with the activities of the Duchy of Lancaster will be able to enlighten the Committee about that.
The last Clause deals with the extent of the Bill in respect of Scotland and Ireland. The Bill operates in Northern Ireland because we are legislating outside the power of Stormont. There is only one statutory provision for Scotland, and there is no need any longer to analyse 617 the difference between the Scottish law and the English law in respect of royal fish, although it is perhaps interesting to know that the royal right in respect of fish in Scotland does not extend to small fish like porpoises. It extends only to whales of a size larger than can be carried away on a wain drawn by six oxen. That curious position will remain in Scotland, unaffectd by the introduction of the Marina edition of British Leyland. The measurements will still have to be undertaken by reference to oxen rather than horsepower.
I should now like to deal to some extent, but not. I hope, at great length, with the provisions affecting royal creatures. These are the important provisions contained in Clause 1(1). As the Committee now appreciates, the original Clause as moved in another place proposed to abolish the Prerogative right of Her Majesty in respect of all wild creatures except swans, but even now the Prerogative right of Her Majesty to wild creatures is drawn widely.
Hon. Members may wonder what wild creatures there are which fall within the Prerogative, apart from fish and swans, but there are certain propositions in the ancient law books which suggest that certain Prerogative rights still may exist, although one cannot think of their ever being exercised, in respect of a wider range of animals, at least in a very limited extent. Certain passages in the text books dealing with forest law—
§ The Solicitor-General
Blackstone refers to a long list of animals as having some Prerogative rights exercised over them; buck, doe, fox, marten, roe and all beasts of the forest. This is why the net has to be drawn rather wide td abolish these Prerogative rights which nobody can actually identify as having been exercised. There is a passage from Bracton, which says that the king had certain proper privileges by the common law of this realm but that he could only have those things which by the law of nature ought to be the finder's; such a treasure trove, wrecks of the sea, great fishes, sturgeons and whales, which are said to be the goods of no other man. The king, by his Prerogative, should 618 have them. He also by the common law should have in his own possession all such things as by the law of nature ought to be common, as wild beasts and fowls that were not tame, and which by the law of nature ought to be common. He might profit by the possession and taking of them.
It is the wide-ranging nature of this kind of proposition, suggesting that there may be some residual law rights in respect of some animals which one would hesitate to list and identify, that makes it necessary to start by saying that the Prerogative right to wild creatures is hereby abolished, and then excepting it in respect of those now excepted, namely royal fish and swans, so that at least we shall know hereafter, when the Bill becomes an Act the extent of the Royal Prerogative, namely that it extends to royal fish and swans.
Swans are to remain the subject of the Royal Prerogative. This is something which has been part of our law for many centuries. Swans are still regarded as valuable birds, to be given by Her Majesty as gifts to the heads of foreign States, and visiting dignitaries of that kind. They have not now the particular delicacy quality that they had in terms of price in the thirteenth century: the controlled price for the sale of a swan in 1274 was 3s. 0d., as compared with 5d. for a goose and 4d. for a pheasant. But the swan in that way remains a valuable part of the Royal Prerogative.
In addition, the Royal Prerogative in respect of swans is in fact the authority under which the two City Livery Companies, the Dyers Company and the Vintners Company, organise conservation of swans on the River Thames, and it is thus the foundation of the swan upping ceremony that takes place in that connection. Those two companies enjoy one-third interest apiece with Her Majesty in the swans on the Thames, granted by royal charter. It is for that set of practical reasons that the Royal Prerogative in respect of swans is proposed to be retained.
It was thought when the Bill was moved in another place that the Prerogative in respect of royal fish now served no practical importance. The Prerogative, in practical terms, extends to sturgeon, which are not often caught and become subject to Royal Prerogative; more extensively, 619 to whales and porpoises, and, more practically perhaps, when fish of those kinds are washed ashore on the shores of these islands. The generic description for them, I think, is cetaceae.
There was a long and interesting article about these creatures in The Times on 23rd January this year by Dr. F. C. Fraser, in which he explained to some extent the practical value of the Royal Prerogative in respect of royal fish. That was the argument that prevailed in another place, so that the Royal Prerogative in respect of fish now survives.
It is not entirely clear whether the argument is well-founded, but it was accepted in another place that when a porpoise or a whale is found on the shores of this country the coastguard service, as a matter of routine—established since 1912—notifies the museums. The British Museum and the Natural History Museum have a special interest in the pattern of distribution of fish of this kind, and in conducting scientific research in respect of them. By virtue of the Royal Prerogative they are given the right of first refusal of stranded aquatic creatures of this kind.
If hon. Members read the article by Dr. Fraser they will find that between 1913 and 1966, no fewer than 1,547 aquatic creatures of this kind were the subject of this treatment, extending from 631 common porpoises to one white whale, and including attractive creatures like the lesser rorqual and the euphrosyne dolphin—21 species in all.
It is important that the Bill should make it clear that the Royal Prerogative is being retained in respect of fish. In the Press last week there was a report about fishermen who caught and landed a sturgeon in this country and regarded themselves as free to sell it. It was being sold as "Sturgeon Royale" in a West End restaurant last week, in the belief that the Royal Prerogative in respect of sturgeon had been abolished. The newspaper reporting it pointed out that the Prerogative had not yet been abolished, but was shortly to be abolished. That was based upon a reading of the Bill as introduced in another place. In the Bill as it left the other place, and as it now stands, the Royal Prerogative in respect of sturgeon will not be abolished.
620 I hope that that will be regarded by the Committee as sufficient introduction to the general object of this exercise and that hon. Members will be disposed to accept the Motion I have moved, so that the Bill may proceed to detailed scrutiny by a Standing Committee in due course.
§ 11.30 a.m.
§ Mr. Mackie
It is right to say—particularly to the hon. Member for Esher (Mr. Mather)—that once a Bill has been given a Second Reading it is very difficult to stop it going the whole way. Although much can and should be done in Committee, I think that we were right to question the Solicitor-General and argue about the whole question of the complexity of the documents, if nothing else.
I am not sure of my interest here, but I must declare that I am a commoner of Epping Forest and, as such, have a vote in the appointment of verderers. My house stands on the site of King Harold's hunting lodge, which he built about 1050, and in which he lived when he was the Earl of Wessex. I am not sure whether he left me any rights when he became king, but I have a certain interest and would not wish to see any rights that I may have pushed aside without their being fully examined.
I have referred to the New Forest Act, 1902, and I noted that in the debates in another place—both in Committee and on Second Reading—the Lord Chancellor did not give a satisfactory answer to that point. He did not satisfy Lord Montagu. That shows the danger that exists. The Lord Chancellor took care to point out that it was a Labour Government that brought in the 1945 Act which gave the Forestry Commission this right over the New Forest. Ultimately the Ministry of Agriculture took over the right from the Forestry Commission. As far as the Lord Chancellor can discover, the right of the people of the New Forest to obtain land there has not been passed on. Although the 1902 Act may be out of use, the right has not been passed on. That is the danger that faces us. We ought not to repeal Acts without being absolutely certain that something is put in their place.
I do not want to say a lot in general. We probably all agree that once we have been able to see the documents in the 621 time that we have before the Committee stage we shall have a lot more to say. The Solicitor-General has given a very good and amusing resumé of the legal side of the question. As I explained earlier, I am not a lawyer. Another reason for postponing the Second Reading is that the two lawyers who are on this Committee are busy on another Bill. That is why there was such a poor vote from this side of the Committee earlier in our proceedings.
Their Lordships were a little stupid in dealing with the question of the royal fish. Their argument that the coastguards would not be able to notify people as promptly seemed slightly ridiculous However, that is also a point that we can deal with in Committee.
I am not sure whether the Royal Prerogative protects swans. From the agricultural point of view they are becoming too prolific, and are doing a lot of damage. I hope that the Bill will not give them protection if they become very numerous. Over the last 20 years their numbers have been increasing rapidly. I should not like to think that they are protected altogther by the Bill, although I have no wish to remove from Her Majesty the right over swans.
I always thought that the main royal animal was the deer. Am I right in saying that the Solicitor-General gets a haunch of venison from the royal deer every year?
§ Mr. Mackie
If the Bill goes through I do not know whether that haunch of venison will be produced.
We are all agreed about taking away the Prerogative over our forests, particularly in the light of the tremendous pressures from increasing population, the demands of leisure, and so on. That is only right. I do not want to say more, since we all agree that the Committee stage Bill is the proper time to deal with detailed points, of which I am sure there will be many.
§ 11.37 a.m.
§ Mr. Clarke
I go along with my hon. Friend the Member for Enfield, East (Mr. Mackie), who welcomed the Bill 622 in the sense that it is another move towards tidying up our legal jungle. This is a much-needed move, but there are certain points about which I find it difficult to argue with assurance, because of the difficulty of obtaining documents. I should like to put those points to the Solicitor-General in a general way. They can then be dealt with in detail in Standing Committee.
I accept the general premise that we should abrogate the Royal Prerogative when it serves no practicable purpose; that is a sensible approach. But there are certain aspects of the Royal Prerogative about which I am not sure. My hon. Friend spoke about the Royal Prerogative for swans. I am not sure about it, but I understand that it applies only to wild swans. Does that mean only Bewick and whooper swans? Does it include mute swans? I also understand that it applies only to swans on open water. Perhaps we could be told definitively what is open water.
The practical argument for not doing away with the Royal Prerogative is said to be that we want to defend the swan upping of the two City companies, and also want to maintain Her Majesty's right to give swans to foreign dignitaries. I am not sure that in the 1970s that is a practical argument. I also venture to repeat the point made by my hon. Friend concerning the worry of some agriculturists about the increasing population of swans—because they are undoubtedly increasing at a considerable rate.
On the other hand, I disagree with my hon. Friend to some extent; the point made in another place about royal fish is a valid one. No harm is done by including that Clause; on the contrary, I think it is a great improvement. It shows how an ancient right can be modified and used for a modern, scientific purpose.
To take this a stage further, I should like one or two answers on Clause 1(3), which deals with the fence month and the right of winter heyning. As the Solicitor-General rightly said, this restricted the rights of commoners to use the forests. I thought that the fence month was the period of the fawning of the deer, when the deer needed protection, 623 and the heyning was the time around midwinter, when food is usually rather scarce, and that, just as we restrict the catching of fish around our shores, this was an attempt to preserve animals through the most dangerous periods of their existence. I am not sure that by abolishing this provision outright we may not be creating difficulties.
In Law Commission Report No. 28 there is a reference to an enactment of the Royal King's Prerogative, Chapter 13, so far unrepealed, which was deleted in another place. It was deleted in five lines in c. 501 of the House of Lords HANSARD of 16th February. I should like to know why it was thought necessary to remove that part of the Schedule.
The Bill also abolishes certain offices that have existed under the forest laws. I welcome this as a step forward but I am not sure whether it goes far enough. On checking through the Acts I find that the Epping Forest Act, 1878, is not repealed. That retains Epping Forest in the ownership of the Corporation of London, with public access to all our citizens. Under the Bill Her Majesty has a right to appoint rangers to the forest, who would perform functions and have the powers and duties conferred on them by the Bill.
That may not be a very sensible or practical job—to use the Solicitor-General's yardstick again. When we are abolishing these multifarious titles is there not a case for abolishing just a few more, to tidy up the Statute Book completely?
We must recognise that when we are talking about forests in this connection we are not talking about timber but about the use of land as open space. The Bill is a recognition that the open spaces are needed. We need more recreation facilities. In that respect I give a limited welcome to the Bill.
§ 11.42 a.m.
§ Mr. Arthur Blenkinsop
I want to raise only two points. First, I am surprised that the Law Commission should have given priority to this subject as against the many others that it has on its plate. That question was raised in another place. We should seize this opportunity to ask whether something cannot be done to hurry forward some of the other proposals that are under consideration—for example, the law relating to burials, 624 which creates difficulties in respect of possible developments throughout the country, and other matters that a previous Chancellor raised in another place when this matter was debated on Second Reading. I accept that we cannot take that point very far, but I shall be grateful for any comment that the Solicitor-General can make.
Secondly, I cannot go along with my hon. Friend the Member for Colne Valley (Mr. David Clarke), although I am entranced by his interesting comments upon the Bill and the necessity for it. I find it difficult to see the justification for the alteration made in another place; indeed, I go along with the present Lord Chancellor, who said that the whole thing was a nonsense. I do not automatically follow him in his more colourful comments from time to time but in this sense there is some truth in his comment.
The process of notifying museums is in no way legally dependent upon Royal Prerogative. Indeed, the point was made that on some parts of our coast line the Royal Prerogative does not run anyhow, and yet royal fish would presumably be washed up there as much as anywhere alse. The Cinque Ports have been referred to, and other areas of that sort.
This seems to be a stupid anomaly. I should have preferred to establish a clearer situation, rather than try to pretend that the Royal Prerogative signifies a power that any examination of the position suggests it does not really do.
§ Mr. Clarke
The argument is that people in Scotland believe that whales are royal fish, and sometimes inform the coastguards who, in turn, inform the museums. If an alternative mechanism were provided by the Bill I should be happy to see the Royal Prerogative go, but until then I am worried about this point.
§ Mr. Blenkinsop
I take my hon. Friend's point. I should have much preferred to see some alternative procedure spelled out, rather than that the matter should be left under this cloud of romantic nonsense. No doubt we shall be able to discuss these matters in more detail in Standing Committee. To gladden the heart of the present Lord Chancellor we 625 may try to restore the situation. None of us would shed any tears over the whole question, but for simplicity's sake we should like a clear and understandable provision, rather than leave matters as they have been left by the other place.
§ 11.48 a.m.
§ Mr. Finsberg
I apologise if the point that I wish to raise was dealt with while I was called away urgently. It relates to Clause 1(1)(a), which concerns the question of the Royal Prerogative. As I read it, the Prerogative is retained for royal fish and swans, but the right to set aside land or water for their breeding or support is taken away. I do not quite follow that. Can my hon. and learned Friend enlighten me on the question whether royal fish, for example, are expected to live neither in water nor on land? As I read it, nothing is to be set aside for them. I hope that he can reassure me about that. Otherwise, in Standing Committee I may feel it necessary to table suitable Amendments.
§ 11.48 a.m.
§ Mr. Cooke
On the general issue, I hope that my hon. and learned Friend will take careful note of what has been said by so many hon. Members about our reluctance to repeal Statutes, ordinances, and charters just because they are old. In the modern world our country will depend more and more upon its history for its livelihood. Tourism is by no means the small thing that it used to be, and for visitors from other countries to come here and read, at the entrance to a forest, that an ordinance of the 33rd Chapter of Edward I commands them to be careful as they go will add considerable attraction to their visit.
That applies to Acts of Parliament in general and not just to those set out in the Schedule. I shall not weary the Committee by extolling the virtues of the 25th Chapter of Edward I that I have in front of me; that will be for Standing Committee, if I am fortunate enough to be appointed as a Member. The point is that the activities of the Law Commission, as shown in the Schedule, will make for a dull uniformity. It will eventually sweep away most of the ancient Acts, ordinancies and charters.
If we act according to the wishes of the Law Commission we shall become a 626 kind of computerised Parliament. Despite the attractions of that situation to some people, in terms of speed of execution of business, and so forth, I do not think that that is our real function as Members of Parliament. We are human beings, elected by human beings, with all our frailties and prejudices, and we are here to express the point of view of those who sent us here. I am not sure that it would be the unanimous wish, or even the wish of the majority, that we should wipe out all this history.
I end on a personal note in support of these ancient ordinances by saying that I have at home a copy of a grant made by King Henry VII to the builder of my house, regularising something that had already happened in the previous reign. It is a kind of retrospective planning consent, because it says that the fortifications are in order. It goes on to say that anything that is built in the future shall be in the same style. I find that a great comfort, because if I have any difficulty with Fine Arts Commissions, planning committees, or similar organisations, I can point to the grant of King Henry VII which decreed that the building shall go on as it was started. I intend to follow it.
The happy bit about enclosing so many hundred acres has gone by the board, but that is another matter. I have given a little personal example, but many other examples could be quoted to these ancient ordinances and statutes having a significant modern use. We should be slow to wipe them all out.
§ 11.52 a.m.
§ Mr. Mather
My hon. Friend the Member for Bristol, West (Mr. Robert Cooke) has made some valid points that we have not heard before about the caution which we need to have in examining these matters before we sweep them away, even though they may not appear to have any practical value.
My hon. Friend the Member for South Shields (Mr. Blenkinsop) appears slightly to have misinterpreted what went on in the other place. My reading of the situation there was that the Lord Chancellor had a severe mauling, and found it extremely difficult to make a case for taking royal swans out of the Bill but leaving whales in. In the end he had to accept the Amendment put forward. As we see from the Bill that now appears before 627 us, royal fish are out. The Bill does not deal with the subject of royal fish at all.
Speaking in the other place, one of the trustees of the Natural History Museum made a valid case for retaining the present arrangements, under the Royal Prerogative, for recovering sturgeon, porpoises, and whales. He pointed out that if this were done away with there would be no alternative law to put in its place. He made the point that those mammals are extremely valuable today, particularly on account of the degree of pollution of the sea.
We are now discussing only forest law, and not the part dealing with wild creatures but, as my hon. Friend said, there is an anomaly, in that although swans are out they are apparently prevented from having any land or water set aside for them to breed. That situation needs to be looked at if the Bill goes on to Standing Committee.
It looks an extremely innocent Bill, but I believe that it is deceptive, for it raises fundamental issues. It is straining the ability of any Commission—however learned—to undertake a job of this kind, with 63 Acts amended in some way or other and 44 actually repealed.
To my mind the whole exercise is a great waste of public time and money. There are many other things the Law Commission ought to look at first. They were mentioned by the former Lord Chancellor in a debate in the other place—burials, deserted wives, and other matters of that sort. I cannot understand how it has come about that this body of learned men, employed at considerable expense, have spent all this time and wasted all this money in dealing with a matter of this sort, which has no immediate practical effect on the law.
Procedurally, there is no precedent for revising and amending laws on this vast scale. On the last occasion when it was done—and there has only been one previous occasion—it was done by a Joint Committee on Consolidated Bills.
The constitutional aspect raises a large question mark. My interest stems from the fact that there is some doubt to whether or not a royal chase exists in my constituency.
The story goes that when King Henry VIII came to Hampton Court he used to go hunting in Windsor Forest. In his 628 younger days he could get up there quite easily, but when he became elderly and more corpulent he found it difficult to hack to the meet. He then formed various game reserves around Hampton Court and made some walled enclosures for coursing and shooting small game, but his main sport was stag-hunting. He could not get up to Windsor Forest, so he decided to create a hunting preserve on the other side of the river in the area that my constituency now occupies. It was called Hampton Court Chase. Interestingly enough, it follows almost exactly the present boundaries of my constituency.
In 1539 an Act was brought in, which I have before me, creating an "honour", which was a group of manors under one lordship in the area for the purposes of this chase. The interesting thing is that this Act is not on the Statute Book; it is in the Statutes at Large. It is therefore not covered.
In order to enclose the area, a fence or pale was then built with a ditch four feet deep and a high fence so that the deer could not escape. We also have all the details of the woods where the timber came from—some from a considerable distance. We have the details of what the men were paid for the timber, what the carters were paid, what the ditch-diggers were paid, what the men who put the fence together were paid. We still have details of all this. The fence was built so that the deer could not jump out, but there were three or four places on higher ground where they could jump in.
This was in the later days of King Henry VIII and, as can be imagined, it caused much distress in the neighbourhood because the deer ate the crops. The people benefited to a certain extent because they paid one-third less in taxes, but the forest law at that time was fairly arduous. The people made a complaint in 1545, and there was no redress.
Then King Henry VIII died, and when the boy king, King Edward VI, came to the throne, a further petition was made. This was examined by the Privy Council at Oatlands Palace, the petition was agreed to and it was agreed that the area should be dechased. It was discreetly added, however, that this would in no way prejudice the King's rights to make 629 it a chase again if he so wished. It has actually been dechased but it is still technically a royal chase.
I should like to ask my hon. and learned Friend what the exact position is here. We are not complaining about the fact that it may still be under forest law, even though the Law Commissioners believe that they have abolished forest law. There are certain entertaining rights which we shall have who live under forest law:Every freeman shall have within his own woods areas of hawks, sparrow hawks, falcons, eagles and herons and shall have also the honey that is found in the woods.We find this very agreeable on the whole. That is the story of how I came into it. If the Law Commissioners believe that forest law is being abrogated, as they say it is, they are incorrect; they have failed to do this. If they believe that they have abrogated Statute forest law, they have succeeded. But what is the point of abrogating Statute forest law if forest law itself still continues to exist?
As I have already said, on the point of being a great waste of public money and time, the Law Commission's time could have been much better spent, I believe, quite apart from the specific points I have mentioned about deserted wives and the other things, in looking at our present legislation. This is surely a job which they ought to be doing.
I draw the attention of the Committee to the speech which Sir John Hobson made during the Second Reading of the Law Commission Bill on 8th February, 1965, when the Law Commission was being set up. He called the Bill:…an elaborate piece of expensive machinery designed to perform functions for which there already"—exists:full Ministerial responsibility."—[OFFICIAL REPORT, 8th February, 1965; Vol. 706, c. 60.]He added that we do not want any major or important Measures to go through the back door in this way just because five lawyers, however eminent, may say so. Hon. Members may not consider that this is a major piece of legislation, but I suggest that it raises major issues.
Sir John Hobson went on to say that there already exist instruments to do this job. We have the Lord Chancellor's 630 Law Reform Committee, which still exists, we have the Home Office Criminal Law Committee, which still exists, and we have the office of the Parliamentary Counsel. These three bodies are responsible for law reform. I believe that the Measures which we have before us are part of our living history, and that they do no harm to anyone.
I have mentioned before this question of procedure and I should like to ask my hon. and learned Friend why in this case we did not have the Joint Committee on Consolidation of Public Bills, because it is an exactly similar Measure to that which was considered by this body before? Even if that body considered that its task was too great, although it did make some very important Amendments. It replaced several parts of Magna Carta which had been taken out by the Law Commission.
By what constitutional authority does a body such as the Law Commission sit above Parliament and dictate law revision to Parliament and the abrogation of our Statute law, even going so far as to draft Bills? In the Law Commission Report No. 28 there is a draft Bill, and in Law Commission Report No. 22 there is a similar draft Bill.
On the Second Reading of the Law Commission Bill, my hon. and learned Friend drew attention to this, and said:It is my impression that the scope of the Commission to initiate proposals about the reform of Law of its own motion is restricted by Clause 3(1)(c)"—[OFFICIAL REPORT, 8th February, 1965; Vol. 706, c. 139.]Clause 3(1)(a) of the Bill, which they were then discussing enabled the Law Commission to recommend proposals, but not to go ahead and make a draft without the approval of Parliament. Hon. Members then present will recall this, but this is exactly what the Law Commission has done. It has gone ahead and prepared draft Bills, which is really the job of Ministers, and it is attempting to ram these Bills down the throat of Parliament. This is not right. The Law Commission is not an infallible body, and of this there are several notorious examples in its short term of life.
The first was in the previous Measure, the Statute Law Bill. On this occasion it issued a Press notice that they had drafted the Bill and proposed to abolish 631 freehold. To anyone who knows anything about the laws of freehold—and I cannot claim any particular knowledge myself but I quote as my authority my hon. and learned Friend the Member for Southport (Mr. Percival)—this was an absolutely revolutionary proposal, and it had to be withdrawn.
Again it proposed to repeal—again I have no special knowledge and again I quote my hon. and learned Friend the Member for Southport—Amendments which have Latin titles, which I will attempt to pronounce, the Quia Europtores and the De Davis Conditionalibus. These two Acts have a great practical significance in the law of property, and these two abrogations had to be taken out of the Bill.
The Commission also proposed to repeal, and it was in their draft Bill on the last occasion, the First Article of the Magna Carta, the great charter of the liberties of England. The passage which the Commission attempted to repeal ran as follows:We have granted and also given to all…
§ The Chairman
Order. Will the hon. Gentleman kindly come a little closer to the subject of the Bill we are discussing? We are going a little wide of the topic under discussion.
§ Mr. Mather
I was attempting, Mr. Wallace, to bring out this extremely important point of principle, which I think is absolutely fundamental to the Bill. However, I will not continue to quote from that, but anyone can look it up in the Statute Book. It is the foundation of our English liberties, and that is what the Law Commission was attempting to do.
The Charter for Forests and the Magna Carta are the twin foundations of English liberties. The Magna Carta has been very seriously amended, largely by the Law Commission. If one abolishes the forest law at the same time it destroys the whole basis of our English liberties and makes the whole of the Statute law look extremely silly. The Law Commission has run amok in our Statute law and has already created untold damage.
We have no written Constitution. Our only written Constitution is in our procedures in this House, which safeguards our liberties, and the Statute law. This 632 is part of our living law. It is not dead, because these are the principles on which the law is based. One has only to look at the law of Edward I, No. 34—An Ordinance of the Forest to read one of the finest pieces of English prose.
The forest law—and I have spent a considerable time looking through these Measures—is not there only to establish the Sovereign's rights. It is there at the same time to establish the people's liberties. It will be found that all Measures listed in the Schedule are about liberties and not about oppressive provisions. I believe that the Bill concerns not legal lumber; it concerns English liberties, it concerns constitutional liberties, and it concerns our Parliamentary liberties. I suggest, Mr. Wallace, that the Committee should give extremely serious thought before giving the Bill a Second Reading.
§ 12.12 p.m.
§ Mr. Hardy
The hon. Member for Esher (Mr. Mather) seems to be critical of the Bill. He was suggesting that Parliament was being used merely as a vehicle for the implementation of the desires of the Law Commission. If Parliament is properly vigilant, it will not act merely as a recipient of dictation from the Law Commission. If, therefore, we are vigilant, and perhaps make improvements or changes and Amendments, it could well be that this might be a more important Measure than we might now suppose.
My hon. Friend the Member for South Shields (Mr. Blenkinsop) referred to an Amendment made in another place. I think he rather admires the Amendment. I am not sure that I do, but I certainly support the reason for it.
§ Mr. Hardy
I must confess that I am not particularly concerned or anxious about that Amendment, but I can support the reason for its being agreed. It seemed to me that it was agreed as a rap upon the Government's knuckles for their failure to consult the Natural History Museum over the question of royal fish. I wish that the Government had consulted the conservationists, and natural history bodies and other organisations before bringing in the Bill. We 633 might have had a far more useful and better Measure had they done so
We obviously have to rid the Statute Book of some of the ridiculous obsolescence with which the Bill deals and with which the Solicitor-General dealt in his most interesting speech. We cannot keep on the Statute Book some of these Acts. The hon. and learned Gentleman referred to an Act concerning dogs. As a person who has bred and exhibited dogs over a considerable time, I should hate to retain on the Statute Book a law which said that dogs' feet had to be disfigured.
But we ought not merely to repeal the Acts; we should seek to improve the law. There is a reference in Clause 1(7) to gamekeepers. Today there are many gamekeepers and landowners who are aware of the need to preserve and build up a balance in nature, but it is quite obvious that there are even today gamekeepers, and perhaps some landowners, who still believe that predators ought to be destroyed as soon as seen.
The gamekeeper's job is to rear pheasants and, perhaps, shoot everything else that moves. I am not referring to all of them; there may only be a minority. But we ought to be very careful, indeed, to make sure that gamekeepers are sufficiently knowledgeable about Nature to realise that very often the predator performs a useful rôle. The badger is generally a beneficial animal. The kestrel is most useful, yet today kestrels will hang on gamekeepers' gibbets. The otter is generally frowned upon, yet recent evidence suggests that it is a very useful creature.
It is possible that had it not been for the First and Second World Wars the slaughter of predators that was being carried on in Britain through the 19th and into the 20th century was such as would have seen the complete extinction of a number of very attractive species of British wild creatures, such as those which the hon. Member for Bristol, West (Mr. Robert Cooke) had in mind when he was talking about the need to attract the tourist.
A lot of people like to see the golden eagle, or perhaps even the wild cat when they visit Scotland. But if the modern conception of natural balance did not apply, we would probably by now not 634 have any golden eagles or wild cats in Scotland—and certainly not if we had not had the First and Second World Wars. We probably would not have had any of the harriers, or peregrines, or buzzards, or kites which are still seen in Britain today if the primitive views of the old-fashioned gamekeeper and landowner had applied. One of the few things for which we can be grateful for the First and Second World Wars is that they took away the gamekeepers and gave the predators a breathing space.
I hope that when we have finished with the Bill we will at least be able to underline the fact that the gamekeeper and the landowner—all, not merely the majority—are to be concerned with the need for the preservation of balance in that part of nature and our environment for which they have some responsibility. The hon. Member for Bristol, West made a point with which I was concerned. We obviously cannot afford the luxury of unnecessary obsolescence, but we spend a considerable amount of money in maintaining contact with our history through the establishment of museums and so on. This is expensive. It is, perhaps, even more expensive to maintain contact with our military heritage by spending vast sums of money in preserving the techniques of military movement and drill of the 18th and 19th centuries.
I submit that if we spend vast sums of money on museums and military pagentry—I am not disagreeing with it; people like it—we ought to spend a little time and trouble in examining the ancient Statutes to see which we can properly and usefully keep and which we ought to amend. We should obviously seek to remove unnecessary obsolescence from the Statute Book, but we ought also to see which Statutes we can maintain and amend, in order that that which was relevant once can be made relevant today.
Obviously the forest laws were relevant to the feudal period, but today people are interested in forests and woodlands as never before; they are also interested in wild creatures. It would be a mistake to remove that which was irrelevant without taking any action to see whether we can put something relevant in its place.
§ 12.19 p.m.
§ Mr. Peter Mills
I appreciate what my hon. and learned Friend is trying to do, but I am afraid that I am one of those who have a natural reaction against anyone who seeks to do away with our ancient rights and laws. I agree that much probably needs to be removed from the Statute Book, but I am always a little hesitant about taking such drastic measures as are contemplated in the Bill. In the most ancient law book of all there is a small phrase to the effect that "some would remove the landmarks". There are always some people who wish to remove the landmarks of our countryside and our country.
I have not gone into this matter very deeply, but looking at it on the surface it would seem that many of these ancient rights and laws ought to remain. They do no harm. I have a strong natural reaction against this sort of thing, but I am quite prepared—knowing my hon. and learned Friend so well—to concede that in his wisdom what he is proposing to do is probably right.
It would be of great benefit to me, as a small landowner, if the Queen started to hunt over my own land, I should have thought that the local tradesmen would benefit tremendously from the hunting carried out in my area.
§ Mr. Hardy
I do not wish to become involved in an argument about blood sports, but has the hon. Member realised that in view of the popularity of the Monarchy today and the growth of the population since the Middle Ages, the increased mobility of our people would be such that if the Queen chose to hunt upon his land the procession of followers that would inevitably result, the hundreds of tons of litter that would be deposited, and the damage done to his gates, hedges and fences, would be such that the hon. Member would almost certainly become a confirmed supporter of the abolition of blood sports forthwith.
§ Mr. Mills
That is a most interesting discourse. The hon. Member has obviously not looked at my Bill—the Dangerous Litter Bill—which seeks to deal with that very point. I shall be out of order if I continue in that vein. The hon. Member must look at the very important Private Members' Bills that are 636 coming before the House. I have exaggerated, but it is important not always to seek to destroy our ancient laws and heritage. It is important that some of the ancient landmarks should remain, as the good book says.
§ 12.22 p.m.
§ Mr. John Page
I am very disturbed by the Bill. It seems absolutely pointless. The Lord Chancellor, in another place, said:There is obviously a great deal of learning behind this Bill, and I should like to express my gratitude to the Law Commission for the pains that they have taken in unearthing this extraordinary piece of almost archæological law. We ought to get rid of it, however picturesque it may be; and this Bill gets rid of much of it."—[OFFICIAL REPORT, House of Lords, 25th January, 1971; Vol. 314, c. 717.]I ask the Solicitor-General whether the existence of these statutes has been a nuisance to anybody. It seems to me that the Members of the Law Commission who, I presume, are paid for their pains—[Interruption.] I should like to be informed about this. It seems extraordinary that they should have to spend their time unearthing something of archæological importance and then destroying it, rather like the archæologist going to a barrow, spending hours in digging out the fossils, and then making them into a road. I do not see the point of it.
Can the Solicitor-General tell us whether young lawyers would find it necessary to become up to date on this kind of Statute law before they qualify? If he says that they would have to spend some time learning about these things, perhaps there is some reason for having them put aside, but if they are just sitting there I should have thought they were doing no harm, and that it was an awful waste of the time of these eminent lawyers—and the time of the House—to bring forward a Bill of this kind.
The retention of these Statutes would seem to do no harm whatever. I am willing, rather regretfully, to give a Second Reading to the Bill, but I most strongly reserve my position as to a Third Reading. When we know more about what is being destroyed I shall wish to make up my own mind whether or not it should be destroyed.
§ 12.26 p.m.
§ Mr. Mackie
I have nothing to add, except to point out to the Solicitor-General that I do not think that this has been quite such a simple Bill as one of his hon. Friends told me when we entered the Committee Room. There is a lot of meat in the Bill. Many hon. Members have misgivings about it—the hon. Member for Esher (Mr. Mather) in particular. Others are worried about the traditions that it is killing, and many think it is a waste of money.
There seems to be some doubt whether the members of the Law Commission are paid. I do not know. But I should like to ask the Solicitor-General what is the actual physical procedure. Are those weighty tomes taken and the Bills extracted, and the whole thing reprinted? Is there any reason for destroying them? Shall we have a bonfire? The hon. Member for Bristol, West (Mr. Robert Cooke) said that some of the language was worthy of preservation. I presume that that will not be destroyed; he can look it up elsewhere.
The Solicitor-General will appreciate that the Bill will have to be examined very carefully in Standing Committee, and we look forward to having his reply to the numerous and pertinent points that have been put not only by hon. Members on this side of the Committee but also by his hon. Friends.
§ 12.27 p.m.
§ The Solicitor-General
With the leave of the Committee, I shall reply shortly to some of the points that have been raised. Many detailed questions have been put to me by hon. Members on both sides, and I do not propose to answer them all. Some of them can be dealt with in Standing Committee.
The hon. Member for Enfield, East (Mr. Mackie) and the hon. Member for Colne Valley (Mr. David Clarke) both made the general point about the nature of the conservationist position in respect of swans. The swans that are the concern of the Royal Prerogative are white wild swans on open and common rivers. I cannot answer for the detailed analysis of the sub-species of the bird, and the Prerogative extends thus far.
The preservation of the Prerogative is important, not only to preserve swanupping—although its touristic attractions 638 of the kind that appeared to my hon. Friend the Member for Bristol, West (Mr. Robert Cooke) should not be disregarded—but also as the foundation for conservation on the River Thames. The point made by the hon. Member for Enfield, East about the possibility of conservation going too far must be looked at in the context of modern legislation dealing with animals and conservation generally.
There is no need, as my hon. Friend the Member for Hampstead (Mr. Finsberg) implied, to preserve the Prerogative right to set aside areas, land or water, for the breeding of these wild creatures. The wild creatures in question either have their habitats already in open or common rivers or in the open sea, and those are really the matters we are now dealing with.
The right to set aside land or water for breeding for sport or taking wild creatures harks back to the right exercised by Henry II at some inconvenience to demand the right to hawks and falcons on certain defended rivers. Her Majesty has her own land on which to feed her own animals. Animals in respect of which the Prerogative exists have their own roaming ground, and what one is removing is a very shadowy power, which the Crown might yet possess, to take my hon. Friend's back garden at the stroke of a pen, as a place in which to keep wild animals.
§ Mr. Finsberg
If for example, these fish and/or swans happen to be in their natural habitat—let us say, at Foulness—and that natural habitat disappears whilst neither he nor I have water in our back gardens, what would happen? Where can the breeding or support continue when the natural habitat goes?
§ The Solicitor-General
That very important question can be considered by my right hon. Friend the Secretary of State for the Environment. The whole Committee will accept that it would not be appropriate for it to be resolved by a regal diktat, however, much respect one may have for Her Majesty, which might or might not decree that the creatures thus displaced should be accommodated in any of our more humble back gardens, if there were room to accommodate them there.
639 I may say one thing more about the question of royal fish. There is obviously room for a difference of opinion as to whether the existing pattern of the coastguard service does or does not depend on the Royal Prerogative, and whether it is sufficient protection to the Natural History Museum, and so on. It is important, while the Press are here, that the country should at least now be informed of the present state of play about the Royal Prerogative in respect of royal fish. The hon. Member for Colne Valley said that one of the values of the Royal Prerogative right in fish is that people believe that whales belong to the Crown. Whether that is right or wrong, it is important that they should know what the present state of law is.
There was a report in the Daily Express on Saturday, 24th April, which set out the account of this sturgeon that was caught and sold in Scott's Restaurant as "Sturgeon Royale". The report was headlined "The One that Got Away from the Queen's Platter", in the belief, as I explained to the Committee, that the Royal Prerogative in respect of sturgeon had already been abolished.
We do not yet know what is to happen to the Royal Prerogative in respect of royal fish. The Bill as introduced in the other place said that it was to be abolished; the other place said that it was not to be abolished. The question of what is to happen to the Royal Prerogative in respect of royal fish is still on Parliament's platter before this Committee, and will be before the Standing Committee hereafter.
§ Mr. Mather
Is it intended by the Government to revert the Bill to its former phraseology, and table an Amendment to bring back royal fish into the Bill and thereby abolish them?
§ Mr. Mackie
Before the Solicitor-General replies, will he also answer this point? The B.B.C. also got it wrong; it had a programme this morning on the subject, which I heard on the way in in the car.
§ The Solicitor-General
I am grateful to the hon. Member for Enfield, East. The point, I hope, is now at least clear, that we do not yet know whether Parliament will abolish the Royal Prerogative in respect of royal fish. The Bill as 640 introduced in the other place said "yes", and the House of Lords said "No". It now comes here as amended by the House of Lords. There is no present intention to re-amend the Bill to its original form. This is the kind of matter on which Parliament is entitled to express its view in this way. This Committee may yet form its own mind about it in some different sense.
The last point that I wish to make relates to the more general arguments that hon. Members have addressed to the Committee about the entire process of Statute law revision and the activities of the Law Commission. One of the most difficult questions for a lawyer, and a layman, to face is trying to assess what is the proper rôle and place of law reform and, in particular, of Statute law reform of this kind.
The Law Commission was certainly established with one of its functions the bringing up to date of the Statute Book. It was established by Act of Parliament. Its members are paid, one of them as one of Her Majesty's judges and the other four as Law Commissioners.
Surely this Committee will not gainsay the importance of trying to produce for our lawyers and laymen a more compact, coherent and intelligible Statute Book. If one goes to any other country in the Common Law jurisdiction—and it has disadvantages as well—one can go along to the Stationery Office and buy the revised Statutes of the Province of Ontario or New Zealand in one more or less compact set of books, so that someone can actually see the Statute law by which he is intended to be governed.
One of the matters which has beset those of us who try and work with the law, and laymen such as many of my hon. Friends who have been raising their understandable criticisms this morning, is that when we try to discover where the law is and what it is, we find ourselves tearing our hair at the accumulation of books of the type exhibited by hon. Members this morning.
One of the tasks on which the Law Commission will shortly be giving assistance is the preparation of a modern compact edition of Statutes Revised. When we achieve this object, the question will be whether we are to re-enact in that book of the contemporary Statutes of the 641 United Kingdom, Statutes about the right to law dogs' feet and the right not to chop off joints of people's hands in Wales.
In general, people would support the idea of trying to diminish the number of Statutes when they have passed their utility. On the other hand, there is a charm and attraction in some of the Statutes that we have. The language is beautiful, the notices that display them are impressive, and the fact that we are governed by such things is in itself attractive and one would dislike the idea of casting them away.
It is that difficult balance which must be undertaken. I am not myself sure, looking at it in the strategic sense, and I have sympathy with what my hon. Friends say about this, that we have yet the right strategic mix for answering these questions. I rather shrink from the possibility of dividing the Statutes into two kinds; those that actually matter and are reprinted for contemporary use, and those that are kept in a kind of archaeological stream. Yet one can see the sense that prompts people to move in that direction.
I hope that hon. Members will agree that the broad approach of trying to modernise the law in this kind of way is acceptable. I certainly take the point that there is much more for the Law Commission to be getting on with. The resources of legal skill are not infinite. The points put by the former Lord Chancellor to my noble and learned Friend the Lord Chancellor in the other place, illustrate things that the hon. Member for South Shields mentioned—burial grounds.
A great deal of this kind of work is going on. I am myself much attracted by the importance of studying the possibility of simplifying the entire pattern and structure of the laws which we are passing on so many topics raised by several hon. Members this morning. We have, however, had a Law Commission for only six years. Law reform, despite what my hon. Friend the Member for Esher (Mr. Mather) says about the Law Reform Committee and the Criminal Law Revision Committee, has for too long been nobody's business. The Law Commission and many other bodies are producing Bills for consideration through our constitutional machinery—
§ The Solicitor-General
No. The Law Commission cannot produce legislation or take things into its programme save with the consent of the Lord Chancellor and in accordance with statutory procedure. It is very valuable, as I am sure hon. Members will agree, for the Law Commission to produce its proposals in the form of a draft Bill, with the very useful innovation that it has developed of putting its annotations on the Bill in facing pages so that we can understand them.
§ Mr. Mather
Is it really true that the Lord Chancellor gave precedence to this kind of Bill in preference to all the other urgent matters that hon. Gentlemen opposite have mentioned, which should have been dealt with first? Quite apart from our modern law, which is in urgent need of revision, I cannot believe that the Lord Chancellor actually gave his approval for this operation to be carried out.
§ The Solicitor-General
There is one point about priorities, and this is why I made a sympathetic response to the difficulty of deciding whether one can distinguish certain kinds of Statute which ought not to be the business of Statute law revision. I would find it very difficult to do. One of the priorities which Parliament gave to the Law Commission, which the Lord Chancellor gave to the Law Commission and which, I should have thought, the country gave to the Law Commission, is that it should enable us to have in one compact place, readily accessible, all our Statutes drawn together intelligibly—the whole business of Statute law revision. This Bill is part of it. This particular exercise is going on the whole time.
There is this difficulty about dealing with the archaeology of Statute law. It is a genuine balancing argument. But I hope that my hon. Friend does not set on one side the importance of getting in one place, modernised, the Statutes under which we have to live. This is part of an ongoing systematic process undertaken by the Law Commission in accordance with its duties.
I hope very much—and I am sure that it will be the case—that the Law Commissioners themselves will read the proceedings of this Second Reading debate, 643 because it indicates some of the anxieties of which they ought to be aware in continuing their important work. I hope that hon. Members will consider once again the extent to which it may be right for this kind of Bill, which is part consolidation, part Statute law revision and part law reform, to be considered by a Joint Committee of both Houses, rather like the Consolidation Committee. It may be more appropriate for that kind of deliberative consideration.
I have always felt that the informality of such consideration is more appropriate for this sort of undertaking than the formality of the conventional Second Reading Committee and the conventional Standing Committee. I am sure that that idea deserves to be looked at as well.
I hope that, if I acknowledge the strength of what hon. Members on both sides have said in favour of maintaining aspects of our law which are attractive, they will acknowledge, equally, the case which I seek to make, which is supported by many hon. Members, in favour of modernising those parts of the Statute Book with which we have to work and trying, however difficult it may be, to balance the lust of my hon. Friend the Member for Torrington (Mr. Peter Mills) for antique spectacles upon his land—or, at least, at a convenient and respectable distance from his land—with the lust of others of us who have to work with the law for something a little slimmer and more manageable than that with which we now have to live.
§ The Chairman
Some hon. Members seem to have the impression that they are giving an automatic Second Reading to the Bill. I should point out to the
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:|
|Wallace, Mr. (Chairman)||John, Mr.|
|Armstrong, Mr.||Lomas, Mr.|
|Blenkinsop, Mr.||Mackie, Mr.|
|Clarke, Mr. David||Mather, Mr.|
|Cooke, Mr. Robert||Mills, Mr. Peter|
|Eyre, Mr.||Morrison, Mr. Charles|
|Farr, Mr.||Page, Mr. John|
|Finsberg, Mr.||Rost, Mr.|
|Hall, Miss Joan||Solicitor-General, The|
§ Committee that we are recommending the Second Reading to the House.
The Question is,
That the Chairman do now report to the House that the Committee recommend that the Wild Creatures and Forest Laws Bill [Lords] ought to be read a Second time.
Those in favour say "Aye"; those to the contrary say "No"—
§ The Chairman
I was exercising the prerogative of the Chairman to collect the voices. However, if it is the wish of the Committee that there be a Division, I am quite prepared to allow it.
§ Committee rose at fifteen minutes to One o'clock.