REPEALS (Hansard, 31 October 1995)

§ Mr. Mackinlay
I beg to move amendment No. 2, in schedule 1, page 27, leave out lines 26 to 28.

§ Mr. Deputy Speaker
With this, it will be convenient to discuss amendment No. 3, in schedule 1, page 27, line 27, column 3, at beginning insert 'and communicated to the Governments of Her Majesty's Dominions'.

§ Mr. Mackinlay
I will not detain the Committee unduly, because I have referred to much of what I wanted 197 to say on Second Reading. Nevertheless, I think that we are in danger of committing a serious error by including this repeal in the schedule. It would be appropriate, in accordance with amendment No. 2, to leave the Regency Act 1937 as it is. The Solicitor-General should raise with the Prime Minister the need for some review of legislation such as the Regency Act with other countries' Prime Ministers.
If we trespass in making this repeal tonight, we will offend the constitutional position of several countries. It will certainly have political ramifications, because we will be rather arrogantly altering a law that forms part of their constitutions. The danger is that, at some stage, we will find that we are in great difficulty having crossed this line. I hope, therefore, that the House will be persuaded to change the Bill in accordance with my amendment. Constitutionalists in Canberra, for instance, may discover that it was wrong for us to have so acted.
In any event, I hope that if our proceedings are reflected upon elsewhere, others might say that we need to reconsider the regency legislation. I disagree with the Solicitor-General: the Regency Act does relate to the succession. He has put a narrow and wrong construction on it—in my view it is squarely part of the obligation provided for under the Statute of Westminster—which clearly states that such action must be taken with the dominions acting together.
The Regency Act needs to be reconsidered, because, if ever we did need such a provision, there would be political consequences in other Parliaments, especially in Canberra. Some would take a leaf out of the book of the Prime Minister of the Irish Free State, who used the succession crisis in 1936 to abolish the post of governor general and create the presidency of the Irish Free State. The point that I made on Second Reading is valid: if the matter is treated with disdain and not addressed, it could have consequences in future.

§ The Solicitor-General
I invite the House to reject the amendment, if the hon. Member for Thurrock (Mr. Mackinlay) persists with it.
He is quite wrong to suggest that the Bill has any effect on the constitution of any other country. It says quite explicitly that it affects only the law of the United Kingdom and the Isle of Man. I repeat that it will not have any effect on the law of any other country.
Out of deference to and respect for the arguments advanced by the hon. Member for Thurrock, who has obviously spent a good deal of time researching the matter, let me go into a little more detail, starting with the Regency Act 1937.
Section 2 of that Act made provision for a regency in the event of the total incapacity of the sovereign. Subsection(2) states that a declaration of the sovereign's incapacity under section 2(1) shall be made to the Privy Council and communicated to the Governments of His Majesty's Dominions and to the Government of India". The Law Commission has recommended the repeal of the reference to the Government of India. That is not surprising given that such a reference has been obsolete since the enactment of the Indian Independence Act 1947. That is obvious, as India and Pakistan became republics in 1950 and 1956 respectively. Many such obsolete 198 references in pre-independence legislation were repealed by the Statute Law (Repeals) Act 1976. It is only because of an oversight that those words remain on the statute book to this day. Had they been spotted, they would have been removed in 1976 and the hon. Gentleman would have been spared the endeavours in which he has obviously been engaged over the past few months.
9.45 pm
The hon. Gentleman's objection to this repeal seems to be based on his assertion that the provision relating to the Government of India cannot be repealed without consulting other Commonwealth countries in accordance with the Statute of Westminster 1931. As I have tried to explain, that is not the case. The Statute of Westminster requires the assent of the Parliaments of the dominions to any alteration in the law that touches the succession to the throne. I stress the words, "succession to the throne".
However, during the passage of the Regency Bill, it was made clear in Parliament by the then Home Secretary, Sir John Simon, that the Bill did not have that effect. It was merely a mechanism to enable the Crown to continue to operate when there was some impairment of the sovereign's health. So it did not require such assent prior to enactment, and it follows that no such assent is now required to repeal the Act or any part of it.
This Bill will have effect only on the law of the United Kingdom and the Isle of Man. It will have no effect on the law of any other country. For those reasons, I consider it appropriate that the obsolete reference to the Government of India in section 2(2) of the Regency Act should be repealed, as recommended by the Law Commission.
The Government also oppose amendment No. 3, which would have the effect of introducing additional repeals. As its long title makes perfectly clear, the Bill is based solely on the recommendations of the Law Commission and the Scottish Law Commission. The commissions have made no recommendations for the repeal of any part of the Regency Act, other than the reference to the Government of India in section 2(2). No evidence has been brought to the attention of the commissions or the Government that other aspects of the legislation are of no practical utility. In those circumstances, it will be wholly wrong for additional repeals to be inserted without further careful research and without the support of the Joint Committee.
I invite the hon. Gentleman to consider this matter further and, if he is now satisfied, to withdraw the amendment.

§ Mr. Mackinlay
I have reflected carefully on the Solicitor-General's comments, and I am grateful for his detailed explanation. Clearly, I have had an opportunity to give this matter an airing on Second Reading and in Committee, so I do not wish to press it to a vote. I hope that the Government will consider the wider implications of the matters I have broached in Committee and on Second Reading. I beg to ask leave to withdraw the amendment.