HL Deb 13 June 1932 vol 84 cc812-22

Adaptations and Modifications of this Act in its application to Scotland.

3. In the following provisions of the Act, that is to say:— The provisions of Part II (except Sections twenty-three, twenty-four, thirty-three, thirty-five, thirty-six), The First Schedule, for the words "Secretary of State" the words "Scottish Education Department" shall be substituted.

4. In the following provisions of this Act, that is to say:—

for the words "local authority" the words "education authority" shall be substituted; for the word "local" and the words "a local" used in relation to an authority the word "education" and the words "an education" shall be respectively substituted; for the expression "a local authority" the expression "an education authority" shall be substituted, and for the word "district" used in relation to a local authority the word "area" shall be substituted.

Power of Secretary of State may be transferred.

6. The following section shall be inserted after Section eighty-four of the Act:—

It shall be lawful for the Secretary of State, with the consent of the Treasury, from time to time to make an order transferring to the Scottish Education Department or to the Department of Health for Scotland any power for the time being possessed by him under thus Act (not being a power under Part I of this Act), and by such order to make any adjustment consequential on the transfer and to provide for any matter necessary or proper for giving full effect to the transfer, and, on any such order being made, the powers so transferred shall be exerciseable by the Scottish Education Department, or the Department of Health for Scotland, as the case may be.

THE DUKE OF BUCCLEUCH moved, in paragraph 3, to leave out "for the words 'Secretary of State' the words 'Scottish Education Department' shall be substituted." The noble Duke said: Throughout this Bill we have been told that there is a certain amount of security and safeguard because those schemes and this expenditure must be approved by the Secretary of Stale. But when it comes to applying the Bill to Scotland it is the Scottish Education Department, not the Secretary of State, which has to approve. It is not because the Secretary of State is any harder worked than the Homo Secretary in England; quite the contrary; and the Education Department in Scotland is a purely bureaucratic Department. It is only a sub-department of a Department, and has not been famed for economy or efficiency. It is entirely wrong and against all practice that the responsibility of a Minister should be thrown on a sub-department, and it is also entirely contrary to what has been said by the noble Viscount in charge of the Bill with regard to security.

Amendment moved— Page 84, line 6, leave out lines 6 and 7.—(The Duke of Buccleuch.)


The main argument the noble Duke advanced in support of his Amendment seemed to me to cut the other way. I understood that he was anxious that these powers should be in the hands of a very responsible official. I do not know whether the noble Duke is under the impression that this Bill transfers to the Scottish Education Department the supervision of reformatory schools, but that is not the case. Therefore if this Amendment were accepted, it would be imposing a new duty upon the Education Department, which I doubt very much whether the education authorities would be prepared to undertake. I always speak with the utmost diffidence about Scottish affairs, and especially Scottish law, but I understand that the Secretary of State is ex officio a member of the Committee of the Council of Education in Scotland, and therefore he does in a sense combine the functions that the noble Duke would like to see discharged by the Scottish Education Department. That is an arrangement, I am told, which has worked very well for a number of years, and we see no reason why it should be changed.


The noble Viscount has argued in favour of keeping the Secretary of State, whom I want kept. I do not want to substitute the Education Department, quite the contrary. They are not a suitable body. I am still more fortified by what the noble Viscount has said in my view that my Amendment is right, and I hope that the Government will accept it.


It is with the greatest diffidence that, like the noble Viscount, I venture to say a word on a Scottish subject, but I think, in the interests of your Lordships' House, I ought to say that this Schedule does present a precedent which is a very for midable one. What, in effect, does this Schedule do? Instead of having the proper clauses of a very elaborate Children Bill, applying to Scotland, properly set forth, it acts according to the practice of legislation by reference in a degree almost unparalleled even in our experience. I understand from the noble Duke that it is almost impossible even for a Scottish Peer to understand the effect of the Schedule as it stands. In this United Kingdom even English Peers have to vote upon a subject of this kind, and, if a Scottish Duke cannot understand it what is to be said for us poor Englishmen? But I really think, apart altogether from any frivolous observations of which I may have been guilty, that a serious protest ought to be made against this method of legislation. It is quite obvious what has happened. The Government, in order to avoid the difficulties of passing a Scottish Bill through, have crammed the whole thing into a Schedule and got rid of all the difficulties by substituting one word for another here and there, so that no human being can know in the least what is being done, and merely in order that the matter may get more quickly through Parliament. I think a most serious protest ought to be made against that kind of legislation.

As far as the actual Amendment is concerned, the noble Duke's argument seems to me to be well founded. The sanction of the English part of the Bill depends upon the Secretary of State. Why in the world it should not depend upon the Secretary of State similarly in Scotland no human being can understand. The noble Viscount, Lord Snowden, as far as I understood, said it was really the same man, but in another capacity as a member of the Education Department and not as Secretary of State. There are many very remarkable things in Scotland I know, and this may be one of the remarkable things, but I should prefer to have the Secretary of State by himself than the Secretary of State accompanied by his Education Department, for the Scottish Education Department have not (shall I say?) a very favourable reputation as far as I have been able to gather from the south of the Tweed. Therefore I hope the Government will consider the noble Duke's Amendment. What I would urge upon them much more is that they should recast altogether their Schedule between this and the next stage, so that your Lordships' House should have some opportunity of understanding what it is legislating about. I venture to put this forward with some emphasis.


There are two separate points. There is the minor point, if I may so call it, as to the merits of the particular Amendment the noble Duke has just moved. There is also the larger point which has been raised by my noble friend Lord Salisbury. May I deal with the Amendment first? I think the noble Duke is under the impression that we are proposing some alteration in the existing practice.


No, I am not at all.


I want to make it clear, at any rate to the House, if it is not already clear, that what we are doing here is to preserve the practice which has prevailed in Scotland for at least ten years past—that is to say, we are keeping in the Scottish Education Department those matters which are at present in the Scottish Education Department, and we are keeping in the central control of the Secretary of State those things which are now in the central control. The object of the Amendment is to transfer to the Secretary of State all those matters which for ten years past have been under the control of the Education Department, and which, I think your Lordships will see, are properly and reasonably within the control of that Department. I hope the noble Duke in those circumstances will not press so revolutionary a claim upon the Government.

Then comes the other and very important question which the noble Marquess has raised—namely, the question, as he calls it, of legislating by this Fifth Schedule. Let me say at once that if this Schedule were doing anything by way of separate legislation I should find myself in full agreement with my noble friend. I entirely agree that it would be most undesirable, by means of a schedule, which is of necessity complicated to those who are not familiar with Scottish legal phraseology, to make alterations in Scottish law. But in truth that is not quite the position. The Bill is a Bill whose provisions are intended to apply equally in England and in Scotland. It so happens that Scottish legal phraseology differs from that which is used in England. For instance, we talk of an affiliation order. They talk about the provision of aliment. There are a whole number of other instances. We talk of a magistrate's court or a petty sessional court. They talk of a sheriff's court or of a sheriff substitute's court. There are a lot of other instances in which their language is different from ours, and all that this Schedule does—it has been carefully analysed from this point of view—is to apply in the case of Scotland the appropriate language which appears in the Bill in the case of England. We are using English throughout the Bill. In the Fifth Schedule we give the Scottish equivalent in language.

As my noble friend says—he knows so much about Parliamentary procedure I could not mislead him if I wanted to—it is quite true that one reason for doing it in this way is the saving of Parliamentary time. If we did it in the other way by bringing in a separate Bill we should have exactly the same provisions. I want your Lordships to appreciate that we should have exactly the same legislation all over again. We should have days for Second Reading, days for Committee, days for Report, days for Third Reading, both in another place and in this House. Although in your Lordships' House that would not involve any waste of time, because I know in your Lordships' House a decision taken is accepted, and there would not be discussion over again, I am afraid my noble friend will agree with me when I say that in another place the same excellent rule does not prevail, and it would mean an enormous waste of Parliamentary time. I say "waste" deliberately, because there would be nothing new discussed. Therefore it has been thought convenient and expeditious to pass the one Bill which deals equally with England and Scotland, and then in the Schedule to put in the Scottish words which are the equivalent of the English words used in the Bill. We have done nothing other than that. I shall of course be glad to consider any other way of doing it, but the Scottish Office and the Home Office and those directly responsible, and also the legal advisers of those important Departments, think that this was the simplest and most convenient way in order to prevent that confusion which might otherwise arise in the minds of those who had to read the Bill. There is in Clause 86 a provision that the Bill shall be reprinted with the Scottish words put in instead of the English for the benefit of the Scottish people.


Not the Bill but the Act?


Yes, of course, the Act. It has been already done in the case of the Army and Air Force Act. I want to make it clear that we are not seeking in this Fifth Schedule to do anything by way of legislation, but we are trying to use the appropriate Scottish words for the English words, and we shall have to print them separately so that Scotsmen can read the Act with the same facility as Englishmen can read it.


My noble friend has made a most plausible argument, as he always does, in the most pleasant way possible. I do not think we often see a Schedule of seventeen or eighteen pages of closely printed matter. I do not think any one except draftsmen, or gentlemen evidently learned in the law, like my learned friend opposite, can be expected to understand this. Of course we accept my noble friend's assurance, but, unfortunately, when you come to deal with things, you find they are not quite what you expect them to be. The Government draftsman always has one view, and the whole opposition as a rule have the opposite view. Therefore I think it is an objectionable practice. I quite see the difficulty as regards my Amendment, and as it is so late I will not trouble the House to divide on it. But I still think I am right, because there has been a bad practice for ten years of having this Education Department. I do not see why it should be continued, but I withdraw my Amendment.


May I ask the Leader of the House to say if this is not creating a precedent? It does strike me as curious. In my recollection we have never had any procedure of this kind before. There must have been Acts that apply both to England and Scotland, and it strikes me as curious that we should not have had this difficulty before.


I rather think it was done in the 1908 Act. An exactly similar practice occurs in a Department that I am trying to know something about. In the War Office we have an Army Act, and when they constituted an Air Force what they did, when they passed the Act of 1913, was to include an express provision that the Army Act should apply to the Air Force, with the necessary modifications, which are stated in a Schedule, and that then it should be re-printed. I may also say that it was done in the case of Scotland, but I would not like to pledge myself to that without checking it.

Amendment, by leave, withdrawn.

THE DUKE OF BUCCLEUCH moved, in paragraph 4, to leave out "for the words 'local authority' the words 'education authority' shall be substituted; for the word 'local' and the words 'a local' used in relation to an authority the word 'education' and the words 'an education' shall be respectively substituted; for the expression 'a local authority' the expression 'an education authority' shall be substituted." The noble Duke said: I am really moving this Amendment in order to get an explanation. I do not say it is wrong. It is so very difficult to follow. On the face of it, it looks as though it was a mistake to put the education authority in place of the local authority. I will not go to a Division, but I can raise it again on Report stage if that will suit the noble Viscount better. It is a small matter.

Amendment moved— Page 84, line 13, leave out from ("for") in line 13 to ("and") in line 18.—(The Duke of Buccleuch.)


This is a very complicated matter. There are certain functions controlled by the Education Department and some by other Departments which differ from administration in England. We only received the noble Duke's Amendment to-day and we have not had time to go into the matter. In view of the lateness of the hour, may I suggest that the Amendment should be postponed to Report stage to give us an opportunity of fuller consideration?


I am quite willing to agree to that suggestion, and I will take the same course on another Amendment dealing with whipping which I propose to move.

Amendment, by leave, withdrawn.

VISCOUNT SNOWDEN moved to insert:

"S. 8.—For the section the following section shall be substituted:

" 'Laying of Rules before Parliament.

'Any rule purporting to be made by the Lord Chancellor under this Part of this Act shall be laid before both Houses of Parliament as soon as may be after it is made, if Parliament be then sitting, or if Parliament be not then sitting, within one month after the commencement of the next Session of Parliament, and shall be judicially noticed.'"

"S. 9.—For the words 'under the Punishment of Incest Act, 1908,' there shall be substituted the words 'which constitutes the crime of incest.' "

The noble Viscount said: This is a drafting Amendment dealing with the rules to be made by the Lord Chancellor. I beg to move.

Amendment moved— Page 86, line 13, at end insert the said words (Viscount Snowden.)

On Question, Amendment agreed to.


There number of other drafting and quential Amendments standing name. I beg to move.

Amendments moved—

Page 86, line 40, at end insert: ("and Section seventy-four of the Prisons (Scotland) Act, 1860, shall, except in so far as it applies to cases tried on indictment, cease to have effect.")

Page 87, line 7, at end insert: ("S. 27.—For the word 'England' wherever it occurs, the word 'Scotland' Shall be substituted.")

Page 87, line 23, leave out ("subsection") and insert ("subsections")

Page 87, line 24, after ("(2)") insert: ("( ) Where a contribution order has been made on any person to whom any pension or income capable of being arrested is payable, the court making the order may, at the same time, and any court of summary jurisdiction having jurisdiction in the place where such person is for the time being resident, may subsequently at any time, after giving the person by whom the pension or income is payable an opportunity of being heard, order that such part as the court may see fit of the pension or income be paid to the person who is for the time being entitled to receive the contributions under the contribution order. Any order made under this subsection Shall be an authority to the person by whom the pension or income is payable to make the payment so ordered and the receipt of the person for the time being entitled to receive the contributions shall be a good discharge to the person by whom the pension or income is payable.")

Page 87, lines 27 and 28, leave out ("a local") and insert ("an education")

Page 88, line 4, after ("order") insert: ("may be revoked or varied by any court of summary jurisdiction having jurisdiction in the place where the person liable is for the time being residing and")

Page 89, line 11, in the second column at beginning insert: ("For the word 'England' wherever it occurs, the word 'Scotland' shall be substituted")

Page 89, line 32, at end insert: ("for the word 'Scotland' wherever it occurs, the word 'England' shall be substituted; and for the words 'Scottish Education Department' the words 'Secretary of State' shall be substituted")

Page 93, line 38, after ("1929") insert: ("and, in the case of an education authority, of Section forty-five of the Education (Scotland) Act, 1872, as amended by any subsequent enactment")

Page 94, line 7, at end insert: (6) A local authority, an education authority, a poor law authority, or a committee 10 whom any powers of any such authority under this Act have been delegated may, by resolution, empower the clerk or other officer of the authority to exercise in the name of the authority in any case which appears to be one of urgency any powers of the authority or, as the case may be, of the committee with respect to the institution of proceedings under this Act.")

Page 97, line 27, at end insert: ("In paragraph 22 for the words 'summary conviction' wherever they occur there shall be substituted the words 'conviction by a court of summary jurisdiction.' ")

Page 97, line 27, at end insert: ("In paragraph 22 for the words 'Scottish Education Department' the words 'Secretary of State' shall be substituted; for the words 'Children and Young Persons (Scotland)', the words 'Children and Young Persons' shall be substituted; for the word 'Scotland' wherever it occurs elsewhere, the word 'England' shall be substituted; and for the word 'England' wherever it occurs, the word 'Scotland' shall be substituted.")—(Viscount Snowden.)

On Question, Amendments agreed to.

THE DUKE OF BUCCLEUCH moved to leave out paragraph 6. The noble Duke said: This is a very important Amendment and if I am not able to get anything from the Government now I will bring up this question again later. As the Bill stands now it reads: It shall be lawful for the Secretary of State, with the consent of the Treasury, from time to time to make an order transferring to the Scottish Education Department or to the Department of Health for Scotland any power for the time being possessed by him under this Act. That is taking power away from Parliament. In a few months time the Secretary of State for Scotland can get rid of the whole of this responsibility and put it upon these two Departments. I do not think that is a right power to confer upon him. It seems to me very objectionable.

Amendment moved— Page 100, line 29, leave out paragraph 6.—(The Duke of Buccleuch.)


As the noble Duke's Amendment was only sent in at the last moment we have not had time to consider it carefully. If he will withdraw it now and bring it up again on Report the matter will be considered and an answer given. I cannot say whether we shall be able to accept the Amendment or not, but we will consider it and either accept it or give a good reason for not accepting it.


I apologise for not having sent in the Amendment earlier, but I have been away. I will do as the noble and learned Viscount suggests, and I will withdraw the Amendment now.

Amendment, by leave, withdrawn.

Fifth Schedule, as amended, agreed to.

House adjourned at thirteen minutes before eight o'clock.