HC Deb 10 January 1977 vol 923 cc1058-67
Mr. Rossi

May I thank you, Mr. Speaker, for allowing me to raise this point of order relating to two questions which I feel are of some importance to the House and beyond.

The first is a constitutional question concerning whether an Act of Parliament is valid in law if it is published in a form which does not comply in a material respect with what was passed or intended by either House. The second is a procedural question concerning how the Clerk of the Parliaments should deal with the correction of material errors in a Bill as distinct from minor printing errors which have become apparent after passage through both Houses but before Royal Assent or publication.

The Act giving rise to these two questions is the Rent (Agriculture) Act 1976 which received the Royal Assent on 22nd November last and which was published during the recess without effect being given to a Lords amendment with which the House agreed, namely, Lords Amendment No. 45. This amendment goes to the heart of the Act, namely, Section 28, which imposes upon local authorities an obligation to rehouse the occupant of a tied cottage who has given up his work on a farm and where the farmer is able to prove that he must make the accommodation available to an incoming farm worker in the interests of agricultural efficiency. The amendment sought to impose a time limit of three months within which a local authority has to come to a decision on a rehousing application made in such circumstances.

There was no disagreement between the two Houses on the need for a time limit. This issue was first raised in Committee of this House where, with the support of my hon. Friends and the hon. Member for Cardigan (Mr. Howells), we sought to impose a six-week time limit. This was defeated along with a linked amendment, with the Chairman using his casting vote. We understood that the Government would give further consideration to the matter in another place.

On Report in the Lords the Government acceded to an Opposition proposition that there be this three-month time limit. Thus, the principle of a time limit was clearly agreed by both Government and Opposition, and the amendment was carried in correct form by the House of Lords. Then, unhappily, a printing error occurred. When the amendment was inserted into the House of Lords' Bill it differed from the amendment as agreed by that House. Let me say at once that I attach no blame at all to the authorities in the Lords. They were acting under extremely difficult circumstances and under pressure from the Government to process this and a number of other Bills before Prorogation.

The Third Reading of the Bill in the Lords was completed at 6.15 p.m. on Monday 15th November and that House's Bill had to be completed and checked by 7.30 that same evening for transmission to our House. When the authorities of the Commons received the Lords' Bill they had to prepare their amendments from it, which they did correctly, putting before us what they had received from the Lords. However, Lords Amendment No. 45 read so that it required us to leave out words from line 3 to line 7 on page 24 of the Bill before inserting the provision relating to the time limit. To have been correct the amendment should have required the deletion of words only down to line 4.

This House passed the amendment in its incorrect form and the result was gibberish. The consequences, on the face of it, are that we have had an amendment passed in one form by the Lords and in another by the Commons in so far as the technical wording is concerned, although the substantive intention of both Houses was quite clear. This House became party to the error because we were not given time properly to scrutinise and consider the amendments. Hon. Members will recall that we were not notified until late on the evening of Tuesday 16th November that the Lords amendments would be before us for consideration the next day. It was not until 2.55 p.m. the next day that the amendments—129 of them—were available in print for our consideration.

The Government's proposals as to which amendments the House should agree or disagree appeared on the Order Paper as starred amendments. Moreover, these proceedings were subject to the guillotine and Lords Amendment No. 45 was never reached for discussion. Hence, the amendment was neither read in detail by any hon. Member nor was it debated, with the consequence that it was passed on the Government's recommendation without proper consideration. I therefore submit that the Government must face in full the responsibility for the difficulties in which we find ourselves.

This is not the end of the saga because I believe—and this relates to matters of procedure—that possibly the matter could have been cured earlier than now, after the Act has received the Royal Assent. The error came to my attention on 16th December, not because I am in the habit of reading Acts after they are passed—I am only too glad to see the back of them—but because I was concerned in making a commentary on the Act. That required me, because the Act was not then published, to compare the Bill with the amendments. When I reached the appropriate point in the Bill I discovered that Lords Amendment No. 45 was complete nonsense.

On 16th December I wrote to the Under-Secretary of State at the Department of the Environment, the hon. Member for Durham, North-West (Mr. Armstrong), who was the Minister in charge of the Act during its passage through this House, asking whether a correction could be made before publication of the Act. I also spoke to the hon. Member and expressed the view that if this could not be done for technical reasons, perhaps publication should be delayed until the matter had been referred back to both Houses for correction.

However, this course of action did not recommend itself to the Government. I subsequently received a letter from the Minister stating that it had been decided to publish without giving effect to the amendment either as passed by the Lords or as passed by the Commons because the two amendments did not agree with one another. The Minister suggested that he would write to local authorities requesting them to comply with the time limits envisaged by the amendments and expressing every confidence that the local authorities would act as though the time limits were incorporated in the Act.

With respect, I did not find that reply satisfactory since a ministerial request has no binding effect upon local authorities, and in any case there remained, as the Minister admitted in his letter to me, wide questions concerning the rectification of errors in Bills between the conclusion of proceedings in Parliament and their appearance as printed Acts.

I therefore referred to our "Bible"—"Erskine May"—to see whether I could discover the Government's authority for proceeding with the publication of the Act in a form containing words excluded by this House and omitting words required to be inserted by both Houses.

The relevant passage is on page 570 of the current edition and I draw hon. Members' attention to the following paragraph: Although a departure from the usage of Parliament, during the progress of a bill, will not vitiate a statute, informalities in the final agreement of both Houses have been treated as if they would affect its validity. No decision of a court of law upon this question has ever been obtained, but doubts have arisen there; and in two cases Parliament has thought it advisable to correct, by law, irregularities of this description. 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. It is necessary to consider whether the Royal Assent will cure all prior irregularities, in the same way as the passing of a bill in the Lords would preclude inquiry as to informalities in any previous stage; whether the endorsement on the bill, recording the assent of Queen, Lords, and Commons, is conclusive evidence of that fact; or, whether the Journals of either House should be permitted to contradict it. The following instances may be regarded as precedents where informalities have been noticed. In fact, "Erskine May" goes on to refer to the Cotton Factories Regulation Bill 1829 which was passed by the Commons and agreed to by the Lords, but with an amendment passed only by that House. The Bill did not return to the Commons for their approval and received the Royal Assent. The amendment was subsequently agreed to by the Commons, but, in order to remove any doubt, an Act was passed to validate the original Act.

From the passage to which I have referred, it would seem that the 1976 Act is invalid and a nullity in law.

Mr. John Ellis

Rubbish.

Mr. Rossi

First, there is the statement in "Erskine May" that informalities in the final agreement of both Houses have been treated as if they would affect the validity of an Act. Clearly the wording of the Lords amendment and the Commons approval of it indicate a disagreement on what should be deleted from the Bill—whether it should be the words down to line 4 or to line 7.

Alternatively, it might be said, in the words of the paragraph, that an amendment passed by one House has not been communicated to the other if a different form of wording from that considered and passed by another place was presented to this House. On both counts, there are serious questions whether, according to "Erskine May", the Act is valid.

Mr. John Ellis

Rubbish.

Mr. Rossi

I have not relied solely on my own interpretation of "Erskine May", but have consulted the Public Bill Offices of the Lords and Commons and the Clerk of the Parliaments with whom the ultimate responsibility for publication rests. The hon. Member who keeps calling "Rubbish" from a sedentary position clearly does not understand the legal implications of this matter.

There is a difficult constitutional and procedural position in regard to this Act. The Clerk of the Parliaments was kind enough to reply to a letter which I sent to him in the recess and I have his agreement to my reading the material paragraphs to the House. He says: I agree with you that this is a serious matter and I enclose a paper which sets out the difficulties which confront the Clerk of the Parliaments whenever a mistake is discovered after Royal Assent. You will see that there is really no action that I can take to rectify the mistake which is not open to question and I am driven to the conclusion that the proper open and honest thing to do in all such cases is for the mistake to be put right by a confirming bill as, you rightly point out, Erskine May indicates. Accordingly I have no objection whatsoever to your raising the matter in the House, indeed I would welcome your doing so. I shall not read the memorandum attached to the letter because I appreciate that the House wishes to move to other business. However, I think that it would be in the interests of hon. Members for them to know the problems which confront the Clerk of Parliaments in this situation and the choices open to him, under which he could be questioned and subject to criticism. I shall therefore place the memorandum in the Library so that hon. Members may read it if they wish.

We are left, subject to any findings by a court of law to the contrary, with an Act which, in the light of existing precedents, is a nullity in law. The difficulties for private citizens, farmers and farm workers, are obvious. Has the law been changed or not? Are the occupants of tied cottages protected tenants or not? May they still be evicted under existing law?

The Government must clearly quickly introduce new legislation to validate the Act and to put it in a correct form.

Another question to be resolved is how the House authorities are to proceed if a similar situation should arise again. Do they have the authority to make corrections in Bills beyond mere printing errors? If so, what limit is there on their power to make substantive alterations to a text which has, strictly speaking, not been approved by either or both Houses? It could give rise to the most dangerous precedents if we said that there was a blanket authority for the officials of either House to put into a Bill whatever they wished because they believed that the intention of Parliament was not clear.

Such problems were considered by the Renton Committee which produced a report in May 1975 on the preparation of legislation. The Committee recommended the establishment of a Joint Select Committee of both Houses to deal with errors in drafting. The Government have done nothing to implement those recommendations, which could have provided a solution to the dilemma created in the mind of the Clerk of the Parliaments in this instance.

I regret that this instance is not the only difficulty which I have discovered in my researches on this matter. I have discovered a similar difficulty with the Children Act 1975. A starred Government amendment was replaced on the Order Paper by another Government amendment. The second amendment was passed, but the first amendment was gummed into the House Bill and the Act received the Royal Assent with the wrong amendment included in it. On the basis of the precedents to which I have referred, it seems that the Children Act may be a nullity in law and that all actions taken under it have been illegal. There may be a need not only for a validating Act but for an Act of idemnity for those who have operated the legislation and its provisions in good faith.

I apologise to you, Mr. Speaker, and to the House for having detained hon. Members for so long, but I believe that I have raised a matter of considerable importance. I do not know how you can deal with the matter after there has been Royal Assent. Perhaps you will tell me that it is outside your power. However, I am grateful that the Leader of the House is here. He has heard what I have said and it lies within his power to put the matter right.

The Lord President of the Council and Leader of the House of Commons (Mr. Michael Foot)

Further to that point of order, Mr. Speaker.

I accept that the hon. Member for Hornsey (Mr. Rossi) has raised a most important point of order. Certainly we should consider what action must be taken to put these matters right. The Government share the hon. Gentleman's concern that this amendment was not incorporated in the Act. This is a matter not for you, Mr. Speaker, or for the Government, but for the authorities in another place.

We are as anxious as the hon. Member for Hornsey that effect should be given to Parliament's intention as passed in both Houses. We are prepared to discuss through the usual channels the possibility of having a short amending Bill to achieve this result. I am sure that is the proper way to put this matter right. We shall proceed to deal with it as speedily as we can to meet the substantial argument put forward by the hon. Gentleman.

In the meantime, I think that it is proper for me to remind the House—the hon. Gentleman referred to this matter in his remarks—that the Department of the Environment has asked local housing authorities, in the guidance that the Department has given them on the Act, to observe as a matter of administrative practice the time limits which the amendment would have required. I appreciate that it is only by an amending Bill that we can rectify the matter fully.

Regarding the hon. Gentleman's remarks about the recommendations of the Renton Committee, which have not been debated—indeed, the Government are still considering their attitude on certain aspects of those proposals—we shall obviously have to discuss those matters in the House. Although the Committee touched on the matters raised by the hon. Gentleman, I hope that, as I have dealt with the substantial immediate point of order, the House will excuse me if I do not say anything further on the other matters. I think that I should probably be out of order on a point of order if I were to attempt to deal with them.

Several Hon. Members

rose——

Mr. Speaker

Order. I had notice from the hon. Member for Hornsey (Mr. Rossi) this morning that he was proposing to raise this point of order and, indeed, I had a very good idea of the substance of what he was going to say.

In view of what the Lord President said, perhaps it would help the House if I give my considered reply now and see where we go from there.

The hon. Member for Hornsey will see from "Erskine May", page 569—the hon. Gentleman quoted from page 570—that the task of preparing Acts for publication after the Royal Assent falls entirely upon the authorities in another place. References in that passage to the Public Bill Office and the Clerk of Public Bills have no relation whatever to the similarly designated office and officer in this House. For that reason, I rule that this is not a matter upon which I have power to take any action.

Mr. Skinner

Further to that point of order, Mr. Speaker. I think that you will agree that, notwithstanding the fact that you have no power in these matters, in a matter of this kind, where there has been a serious administrative muddle, it is necessary for us to take cognisance of the lessons which need to be learned from that administrative muddle.

Would it not be worth while recording the best possible answer to this problem and to recurring problems? Is it not a fact that we have spent countless unnecessary hours in this place, including the necessary time which will have to be spent on this new amendment, because we have a House of Lords which is not doing its job of inserting the commas, crossing the "t's" and dotting the "i's", but has set out with the sole purpose of trying to strangle the elected legislative assembly?

Sir David Renton

Further to that point of order, Mr. Speaker. I think that the Lord President of the Council would wish me to correct him. The right hon. Gentleman said that the report of the Committee on the preparation of legislation had not been debated in this House. In fact, it was quite fully debated for four or five hours fairly late one evening in October 1975 and was given a general welcome by both sides. A few weeks later it was also debated in another place even more fully and was given an even more enthusiastic welcome.

If the Government had made more progress in asking Parliament to implement those recommendations, the difficulty which has arisen on this occasion would not have arisen, or at least there would be an easy way of rectifying it.

Mr. John Ellis

Further to that point of order, Mr. Speaker. The hon. Member for Hornsey (Mr. Rossi) in his submissions twice said that the Act was therefore invalid. The point which I should like to make for your consideration, Mr. Speaker, or for anybody else's consideration, is that we passed certain legislation after hours of well-thought-out debate.

Mr. Lawrence

You were not there.

Mr. Ellis

I was on the Committee. I resent cheap gibes when a Committee has been considering this matter. We spent many hours on this important legislation. The principles contained in the Bill which we debated, and which it was the will of the House should be incorporated, are in no way challenged.

If there has been an administrative error, it must be put right as speedily as possible. To use this point to challenge the whole concept of the legislation must, in all fairness, be wrong. I agree that we should put right an administrative wrong. I hope that the action that we take will be to put into effect legislation which gives security of tenure to farm workers.

Several Hon. Members

rose——

Mr. Speaker

Order. I do not think that the House wishes to go on with this discussion. We have had a clear statement that there will be an amending Bill, so there will be opportunity for discussion later.