TRANSITIONAL AND SAVING PROVISIONS (Hansard, 5 August 1976)

§ Mr. Graham Page
With the permission of the hon. Member for Huddersfield, West (Mr. Lomas), I beg to move Amendment No. 43, in page 14, line 5, leave out from 'effect' to end of line 13.
Schedule 3 deals with the transitional provisions relating to the Water Act 1958. That Act is repealed by Clause 5(7), which stated: The Water Act 1958 (which is superseded by this Act) is hereby repealed except in its 2280 application to Scotland subject, however, to the transitional and saving provisions contained in Schedule 3 to this Act. The first four lines of Schedule 3 are common form: The repeal by this Act of the Water Act 1958 in its application to England and Wales shall not affect the validity of an order under that Act which was in force immediately before the repeal took effect. I have no objection to that whatever. It is common form. However, it then goes on with something that I do not recognise as being in common form when one is repealing an existing piece of legislation. It says that any Order under the 1958 Act may be varied by a subsequent order made under and in accordance with that Act". Therefore, it is keeping the 1958 Act in being for the purpose of varying Orders under that Act. Surely the right process would be to say that those Orders, until they are varied, remain valid, and then to apply any procedure for variation of the Orders under the present Bill.
Then sub-paragraph (b) says: any thing done or omitted after the repeal took effect which would have constitued an offence under that Act"— the 1958 Act— if that Act had remained in force shall constitute an offence under that Act and be punishable accordingly. Surely, if one has repealed an Act one does not go on making Orders under that Act and go on prosecuting under it. I should have thought that it was quite sufficient to leave the first four words of Schedule 3 in and to omit the two subparagraphs. I do not know whether the right hon. Gentleman can give me any precedent for them. I do not recognise them as having been used before. They will cause great confusion, certainly for the practitioner who has to look to see whether his clients are committing an offence under the 1958 Act, which has been repealed, or under this Bill when it becomes the 1976 Act and the proper Act in operation. I would have hoped that the right hon. Gentleman would make things much simpler by removing the two sub-paragraphs.

§ Mr. John Silkin
The right hon. gentleman has got it quite right, but in getting it quite right he has come to quite the wrong conclusion. The whole point about this is that there are a number of 2281 Orders which are in effect at present under the 1958 Act. The whole reason why we are sitting here at two minutes past 11 o'clock, when all of us would much rather be at our homes and asleep in bed—with the exception of the right hon. Gentleman, who, as everyone knows, begins to wake up at this time of night—is that we are in an emergency.
If the right hon. Gentleman thinks about this for a moment, he will appreciate that the effect of a total repeal, without this saving transitional provision, would be that the Orders at present in effect would cease. The authorities would then have to wait until the Bill becomes law and would then have to go through all the statutory processes all over again. It was felt that for this bridging moment, the transitional period, it would be best to do something for which, I must admit, I do not think there is a precedent. However, once the Bill becomes law in the near future, after receiving, as I hope it will, Royal Assent, the effect of this saving provision will dilute and diminish until eventually it is no more.

§ Mr. Graham Page
All that the Minister has said is covered by the first four lines of the schedule. That much is in common. Orders remain in force. However, when one wants to vary them under the current legislation, one should not keep in being a repealed Act in order to vary them or in order to prosecute people under it. I do not know what will happen when the matter of prosecuting under a repealed statute by this provision comes before a court. I am trying to help the right hon. Gentleman in simplifying the Bill.

§ Mr. John Silkin
Even allowing for the original wording that the right hon. Gentleman would like to see remain, the Orders in question could not be varied, and this would be, or at least could be, quite wrong. The right hon. Gentleman must understand that we are dealing with something which will, we hope, take effect because the 1958 Act was not powerful enough. We are not moving into any other territory. It is purely in regard to an emergency. If the right hon. Gentleman will be a little patient, he will find as time passes that there are no more Orders under the 1958 2282 Act that could worry him or the House in general.

§ The Chairman (Mr. Oscar Murton)
The Question is, That the amendment be made. As many as are of that opinion say "Aye".

§ Mr. Graham Page
Aye.

§ The Chairman
To the contrary, "No". I think the Ayes—

Hon. Members
No.

§ The Chairman
The Question is—

§ Mr. Graham Page
On a point of order, Mr. Murton. I distinctly heard, when you first put the Question, "The Ayes have it". I do not know why you changed your mind and put it again.

§ The Chairman
Perhaps I might help the right hon. Gentleman. I did not use the magical words "The Ayes have it, the Ayes have it". We did not reach that point. In fact, the Noes have it.