HL Deb 25 January 1949 vol 160 cc257-63

Abolition of sentence of whipping.

2. No person shall be sentenced by a court to whipping; and so far as any enactment confers power on a court to pass a sentence of whipping it shall cease to have effect."

The noble Earl said: I am proposing to incorporate a Twelfth Schedule, the purpose of which is to show how Scottish criminal procedure is affected by the Criminal Justice Act of 1948—that is, of course, the English Criminal Justice Act. At the present time, the Scottish criminal code is an entirely separate and distinct entity, but when this Bill is passed it will be necessary for lawyers to penetrate into the various English Criminal Justice Acts and ascertain how they are affected by it and what they are to do in certain cases. I am sure your Lordships will agree that it would be much neater if all the clauses in the Criminal Justice Act which are applicable to Scotland were incorporated in the form of a Twelfth Schedule. I have put down only one clause, but my intention is that in fact all the clauses which are applicable should be included. If your Lordships will look at the English Act you will see the clauses which would be applicable.

I believe I am correct in saying that this procedure has a certain novelty. It has been objected that it would be difficult for Parliament to enact the same provisions twice. If that argument is advanced, I should like to quote two examples in reply. In the first place I should like to quote the National Insurance Act of 1946 and, in particular, Schedule 12, in which enactments are reprinted and amended. The second example I would quote is that of the India and Burma Act, the provisions of which were re-enacted in the Burma Act in precisely the same terms without repealing the first Act—at any rate, so I am informed. I suggest that it would be a valuable aid to this Bill from the Scottish point of view and that it would make available a large and wide variety of measures which are not now easily available. I do not refer in particular to such matters as the abolition of whipping; there are a great many small provisions which deal with the transfer of certain cases from England to Scotland. There are many such instances, in which one would be bound to look up the facts, for one could not possibly remember them. I suggest that it is most desirable and convenient that something of this nature should be put into this Bill. I beg to move.

Amendment moved— After the Eleventh Schedule, insert the said new Schedule.—(The Earl of Selkirk.)


I hope I may be allowed to add a few words on this subject. Many of us take a great interest in improving the form of our Statutes, and indeed there have been some very important improvements of recent years. If I follow my noble friend rightly, he is making a suggestion which is not necessarily in every case to be confined to Scotland, and I think it is a suggestion which has great power of appeal. If, perhaps by buying it for a small sum, one could get a copy of one single Statute, containing partly in the body of the Statute and partly in the Schedule all the statutory provisions dealing with criminal laws that apply in Scotland, it would manifestly be a great advantage to the layman—and I think of considerable advantage to the skilled practitioner also. As it is, if one wants to ascertain what are the criminal justice provisions of Scotland, one has to go to at least two places: one is the Criminal Justice Act which was passed last Session, many of the clauses of which apply north of the Tweed just as much as south of the Tweed. The other place to which one must refer is this Bill which we are now engaged in framing. It would be an advantage if the provisions were put into a single collection. I do not see why it would not be possible to do that, though I agree with my noble friend that to some extent it would be a novelty.

May I suggest an analogy which perhaps it is useful to consider?—and I naturally make the suggestion, if I may, to my noble and learned friend the Lord Chancellor in particular. He and I are quite familiar with this point. It often happens that in the Schedule to an Act of Parliament a Treaty is printed. That is because the Act is in some way implementing or carrying out a Treaty. It is quite a common thing, and I think it is often introduced by reference in the Preamble. But the Schedule is really an exhibit saying: "This is the Treaty." No one suggests that if there were another Schedule such as my noble friend is now proposing, its contents would be amendable, because they would simply be exhibiting statutory provisions, so far as they applied to the matter in hand. But I believe the ingenuity and the good sense of draftsmen may find some device; and my noble friend may be right when he says that there are actual precedents.

No doubt, if you are going to have a Schedule which contains so much of the Act of last year as applies to Scotland, you must have something in the body of the Bill which ties the Schedule to the Bill; you cannot simply have a Schedule without something which connects it with the Bill. But the draughtsmen may very well he able to devise something, whether it be a Preamble or a clause, which will do that. I am merely expressing a desire which we all share—that of making the form of our legislation as practical and useful as possible. It is a most inconvenient thing that people should have to look in two different places for a particular body of law, if it can be conveniently stated in one single document. I understand that that is the principle which my noble friend is urging. I do not suppose the matter can be disposed of immediately but I wish to express my view that the suggestion is one which is worthy of careful consideration.


I agree that it is desirable to get the whole matter in one Act of Parliament. That is the function of consolidation; and that is why I am doing everything I can to press on with consolidation. The Parliamentary Counsel's Office is now engaged on nothing but consolidation. Sir Granville Ram presides over the work, and he is not to be taken off for the ordinary current work of drafting Bills. I do not think, however, that this would be a good idea at all. I think it would be an admirable thing if we had a Statute dealing with the criminal justice of Scotland, and that we should put in that Statute everything which bears upon it, from whatever source it comes, so that there is in one Statute—which can be bought—the whole of the criminal justice legislation of Scotland. I think that that is a most desirable thing to do—the same, of course, applying to England. But, as I say, I think it would not be a good plan to do it in this way. Incidentally, there is a political reason against it. I do not think it applies here, because I do not believe there is any political controversy about this now, but, if we were to do this habitually, we might have the whole controversy over again. I do not suppose that anybody is again going to argue the question of whipping but, technically, if you had something in the Bill providing for whipping, the whole thing could afterwards come up again. Therefore, I do not think it is the least likely, for political reasons, that it would be done.

By all means let us have consolidation if we can get our draftsmen to spare the time. We have now brought that down to a fine art, because the draftsman has to appear before the committee and he has to put his hand on his heart and say: "This simply reproduces the existing law"; and if there are doubts in the existing law, he has to say: "I have reproduced those doubts." If the committee are satisfied with that explanation, it involves no charge upon Parliamentary time, and it goes through very shortly. I confess that I am disturbed about the state of our Statute Book. There are a great number of cases in which we could improve on the Statute Book if we could have consolidation, but I do not believe that there is any short cut to consolida- tion. I do not think that this method is at all useful. Here you are picking out one particular topic, which was dealt with by the Act of 1948, but you are leaving out a whole mass of other topics. That will only make confusion worse confounded. I advise your Lordships not to try this device now but to do everything possible, both now and at all times, to support and assist me in trying to get authority to build up a really considerable branch of the Parliamentary Draftsmen's Office so that we may from time to time tackle more fully than we are doing today—although we are doing a great deal to-day—this problem of consolidation. I am sure that that is the right way of doing it. I am sure that this is the wrong way.


I should like to add one word on this. Naturally, anything falling from the Lord Chancellor on this subject needs to be carefully considered. I confess that I am a little sorry that it was thought well to dismiss this suggestion off-hand in this way, because I still hold the view that it is worthy of a little mature consideration. I am very familiar with the importance of consolidation. We are all glad that the Lord Chancellor is so energetic about it. But how many years will it be before it is possible for a man, when he buys the Criminal Justice (Scotland) Act, to acquire information on the statutory provisions relating to criminal justice in Scotland? As to the argument that if you have it in a Schedule it is necessarily open to amendment, may I respectfully suggest to the Lord Chancellor that that is not necessarily so? If, for example, there is a Preamble which says "Whereas the sections of the Criminal Justice Act. 1948, set out in the Schedule are the enacted law as it applies to Scotland," then the Schedule becomes an exhibit. It does not become a piece of legislation which can be challenged for its dubiety.

I am extremely familiar with those cases where there is a Treaty in a Schedule, and many people may think that the Treaty can be improved. It is no good improving it, because the Schedule is not a new piece of legislation: it is a convenient exhibit of what a particular set of provisions in fact is. I thought that that was the idea at the back of the noble Earl's suggestion. I do not want for a moment to argue this further. I can only say that I could have hoped that the matter might be considered at some time because, although I am sure that consolidation is a most valuable thing, it is also for practical reasons a process which takes a good deal of time. I am afraid there will be a great deal of our law consolidated before we ever see the consolidation of that branch of the law a portion of which is to be contained in this Statute.


I do not know why the noble and learned Viscount says that. I consolidated the Companies Act within a few months—almost weeks. I do not make any promise that I can do this, but Scotland has had a very fair share of consolidation already. I do not at all see why this should take an indefinite time. For the rest, the noble and learned Viscount says that we might give it mature consideration. This Amendment was down, and I have given it mature consideration. I have discussed it with my advisers and it is after that mature consideration that I am bound to tell your Lordships that I do not think that this is a useful suggestion.


May I refer the noble and learned Viscount the Lord Chancellor to what we did in another Bill?—a Bill which was not enacting in the Bill itself but by mere administrative action—I believe it was a Scottish Bill. I do not know whether the noble Lord, Lord Morrison, was dealing with Scottish affairs in that case, but it was during the present Parliament. In that case, the Stationery Office, for the convenience of people in Scotland, actually issued an edition with terms from the English Bill in the Scottish Bill. It does not need the assent, of Parliament for that to be done; it is merely administrative. It is what the Stationery Office do to meet the difficulty of practitioners and others having to refer to more Statutes than one. Perhaps the noble and learned Viscount could look into that.


Yes, but to my mind the objection is this. You pick out some particular thing—


That is exactly what I am intending to do. That is exactly the argument that I propose in the circumstances. I do not want to nut down a long list of about ten clauses. In point of fact, this provides a complete illustration of what I have in mind. There are about ten clauses. My idea was that all those clauses should be included so that they could be readily referred to by a Scots lawyer who was in fact dealing with an English case. There may be something in the English Act about the case to which the Scots lawyer wishes to refer. My contention is that this proposal is entirely in the interests of the efficient conduct of justice, and that is why it should be adopted. There is no intention of picking out one topic. It embraces all aspects applicable to Scotland. It is useful. It may be impossible constitutionally, but it is useful.


Useful if it is accurate, but to get it accurate is a complicated business. That is what the draftsman does when he prepares a Consolidation Bill. It is wrong to think that a Consolidation Bill is a mere matter of scissors and paste. It needs a highly skilled person to do it and to rearrange it. I do not think it is useful to pick out from the English Act a lot of provisions and insert them here. It would be had. I am quite certain that consolidation is the proper way to tackle this problem.


Is the noble and learned Viscount aware that there are certain clauses in the English Act which are specifically laid down as applying to Scotland? It is not a question of picking out here and there. My proposal is that these Acts in extenso shall all be available to the Scots lawyer in his own Act of Parliament. To say that that is not useful is to talk nonsense. It would be extremely useful. If that is unconstitutionally impossible, I appreciate it, but those Acts should be included in the actual Bill itself.


I am afraid the noble Earl and I have different ideas on what is nonsense.


I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

House resumed.