§ Order for Second Reading read.
§ 10.17 p.m.
§ The Under-Secretary of State for the Environment (Mr. Ernest Armstrong)
I beg to move, That the Bill be now read a Second time.
The Bill seeks to amend the Rent (Agriculture) Act 1976 which gave security of tenure to agricultural workers housed by the farmers who employed them. The amending Bill is narrowly drawn and deals with the result of a minor clerical error which occurred in the Public Bill Office in another place.
In Committee in the other place, the Opposition moved an amendment designed to set a time limit on local housing authorities for notification of their decision on any application for rehousing. The Government accepted the principle of the time limit and tabled an amendment accordingly on Report. Under this, an authority would have a duty to say whether it accepted any application within three months, and in cases where the advice of the Agricultural Dwelling House Advisory Committee was involved the time limit would be two months after receiving ADHAC advice. This was approved and correctly put into the text of the Bill as amended on Report.
When the necessary list of amendments was being prepared by the Public Bill Office in another place for subsequent consideration in this House, a minor clerical error was made. A wrong line reference was put in. The figure "7" was inserted instead of the figure "4", which meant that three lines of text—lines 4 to 7—were removed which should not have been removed, and this made nonsense of the particular section. When the Lords amendments were discussed in the Commons—it will be recalled that I spoke to this particular amendment—the 1582 minor clerical error was not noticed and the Bill proceeded to Royal Assent with the error undetected.
The error was subsequently brought to the notice of the Clerk of the Parliaments, and in considering how he should discharge his responsibility for publication of Acts of Parliament he decided to take the view that the amendment had not been made—because the Lords had deleted words only to line 4 while the Commons deleted words to line 7—and, therefore, the Act was printed without the amendment.
My Department informed local authorities of the clear intention of Parliament and requested them to observe the time limits. I have had no complaints on that score. The Bill will confirm that intention, translate it into law and immediately carry through the clear wish of Parliament. The Bill is due to come into effect two weeks after Royal Assent.
Given that background—that we are rectifying the consequences of a slip in parliamentary procedure—it was my hope that the Bill could reach the statute book with the minimum of delay. In the other place the whole proceedings on the Bill were completed in 15 minutes. I had expected us to complete all stages tonight.
I have been in continuous correspondence with the hon. Member for Hornsey (Mr. Rossi). I regret the need for further delay when the Government have taken such urgent action to correct what was a minor error, the figure "7" being written instead of the figure "4". The Bill was published on 26th January. It clearly expresses what was Parliament's intention and it meets the Opposition's strongly expressed desire to give statutory effect to time limits for decisions by housing authorities on applications for rehousing.
I ask the House to give the Bill a Second Reading.
§ 10.20 p.m.
§ Mr. Hugh Rossi (Hornsey)
I am grateful to the Minister for responding so rapidly to the request I made on 10th January for this matter to be put right. I raised the matter with him as long ago as 16th December, when he was unwilling or unable to put it right. Therefore, 1583 the previous Bill eventually found its way on to the statute book in its incorrect form.
The hon. Gentleman spoke of delay and his wish to have all stages of the Bill completed this evening. That could have been done if the Government had tabled the usual motion that amendments could be tabled before Second Reading. Because they did not do so, amendments could not be tabled and we must now deal with them on another day. The responsibility is the Government's because of the way in which they prepared the Order Paper.
In a few minutes I shall tell the House what amendments I think to be necessary. First, however, because of the way in which the Minister moved the Second Reading, I wish to say that it is an absolute disgrace that the matter should come to us at all. The hon. Gentleman cannot shuffle the responsibility off to Officers of the other House. The error arose simply because of the way in which the Government have sought to pressure legislation through both Houses.
The Act whose amendment we are considering went through Committee in an orderly fashion. There was no need for any special sittings motion. There was no filibustering. But the Government found it necessary to move a guillotine motion because they were in such a panic over their legislation just before prorogation. That is the beginning and end of the trouble we are in today—the unseemly haste with which this legislation was forced through both Houses, with the result that we were not able to give the previous Bill and the amendments proper consideration.
I am certain that were it not for the guillotine, if we had been given adequate time to study the Lords amendments and compare them with the text of the Bill, which is our normal practice in these matters, the error would have been discovered earlier. It was discovered on 16th December, before the Act was published, and I feel sure that steps could have been taken then to rectify the matter.
§ Mr. Armstrong
If the hon. Gentleman wants to convince the House that the mistake was due to the pace at which we dealt with the amendments from the 1584 other place, would he like to cite the Local Government Act, on which under the previous Government two amendments made in another place were not reported here? Would he like to explain how that happened?
§ Mr. Rossi
That was put right in a short space of time. One could also ask why, under this Government, there was the mistake in the Children Act 1975.
It follows that whenever Governments unduly overload the parliamentary timetable it is likely that mistakes of this kind will occur. We should put the matter right, in my view, by looking at our procedures. The Renton Report, which was approved by the House two years ago, is still before us and the Government have taken no action on it. If we had had the procedures recommended by Renton, there would have been a vetting of the Bill before it received Royal Assent, and certainly before it was published as an Act, and we should not have to be here tonight discussing an amending Bill.
§ Mr. Dennis Skinner (Bolsover)
Will not the hon. Gentleman acknowledge that the error was first perpetrated in the House of Lords, whose job, we are constantly told, is to act as a revising Chamber, to insert the commas, to get the figures right and to cross the "t's"? Is it not a fact that the Lords, without a guillotine, were so concentrating their attention on wrecking the Bill that they forgot to do the job they were supposed to do, namely, to revise the Bill and make sure that it was watertight?
§ Mr. Rossi
As the Minister has said, this was the Government's own amendment, tabled in their own way, and there was a clerical error. One would have expected the great battery of civil servants at the disposal of Ministers to check the error. Moreover, why was the matter not checked in our House when the amendment came here? I do not think that it is a fruitful exercise to start attaching the blame to one paid official or another.
§ Mr. Nicholas Winterton (Macclesfield)
Could my hon. Friend explain the reason which the Minister gave for not taking action when the error became apparent on 16th December—that is, when my hon. 1585 Friend drew the error to the Government's attention? Why was action not taken before the Act was printed?
§ Mr. Rossi
The Minister has taken the view that the responsibility was that of the Clerk of the Parliaments. Unhappily, the Clerk of the Parliaments was put in a very difficult position. He had three options open to him for dealing with the amendment, but he was under tremendous pressure to get the Bill passed through the necessary processes so that the Government could have their first appointed day on 1st January 1977. That is the reason for it. Everybody was under the greatest pressure because of the Government's indecent haste.
Having said that, I pass now to other matters which are possibly of fundamental importance. The mistake here, however it arose, resulted in this state of affairs: we had a Bill passed in one form in the House of Lords, a Bill passed in a different form in this House, and a Bill which eventually received Royal Assent in a form passed by neither House. This raises a question of some constitutional importance.
As hon. Members know, the preamble to every Act of Parliament reads:Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows".We are here dealing with an Act which was not enacted with the consent of the Lords Spiritual and Temporal or by the Commons in this Parliament assembled, because the Lords Spiritual and Temporal passed the Bill in one form, the Commons passed it in another and Her Gracious Majesty gave her Assent to an entirely different Bill altogether. Immediately, therefore, on the face of it there is a fundamental imperfection in the Rent (Agriculture) Act 1976.
I know that the Government do not wish to follow the consequences of that too far. If they were to do so it might mean that they would be placed in difficulty with other legislation in which there are similar imperfections. One of these measures is the Children Act, to which I have already referred.
This matter could be cured easily by the House, not by simply amending the Act as this Bill proposes, but by including a clause validating the Act and suggesting 1586 that it takes effect from the date the first Act received Royal Assent as amended by this Bill. That would remove any doubt whatsover. That is one of the amendments I would have wished to discuss tonight, had the Government put down a motion on the Order Paper enabling me to table that amendment before Second Reading. They did not do so, and I was not able to table the amendment. We can deal only with the Second Reading, and the Bill will be delayed while a Committee is constituted to consider it. That delay is the responsibility of the Government because once again they did not get their procedures right.
On 10th January I referred to "Erskine May", which deals with the question of lack of consent. It would be as well to remind the House what "Erskine May" says, on page 570:If a Bill should receive the Royal Assent without the amendments made by one House having been communicated to the other and agreed to, serious doubts naturally arise concerning the effect of this omission; since the assent of the Queen, Lords and Commons is essential to the validity of an Act, except where the provisions of the Parliament Acts 1911 and 1949 are enforced in relation thereto.That goes to the very heart of the question that I raised in opening this discussion—namely, the imperfection of the Act, having been passed in one form with one amendment in one House, having been passed in another form with a different amendment in the other House, and receiving Royal Assent in a third form with no amendment at all.
On this matter "Erskine May" is quite clear. Doubt exists as to whether the Rent (Agriculture) Act 1976 is valid or not—
§ Mr. Bruce Douglas-Mann (Mitcham and Morden)
Nobody would deny the hon. Member his delight in the procedural defect that he has discovered, and of course we acknowledge his achievement in getting us here this evening. But is it his intention—it would certainly appear to—that county court judges should be encouraged to make eviction orders against tenants of agricultural properties for which possession is being sought by their owners, by reason of an unfortunate but none the less real defect that he has discovered? The hon. Member has taken great pleasure in the procedural deficiencies of the Bill. Will he 1587 take the political responsibility for the events which are likely to result from the successful delaying of this measure?
§ Mr. Rossi
I am not seeking to do that. With great respect to the hon. Member, for whom I have considerable regard, he is being a little facile. I am raising a substantial constitutional matter, and it lies in our hands to put it right rapidly. Therefore, the question of eviction need never arise. That depends on the will of the Government to recognise that the problem exists and to put it right as quickly as possible.
I submit that an amending Bill by itself is insufficient. The Bill should go a little further and validate. That is simply a matter of wording. The speed of that is a matter for the Government. I am not seeking to have people evicted, but I want the matter right and I want to ensure that as a result of this example the situation need never arise again. Again, the remedy lies in the hands of the Government. They should evolve our procedures in such a way that there are certain checks in the hands of this House and of the other place to ensure that mistakes are put right, as the Renton Committee recommended should be done two years ago but which the Government have failed to carry out.
"Erskine May" is regarded as sufficient authority. It makes it clear that where there is a lack of consent the gravest doubts arise as to whether an Act is valid. It goes further and states a number of examples where Parliament has found it necessary in the past, where this situation has arisen, to pass a validatine Act.
I am asking only that we pass a validating Act in accordance with the requirements of "Erskine May". If, however, the Minister will not accept "Erskine May" and relies on other precedents, it is necessary for me to take the House through other authorities to see what the situation is in law as far as we can ascertain it. I think that I can do no better than start with Maitland's "Constitutional History of England". It is a very respectable source for considerations of this kind. Maitland is the eminent jurist to whom constitutional lawyers have repeated reference.
§ Mr. John Ellis (Brigg and Scunthorpe)
The hon. Member has referred to a validating Act. Is he maintaining that the Bill before us is insufficient to put right any matter and that he wants another Act to secure that?
§ Mr. Rossi
No. All that is required is to insert in the Bill before us the wordsThe Rent (Agriculture) Act 1976 shall be amended as provided by this section and shall be deemed to have had effect as so amended from the date it received Royal Assent.That would validate the original Act.
§ Mr. Armstrong
If the hon. Gentleman is making such a fuss about validation and so on, why was the mistake in the Local Government Act 1972 not put right by a validation Bill instead of that Act being amended in exactly the same way as we are proposing to amend the Rent (Agriculture) Act? Why is validation necessary now when it was unnecessary then?
§ Mr. Rossi
It could be that if that Act was not put into the correct form doubts could arise and it might have been necessary to have validation. I was not personally concerned with that legislation, but I am concerned with this matter. Having spent so much time on the Act in this instance I want to see it in the correct form on the statute book with no doubt attaching to it.
As for the remainder of our legislation, if the Government feel that other Acts require treatment it is a matter for them to bring forward legislation to provide that treatment. I am seeking to adduce to the Government the authorities for the proposition I am advancing tonight. I hope that they will not be so stubborn as to refuse to accept the innocuous lines I have read out. What would it cost them to make this insertion in the Bill? We shall argue that later in Committee, but on the Floor of the House it behoves me to put on record the constitutional precedent that exists as I see it.
§ Mr. Douglas-Mann
Will the hon. Gentleman explain how the effect of a validation Act would differ from the effect of the present Act, bearing in mind that the principal effect of the amendment is to impose a duty to deal with the matter within three months of receipt of an 1589 application or within two months of the receipt of the committee's advice? The Act has been in force for only five weeks, and the need for retrospective validation is totally irrelevant, as I hope the hon. Gentleman will admit.
§ Mr. Rossi
That begs the question. The question is, when is an Act of Parliament an Act of Parliament? That is what I am arguing. We must consider whether the 1976 Act is an Act of Parliament. If it is not, or if there is doubt that it is—I am saying no more than that—let us put it right. Let us remove all doubt. That is all I am asking the House to do.
I cannot begin to understand the attitude of the Government, who refuse to say "If a doubt exists in anyone's mind, let us try to put it right." I shall refer to the authorities, and we shall see whether a doubt exists. The Under-Secretary of State keeps shaking his head at me to indicate that he considers there to be no doubt. It seems that he has set himself above "Erskine May". I congratulate him that he now considers himself a greater authority than "Erskine May". However, he will find that he is in a minority. No one else would accept him as an authority above "Erskine May". I have referred to "Erskine May" and the language is clear. I did not wish to detain the House so long, but the interjections from Labour Members have required me to make courteous answers. Maitland's "Constitutional History of England" states at page 381:But the chief function of parliaments is to make statutes. We have observed the history of the legislative formula; for two centuries it has been accurately preserved, 'Be it enacted by the king's most excellent majesty by and with the advice and consent of the lords, spiritual and temporal, and commons in this present parliament assembled and by the authority of the same.' The essence of the statute seems to be the concurrence of the king, the House of Lords and the House of Commons.Some procedural matters are then dealt with which I can skip.
Maitland continues:A court of law, we may safely say, would never go into the question whether an act has been passed in disregard of the usual formalities. The furthest that it would go would be to insist that the whole act had received the consent of the king, lords, and commons; it would never for example permit 1590 the question to be raised whether a bill had been read three times—the rule which requires three readings, ancient and punctually observed though it may be, is no rule of law. On the other hands the assent of the king and the two Houses to the whole act in its ultimate form seems essential. Some delicate questions might arise as to this in case the officials of the House made mistakes. Suppose a bill carried through the House of Commons; the lords make amendments in it; it ought then to go back to the commons in order that they may consider whether they will assent to the bill thus amended. But suppose that this step is omitted; that the bill is then presented to the king and that he gives his assent. Is this bill a statute?I interpose to make the supposition not that the step is omitted but that the Bill comes back in a form different from that passed by the Lords, that the Commons then passes it in a different form and that it is then presented to the King in a form passed by neither House.
As Maitland asks,Is the bill a statute?Maitland states:I take it that it is not; but the question how far a court of law would hold itself bound by a statement on the bill that it had received the assent of king and both Houses, whether it would permit a litigant to dispute this statement, is a somewhat difficult question. Such mistakes have occurred more than once in the present reign. Thus in 1844 there were two Eastern Counties Railways bills in parliament; one had passed all its stages, the other was still pending in the Lords, when by mistake the queen expressed her consent to the latter instead of to the former. The mistake was discovered, and another act was passed declaring that the Bill to which assent had been given should not be deemed to have received the royal assent. Other mistakes of a similar kind have been similarly corrected. I may explain that a vellum copy preserved in the House of Lords is the ultimate evidence of a statute. Perhaps a court of law would allow a litigant to prove that as a matter of fact this document had never received the consent of king, lords and commons; but I am not sure of this.Therefore, Maitland is not sure of the situation.
§ The Solicitor-General (Mr. Peter Archer)
I do not want to turn this debate into an exchange of lawyers' technicalities. If, however, the contention was that the Bill was invalid, why was it necessary to pass an Act deeming that it had never received Royal Assent?
§ Mr. Rossi
Lavender paper. Maitland raises the important question whether the vellum is the ultimate authority. But it is a matter of evidence, and no more than a matter of evidence, and matters of evidence are matters for the courts to review whenever they wish.
A curious situation arises regarding the vellum of which I should inform the House. During the Christmas Recess, when this matter was receiving my attention, I called at the House of Lords and asked to see the vellum. I was there on 31st December. There was no vellum. It could not be produced to me. Yet the Queen's copy had been published on 22nd December, according to the Minister. That raises serious consideration as to whether the Queen's copy, as published and as in Her Majesty's Stationery Office, had the full authority of law when the vellum upon which it was supposed to be based was not in existence. That is another defect caused by the unseemly—indeed, indecent—haste with which the Government pressed through this legislation and created difficulties for the clerical officers of both Houses.
The question of the importance of the role of the House of Lords has received attention by other commentators on our constitutional law. I refer the House to "Craies on Statute Law", Seventh Edition, page 38:It is submitted that the courts, in an ordinary case, would regard the existence of an enrolled copy amongst the records of Parliament (or Chancery), purporting to be duly assented to, as conclusive outside Parliament itself, and would decline to enter upon any inquiry into the contents of the Journals or into the usages or resolutions of either House, except so far as they purport to alter the common statute law.Once satisfied of the authenticity of an Act, the judges would be bound to take judicial notice of its contents, and as it is not permissible to refer to debates in Parliament in explanation of the meaning of an Act, so also it is no part of the judicial office to scrutinise the contents of the Journals of either House or the drafts of Bills to see whether the Act in question had properly received the assent of the legislature.1592 That is a formidable argument against the case that I seek to make to the House.
But Craies goes on to say:If a serious question were raised as to the validity of an Act, it is possible that the judges would adjourn the proceedings in which it arose until Parliament had an opportunity of settling the question by a fresh Act, as was done in Pylkington's case in 1450".Again, the hallowed precedent of our constitutional law indicates that these matters have to come back to Parliament and be put in their correct form. I suggest that the Bill is not putting the matter strictly in its correct form. The reason for that is that if the law of consent between the House goes to the root of the enactment, it raises serious questions about validity.
§ Mr. Nicholas Winterton
Before my hon. Friend further strengthens his powerful case, will he indicate whether he has prior notice from the Government that they are not prepared to accept his proposal to validate the Bill? Although I am fascinated by my hon. Friend's case, many hon. Members might wish that they were elsewhere, so I hope that the Government will accept his argument.
§ Mr. Douglas-Mann
I presume that one of those Acts might be the Local Government Act 1972. The hon. Member has cited authorities that totally repudiate his case. Perhaps he will spare us yet further authorities which I see he has beside him. Will he explain whether, with the possible exception of Pylkington in 1450, the established law is that, once the Monarch declares a statute Le Roy le veult, that is the law and from that moment it is valid. There is no authority that would refute assertion that the Act is then valid. The hon. Gentleman's argument about validation is totally irrelevant and a waste of time.
§ Mr. Rossi
If the hon. Member had listened carefully to my quotations from Maitland and Craies, he would find that they did not refute my case. In fact, they support my argument that there is an 1593 area of serious doubt. I put it no higher than that. There is an area of serious doubt about whether, under the constitutional law of our country, an Act can be an Act if it has not received the full and complete consent of both Houses of Parliament, save where the Parliament Acts apply.
§ Mr. Armstrong
If I thought that there was any chance of invalidating the Local Government Act 1972, I should be only too ready to receive advice and act upon it.
§ Mr. Rossi
It is a matter entirely for the hon. Gentleman what he does with other legislation. I am concerned simply with making the case on this Act. I hope that the hon. Gentleman will listen to it with an open mind and not a closed mind, because it raises a serious matter that we could readily put right. What I do not understand is his reluctance to put it right.
Craies refers to Pylkington's case, which is an old case but it is, again, relevant to our consideration. I should like to refer the House to this case because of the clear doubts tht obviously exist in the minds of Labour Members whether or not this is a correct submission that I am putting to them. The case ofSir John Pylkington was brought before the Exchequer Chamber in 1454–55. By a special 'Act of Parliament' passed in the Spring of 1450, John Pylkington was required to appear on a charge of rape. He refused to do so, and challenged the validity of the 'Act'. His Counsel pointed out that the Bill, as it passed the Commons, required 'that the said John surrender himself before the feast of Pentecost next ensuing', whereas as it passed the Lords, he was to appear before the feast of Pentecost which shall be in 1451.' It was argued that 'because the Lords granted a longer day than was granted by the Commons, in which case the Commons ought to have the Bill returned to them and assent to the grant of the Lords but it was not so; wherefore the Act seems void.'The Court heard evidence from Fauxes, the clerk of Parliament, who explained how the discrepancy arose. According to his account, the Bill was introduced in the Commons after the feast of the Pentecost in 1450 with the intention that Pylkington should appear in 1451, but because at that time every Act was dated as of the first day of the Session (which was before the feast of the Pentecost), the Lords inserted 1451 to make the Bill conform to its true intent.After hearing argument, the judges sought the opinion of Kirkby, the Master of the Rolls, who thought that the Act was void, and a majority of the Court …shared this view. 1594 Fortesque C.J. was more cautious. He apparently thought that the Act was valid because it had been certified by the King's Writ to have been confirmed by the authority of Parliament.This is the point made by the hon. Gentleman a moment ago.'This', he said, 'is an Act of Parliament and we wish to be well advised before we annul any Act made in Parliament and peradventure the matter should wait until the next Parliament until we can be certified by them of the certainty of the matter.' Unlike his brethren, he would not say that the Act was void, but it will be observed that he was not prepared to enforce it without 'more certainty of the matter'.In that case, therefore, the courts took the view that the matter should come back to Parliament so that it could be validated and the assent could be given in the correct form by both Houses before Royal Assent was given.
§ Mr. Douglas-Mann
Who was purporting to be the Monarch at that particular time? Was there any challenge as to the status of the Monarch?
§ Mr. Deputy Speaker (Sir Myer Galpern)
Order. We do not want tempers. I think that we should leave the old gentleman in 1450 and his alleged act of rape in peace and quiet.
§ Mr. Rossi
The report of the case that I have given to the House is to be found in the "Modern Law Review" of July 1953, in an article written by Professor Cowen. He deals earlier in his article with the proposition that I am putting to the House. At page 274 he says:To say that an English court cannot treat an Act of Parliament as void is undoubtedly true, but does not end the matter; for it leaves unanswered the question"—it is the question that I am putting to the House—What is an Act of Parliament?' …It is, however, one thing to withhold from the courts jurisdiction to disregard an Act of Parliament as an excess of power, quite another to deny them jurisdiction to inquire whether a document, alleged to be an Act of Parliament, is an authentic expression of Parliament's will. And English law, it is submitted, makes no such denial. On the contrary, the cases show that the question is not whether the courts may inquire into the authenticity of an alleged Act of Parliament, but rather the extent to which 1595 they may do so. What is the effect of the Royal Assent, of the enacting clause, and of the fact of enrolment? To what extent does the Royal Assent cure irregularities in the passing of a statute? Is enrolment conclusive of authenticity?All those questions posited by the learned professor are totally relevant to the problem before the House, and he concludes by saying:These have been—and still are—the critical questions, and they are surprisingly difficult to answer with any assurance.Therefore, I am surprised that the Government should have such assurance on this matter.
There we have the whole question argued very closely by an authority on constitutional law, where he comes to the conclusion that one cannot be assured of the answer to these very difficult questions. It is because one cannot be assured that I am asking the Government to put the matter right by two very simple sentences. I cannot understand why they are refusing.
Perhaps the nub of the matter is whether a court today would look at an irregularity, and the Minister referred me to the case of the British Railways Board.
§ Mr. Ted Leadbitter (Hartlepool)
We have been following this rather interesting survey of Craies and others. Will the hon. Gentleman consider this as a reasonable observation? We have before the House of Commons tonight a Bill entitled Rent (Agriculture) (Amendment) Bill. I should have thought that, as a matter of elementary definition, we have before the House a separate Bill, a Bill which is an amendment to an Act of Parliament, the larger part of which the hon. Gentleman has questioned in terms of its validity.
If the hon. Gentleman wants to question a statute passed last Session, does he not think that this is the wrong place and time to do that? Is it not a fact that we are dealing with a separate Bill which has a title of its own and is an amendment to an Act of Parliament? If the hon. Gentleman is questioning the validity of an Act of Parliament passed last session, I should have thought that he would be more in order if he were to raise the matter at a different time and place. I submit that we are dealing with a separate Bill.
§ Mr. Deputy Speaker
It is not for the hon. Member for Hornsey (Mr. Rossi) to answer that question. The hon. Member for Hartlepool (Mr. Leadbitter) has asked whether the hon. Member is in order. There is no doubt that he is in order, but there are limits to what is in order.
§ Mr. Douglas-Mann
Further to what appears to have been a point of order, Mr. Deputy Speaker. Is it in order for an hon. Member to challenge the judgment of Her Majesty in giving her assent to an Act which has received the assent of both Houses, whether or not it contains a clerical error?
§ Mr. Deputy Speaker
Order. I might as well, from the Chair, get a little fun out of this also. The hon. Member for Hornsey is absolutely in order. He is giving reasons—although, in the minds of some hon. Members, rather lengthy reasons—why it has become necessary to produce this Bill for its Second Reading.
§ Mr. Rossi
Thank you, Mr. Deputy Speaker. Indeed, I am going further. What I am saying—I believe this to be in order—is that the Bill is insufficient in its present form to do the job which Parliament requires. I am making suggestions about how the Government could better deal with the matter and am trying to persuade them so to do. I am certainly not trying to impugn Her Majesty's judgment in these matters. I do not know what representations were made to her when the Bill was put before her for her signature. I do not know whether she was told "This is an Act which has not been passed by both Houses of Parliament. You are being asked to sign something entirely different from what was passed by either the Lords or the Commons". But, certainly, what she signed was not what was passed by either the Lords or the Commons.
The Minister has referred me to the case of the British Railways Board v. Pickin in 1974 Appeal Cases, page 765. In that case a litigant sought to impugn the validity of an Act of Parliament on 1597 the basis that it was obtained by a fraud. The courts decided that they were not entitled or were not prepared to look into the proceedings of Parliament to see how the Act came to be in existence.
In this connection, one must refer to Halsbury, Vol. 36 of the Third Edition of Halsbury, which was referred to in Picking's case, is the basis of one or two of the judgments given by their Lordships in the House of Lords. Paragraph 560 says:The legislative supremacy of Parliament implies not only the inability of the courts to question its power to enact any particular statutory provision but also their duty to give effect as statutes only to enactments answering that description. It follows that the courts can become concerned with the question whether a particular document which they are invited to apply has received the consents necessary to constitute it an Act of Parliament. The courts would not, for example, give effect to a document appearing on its face to have been agreed by the Lords and Commons alone. In statutes passed since the latter part of the fifteenth century, the giving of the necessary consents is, however, recited in the enacting formula, and the question of sufficiency of consent has arisen only in relation to earlier documents containing no such recital, and must in practice be taken to be confined to such documents.While the question of sufficiency of consent may be open to the courts, that of regularity of consent is not.The question of sufficiency, according to Halsbury, is open to the court.
Halsbury continues:If a Bill has been agreed to by both Houses of Parliament, and has received the royal assent, it cannot be impeached in the courts on the ground its introduction or passage through Parliament, was attended by any irregularity, or even on the ground that it was procured by fraud.That is begging the question, but Halsbury leaves open the question whether there is sufficiency of consent.
This is the heart of my argument. Has there been a sufficiency of consent where, albeit because of a clerical error, the occasion was a clerical error which nobody saw in due time? Nevertheless, was there consent in one House, which was one thing, and consent in the other House, which was quite another thing. In other words, is that a sufficiency of consent?
According to Halsbury, the matter is to be put no higher than one of doubt. If it is a matter of doubt, are we under a duty to put it right? We have seen what Professor Cowen said on this matter. He 1598 recited all the questions that apply directly to our situation, and in answer to every question he has come to the same conclusion.
§ Mr. Douglas-Mann
Will the hon. Gentleman confirm that in the Pickin case the court declared that all the authorities to which he has referred hitherto were irrelevant and that the court was not prepared to inquire into the matters into which he has asked the House to inquire?
§ Mr. Rossi
Halsbury was considered. Halsbury supports the proposition that the court will not look into procedures where an Act of Parliament has been produced by fraud. The court was not concerned with the question of sufficiency of consent, which is the question before the House this evening. The court did not direct its mind to that aspect. We are left, as the "Modern Law Review" said, with these questions whichhave been—and still are—the critical questions, and they are surprisingly difficult to answer with any assurance.Let us assume for the purpose of argument that a Bill lacks consent, in the way we know that the Bill in question lacked consent, that it has received Royal Assent, albeit in an entirely different form from the form in which it passed through each House of Parliament, and that it was entered in the roll of Parliament in the form in which we now have it. Let us also assume that the courts say—as a matter of the rule of evidence, not as a rule of substantive law—that they will not look beyond the vellum, the Act enrolled in the courts. I have already indicated that the vellum is suspect because it was not in existence at the right time and came into existence ex post facto.
It is a question of what Parliament should do, not of what the court should do, now that the matter is before us. Should it, or should it not, be prepared to give the necessary validity to the Act? I urge the Government that it should do so. I hope that the Solicitor-General will subsequently have an opportunity of looking at these authorities and, perhaps when we reach Committee stage, will be 1599 able to tell us the view he has formed on this matter, which, I suggest, is a question of some considerable importance to the House.
Apart from that, I ask the Solicitor-General, as a senior Minister of the Government, to look once again at the Renton Committee's report, because these matters could be readily dealt with by a Joint Committee of both Houses scrutinising Acts once they had passed all stages and curing, with the authority of Parliament, any errors that were seen to arise. Otherwise we are left in the unfortunate situation, that officials of the Lords can take it upon themselves to decide what should or should not appear in a printed Act of Parliament. That is what has happened in this case. I cannot see that that is a desirable situation. We had a measure amended in one form in the Lords and amended in another form in the Commons. The intention of Parliament was perfectly clear. It was that a time limit should be imposed upon local authorities in coming to a conclusion about a certain matter.
An official, after all the debates in Committee in both Houses, took it upon himself to exclude from the Act something that both Houses wanted included. The extent to which officials should have the power to do that is a matter of concern to us. Should we not require them, when they discover an imperfection—an irregularity that goes beyond a mere clerical error or a typing misprint but something which goes to a substantive part of the Act—if not to come back to both Houses, at least to come back to some Committee of both Houses to receive proper and due authority for the way in which the Act is published? Should we not assume and have ultimate responsibility for the Act as published, or should we leave substantive matters of this kind to be dealt with by officials to use their own discretion as to what to leave out or put into an Act?
There is one other matter I wish to raise on the form of the Bill. Clause 1 (2) states that the time limit contained in the Bill shall not apply to applications received by a housing authority before the coming into force of the Act. This is a minor point but it leaves an open-ended situation as regards the time limits where an application was made before the 1600 Bill became law. If we consider it right that there should be a three-month time limit, I accept at once that it would be unreasonable that the three-month time limit should be deemed to run from the date of the application when the previous Act did not impose that time limit.
What we should at least say is that where existing applications are outstanding the three-month time limit should begin to run from the date we pass this measure. An authority might gain a few weeks in the period between 1st January and the passing of the measure. But we should not leave it completely open-ended without a time limit, which is how the Bill would leave things. That is a further matter I would have liked to be able to raise if we had held the Committee stage this evening, if I had been given proper opportunity by the Government.
§ 11.20 p.m.
§ Mr. John Ellis (Brigg and Scunthorpe)
I shall be brief, but it would be sad if the speech by the hon. Member for Hornsey (Mr. Rossi) were not commented on. The intention of the Government in the Act, though opposed, was to give security of tenure to farm workers when they lost their jobs. That was what the Act was about. It is a matter of great concern. People talk of Parliament being brought into disrepute, but we have seen tonight an opportunity for saying that we are being brought into contempt. Is this a matter of great constitutional significance? We have been at this debate for an hour already. Most hon. Members have gone home, yet the hon. Gentleman has the audacity to make a song and dance about a clerical error that is not disputed and about a simple Bill which is brought in to put it right.
The hon. Gentleman, in the midst of a series of quotations, referred to this as a serious matter. But it is in reality a minor detail of a local authority replying to a message in a way that most local authorities would do anyway. The substance of the Act is not at issue.
§ Mr. Rossi
I accept that the original error was a silly little slip, but there is a matter of principle here which could arise on other occasions, with more significant slips. The question is whether lack of consent between the Houses is 1601 something to which we should have regard, and whether we should use this chance to put our procedures right in order to ensure that such a thing does not happen again. I thought that, by raising the matter as I did, something of that kind could emerge.
§ Mr. Ellis
I am sorry, but I cannot accept what the hon. Gentleman says. He is a lawyer by training—slick, making his way in politics and seeking to emulate the feats of some of his hon. Friends when they got hold of what they regarded as points of substance. I believe that the hon. Gentleman worked away at this matter industriously but came up with nothing at all. He might, therefore, have had the grace to accept the Bill in that spirit.
I have with me a photostat copy of the Estates Gazette of 8th February 1977 advertising a book written by the hon. Gentleman about the Act. The advertisement says:This work presents a comprehensive view of the far-reaching provisions of this new Act, whose main purposes are to provide security of tenure for certain agricultural workers and ex-workers who, because they occupy 'tied' dwelling-houses, are not protected by the provisions of the Rent Acts and to place a duty on housing authorities to re-house ex-agricultural workers where stipulated conditions are met.It comprises a general commentary giving an overall appreciation of the purposes, provisions and practical application of the Act; a detailed commentary on each individual section of it and its 9 Schedules and the complete text of the Act as passed by Parliament.To be published shortly; approximately £3.50 by post.The hon. Gentleman, therefore, has something of a vested interest. I do not make that charge in a serious way. He is a professional lawyer who writes books. He wrote one about the Act. I wonder whether he will produce another book consequent to this debate. Presumably it will cost about £7 with all the issues he has raised.
§ Mr. Tony Newton (Braintree)
On a point of order, Mr. Deputy Speaker. It appears to me that the clear implication of the remarks of the hon. Member for Brigg and Scunthorpe (Mr. Ellis) is that my hon. Friend the Member for Hornsey (Mr. Rossi) is embarking on this argument for financial gain. If you share my view that that is the implication, will you not agree that it is deplorable?
§ Mr. Deputy Speaker
I have had to listen for the whole period of the contribution of the hon. Member for Hornsey (Mr. Rossi). I do not think that the hon. Member for Brigg and Scunthorpe (Mr. Ellis) has made any such allegation. I do not think that it is implied that it was done for gain. I do not think that I heard the hon. Member for Hornsey declare any interest in this matter, but it seems to me that there may have been some interest.
§ Mr. Rossi
I am grateful to the hon. Gentleman for his commercial plug. I did not seek a commercial plug for myself. It so happens that I discovered this matter when I was in the course of preparation of my particular work. It is something that I have done from time to time. It is known that I write textbooks on matters of recent statute. I do not think there is any conflict of interest between my writing a textbook on an Act of Parliament and my raising a constitutional point—I think a valid one—on that Act. Indeed, it is against my interest, because if I am right, and the Act is not validated, the book is not worth the paper on which it is written.
§ Mr. Ellis
I was not seeking to make that point. I was seeking to say that one of the things that brings this House into disrepute is when hon. Members go on and on. I indict lawyers generally. I believe that the hon. Gentleman has trespassed on the good will of the House by going on at such great length.
I am a straightforward sort of person and I believe that the hon. Gentleman ought to have declared that he had written a book. I would have thought that he had a vested interest in seeing the Bill go through quickly, otherwise the 3.50p is invalid as well. If the hon. Gentleman has a vested interest, it is along the line that he will publish another book.
I still say that the Bill is of enormous significance to a lot of agricultural workers. A lot of people have been engaged on this for a number of years. I believe that the hon. Gentleman has put up a lawyer's performance tonight. I hope that very few people in the country will read our doings this evening, because I do not believe that they will reflect any great merit on the serious business that we are about. I have a sense of humour. 1603 The hon. Gentleman could have made his point in a sort of witty fashion and not gone on at such great length.
§ 11.28 p.m.
§ Dr. Alan Glyn (Windsor and Maidenhead)
My hon. Friend the Member for Hornsey (Mr. Rossi) has done a great service to the House. It may be that it is a minor matter on a very important Bill, but that is not the point. The point raised by my hon. Friend concerns the whole validity of the Bill. What my hon. Friend said was that every statute which is enacted has to be enacted in the same form both in the Lords and in the Commons and has to be given Royal Assent in that form and a vellum copy has then to be placed in another place.
What we are considering is whether an Act itself is valid and, if it is not, the best way in which such matters can be dealt with in future. It is important for the House to scrutinise these matters and to make sure that they are properly aired.
I pay tribute to my hon. Friend for the way in which he has presented the case. I have no doubt that the Solicitor-General will produce many other arguments. The point at issue, however, is whether Royal Assent in itself makes a Bill legal or whether it has to go through all the stages that are laid down and be passed in that form. Has the vellum copy to be deposited on the right date?
I hope that the Solicitor-General will satisfy the House on these matters and offer some suggestions on how these matters can be avoided in future or put right if such a situation should ever occur again.
§ 11.30 p.m.
§ Mr. Tony Newton (Braintree)
I am not a lawyer, and I want to speak only briefly, having listened with interest to my hon. Friend the Member for Hornsey (Mr. Rossi). I ask the Solicitor-General to address himself to the question of what would happen if this were a more substantial point. I have much sympathy with what the hon. Member for Brigg and Scunthorpe (Mr. Ellis) said. There is obviously a strong case for the Act and a strong desire for it. There is no serious dispute about the fact that this was a trivial clerical error. But we must consider 1604 what the position would be if it had not been only a trivial clerical error.
Let us suppose that a malicious official deliberately changes the text of an Act passed, as we think, by this House, before it receives Royal Assent. On the basis of what the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) said, that would leave us with no redress. The hon. Gentleman said that once the Queen had said "La Reine le veult", that was it. It does not matter what we pass. If the Queen gives a measure the Royal Assent, that is the law. It is a strange doctrine that all that is required is the Royal Assent to make a Bill an Act after it has been processed by Parliament, regardless whether the text is that passed by this House.
§ Mr. Douglas-Mann
I accept the point that the hon. Gentleman is making. If the hon. Member for Hornsey (Mr. Rossi) had made it in three minutes there would have been a great deal of agreement, but unfortunately the manner in which it was made has destroyed the essential validity of what was a sound point: that it is possible for Parliament to be misled in this way. But we have the mechanism to correct the position, and that mechanism is being operated tonight. Sand has been thrown in the mechanism by the hon. Member for Hornsey, and, therefore, there is impatience. It would have been a great deal better if the House had been given an opportunity to correct the matter speedily and properly, as it should have been.
§ Mr. Newton
That may be so, but it confirms rather than denies what I am saying. The hon. Gentleman, himself a lawyer, spoke of the essential validity of the point my hon. Friend made. I could not have raised it because I have not the expertise, but I think that there is a genuine point to be answered—namely, what would be the position if this had been done deliberately, with malicious aforethought?
§ Mr. Leadbitter
The hon. Gentleman must not introduce a hypothetical situation. It is not relevant. What is relevant is that the hon. Member for Homsey (Mr. Rossi) did not say what was in "Erskine May". It states that there has never been a court decision on this matter. According to part of page 570 of "Erskine 1605 May" which the hon. Gentleman did not quote, only twice has Parliament considered it proper to make some amendments.
"Erskine May" says something else that has not been mentioned. According to "Erskine May", these informalities depend on only one criterion: did the Royal Assent deal with all prior irregularities? We are not now dealing with prior irregularities. The hypothetical situation is different and irrelevant. But the hon. Member for Hornsey has made a grave omission. He took a long time to present his case and then left out these most pertinent points.
§ Mr. Newton
With respect to the hon. Gentleman, I think he is going back on to ground covered earlier and demolished by your ruling, Mr. Deputy Speaker. My hon. Friend was raising the issue of whether Royal Assent disposed of all prior irregularities. It seems to me that that is the issue in this debate. I have made that point as far as I can.
The only other thing I wish to point out is that it is all too easy for us to slip into taking the view—especially when we can say that we know what we all wanted to do and what the House generally agreed—"All right. We know what we wanted to do, so let us assume that it was done". There comes to my mind the trivial case of the 30 m.p.h. speed limit. It was highly publicised. Everybody thought that there was a 30 m.p.h. speed limit. Motorists were fined on the basis of the 30 m.p.h. speed limit. The courts operated on the basis of the 30 m.p.h. speed limit, and everybody thought that that was what the situation was, until it was suddenly discovered that that was not what the situation was—because some idiot had forgotten to make sure that that speed limit existed. The courts had to repay all the fines.
It was silly and funny, and it gave the newspapers a story. But it is fundamental to the question of the way in which we do things. Do we decide things according to what actually has been done and what has been properly passed into law? I support my hon. Friend, because I believe that this is a fundamentally important issue. It is easy to laugh it off, but I hope that the Solicitor-General will not do so.
§ 11.37 p.m.
§ Mr. Bruce Douglas-Mann (Mitcham and Morden)
I shall not detain the House for more than a few moments. The hon. Member for Braintree (Mr. Newton) emphasised a point that, I regret to say, was wholly buried beneath the verbiage of the hon. Member for Hornsey (Mr. Rossi). But there is the point that, unfortunately, we can legislate in error and incorporate errors in legislation. It is desirble to have machinery to correct these errors quickly, but it is unfortunate that, when errors are discovered and we have to put the machinery into effect to correct them, we are subjected to an hour and 35 minutes of what is for the most part "rhubarb".
Perhaps it would be desirable for the Select Committee on Procedure to devise a means of enabling us to put these matters right speedily when errors are discovered without having to waste the time of the House—time that could be spent on much more important matters.
I congratulate the hon. Member for Hornsey on drawing the attention of the House to this question, but in future I trust that he will not persist in his objections to such an extent that it results in a delay in bringing into force legislation which even he acknowledges is important in the interests of farm tenants.
§ 11.39 p.m.
§ Mr. Geraint Howells (Cardigan)
I believe that hon. Members will agree that the weight of legislation brought before this House over the past few years by Governments of both major parties has been so great that it is only to be expected that errors such as the one that we have discussed tonight are made. It is to the great credit of the much-overworked Clerks that mistakes occur so rarely.
Rather than such mistakes being a warning against the guillotining of Bills, they are rather a warning that if we continue to have the same volume of legislative work it cannot be handled solely by this Parliament. What better argument could there be for having devolved Assemblies, separate from the Westminster Parliament?
§ 11.40 p.m.
§ The Solicitor-General (Mr. Peter Archer)
I am sure that the hon. Member for Cardigan (Mr. Howells) will forgive me if I do not attempt to comment on that proposal. I have no doubt that we shall hear it again.
I appreciate the feelings of my hon. Friend the Member for Brigg and Scunthorpe (Mr. Ellis). I think that the people to whom this Act applies, many of whom have been waiting to see it put into effect for a long time, will not be impressed by the constitutional process that we have been discussing tonight.
There was a time when I wondered whether I should intervene at all tonight, but the hon. Member for Hornsey (Mr. Rossi) has displayed such great industry in noticing the oversight and in his research from which we have benefited tonight, that I thought it would be a discourtesy to him if I did not attempt to state a view on these matters.
I enjoyed his speech, but I though that it was a pity that he tried to make political capital out of this situation. It is not unique, nor is it peculiar to Labour Governments. One can mention precedents. For the benefit of our discussions in Committee, I offer a few references. The hon. Member for Hornsey should look at the Official Report of another place for 22nd September 1972, columns 1514–5. He will see that amendments were moved and carried to the Local Government Bill. If he then refers to the Official Report of this House for 22nd October 1972, columns 1281–4, he will see the consideration of amendments to that Bill, with no reference to the Amendment No. 247 which was carried in another place. If he consults the statute book he will find that the Local Government Act 1972 is there, and that the amendment is missing. Finally on 4th December 1972 a Question was asked and answered about when the Government proposed to legislate on the matter which was the subject of the amendment. If he consults the statute book for 1974 he will see the Local Government Act 1974, Section 39 of which restores the missing amendment. What he will not find is any indication, in a situation that was parallel to this, that anyone tried to suggest that the 1972 Act was not valid. Perhaps that was an oversight. 1608 But one does not make political capital out of this—it happens under all Administrations, not because of any particular legislative programme, but because officials sometimes make mistakes, and no one expects them to be perfect.
The hon. Member complained that we were not able to debate amendments tonight. I do not claim to be an authority on the Standing Orders of the House, but I understand that the fact that he intended to put down amendments was made known only last Monday. I am not blaming him for that, but apparently the rules did not permit the requisite motion to be put down after Monday.
Essentially the hon. Member for Hornsey raises the question of whether the Rent (Agriculture) Act was somehow invalidated by what has transpired—in other words, when is a statute not a statute? He and I may be advised to exchange technicalities in Committee rather than across the Floor of the House. I do not propose to delay the House long tonight.
But I am a lawyer by trade, and I have written books—none of us is perfect. I think that I should indicate the position as I see it, without attempting to follow through the details. One begins, as with many more memorable arguments, with the sovereignty of Parliament. It is the doctrine that the courts regard Acts of Parliament as conclusive of the law on the subject with which they are dealing. They do not question the validity of those Acts. The courts accept them as conclusive. Of course the courts could review their own rules of evidence, as the hon. Gentleman suggested and perhaps they might decide tomorrow that they do not regard Acts of Parliament as conclusive. But it is unlikely that they will suddenly disregard all the precedents on this doctrine. Acts of Parliament are conclusive because the courts regard them as conclusive, and it is very unlikely that the courts will change a practice which has evolved over a long period of time.
§ Sir David Renton, Huntingdonshire)
I think that a Law Officer of the Crown should be absolutely clear about this. It has become the established convention of the constitution, and has been so for centuries, that the courts will not and cannot challenge the validity of an Act of Parliament. I hope that the hon. and learned Gentleman will make that plain.
§ Sir David Renton
There is no question of the courts under our constitution having the power, unless Parliament gives them the power, to question an Act of Parliament.
§ The Solicitor-General
I am most grateful to the right hon. and learned Gentleman for enunciating that. I thought that was precisely what I said. It was certainly what I intended to say. If the right hon. and learned Gentleman had listened he would have heard me refer to the argument of the hon. Member for Hornsey, who said that this was only a rule of evidence and that it was possible that the courts might change it.
I am saying that I do not know what the courts will do tomorrow. They might take leave of their senses and do something wholly unpredictable, but it is unlikely that they would. It is in that unlikelihood that the rules of law rest. That is what we mean by the rules of law. I think that the right hon. and learned Gentleman and I are saying the same thing. If the right hon. and learned Gentleman wants me to reiterate that I shall do so in the words that he used.
§ Sir David Renton
We are saying the same thing now, but earlier the Solicitor-General said that the courts could change their practice. They would not be entitled to do that under the constitution.
§ The Solicitor-General
All I can suggest is that the right hon. and learned Gentleman reads the Official Report tomorrow. I was commenting on what was said by the hon. Member for Hornsey, who, I see, agrees with me and who said that it was possible that the courts might change their practice. I am saying that anything is possible. I do not know what will happen tomorrow until tomorrow comes, but it is extremely unlikely that such a thing would happen, and it is in that unlikelihood that the law of this country resides.
Let me return to the argument. The principle of the sovereignty of Parliament has been reaffirmed again and again without qualification in this House and in the courts. It might be worth recording that the doctrine was not finally established until the nineteenth century.I 1610 think that at that time there were those who ventured to question it and who would have been much less shocked than the right hon. and learned Gentleman. In Bonham's Case in 1610 Chief Justice Cooke saidWhen an Act of Parliament is against common right and reason, or repugnant or impossible, the common law will control it.There were attempts to argue that as late as the nineteenth century and it was only finally disposed of in the famous judgment of Justice Willes in Lee v. Bude and Torrington Railway Company in 1871. So far as I know, though I have not researched it, the first academic enunciation of the doctrine as a serious constitutional principle was in Dicey's "Law of the Constitution". The reason I stress that is that some of the precedents referred to by the hon. Gentleman arose before that doctrine was finally enunciated, and unless one sees them in context it is difficult to understand why things were said, as they were said, for example, in Pylkington's case.
The second fundamental principle, which itself emanates from the sovereignty of Parliament, is the privilege of each House of Parliament to have the exclusive right to determine the regularity of its own proceedings. That rule was enunciated in the Bill of Rights in 1688, although that was reciting a rule that was already in existence. It said:That the freedom of speech, and debates or proceedings"—I emphasise "or proceedings"—in Parliament, ought not to be impeached or questioned in any court of place not of Parliament.The consequences of that doctrine are far-reaching in a number of directions. For example, there is the rule that the courts apply in construing the meaning of a statute. They will look only at the text. They will not permit reference to the Official Report of speeches made in either House to shed light on the intention of Parliament. It seems to be a necessary corollary of those two principles that there should be a clear criterion of what is an Act of Parliament and what is the text of that Act.
I am sure that the hon. Member for Hornsey—indeed, he has been kind enough to nod agreement—recognises that it would not be in the public interest if anything said here engendered the 1611 belief that there was not such a criterion, and that what everyone thought was a statute might be open to challenge. It would not be in the public interest for two obvious reasons. First, it would not be conducive to the good relations and respect which exist between the courts and Parliament arising largely from the courts' recognition of that privilege. Secondly, it would clearly not be in the interests of anyone that the law should be anything other than clear and predictable. It would not be right that it should be thrown into doubt by confusion over whether a statute was valid. If I might add a third reason, it would be a great pity if a learned text book had to be scrapped almost before it reached the bookstalls.
That is the answer to the fundamental question that the hon. Member for Hornsey has been posing. As I understand him—I hope that I paraphrase him fairly—he is saying "Perhaps there is a shadow of doubt. If we look in all the old books there might be some doubt. Why not put the matter beyond doubt. Why not make the amendment that I am proposing? If that is done, there will not be any doubt." If we added such a clause, it would be placing in doubt precisely the principle that I am enunciating, to which I am sure the hon. Gentleman would subscribe. It would be a great pity if that principle were placed in doubt in this House. If we feel it necessary to enact it on a specific occasion in a specific Bill, it will place doubt across the rest of the statute book.
§ Mr. Rossi
I assumed that that was the difficulty in which the Government found themselves. The moment they accepted the principle the ramifications were wide indeed. I mentioned that to the hon. and learned Gentleman. I was putting the matter no higher than that there is doubt, and probably more than a shadow of doubt. The hon. and learned Gentleman is being a little unfair to me when he says that all the precedents I have quoted are antique. In fact, I relied on the article in "Modern Law Review" of 1953, which is the latest commentary I found on this issue.
§ The Solicitor-General
I was referring specifically to the Pylkington case, on which the hon. Gentleman relied, and the two cases he cited from "Erskine May". 1612 I was not referring to the academic argument.
We come to the most recent authority, which the hon. Gentleman cited—namely, Pickin v. British Railways Board. That was reported in 1974 and the hon. Gentleman quoted from the 1971 edition of "Erskine May". I cannot predict what will be in the next edition of "Erskine May" but it may be worth reading.
In the Pickin case the headnote reads:allowing the appeal that the function of the court was to consider and apply the enactments of Parliament, and accordingly, in the course of litigation, it was not lawful to impugn the validity of a statute by seeking to establish that Parliament, in passing it, was misled by fraud or otherwise".I fully take the distinction that the hon. Gentleman has made. Here we are not considering fraud but a situation in which it may be that one or both Houses did not apply their minds to the text which finally emerged.
§ The Solicitor-General
I apologise. Clearly I do not want to take a bad point. But it still refers to two precedents of the early nineteenth century.
What seems important about Pickin v. British Railways Board is a dictum of Lord Reid. I am sure that any hon. and learned Member will know that Lord Reid—
§ The Solicitor General
Not all technically learned. The authority of Lord Reid stands very high in the courts of this country. Lord Reid was quoting from a dictum of Lord Campbell in Edinburgh and Dalkeith Railway Company v. Wauchope.
§ The Solicitor-General
An old case, but Lord Reid brings it up to date. Commenting on a suggestion that an Act of Parliament was inoperative, he quotes Lord Campbell:I must express some surprise that such a notion should have prevailed. It seems to 1613 me there is no foundation for it whatever; all that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament. I therefore trust that no such inquiry will hereafter be entered into in Scotland, and that due effect will be given to every Act of Parliament, both private as well as public, upon the just construction which appears to arise upon it.Lord Reid added:No doubt this was obiter but, so far as I am aware, no one since 1842 has doubted that it is a correct statement of the constitutional position.
§ Dr. Glyn
Surely the hon. and learned Gentleman is basing his contention—which I am sure is probably correct—on the validity of an Act of Parliament consisting of the deposit of the roll in the other place and the consent of both Houses of Parliament and the Royal Assent. Is the Solicitor-General basing his contention purely on the document which is deposited in the other place? If so, what is the position if that document has not been deposited, as my hon. Friend the Member for Hornsey (Mr. Rossi) pointed out earlier?
§ The Solicitor-General
If the hon. Gentleman will wait until I get there, I promise to deal with that point. I think that it will conduce to clarify to take the argument one stage at a time.
The point about the dictum of Lord Reid, which I commend to the House, is the reference:all that a court of justice can look to is the parliamentary roll.That is the authentic record of proceedings in Parliament. The modern equivalent of the Parliamentary roll is the vellum to which the hon. Member for Hornsey referred.
Perhaps I may be allowed to inflict one further quotation on the House from "Craies on Statute Law" at page 45:In 1849 the ancient system of enrolling Acts after the royal assent was discontinued. 'Two prints are prepared on a durable vellum which, after a further examination in the Public Bill Office, are indorsed with the words by which the royal assent was signified and signed by the Clerk of the Parliaments and become the official copies of the Act. One of these is sent for custody to the Public 1614 Record Office and the other is preserved in the House of Lords …Paper prints of the Act are placed on sale to the public, and printed copies are referred to as evidence in courts of law. The original prints may be seen, when necessary, and copies taken on payment of certain fees.'I understand that was the document to which Lord Reid was referring. The hon. Member for Hornsey has already quoted the passage which I had marked on that matter at page 36:It is submitted that the courts, in an ordinary case, would regard the existence of an enrolled copy among the records of Parliament (or Chancery), purporting to be duly assented to, as conclusive outside Parliament itself, and would decline to enter upon any inquiry into the contents of the Journals or into the usages or resolutions of either House, except so far as they purport to alter the common or statute law.There is a subsequent passage based on Pylkington's case but that case was a long time before the sovereignty of Parliament evolved.
Perhaps it is always rash to be dogmatic about what the courts will do in a hypothetical case but I do not believe that the courts would entertain a challenge to the authority of a statute as inscribed on the vellum by reason of events that occurred in the course of the passage through Parliament.
I turn to the question posed to me by the hon. Member for Braintree (Mr. Newton). Let us suppose that the Clerk of Parliaments had been dishonest and enrolled on the vellum something on which we were not in substantial agreement, and which bore no relation to our intention. Let us suppose, for instance, that he recorded that his own marriage was dissolved. The courts, by reason of the doctrine which is repeatedly approved in the House, would not look behind the official record, which is contained in the vellum. We must rely on the integrity and efficiency of the Clerk of the Parliaments. Of course, if he did something so unwise his own future would be in doubt.
§ Sir Michael Havers (Wimbledon)
I shall resist the temptation to refer to the Pickin case with which I was concerned as counsel.
§ Sir M. Havers
Apart from whether the statute is valid, what is the position when an unintentional error takes place? Such an error could occur over the Finance Bill, for instance. That could have serious consequences.
The House should address itself to whether it can find some formula that will enable it to set up a committee to deal with mistakes and correct them without having to come back to the House of Commons or House of Lords. Perhaps that could be achieved by using the Statute Law Revision Committee. If all members of such a committee were agreed, there would be no need to come back to Parliament.
It is wrong to place such a burden upon the Clerk who has to decide on two conflicting accounts—one from this House and one from the Lords—either to resolve the difficulty or do nothing, as happened in this case. This is a valid argument which should not irritate hon. Members, because it is in their interests. Surely we could devise a system that would remove the necessity of coming back to the House unless there is disagreement.
§ The Solicitor-General
I was about to say something about that but the hon. and learned Gentleman has forestalled me. But that is not what the debate has been about. If he will forgive me, I will answer first the question of the hon. Member for Windsor and Maidenhead (Dr. Glyn).
He made reference to the matter that was raised by the hon. Member for Hornsey—the sinister affair of the absent vellum. He said that when the printer's copies were in the course of preparation, the vellum was not there. What difference did that make? That cannot be a ground for challenging what was on the vellum. Sometimes for administrative reasons printing processes are initiated of something which has not yet been authorised. Sometimes people print petrol coupons, for instance, before there is authority to introduce petrol rationing. That is a risk, because if there is no eventual authority, the printing is wasted. The answer is that the absent vellum was a red herring.
1616 Returning to the question of the hon. and learned Gentleman, quite properly he says that there is a distinction. On the one hand, we might be considering whether the Act is valid. No doubt we shall return to this matter in Committee, but I was tempted to indicate the position as I see it. The quite different question is whether we could evolve some kind of procedure within the House to determine what the vellum should contain, so as to ensure that this situation does not arise. On that I think that we would all agree.
It was, again, an unfair political point to say that, because of some real or imagined delay in the implementation of the report of the right hon. and learned Member for Huntingdonshire (Sir D. Renton), if there was such a delay, we are in this situation. As I understand it, the situation discussed in that Committee was what should happen in the case of errors discovered before Royal Assent. I do not think that the Committee adverted to the question of errors discovered after Royal Assent. It is not the Government's fault.
All the same, it is a valid point. It is something to which the House ought to be directing its mind. I think that I would be usurping the limited authority placed in me if I attempted to pronounce on the matter tonight. My presence here, at the request of the hon. Member for Hornsey, is to advise the House on the matter of what the courts will decide faced with this statute. But the Government are sympathetic about the problem. Perhaps the hon. and learned Gentleman would leave the matter there at this stage, because clearly to discuss it would be out of order, as I understand it, in a Second Reading debate.
§ Mr. Deputy Speaker
Order. The Solicitor-General has pointed out what I was about to say. This is a matter for future business and not the Second Reading of the Bill.
§ The Solicitor-General
I had not intended to speak for so long, but I have been interrupted a number of times.
§ Mr. Rossi
The hon. and learned Gentleman has attributed something to me that I do not think that I said. I did not invite him here just to give the view 1617 of the courts. I do not think that I invited him here at all. What I was putting to the House was not merely the position with regard to the courts but also what this House should do to correct an error of this kind. I directed a great many of my remarks to that position.
§ The Solicitor-General
You have already ruled, Mr. Deputy Speaker, that that matter is out of order, so it would be out of order for me to reply to the hon. Gentleman. The matter can be discussed on another occasion.
As I see it, procedure is made for man and not man for procedure. There are many men and women who are concerned with the contents of the Bill. I hope that nothing that is said tonight will convince them that this House cares less about the contents of the Bill than about constitutional technicalities. Of course constitutional technicalities are important, and I look forward to the debates which the hon. Gentleman and I may have in Committee. However, what matters is that the situation should be put right for those people with the minimum of delay.
§ 12.9 a.m.
§ Mr. Michael Jopling (Westmorland)
I had not originally intended to intervene at this stage of the debate, but one of the things that have been said has prompted me to do so. I shall be as brief as possible.
I think that it is the unanimous view of the House, or virtually so, as the Solicitor-General said—I think that I quote him exactly—that those outside the House who are awaiting the provisions of the Bill will not be particularly impressed by the constitutional arguments which have flowed to and fro across the Floor of the House. That is certainly true. The debate has shown that the need for the Bill in the light of the mistake that was made in the Act has not been seriously disputed.
§ Mr. Jopling
Just a moment. Before I give way I must do what I did in the debates on the Act, and that is to declare my interest as a farmer and as being involved with tied cottages. Now I give way.
§ Mr. Jopling
The Solicitor-General's speech was in stark contrast to some of the things that were said by his hon. Friends. I very much regret that the thoughtful way in which he made his speech contrasted sharply with the short-tempered attitude of some of his colleagues, and I do not exclude the Under-Secretary of State for the Environment from that stricture.
§ Mr. Douglas-Mann
Does the hon. Gentleman contrast the speech of the hon. and learned Member for Wimbledon (Sir M. Havers) with that of the hon. Member for Hornsey (Mr. Rossi)?
§ Mr. Jopling
I shall come to my hon. Friend's speech in half a minute.
What, more than anything else, spurred me into speaking was the tone of the speech of the hon. Member for Brigg and Scunthorpe (Mr. Ellis). He and I have known each other for many years. I hope that he will read the remarks that he made about my hon. Friend the Member for Hornsey (Mr. Rossi). He made personal remarks which I thought were most unfortunate and not worthy of him, and I hope that he will ponder those remarks when he has had time to think about them.
§ Mr. Jopling
I have written most of them down, but I do not want to repeat them. When he reads Hansard in the morning and sees what he said about my hon. Friend, I think that he will agree that his remarks were unworthy of him. They were cheap and gratuitous. I shall say no more about that.
The hon. Gentleman cannot have fully understood the point that my hon. Friend was trying to make. He was trying to say that we in this House stand as both the makers and the guardians of the concept of the rule of law. I do not see how the hon. Gentleman can dare to criticise my hon. Friend who was reasonably questioning whether what people believe to be the law could be challenged and perhaps brought back to this House in the way suggested by my hon. Friend the Member for Braintree (Mr. Newton), who said that if a gross discrepancy were to occur between this House and the 1619 other place in a Bill that received the Royal Assent, the whole concept could he challenged very seriously indeed. That is the point that my hon. Friend was trying to make, and I again ask the hon. Member for Brigg and Scunthorpe how he dares criticise my hon. Friend for doing that.
§ Mr. John Ellis
I am a fair-minded person. In the light of what the hon. Gentleman has said I am prepared to look at my remarks, but let us clear up this matter tonight. I ask the hon. Gentleman to be specific in his criticism of me. If I was wrong, I shall say so. The hon. Gentleman must not make a vague charge against me. I am trying to think of what I said. Unless the hon. Gentleman is more specific, I cannot take the matter any further.
§ Mr. Jopling
I have already said that I do not intend to repeat what the hon. Gentleman said. I think that his statements were unfortunate. I shall draw them to his attention privately, and I hope that he will consider them. I shall not be drawn any further.
§ Mr. Canavan
The hon. Gentleman is accusing my hon. Friend of deceiving the House by making statements that were untrue. If not, will he withdraw the implication of his statement?
§ Mr. Jopling
The hon. Gentleman mooched into the Chamber in the middle of the debate and did not hear the statements made by his hon. Friend. I do not intend to be drawn by what he has said. [Interruption.] The hon. Member for Bolsover (Mr. Skinner) was here at the beginning of the debate, but went out, and he has come wandering in again. I do not intend to pay any attention to him.
It is no help for the Solicitor-General to tell us that other Bills may have a similar defect. The Under-Secretary of State for the Environment kept on quoting like a parrot the 1972 Local Government Act. The answer is that we ought to be trying to remove a situation where the serious doubt to which my hon. Friend the Member for Hornsey referred could be a more pointed and more challenging issue, in the way suggested by my hon. Friend the Member for Braintree. 1620 That is something that we should consider. I welcome the fact that the Solicitor-General referred to the possibility of the House looking at this again.
I was surprised that the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) should have said that the manner in which my hon. Friend made his points destroyed the validity of the argument. If he tries to persevere with that point, he might also ponder the way in which the Solicitor-General replied. No one can say that he was brief. My hon. Friend's speech caused the hon. and learned Gentleman to talk at considerable length and to repeat most of the quotations from the learned textbooks used by my hon. Friend.
§ Mr. Douglas-Mann
If I said that the manner of the hon. Gentleman's speech destroyed the validity of the argument, that would of course be a logical fallacy. But the manner weakened any validity it had. Of course it contained a few grains of validity, but it took such effort to discover them that some of us found our attention wandering before we found them.
§ Mr. Jopling
I welcome the way in which the hon. Gentleman has clarified his point of view. I also welcome what the Solicitor-General said about his feeling that the matter should be looked at again. Would he consider speaking to the Leader of the House in the near future about this and drawing his attention to what has been said tonight with a view to discussing through the usual channels some procedure to permit this matter to be discussed again? I wonder whether you, Mr. Deputy Speaker, would be kind enough to draw to Mr. Speaker's attention what has been said about the procedural difficulty with which the House has been faced tonight and which could blow up seriously in some circumstances.
§ Mr. Jopling
I hope that he gets up early in the morning. I can see that we shall have considerable discussions on this point in Committee, and no doubt on Report we can pursue the arguments even further.
§ 12.18 a.m.
§ Miss Joan Maynard (Sheffield, Brightside)
As someone who has probably had more to do with the original Act, and certainly more to do with farm workers, than anyone else who has spoken tonight, I must say that if farm workers were as inefficient and unproductive as this House has been tonight, we should be in a very bad way.
There is probably a constitutional point here, but it could have been made more briefly. It is this kind of debate and this kind of nonsense that bring this House into disrepute. When this group of workers first formed a union, they came up against the law and were deported.
|Division No. 64.]||AYES||[12.20 a.m.|
|Archer, Peter||Gilbert, Dr John||Roderick, Caerwyn|
|Armstrong, Ernest||Hardy, Peter||Ross, Stephen (Isle of Wight)|
|Ashton, Joe||Harrison, Walter (Wakefield)||Sedgemore, Brian|
|Canavan, Dennis||Howell, Rt Hon Denis (B'harn, Sm H)||Sheldon, Rt Hon Robert|
|Carson, John||Howells, Geraint (Cardigan)||Sillers, James|
|Cocks, Rt Hon Michael||Jones, Alec (Rhondda)||Skinner, Dennis|
|Cohen, Stanley||Jones, Barry (East Flint)||Smith, John (N Lanarkshire)|
|Cook, Robin F. (Edin C)||Kerr, Russell||Spearing, Nigel|
|Crowther, Stan (Rotherham)||Leadbitter, Ted||Thomas, Ron (Bristol NW)|
|Cryer, Bob||Loyden, Eddie||Urwin, T. W.|
|Dempsey, James||McDonald, Dr Oonagh||Ward, Michael|
|Douglas-Mann, Bruce||McMillan, Tom (Glasgow C)||White, Frank R. (Bury)|
|Ellis, John (Brigg & Scun)||McNamara, Kevin||Wilson, Alexander (Hamilton)|
|English, Michael||Madden, Max||Woof, Robert|
|Faulds, Andrew||Mahon, Simon|
|Fernyhough, Rt Hon E.||Maynard, Miss Joan||TELLERS FOR THE AYES:|
|Flannery, Martin||Noble, Mike||Mr. Peter Snape and|
|Ford, Ben||Penhaligon, David||Mr. Alf Bates.|
|TELLERS FOR THE NOES:|
|Mr. Nicholas Ridley and|
|Dr. Alan Glyn.|
§ Question accordingly agreed to.
§ Bill read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).