HL Deb 21 July 1952 vol 178 cc2-10

2.38 p.m.

Order of the Day for the Second Reading read.

THE CHANCELLOR OF THE DUCHY OF LANCASTER (VISCOUNT SWINTON)

My Lords, I think that if ever consolidation was justified of her children and came as a boon and a blessing to men, it is so with this Bill Until the year 1909 Customs and Excise were administered in two separate departments, with a completely separate administration. But there was not only that complication to face. The law of Customs and Excise was scattered over 200 Acts of Parliament which had grown up in the course of 150 years. How anyone could find their way through that forest of ancient timber and dead wood is a mystery to me. It must have involved an appalling waste of time on the part of the staffs in any trade or business, in spite of the help given to them by the Customs and Excise, who I think kept almost a corps of guides to help the ordinary wayfarer through the intricacies of the subject.

Four times in the last eighty years the draftsmen and the experts staged an attack on this maze of trenches and entanglements; but each time the assault failed and the attackers gave up the task, if not the ghost. However, in 1948 the forces of enlightenment were mobilised again, and this time they have won the battle. After three years' work they presented the result of their labour to a Committee of experts presided over by my noble friend Lord Kennet, with the noble Lord, Lord Nathan, as deputy Chairman; and both Houses had the advantage of Lord Nathan's advice on the Joint Select Committee whose Report is now before us. That expert Committee did a very thorough job. Amongst other things, they consulted no fewer than 140 representative associations, and in their Report the Committee say that they are unanimously of opinion that the draft Bill as revised by them and now presented is a non-controversial measure long overdue and greatly desired by all the trades and industries concerned in Customs and Excise procedure; and that it will facilitate the work of the Board of Customs and Excise and ease and pressure on their staff. They also state that they: are further of the opinion that the Bill reproduces the existing law subject only to alterations, which are desirable for the purpose of simplifying the existing enactments and bringing them into conformity with modern practice and conditions. That, I think, exactly follows the rule and the practice which Parliament has laid down with regard to consolidation procedure, on which the noble and learned Earl the Leader of the Opposition and some of us had a good deal of discussion in this House in order to make sure that we had a procedure which was right and convenient. I think this Bill shows how very well that procedure is working.

The Bill was then presented, read a second time and committed to a Joint Committee of both Houses, on which there sat, from your Lordships' House, the noble Lords, Lord Hawke, Lord Nathan, Lord Saltoun, Lord Stamp and Lord Teviot. Although there were not wanting tempters to tempt the members of the Joint Committee from the strict path of consolidation into the more controversial subject of what the law ought to be, and not what the law is—what the law ought to be must be the subject of substantive Acts of Parliament—the Committee adhered quite strictly to the principles of consolidation, and they made this Report to us. I am quoting from the Report of the Select Committee, on page iv: The Bill not only consolidates the law relating to customs and excise, but introduces a number of amendments of that law recommended by the departmental Committee in pursuance of their terms of reference to advise as to such amendments of the existing law as are desirable in order to secure simplicity and conformity with the requirements of modern practice and conditions. They go on, in paragraph 3 of the introduction to their full Report: While appreciating that further reforms in the customs and excise law may be desirable, the Committee have felt that it would not be desirable for them to discuss at length proposals for substantial and controversial changes in the law and that the Committee's amendments should not go beyond amendments calculated to simplify or clarify the law. The amendments made by the Committee are of the character mentioned, or of a drafting nature, or consequential on other legislation; the Committee do not feel it to be necessary to refer to any in particular. The result of all that is this Bill. It repeals entirely forty-seven Acts of Parliament out of the 200, and it repeals or amends 540 sections of other Acts. I think this has been a monumental job of work, and I commend it with admiration and gratitude to your Lordships. I beg to move that the Bill be now read 2a.

Moved, That the Bill be now read 2a.—(Viscount Swinton.)

2.45 p.m.

EARL JOWITT

My Lords, I should like to add a few words, first of all to assure the noble Viscount who has just spoken that we regard this Bill as completely non-controversial; secondly, to say a word of tribute to both the noble Lord, Lord Kennet, and the noble Lord, Lord Nathan, who have done a most useful work in connection with this matter; and also—I will not say to praise myself (that is the last thing I want to do) but, at any rate, to say that I think the machinery we set up in the last Parliament has, by this Bill, proved itself to be of the greatest value. I readily admit that that machinery was assented to by all Parties in the House. I was exceedingly fortunate in getting authority to set up a branch of the Parliamentary Draftsmen's Office who were able to devote themselves to consolidation matters, because for years past the trouble had been that when a draftsman started working on one of these projects he was always called away, off the consolidation, to work on some current Bill. It is really elementary to those of us who have studied this matter at all that you simply cannot get on with consolidation unless you have some very highly skilled person who is able to give all his time, and consecutively, to the work under review.

The first step that I was able to take—as I say, I acknowledge the assistance I received from all Parties—was to set up that branch. I should like, in the first instance, to pay my tribute to the members of that branch, who have done most magnificent work. The next step we took (I do not think it was material to this Bill) was to pass the Consolidation of Enactments (Procedure) Act, 1949. That Act, of course, enables amendments to be made whilst consolidation is going on. The old principle of consolidation was always that the draftsman had to be able to inform the Committee that he had reproduced faithfully everything in the existing Acts—

VISCOUNT SWINTON

The 1949 Act was used to the full with this Bill, and has been quite invaluable.

EARL JOWITT

I thought that might be so. But, as I say, in the old days the draftsman had to be able to say, "I have reproduced faithfully exactly what is in the existing Acts"; and if there was a doubt or an obscurity in the existing Acts, then the draftsman had to say: "I have reproduced that doubt and that obscurity." Only if he could lay his hand on his heart and say that could he get the benefit of the consolidation procedure, which is really conventional, under which these Consolidation Bills were allowed to go through. That was the reason why I pressed upon the House the Consolidation of Enactments (Procedure) Act, 1949. I had some doubt as to whether it had been in fact used in this particular measure.

We have another Bill coming on to-day, a Bill of immense importance, the Magistrates' Courts Bill. Looking at the Long Title to that Bill, I see that it is a consolidation of the matters therein considered with such corrections and improvements as may be authorised under the Consolidation of Enactments (Procedure) Act, 1949. Those words form part of the Title of the Bill. If that is so, in the first place I would suggest it would be well that the Parliamentary draftsman should always use that same formula, because that at once calls attention to the fact that the provisions of that Act are being used. Looking at the Title here and not seeing that formula, I rather wondered whether that Act had been made use of in this case.

VISCOUNT SWINTON

May I just intervene to say that, as I understand it, the 1949 Act really did two things, to one of which I think particular attention ought to be drawn—that is, whether, when there was a disputed point of law, it could be resolved. I do not think that is the case here. What has happened here is that in a great many Acts going back one hundred and fifty years, while the law, or certainly the practice as carried out by the Customs and Excise, has not been altered in any way by this Bill, the wording of old law was so archaic and abstruse that it had little application to the facts as they exist to-day. I think it would be true to say (my noble friend Lord Reading will probably bear me out in this, and also, I think, Lord Kennet) that the Committee did not purport to change the law in any respect. They merely said "Here is the existing practice, which is right and convenient, and this Bill now brings the existing practice into proper legal terminology."

EARL JOWITT

It may well be so. The position under the machinery of the Consolidation of Enactments (Procedure) Act—I speak subject to correction; I have not looked up the wording—is this: that it is now possible to consolidate with amendments. It is true that they must be minor amendments, and they must be authorised by the Lord Chancellor and subsequently, I think, approved by the Speaker of the other House. That got over this immense difficulty to which I have referred. Previously, the draftsman had to reproduce precisely what the existing law was, with all its doubts and difficulties; and he had to say "There is an obscure point which gives rise to all sorts of difficulties. I have reproduced it and the same difficulties can now arise under my Consolidation Act." Thanks to our Act of 1949, it is now possible to consolidate with minor, though not with major, amendments. All I want to say is that (it may or may not arise on this Bill; I am not quite sure) wherever that machinery has been made use of I think the fact ought to appear in the Long Title of the Bill. If it has not been made use of, the point does not arise here at all. If it has been made use of, then I think the Long Title ought to indicate, just as the Title of the Magistrates' Courts Bill does, that the machinery has been made use of.

My Lords, that is a completely trivial point of which perhaps notice may be taken, if the matter appears in any way relevant. I should like to add that for practitioners this branch of the law has been an absolute nightmare. Particularly when I was a Law Officer, I had sometimes to consider what was the relevant law here. It is really almost impossible to find it out. You could find out about the existing practice by getting some "walking encyclopædia" round from the office of the Customs and Excise, but if you looked at the textbooks and tried to find out what the law was, it was a matter of immense difficulty. I feel that those who have been responsible for this piece of work, which seems to me a very fine piece of work, deserve the greatest thanks. It is surely right that the lieges should be able to find out from some source or other what the law is. Thanks to the draftsmen and those who have studied and worked on this Bill, they will now be able to do so. It does not, of course, preclude the question of amendments to the law in future, but it is a tremendous thing to have stated in this Consolidation Act the principles and the statement of the law as at the present time. I can assure your Lordships, from the point of view of the practitioners, that this will prove of the greatest possible value.

I would say to the noble and learned Lord the Lord Chancellor, who no doubt has watched over this project—as I watched over mine in my time—more power to his elbow. May he be able, in other branches of the law, to do what he has done in regard to this branch of the law! It is a great satisfaction to me to think that on this particular day also we have the Magistrates' Courts Bill. I look forward with confidence to the time when we shall have the Summary Jurisdiction Acts dealt with in the same way. Since I started at the Bar, I have seen a book called Stone's Justices' Manual—which I used to know quite well in those days—which started as quite a thin book and which, in the course of time, acquired a nasty middle-age spread, now become an immense tome. Inevitably, there is a tremendous amount in that book which is quite unnecessary. If we can do for that branch of the law what we are now doing for this, again it would be a tremendous advantage, not only to the lieges but also to the practitioners. I should like to join with the noble Viscount in congratulating all those who have had some share in bringing about this happy result.

2.56 p.m.

LORD LLEWELLIN

My Lords, before we finally pass this Bill may I be allowed to say one word, because I happen at the moment to be Chairman of the Joint Committee on Consolidation Bills? I believe that this Bill does not exactly come under that heading. It is an amending Bill as well as a consolidating Bill. It had its special Joint Committee, sitting under the chairmanship of my noble friend Lord Kennet, and never came under the enactment to which the noble and learned Earl has just referred. So perhaps it would be inappropriate to incorporate those words into this particular statute. At the same time I should like to say how valuable we on that Committee have found the 1949 Act, introduced by the noble and learned Earl, Lord Jowitt, when he was Lord Chancellor, and which in practice enables one (here my predecessor on the Committee, the noble Marquess, Lord Reading, will no doubt bear me out) to resolve these doubts, provided that any amendments are approved by both Houses.

In reference to one remark of the noble and learned Earl, I would say that of course the proposals have to be made to the Committee by the Lord Chancellor of the day, and the proposals made by the Committee have then to be approved not only by the Lord Chancellor but by the Speaker of the House of Commons. In regard to Stone's Justices' Manual, I remember the time when that was quite a handy book to travel about with. Now it has grown so large and fat that it has grown into twins—there are two volumes of the Manual, and one always hopes that one has taken the right volume when going to court for a particular purpose. I am quite certain that this work of consolidation is a most valuable work. Perhaps it would not be inappropriate for me at this moment to refer to the immense amount of work that Sir Granville Ram has undertaken in this connection. Unfortunately, he was unable, because of illness, to serve on the Departmental Committee on the Magistrates' Courts Bill, but those of your Lordships who know him and value his work will be delighted to hear that he is making a good recovery from his illness; indeed, he hopes to be able soon to resume his very valuable public work.

2.59 p.m.

LORD KENNET

My Lords, I would not venture an opinion upon so technical a matter as the Title of the Bill, but I rather think that in the course of this discussion it has appeared that the present Title is probably quite accurate. If I may say so—I think this is a point worth recording on this occasion—this has been most typically a case illustrative of the extreme utility of that extension of the consolidation procedure which admits of minor amendments being made. As a matter of fact, in this enormous business dealing with Statutes extending over two hundred years, those who are engaged on the work of consolidation have had to deal with Statutes passed by Parliament at long intervals, completely forgetful of their previous legislation. Therefore, it was difficult to reconcile those Statutes without introducing an alteration of either one law or other, and the practice followed by those who prepared the ground for drafting was to say: "Let us see what is the accepted procedure to reconcile these technically irreconcilable enactments, and see whether there is any convention on the subject. If there is not, then accept that form of legislation which will confirm the accepted practice."

It only remains for me to confirm what has been said in recognition of the extreme efficiency of the labours of those who have been engaged on what has been a great task occupying some years. In the first place, an extraordinary knowledge of the law on Customs and Excise, extreme accuracy and, to use an appropriate phrase, common sense have been vital to the successful enactment of this Bill. In the second place, let me confirm what has been said by the noble Lord, Lord Llewellin, as to the brilliant work of the draftsmen's department, whose members wormed their way through these incredible mazes of history and technicality with a skill which has astonished and delighted those who have benefited by their labours. Finally, let me say a word of appreciation and recognition of the extremely reasonable approach to this Bill of the great interests concerned in Customs and Excise matters. It is, of course, an almost irresistible temptation, when legislation is in progress to advance one's favourite method of reform. Confronted with the alternative between doing that or getting a reasonable Consolidation Bill and postponing their efforts at reform, they have always been content to choose the more reasonable course.

VISCOUNT SWINTON

My Lords, perhaps I may be allowed to add just this. Of course, everything that has been said by noble Lords who have spoken upon this Bill is not only to the point but completely accurate. Your Lordships will be glad to know that the Bill is not only admirable in itself but is also correctly christened, because the long title of the Bill is: A Bill to consolidate with amendments certain enactments relating to the customs and excise.… and so on.

On Question, Bill read 2a, and committed to a Committee of the Whole House.