CONSOLIDATION OF ENACTMENTS (PROCEDURE) BILL [H.L.] (Hansard, 13 April 1949)

§ THE LORD CHANCELLOR (VISCOUNT JOWITT)

My Lords, I rise to move that this Bill be now read a second time. I am bound to say that the temptation to follow what I understand is the Australian practice is almost irresistible! I should very much like to hand in my speech and have it taken as read. But I am afraid your Lordships have very properly condemned the proposal, which, I must say, shocked me to the core!

I am sorry that this Bill deals with a highly technical subject. It is a difficult little Bill to understand, and I must take the opportunity of explaining and expounding it. It is a Bill which, I am quite certain, is in no sense controversial. I am, in some sense, the author of it. It was suggested by me to Sir Granville Ram and I have discussed it with representatives of all Parties. I have invited criticisms, and I have had them. In particular, the noble and learned Viscount, Lord Simon—he is not present to-day, I am sorry to say—has given me the benefit of his criticisms, and I thought those criticisms were well-founded. I have myself largely recast the Bill from its original form in order to meet those criticisms. I have always made it plain that I was not going 1263 to introduce this Bill unless it was agreed to by all Parties. It is not to be regarded in any sense as a one-Party measure. It is really the product of an effort which we have made together to pool our brains and our resources.

I have never concealed from your Lordships that I am deeply concerned and distressed, as any other Lord Chancellor, no matter to what Party he belonged, would be, at the state of our Statute Book at the present time. Its state is chaotic. There are a tremendous number of Statutes in the Book which ought to go altogether, as they are no longer necessary. There is an immense amount of work to be done in the way of consolidation, and there are a number of general tasks to be carried out. I became convinced that the first thing to do was to try to set up a separate branch of the Parliamentary draftsmen's office to deal solely with consolidation. I realised it was necessary to have that matter dealt with by men not concerned with the current day-to-day legislation, because experience has taught me that if you try to get one of those people to concentrate on consolidation you will be told by your colleagues that he has too much to do in the way of current work to be able to consider it. As I have said, this is a highly technical matter, and the work must be done by highly trained people. I was fortunate enough to persuade Sir Granville Ram, who had been the head of the office, when he retired, to take charge of this branch of the office and to concern himself with consolidation. I set up again the Statute Law Committee. I have been able to get a Statute Law Revision Bill covering the period up to 1800. I hope this year to introduce a new Bill for the period 1800 to 1948. I hope that by the end of this year I shall have a complete revised edition of the Statutes. That has been an immense work but it has been well worth doing. I have also set up a Committee, under the Chairmanship of the noble and learned Lord, Lord Simonds, to consider the possibilities relating to the codification of income tax law. That Committee have reported. The task of codification is an immense one which will take years to carry out, but I believe that we have now discovered the way to attack the problem, and the work is proceeding.

1264 I come now to the topic of this Bill. Consolidation, with skilled draftsmen, presents this great advantage: it takes very little Parliamentary time. You have a Joint Committee of both Houses consisting of highly-skilled people, and you have a draftsman going before that Committee. If he is able to satisfy the Committee that what he has done is merely to reproduce the existing law—and that is fundamental—the Committee pass the Bill, and it takes no Parliamentary time. But, be it observed, if there are doubts on the existing law, he has to reproduce those doubts and to call the attention of the Committee to the fact that there are those doubts, and he has always—and we rely upon him for this—to reproduce the existing law. Sometimes it happens, particularly in dealing with old Statutes, that it is almost impossible to consolidate without making some changes. We shall have illustrations of that from time to time if I get my way in carrying this Bill. There are certain minor changes which must be made if we are to consolidate at all. That is why I have introduced this Bill. But I want it to be confined entirely to minor changes.

This matter of minor changes is of the utmost importance, and I want to be able to have some machinery whereby I can introduce these minor changes into a Bill without sacrificing the benefit of a Consolidating Bill by opening the door to all sorts of other amendments. For instance, I contemplate bringing in shortly a Bill to consolidate the Marriage Acts. There are a large number of them, many going back a very long time. I find it is impossible to do that unless I can get some minor amendments, but if, in consequence of introducing a minor amendment, I am going to open the floodgates to many other Amendments, I shall most certainly be told, "There is no possibility of finding Parliamentary time for that." So I cannot do anything about it.

This is the scheme which we have evolved at the present time. If a draftsman who is preparing a Consolidation Bill comes across ambiguities, anachronisms, or anomalies which, though of little or no practical importance, would obstruct the re-statement of the law in clear and modern form, he would prepare draft amendments of the existing enact- 1265 ments and would draft his Consolidation Bill as if these amendments had already been made. I emphasise that these amendments must be confined to "corrections and minor improvements" as that phrase is defined in Clause 2 of the Bill. The amendments would then be laid before Parliament in the form of proposals contained in a memorandum by the Lord Chancellor, which would also contain explanatory notes. In the case of Scottish legislation, the memorandum would be by the Secretary of State. Before the memorandum was laid, notice of it would have been published in the Gazette, and anyone interested would have been able to obtain a copy of the memorandum.

The Consolidation Bill and the Lord Chancellor's memorandum would then be referred to the Joint Committee of both Houses which deals with Consolidation Bills. It may well be that in the case of a Consolidation Bill which includes amendments in the law made by this new procedure, Parliament might desire to add other members to the Joint Committee, but this is a matter of procedure which we can settle later on. The Joint Committee would go through the proposals contained in the memorandum, having the draftsman before them as a witness, and would consider any representations made to them with respect to the proposals, either by Members of Parliament or by anyone else. The Committee would no doubt call as a witness any member of either House who asked to appear before them. I attach importance to that and should like to emphasise the rights which members of your Lordships' House and of another place will have in this matter. I do not wish it to be thought there is any possibility of amendments of the law being proposed without people having a full opportunity to give their views about them.

After the Joint Committee have considered the memorandum, they would then inform the Lord Chancellor and the Speaker (Mr. Speaker has been good enough to say he is willing to take on this task) which of the amendments they were prepared to approve, and would ask the Lord Chancellor and the Speaker to concur in this approval. I must draw the attention of your Lordships to the fact that the Joint Committee would not 1266 approve any amendments, nor would the Lord Chancellor or the Speaker concur, unless all of them were satisfied that the amendments were not of such importance that they ought to be separately enacted by Parliament. I emphasise that point. After obtaining the concurrence of the Lord Chancellor and the Speaker, the Joint Committee would examine the Consolidation Bill and make any amendments in it which might be necessary to give effect to the alterations made by the Committee in the Lord Chancellor's original proposals. If they were satisfied that the Bill, or the Bill as amended by them, as the case might be, re-enacted the existing law with such corrections and minor amendments only as had been approved by the Committee with the concurrence of the Lord Chancellor and of the Speaker, they would report accordingly.

Once the Committee had reported in this way, the amendments would, for the purpose of further proceedings in Parliament, be deemed to have become law, so that from that stage onwards Parliament could treat the Bill as not doing more than consolidate the existing law. It would, of course, be only for the purpose of further proceedings on the Bill that the amendments would be deemed to be law, so that, if the Bill were not proceeded with, the amendments proposed by the Lord Chancellor would be of no further effect. The advantage of this procedure is that, when the Bill had been reported by the Joint Committee, no amendments would be in order at any stage on the Floor of the House and the Bill would thus have all the advantages of an ordinary consolidation measure. Of course, if either House disagreed with the amendments which the Joint Committee had approved, they could oppose the Bill at any of its remaining stages and the final decision, would therefore always rest with Parliament as a whole.

I accept the proposition that it is for the authority of Parliament, and only of Parliament, to make alterations in the law, and I hope I have shown your Lordships that nothing in this Bill seeks to undermine that authority. I believe your Lordships will agree with me that this Bill will effect a very useful improvement in our procedure for dealing with the big problem of consolidation, which we 1267 already have undertaken. If this Bill becomes law at an early date, as I very much hope, I propose to introduce a measure dealing with the consolidation of the enactments relating to marriage, which are contained in many Acts, many of them very ancient. This is the weapon which I want to enable me to put our Statute Book in comparatively good order. This measure has been hammered out by all Parties and I believe your Lordships will find it a useful one. I beg to move that the Bill be now read a Second time.