CONSOLIDATION OF ENACTMENTS (PROCEDURE) BILL [H.L.] (Hansard, 28 April 1949)

§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I beg to move that this Bill be now read a Third time.

§ VISCOUNT SIMON
My Lords, perhaps I may be allowed a few minutes in which to make an observation or two upon this Bill, which I think is both useful and ingenious. I was not able to be here when the Second Reading was taken on the day before the recent holidays, but I note that the Lord Chancellor was then good enough to refer to the circumstance that he had taken me into consultation. He said that I had made some suggestions and, in substance, I find them in the measure now before the House. Consolidation of Statutes is by no means an easy business; it requires expert handling by men of great knowldedge and adroitness. The meaning of consolidation, in this connection, as your Lordships appreciate, of course, is that you take a bundle of existing Statutes and endeavour to reproduce in one single document their contents, without any alteration at all in the effect of the existing law.
There is no doubt that that is a matter of great importance. Consolidation expresses the Statute Law in a much more compendious and easily ascertained form, and it also has this advantage: that if the measure is a measure of pure consolidation, then, though there may be ingenious persons in either House of Parliament who would like to take the opportunity of making changes in the law (and few people regard Statute law as entirely satisfactory), they would be out of order if they attempted to do it here. If we take the stricter rules of the other place, the Speaker would undoubtedly say: "No, you cannot move an Amendment, for it would alter the law. The scope of this Bill is solely to consolidate the existing law. Therefore, you will be going outside the Bill if you try to change the law."
By the means to which I have referred, it has been found possible, at intervals over many years to consolidate and 151 produce a useful new edition, a compendious collected edition, of the Statute Law on a particular subject. But there are two special difficulties which attend this process. One is that if you are merely going to reproduce in a single document, without the smallest alteration, the contents of all this collection of Statutes, then, if there is an ambiguity in what has already been enacted, that ambiguity must be repeated. If there is something which is archaic and completely out of date, that archaism must be repeated and included in the consolidating Bill. The result is that such a Bill, if it is carried out with the strictness we have hitherto required, is like—I hope I am right in this—Hamlet's father, who discovered that he had been "dealt with," with all his imperfections on his head.
That is one difficulty. There is another, almost equally great and very subtle. It is this. Even if a skilled draftsman does reproduce, word for word, in his consolidation what has been already enacted in the past, it by no means follows that when it is re-enacted to-day those words mean exactly the same as they meant at an earlier date. I will not start a matter of controversy which is quite unconnected with the present subject but I mention this merely as an illustration. There are some people who think that at the time when Ireland was the Dominion of Ireland, an Act of Parliament which referred to a citizen of Eire meant a citizen of the Dominion of Eire. That may or may not be so. But, obviously, if you try to reproduce word for word that provision to-day, there can be no doubt that a citizen of Eire means a citizen of the Republic of Eire. Therefore, though the same wording may have been used, it is at least possible that the effect may have been varied. That is a subtle and constantly recurring difficulty which only very skilled men engaged in consolidation are likely to overcome. They have always to watch for it, and to correct it if it happens to occur.
On the other hand, this Bill, on which I think the Lord Chancellor is much to be congratulated, sets on foot a new and greatly improved process. It is still consolidation, but it is consolidation with a difference, because what you want to do, if possible, is to retain the advantage which a consolidating measure possesses—that ingenious members in either House 152 cannot move to amend it (which they might do in a hundred different places if they were allowed)—and yet get rid of these little ambiguities and archaisms. But the existing law must always be preserved, when we are trying to clean up the Statute Book and make it a thing which a layman may read. This Bill aims at securing that result.
If it should achieve that end by the method of allowing the Executive to profess to be engaged in altering the law, I should be entirely opposed to it, because I consider that the Statute Law is a matter for Parliament and not a matter for any Minister or the Executive, or for any Order in Council. But this Bill does not follow that line. It says merely that when consolidation is undertaken—and we know that my noble and learned friend on the Woolsack is very zealous on this subject—the Lord Chancellor may present a memorandum to call attention to these small excrescences, these minor ambiguities, these small corrections which everybody will agree ought to be made. Then the consolidation measure will go forward to the Joint Committee of both Houses with this memorandum.
If the Committee—who represent Parliament and not the Executive, or any Minister—after hearing evidence and considering it, come to the conclusion that this is the sort of small change which ought to be made, and does not require separate legislation, and if the noble and learned Viscount the Lord Chancellor and Mr. Speaker both approve, then the measure may go forward without losing the protection which is given to Consolidation Bills. This protection means that people cannot in effect destroy a Bill by overloading it with attempts to improve, instead of merely repeating, the law. I think this Bill is both ingenious and useful, and I warmly congratulate my noble and learned friend on the great effort that he has made to bring this change about. I hope that under this Bill there will be from time to time a great cleaning up of the Statute Book. Nobody who has tried to trace through various books, to find out exactly where a particular section was last amended, can be entirely satisfied with the present position, and to have the Statutes in one little set of papers would be a great advantage.
Perhaps I may be allowed to add this, with the indulgence which the House grants on proper occasions, even when 153 a little outside the strict practices of order. I have said that consolidation is a difficult art. Not many people, I think, are likely to be equipped with the necessary qualities. We need a man who has a great and exact knowledge of the Statute Law. We need also a man with a clear head, and with great powers of expression. I do not think your Lordships will think it out of place if I say how much we all deplore that in the last few days the House has lost two very learned and well-equipped Law Lords, who possessed all these qualities and each of whom contributed in a striking degree to the administration of justice and to the improvement which comes from the just understanding of the law. I hope that I may be forgiven for saying how much I join with all others in deploring the sudden and unexpected death of the noble Lords, Lord Uthwatt and Lord du Parcq.

THE MARQUESS OF READING
My Lords, like the noble and learned Viscount who has just spoken, I was unable to be present in your Lordships' House when this Bill was read a second time. The noble and learned Viscount the Lord Chancellor was good enough to invite me to be associated with the preliminary discussions which took place on this Bill from its early stages, partly perhaps as representing noble Lords who sit on these Benches, but I think perhaps even more as one who has had the privilege of serving for some time on the Joint Select Committee of both Houses which is charged with the duty of examining Consolidation Bills, and who has on frequent occasions had the additional privilege of presiding over that body. In that capacity I would like to assure your Lordships that this is a Bill the need for which, for the proper discharge of their task, that Committee have frequently discovered. I think it is a just tribute to pay to the initiative and ingenuity of the noble and learned Viscount who sits on the Woolsack and also of the noble and learned Viscount who has just spoken, that a Bill on this by no means simple subject has now been produced which is able to fulfil the prerequisite of any such measure—of commanding the unqualified assent of ail Parties in the House.
I would ask that the indulgence which the noble and learned. Viscount has just 154 requested may be for one brief moment extended to me to enable me, in my turn, to pay a tribute of profound regret at the loss of two old and cherished friends.

§ LORD SCHUSTER
My Lords, I also was unable to be present on the Second Reading of this Bill, and I am reluctant to let the measure pass its final stage without saying two things: first, to acknowledge the courtesy and help which was extended, especially by the noble and learned Viscount the Lord Chancellor, to those like myself, occupying less eminent positions than that of my noble and learned friend, Lord Simon, and secondly, to say that this Bill is very ingenious and elaborate. It is not at all too ingenious or too elaborate, for without that ingenuity and elaboration it could not have received the form it now has and in which I hope it will pass into law. But, in fact, the success of the operations under it must depend largely on the tacit conventions, both in this House and in another place. Such success as consolidation has had in the past has been due not to anything which has been enacted, but to the general understanding which every member of successive Joint Consolidation Committees has accepted, that in consolidation we should keep strictly within the rules which the noble and learned Viscount has laid down this afternoon.
If these principles are observed in future by the noble and learned Viscount the Lord Chancellor, by his successors and by the Joint Committee before whom the Bills come, then this Bill will be a success, and the operations under it will be highly effective and a great credit to our general procedure. But if those principles are not observed, if any attempt is made to make them an excuse for substantial alterations of the law, then the Bill will have failed. Everything depends on the acceptance of those principles by every member of each successive Joint Consolidation Committee. It sounds as if that does not matter very much, but, in my recollection, consolidation was brought to a full stop some years ago by the fact that a particular Consolidation Committee did not observe those principles. It is always difficult for any member of a Consolidation Committee who has before him a 155 Statute which is not very easy to understand and who thinks it could be made intelligible by a very small alteration, to refrain from trying to make that alteration—which is sometimes made with fatal results. I do not think the warning is quite so ill-placed or unnecessary as it might appear.
The only other comment I would like to make is this, and I do not think it is going too far. The success of consolidation, as has already been said, depends on the ingenuity, the knowledge and the experience of the draftsmen. I think we ought to acknowledge—we never have the opportunity of acknowledging it publicly—the very great assistance which the draftsmen give to the Joint Consolidation Committees when they appear before them. Without their complete knowledge, frankness and candour in laying their difficulties before us, we could not do our work. The greatest credit is due to them for the knowledge which they possess, and still greater credit is due to them for being able to explain, with perfect candour, where the Committee are likely to go wrong and where they themselves may have gone wrong. It is not usually proper in this House to give testimonials to civil servants, but these men and women are so much in the nature of assistants to this House in the discharge of that particular duty that I hope a word of praise will not be thought presumptuous or out of place on this occasion.

§ THE LORD CHANCELLOR
My Lords, perhaps it is fortunate that we have no clearly-defined Rules of Order. This is an occasion when I find myself in entire agreement with what has just been said by the noble Lord, Lord Schuster, by the noble Viscount and by the noble Marquess. Only two days ago my attention was called to the fact that in a Consolidation Bill which was down for Second Reading there was a clause which was questionable. The enactment of that Bill with that clause would have made certain what was perhaps open to argument. Directly that was called to my attention I said that we would not proceed with that Consolidation Bill. I am sure that that is right. I am also certain that it is only by preserving that principle with the utmost strictness that 156 we shall be able to make any sort of success of consolidation.
I particularly agree with what the noble Lord, Lord Schuster, said in one of his "irregular outbursts" in regard to the assistance of the civil servants. Without the candour, knowledge and skill that they display, and the readiness which they always show in putting their knowledge at the disposal of those serving on the Joint Committee, nothing could be done. If I may now burst out into my own "irregularity," we should also express our gratitude for the work that those who serve on the Joint Consolidation Committee have done. In that Committee the noble Marquess and the noble Lord, Lord Schuster, have long been prominent. Your Lordships were good enough to congratulate me on this Bill. I do not regard it as my Bill at all; I regard it as a joint effort in which all parties have played their part. Had that not been so, we should never have been able to get this Bill into its present form. I believe it will do really useful work.
With regard to what the noble and learned Viscount, Lord Simon said, I cannot resist saying that this has been a very sad week for me. Two of my dearest friends have died, friends of lifelong standing, who have in their time, made great contributions to the law. They had been members of your Lordships' House for only some two years, yet each of them had won the enduring friendship of your Lordships. Each of them demonstrated, if I may say so, how untrue it is to think of a lawyer as though he were a sort of living piece of parchment, dull, inhuman and possessed of no sort of humanity at all. One cannot imagine two men more vital and more full of humanity than those two who have been taken away from us. It is a tragic thing that Lord Uthwatt, a son of Australia, went when he was sitting on this Australian appeal. Lord du Parcq has gone just before we shall be having a Bill which will carry out the recommendations of his Committee. However, there it is: they have gone, but they have certainly left their mark on my heart, and, I think, on the hearts of many of your Lordships.