§ 2.38 p.m.
§ Order of the Day for the House to be put into Committee (on Recommitment of the Bill) read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE EARL OF LISTOWEL in the Chair.]
§ THE DEPUTY CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL)
My Lords, this Bill has been amended by the Joint Committee on Consolidation Bills. There are further Amendments to be moved in Committee this afternoon and therefore I will go through the Bill in the usual way.
§ Clauses 1 to 11 agreed to.
§ Clause 12 [Recovery by employer of insured person's flat-rate contributions]:
§ On Question, Whether Clause 12 shall stand part of the Bill?
§ VISCOUNT DILHORNE
I have tabled the Amendments in my name to this Consolidation Bill in order to provide an opportunity for discussing the Third Report of the Joint Committee of both Houses on Consolidation Bills and because the question I wish to raise, although somewhat technical, has, I believe, considerable constitutional importance. I am sure we are all agreed that the consolidation of our Statute Law is extremely desirable, and also, in many fields, the consolidation of the Statutory Instruments made under powers contained in various Acts. But there is an especially strong case for consolidation of the National Insurance Acts, and I think it is the fact that work on this was started when I was Lord Chancellor. I have said this because I should not like it to be thought that I am against consolidation; in fact, the reverse is the truth. But in the process of consolidation in this Bill something has been done which is, to quote the evidence of Parliamentary Counsel before the Joint Committee—and these are his words:novel on this scale and for this purpose".4 If this were approved by Parliament, it would, in my view. constitute a strong precedent for similar action in the future.
Your Lordships may remember that during the 1945 Parliament the Industrial Injuries Act and the Family Allowances Act were passed. Both these Acts had their origin before the Labour Government came into power in 1945, and possibly for this reason they preceded the National Insurance Act, 1946. Both these Acts, the Industrial Injuries Act and the Family Allowances Act, contained provisions dealing with the necessary administrative machinery. It was obviously right that that should be dealt with in the Statute, and I do not think that that will be questioned. But when it came to the National Insurance Bill, which was a pretty massive Bill, the Labour Government of that time, owing, I gather, to pressure on Parliamentary time, decided to omit from the Bill a whole series of matters which ought to have been included in it, and to take power for those matters to be dealt with by regulations made by the Minister.
The result was that regulations were made dealing with such matters as the recovery by an employer of the insured person's flat-rate contributions; increase in maternity benefit where the family included a child, and the time limits for the payments of grants and benefits; the questions to be decided by the Minister, and provision for appeals from his decisions; the determination of claims by insurance officers and local tribunals, and appeals to the National Insurance Commissioner, and also the recovery of contributions in prosecutions. By taking this course the Labour Government of that time avoided consideration of these provisions during the Committee stages of that Bill. There was, of course, no power to amend the regulations: they had either to be approved or rejected as they stood. I repeat that such matters ought to be dealt with, not by regulations but by provisions in the Bill, as occurred with the Industrial Injuries Act and the Family Allowances Act. A Minister who is given power to make regulations is usually given power to vary or revoke them, and the Minister has power to revoke or vary regulations made under the National Insurance Act. It is also possible to challenge in the courts the vires of the regulations and to contend that the Minister 5 went beyond his powers in making them. I understand that regulations made under the National Insurance Act have twice been challenged in the courts, but so far without success.
The course taken by the Labour Government in 1945 created a problem when it came to consolidation. We are accustomed to consolidation of Statutes and there have been occasions when there has been consolidation of a mass of regulations, and I hope there will be more of that. But what has not happened before has been the consolidation of regulations with statutory provisions in a Statute, as is proposed here. This, I repeat, was described by Parliamentary Counsel in his evidence as "novel on this scale and for this purpose". I make no criticism of Parliamentary Counsel. They devised an ingenious solution to the problem which faced them as a result of the action of the Labour Government in 1945 in omitting from the Bill what ought to have been included in it. But I am going to ask the House to consider the implications which flow from Parliamentary approval of this course.
So far as I am aware, there have been only two instances of subordinate legislation being consolidated with, and embodied in, a Statute. The first is the Agricultural Wages Act, 1948. That consolidated the Agricultural Wages Regulations Act, 1924, and the Holidays with Pay Act, 1938, and according to Halsbury's Statutes, applied regulations made under the latter Act. That, I think, is a very doubtful precedent for what has been done in this Bill. The second instance is the Auxiliary Forces Act, 1953, which consolidated enactments and Orders in Council in a Statute. The Joint Committee on Consolidation Bills which reported on the Agricultural Wages Bill and the Auxiliary Forces Bill did not think that there was any point which should be drawn to the attention of Parliament, and that perhaps is the reason why what was done then escaped Parliamentary attention.
But the Joint Committee which considered this Bill very rightly thought that this matter was one to which the attention of Parliament should be drawn. Their task is to consider whether the Bill states the existing law. I do not think it was their task to consider the propriety of 6 converting a lot of regulations into statutory provisions. And if Parliament approves of this it will constitute, as I have said, a very strong precedent for the future. Sometimes, not very often, a Statute gives power to a Minister by subordinate legislation to alter the terms of a Statute. If that is done then it is clearly right that the consolidating Act should consolidate the Act as amended, but that does not constitute any precedent for what has been done here.
I believe it to be true that that Labour Government was not the only Government affected by pressure of Parliamentary time. If Parliament approves what has been done in this Bill it will, as I say, be a precedent for doing the same thing in the future, and I can well see that this Government and future Governments may well be tempted to omit from Bills matters which should be included in them and to take power to provide for those matters by regulations, in the belief that thereafter by consolidation statutory effect can be given to the regulations. As your Lordships know, not much Parliamentary time is taken up on Consolidation Bills, and not much time is taken up on a Prayer against Statutory Instruments. If the precedent which the passage of this Bill in its present form would create were followed in the future, it might well be that a good deal of Parliamentary time would be saved. There is, I believe, a Committee sitting on procedure. I myself do not think we should agree to this procedure, "novel on this scale and for this purpose", as has been said, without its propriety and all its implications being first considered by that Committee.
The novelty does not end there. Your Lordships will see that in Clause 116(2) statutory provision is made for challenging in the courts the statutory provisions embodying the regulations as if they were still regulations. So far as I am aware, this has no precedent whatsoever. One cannot find a similar provision in any Statute: it is entirely novel. This is really legislation proposed by the Joint Committee to get over a difficulty arising from the conversion of those regulations into statutory provisions. The regulations have been upgraded and this subsection was inserted with the object of preserving the right to challenge the vires of what were regulations. Your Lordships will also see 7 that the Minister is given in the Bill power to vary or revoke the statutory provisions as if they were regulations.
We always look most carefully at the powers given to a Minister to revoke or vary the provisions of a Statute. Here such power is given in every clause which converts regulations into statutory provisions. But the repeal of the power to challenge in the courts, and the power of the Minister to revoke or vary, is clearly intended to be only temporary. That appears from the evidence given before the Joint Committee. If this Bill is passed, the intention is to introduce a Bill to repeal the provisions giving the right to challenge and the power to revoke or vary these statutory provisions. Then the process will be complete. The regulations will be replaced by statutory provisions as if they had been, as they should have been, enacted in a Statute which had been subjected to the normal Parliamentary progress. This is a most ingenious way of getting over the difficulty arising from the inclusion in regulations of matters which should have been in an Act. But if we approve this, then I believe that this Government and other Governments may well feel tempted to follow the bad example set by the Labour Government of 1945.
There is, of course, another way in which this difficulty could be overcome. It is by introducing a Bill just to enact what is now in the regulations. I dare say that pressure on Parliamentary time would be put forward as an excuse or reason for not taking that course; but I should not have thought that it was at all likely to be a controversial measure. Then, when that Bill is enacted, consolidation should not be difficult and can be done without creating a precedent which will be a temptation to this and future Governments. The Amendments I have tabled are designed to take out the clauses embodying the regulations. Your Lordships will see from the number of Amendments that there are a great many clauses which do so. I may be told that without those clauses the Bill cannot go on. It may be that consolidation will be delayed. But it cannot be said that the law will in any respect be altered. Much as I should like consolidation to go forward, I think that we shall be paying too big a price 8 for it if we create a precedent for bypassing the normal Parliamentary procedure in relation to matters which should be contained in a Bill. I beg to move the Amendment in my name, to omit this clause.
§ 2.53 p.m.
§ LORD CONESFORD
I want to support my noble and learned friend on certain points, but to put a slightly different emphasis on some, and to explain the difficulties that I myself feel about the measure that is before us. I agree with my noble and learned friend in welcoming consolidation, and I know that that is near to the heart of the noble and learned Lord the Lord Chancellor, who is indeed most energetic in this matter, and in my opinion rightly so. But it seems to me that if we consolidate in the manner here proposed, we shall be doing something not only wholly novel, as is admitted, but also something which, for reasons which I shall indicate, appears to me to be undesirable.
First of all, the novelty. I can point to many passages in the evidence in this Report in which the novelty of what is proposed is frankly admitted. The main point is also indicated in the Third Report of the Joint Committee, which, subject to one comment, I find useful and generally agree with. The one comment I would make is that it does seem to me to be deplorable that a Joint Committee of both Houses of Parliament should produce a document quite so illiterate. It will be observed that in the third paragraph they say:… these instruments are subject to a different form of parliamentary supervision than Acts of Parliament."Different … than" would, I suppose, prevent any young scholar who submitted it in his English paper from obtaining an "A" level, and possibly an "O" level. It seems to me wrong that illiteracy on this scale should escape altogether from criticism in Parliament on the first opportunity when it is brought before it. Nevertheless, it is possible to guess what the Committee meant. When they said:… these instruments are subject to a different form of parliamentary supervision than Acts of Parliamentwhat I think they meant was that these instruments are not subject to the same form of parliamentary supervision as Acts of Parliament. Or, if they were 9 determined to use the word "different", the words which follow "supervision" should be "from that applicable to Acts of Parliament". By either of those methods the sentence could be made literate.
The novelty of the proceeding has been frankly pointed out by Parliamentary Counsel, and the noble and learned Lord who presided over the Committee also called attention to it in many passages. Perhaps I may mention one. Several of the legal members of the Committee, from both Houses, expressed some anxiety about what was being done, in particular Mr. Irvine, an honourable Member of the House of Commons, and some legal Members of your Lordships' House.
May I quote from the evidence a short passage which noble Lords will find on page 8? I am going to read Questions 63 and 64. The Chairman asks:But Mr. Irvine must be right, must he not, in putting to you that it is something novel?To which Parliamentary Counsel replies:Yes, it is entirely novel.Then we have the Chairman's comment:Because in the proposed clause it does involve questioning the validity of a clause, which would then be a section of an Act of Parliament. It is therefore something quite novel, is it not, because you would be looking at a section of an Act of Parliament?Then this is the answer of Parliamentary Counsel, to which I would draw particular attention:Of course, it is novel. It is to get round this novel and. I hope, short-lived problem of whether or not we are changing the law in the way in which we have reproduced or replaced, if you prefer the word, the regulations.In other words, this novelty is admitted, but Parliamentary Counsel has put in this novel provision to make it possible to say "We are not changing the law". But of course he regards this as a tolerable thing to do only if it is quickly followed by a Bill which gets rid of the strange provision that we now find in subsection (2) of Clause 116. That introduces something wholly novel into English law.
The most obvious distinction that every constitutional lawyer has drawn between the powers of our Parliament and the powers of certain other Parliaments, very often in countries which have a federal constitution, is that here Parliament is omnipotent. No court can question the 10 validity of an Act of Parliament or the validity of its provisions. It can, of course, discuss and consider what the provisions of an Act of Parliament mean, but it cannot decide that something in a British Act of Parliament is not the law. If we enact subsection (2) of Clause 116, for the first time there will be a number of provisions in an English Statute of which nobody can say whether they are valid law until they have been tested in the courts. That is a wholly novel provision and, I should have thought, an undesirable one.
Let me put two alternatives to the noble and learned Lord the Lord Chancellor if, as I expect, he is to reply to the debate. As it seems to me, there are these two alternatives. The first is that this Bill, if it becomes an Act, will quickly be followed by another Act getting rid of subsection (2) of Clause 116, and the second alternative is that it will not be so followed. If it is not so followed, then, according to the evidence of the chief witness examined by the Joint Committee, we shall have a very strange and undesirable provision. It was argued that this was a satisfactory Bill only on the supposition—which may be a perfectly reasonable supposition—that we should get an early Act getting rid of the right of challenge in the Courts, after which, of course, this would become an ordinary Act of Parliament. That, then, is one alternative, that this Bill when it is enacted is not followed by the further amending Act. If it is not so followed, the position would be intolerable for any length of time.
If, however, it is the intention of Her Majesty's Government, if this measure pases into law, to put forward an early Bill getting rid of that subsection, then is it not rather absurd to do the thing in this order? Would it not be very much better and simpler, and more in accordance with our traditions, to adopt the method which was suggested by my noble and learned friend—that is to say, first, to introduce the Bill to get rid of the right to challenge whether these regulations are or are not ultra vires, and to make those regulations statutory? Once that has been done it is perfectly simple to have a consolidation of the existing Acts and of the new Act which I am proposing. Whichever method is adopted there must be two Bills—that is admitted. 11 I cannot see why, if there have to be two Bills to create a tolerable state of affairs, we should not proceed by the normal method of doing things in the proper order, and why we should be compelled to have an interlude in which there is this extraordinary provision in an English Act of Parliament. Those are the considerations that I venture to put forward. I cannot think that much time would be lost by adopting what my noble and learned friend and I, and, I think, many others, consider the preferable method.
The only other matter to which I would draw attention is that the Select Committee themselves had a short discussion at the end of their proceedings on whether they should express any view on the advisability or propriety of doing what is now being done. They came to the very proper conclusion that it was best not to do so but that they should confine themselves to the simple task before them—to advise whether or not the law was being changed and to draw attention to this novel feature. That they have done, but they cannot be quoted as either in favour of or against the proposal that is now being made. For the reasons that I have endeavoured to put to the Committee, I hope that the noble and learned Lord the Lord Chancellor may think that there is a good case for adopting the suggestion I have made.
§ 3.6 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
I am grateful to the noble and learned Viscount for having put down these Amendments in order to enable the point which was raised in the Joint Committee on consolidation Bills to be considered. If he had not done so, I should, of course, have raised the point myself for discussion. I understand the noble and learned Lord, Lord Morris of Borth-y-Gest, the Chairman of that Committee, has told the Leader of the House that he is at the moment sitting in the middle of a case in the Privy Council, otherwise he would have been here—though, consistently with what Lord Conesford has pointed out, he would not have taken part in the discussions because the Joint Committee conceive their duty merely to raise the point so that your Lordships can decide it.
12 The point is one of some importance, although highly technical, first because on the Second Reading of the Law Commissions Bill a number of your Lordships expressed the opinion that consolidation ought to go at a faster pace and on a bigger scale—and the noble and learned Viscount expressed himself as being in favour of consolidation—but if this Amendment is carried, or, more accurately, if the Motion, "That the clause stand part" is not carried, not only will it be impossible to proceed, probably for some years, with consolidating this particular group of Acts, but if it is to be laid down that consolidation cannot include regulations, then a large part of the field of consolidation will no longer be open.
The National Insurance Act 1946, which is the principal Act consolidated by the present Bill, was the central pillar of the trinity of modern social security legislation. The other two pillars were the Family Allowances Act 1945, and the National Insurance (Industrial Injuries) Act 1946. They started with the Family Allowances Act partly because that had been prepared during the lifetime of the wartime all-Party Government, and was the simplest; and there was then the National Insurance (Industrial Injuries) Act. Therefore, the National Insurance Act passed into law after its two companion Acts, and has a somewhat different structure from them. In practice, particular difficulty has arisen from the fact that the National Insurance Act and the National Insurance (Industrial Injuries) Act cover a considerable amount of the same ground, but in different ways.
The most important difference is that essential provisions establishing administrative machinery and, in particular, rights of appeal from decisions, rights of benefits and so on, are dealt with in the National Insurance (Industrial Injuries) Act itself, but are left to be dealt with by regulations under the National Insurance Act. Perhaps this position arises because, having dealt with all these matters at great length in the National Insurance (Industrial Injuries) Act, which is an Act in 91 sections and 9 Schedules, it may have seemed unnecessary to Parliament to go through it all again. In fact, the regulations made under the National Insurance Act were substantially 13 the same as those administrative provisions which had been contained in the previous Act. But this has led to much obscurity and duplication, which subsequent amending legislation has not entirely removed. Thus, for example, certain express provisions in the Industrial Injuries Act have been duplicated and supplemented in regulations properly forming part of the Industrial Injuries code but made under the National Insurance Act, with confusing results.
It is, of course, one of the cardinal purposes of consolidation to improve the form of the Statute Book, so far as can be done without changing the law, and that is exactly what the present Bill does. It is designed as a step towards the ending of the situation where there are two or three separate but substantially identical codes, partly in Acts of Parliament and partly in regulations. It therefore sets out the essential framework of the National Insurance code in full, so that it can be used as a "master code" and applied, as appropriate, in the other related social security Acts. This will enable those other Acts, which are also being consolidated, to be consolidated in a much shorter form than would otherwise have been possible, and make further progress in co-ordination very much easier. Moreover, I think it is right in principle that important provisions affecting the rights of the subject should not, in general, be left to be provided for in regulations.
I do not know that Parliament has ever laid down very clearly what are the matters which ought always to be in Statutes, and what are the matters which can properly be left to regulations by a Minister. But to achieve this result it is necessary to enact in this Bill itself the current regulations made under the National Insurance Acts, which deal with matters hitherto dealt with in one or both of the other two codes by the relevant Act itself, while retaining the same power of variation or revocation as would be available if the National Insurance provisions continued to be made by regulations.
These statutory instruments are thus repealed by the Bill and "promoted" to the status of an Act of Parliament. It is, indeed, hardly worth the labour of consolidating this branch of the law unless this is done. While this has rightly 14 incurred the scrutiny of the Joint Committee, I do not think it can be said that it raises any constitutional point or question of principle. It has been done before, though not on such a scale. One can see how badly consolidation is needed in this field if one looks at the table of comparisons in the Bill as it went to the Consolidation Committee. Take, for instance, the National Insurance Act. There was the National Insurance Act, 1946, then, apart from other Acts which effected amendments in National Insurance Acts and apart from the regulations, there was the National Insurance Act, 1949, the National Insurance Act, 1951, the National Insurance Act, 1953, the National Insurance Act, 1955, the National Insurance Act, 1956, the National Insurance Act, 1957, the National Insurance (No. 2) Act, 1957, the National Insurance Act, 1959, the National Insurance Act, 1960, the Family Allowances and National Insurance Act, 1961, the Family Allowances and National Insurance Act, 1964, and the National Insurance Act, 1964. The other Acts are in very much the same position and have been almost as frequently amended, and we should all, I am sure, agree that this is a field in which there ought to be consolidation.
Where there is this common code it is obviously desirable that this group of Statutes should be consolidated together, but one has to wait for a Session in which one of them is not being amended, and that does not often happen. I see that when before the Joint Consolidation Committee the draftsman said that it would be quite impossible to re-write them or to proceed with them in this Session, because practically the whole of the Bills would have to be re-written. He said:I would have to re-write all the Bills completely if we were to consolidate in the old unco-ordinated form.
§ LORD CONESFORD
My Lords, the noble and learned Lord the Lord Chancellor said that this has been done before. Am I to understand from that, that there is any case where anything like subsection (2) of Clause 116 has been put in a previous Statute?
§ THE LORD CHANCELLOR
It has been done before, but not on this scale. For example, as the noble and learned Viscount, Lord Dilhorne, pointed out, it 15 was done in the Agricultural Wages Act, 1948, described as:An Act to consolidate the Agricultural Wages (Regulation) Act, … and so much of the Holidays with Pay Act, 1938, as enables a wage regulating authority to make provision for holidaysand so on. When that Act came before the Joint Committee on Consolidation Bills the draftsman pointed out that it was consolidating not merely the Act but the current regulations. He said:We were faced with the difficulty that about two-thirds of the story of holidays with pay was not in the Act of 1938 at all but in the regulations. So what we have done is to consolidate not only the Act of 1924, the Act of 1947, and the Act of 1938, so far as it provides that there shall be holidays with pay for agricultural workers, but we have also consolidated the existing regulations.I see that Lord Shepherd asked a question bringing that out, and making it clear that the Bill consolidated both the existing Acts and the regulations. On that occasion the Committee did not even think it worth while drawing attention to the point. They reported to the House… the Committee have considered the … Bill and have heard evidence thereon. The Committee are of the opinion that the Bill is pure consolidation and represents the existing law. There is no point to which they think the attention of Parliament should be drawn.So, although it was clearly pointed out to them that the Bill was consolidating both existing Statutes and regulations, they did not even think the point worth drawing attention to.
In answer to the question raised by the noble Lord, Lord Conesford, I would say that as they did not raise the point, of course there is nothing corresponding to Clause 116(2). The reason for Clause 116(2) is that the Joint Committee on Consolidation Bills said:You say that this represents the existing law and of course we appreciate that the regulations are as much law as are Acts of Parliament, but does it deal with the point that after all so far as in one of the Acts the thing is contained in regulations, not in the Act itself, and inasmuch as the vires of regulations can always be attacked in the courts whereas Acts cannot, how do you meet that point?It was to meet that point that the draftsman put in, with the agreement of the Committee, Clause 116(2). With that Amendment made by the Joint Con 16 solidating Committee, the Committee say in their ReportThe Committee are of the opinion that the Bill as amended is pure consolidation and represents the existing law.Of course, in cases in which it has been done—the Agricultural Wages Act, for example—it was on a much smaller scale, but the principle was the same and neither the Joint Committee nor the House took any exception to the method adopted, nor did they in the case of the Auxiliary Forces Act, 1953.
There are, of course, many cases where an Act has been consolidated into another Act with amendments to the original Act made by subordinate legislation under statutory powers. This could never be done if the House were to lay down as a principle that in consolidating you cannot attend to what has been done by statutory regulation. Indeed, if it were to be said that the inclusion of subordinate legislation is not permissible at all, the whole process of consolidation, which is so sorely necessary if our law is to be put into proper form, would almost come to a complete halt. In order that this Bill shall set out the existing law in all its aspects, and so as to provide the fullest possible safeguards against any conceivable abuse, the Committee have added subsection (2) to Clause 116. I have explained why no similar provision was included in previous Acts.
I venture to think it is somewhat far-fetched to suggest that the drafting operation which is being done on this Bill could, or would conceivably, be used as some kind of sinister precedent by a Government which wanted, somehow, to enact legislation without getting it through Parliament. All legislation, whether Statute or statutory instrument, comes before Parliament, and if anything objectionable is done Parliament can stop it. For that matter, Parliament, of course, can always make new rules for the enactment of consolidating legislation. In this particular case, it happens that Parliament clearly does approve of the particular statutory instruments which are consolidated by this Bill, because in the Family Allowances and National Insurance Act 1959, Parliament replaced the provisions as to the determination of questions under the Family Allowances Act, which were originally contained in the 1945 Act, by the regulations under 17 the National Insurance Act 1946, which it is now proposed to promote back to the Statute Book.
I am sorry if I have taken up some time with this matter, which may not, on the face of it, seem to be important, but I do want the Committee to be satisfied that this Bill, as amended by the Joint Committee, is as it should be. Whether or not there is some subsequent legislation repealing Clause 116 will be decided if and when the time comes, but it would simply be a one-clause Bill. Of course, as noble Lords have suggested, this Bill could have been put down as an ordinary Bill, but it is somewhat lengthy and although one is sometimes told by an eager Opposition that something is not contentious, it does not at all follow that it will turn out that way. I would hope that your Lordships will agree that this useful Bill should now continue on its way to the Statute Book. Otherwise, if this point were to be accepted, it obviously could not continue in this Session, and it may be some years before this particular group of Statutes could come up for consolidation again.
If I may sum up, I do not think there is anything in the Bill which is objection-able, constitutionally or on any other ground. I think it is not out of place to add that the rate of growth of Statutes relating to social security, under the Governments of both major Parties, is such that if the Bill is not now passed the whole of this field of law would be left unconsolidated for some time, which I think would be unfortunate. The Parliamentary draftsmen have not forgotten Mr. Gibson Bowles—no relation, so far as I know, to my noble friend—who, in another place in 1897, strongly contended (and it ended by his carrying the House with him) that you could not consolidate anything which was put into different words, because if it was in different words it must involve some change in the law. This put a complete stop to all consolidation for a period of about twelve years. Then it started again, fitfully, but we did not really take up the whole question of consolidation again until the Act of 1949 was passed and the Joint Committee on Consolidation Bills was appointed. On those grounds, I hope that the noble and learned Viscount, having heard that explanation, may be prepared to withdraw his Amendment— 18 one which, for the reasons I have ventured to give, I should feel obliged to ask my noble friends to vote against, or, more technically, to vote in favour of the clause standing part.
§ 3.25 p.m.
§ VISCOUNT DILHORNE
I have listened with the greatest care to what the noble and learned Lord the Lord Chancellor has said about this. I think I cannot have made myself clear on certain points—nor, indeed, can my noble friend Lord Conesford. I did not hear my noble friend say, and I certainly did not suggest, that this Bill should be put down as an ordinary Bill. I suggested nothing of the kind. What I did suggest—and there are many precedents for doing it—was that before you consolidated you should introduce a Bill which would enable the consolidation to take place. The suggestion I made—and I must say that I cannot see the difficulty about it—is that you should enact what is now in regulations. I should not have thought that a Bill confined simply to that would be very controversial. Then my noble friend Lord Conesford said that you do not want Clause 116(2). Having got the Bill on the Statute Book, you then consolidate and embody it with this Bill. I must say I found it difficult to sec that the fears raised by the noble Lord about the content of this Bill if that process were followed were really justified, because you would be doing the very thing that you are seeking to do in this, I think, entirely novel way.
Secondly, I have already made it clear that, in my view—and I think the noble Lord agrees with me—a statutory power given to amend a Statute by subordinate legislation comes into a category very different from this. For instance, I believe that under the Ministers of the Crown Act there is power to change one Minister for another, but when you consolidated the Acts you consolidated the Acts as amended, although the amendment is made by subordinate legislation. The regulations here do not purport to amend any Acts, but they do deal, as the noble and learned Lord the Lord Chancellor said in the course of his speech, with the rights of the subject—and I was glad to hear him say that matters affecting the rights of the subject should 19 not be left to regulations. I entirely agree with him. I think that what was done in 1945 was wrong.
Now may I just say this? I am as keen as he is on consolidation. I think that this field of law badly wants consolidation. As I say, I think it was initiated during my time. But I do not see why it cannot be done without creating what I would regard as a most unfortunate precedent. The noble Lord referred to two Acts—the two Acts to which I had referred—but in neither instance was Parliament's attention drawn to what was being done by the Joint Committee. Whether Parliament ought to have detected it or not, or whether Parliament thought it was right—
§ THE LORD CHANCELLOR
If the noble and learned Viscount will forgive me, it was expressly drawn to their attention by the draftsmen that this was exactly what it was doing: it was consolidating both Acts of Parliament and regulations It was discussed in the Committee.
§ VISCOUNT DILHORNE
I am not saying it was not brought to the attention of the Committee. I never said that. I said that in neither case did the Committee think it a matter on which they should report to Parliament, and on that I think I am quite accurate. What I said was that it may well have escaped their notice. But the point is this. If we approve this now—novel in scale and purpose—then there can be no doubt about its constituting a precedent for the future. I should have felt much happier if the noble Lord had been able to give me some satisfaction by indicating that this really would not be a precedent.
He said it would be impossible to proceed for some years with this consolidation if it were not done this way. He did not elaborate upon that at all. He said "hat ordinarily you have only one Bill amending one of these Acts in the course of a Session. So be it. I dare say that, in the course of one of those Bills, or maybe in a separate Bill, you would not be able to do it by what I would have thought was the normal process of converting the regulations into a statutory form by a separate Bill. I am concerned at what may happen in the future. I do not wish to make any Party political capital out of this, nor have I endeav 20 oured to do so. I am concerned about the precedent for the future. My concern is not answered by saying that regulations come before Parliament and so do Statutes and so do Bills. Regulations which are subject to the Negative Resolution procedure come before Parliament only if a Prayer is put down. I think, or hope, that everyone will agree that regulations do not get the same detailed consideration as do the provisions in a Bill.
If this goes through in its present form is it really being unrealistic to think that future Governments—no matter what their colour may be—may well say: "It is true that these matters deal with the rights of the subject; but we could deal with them by making regulations. After all, regulations have the force of law and just as much force of law as Statutes. We shall save a lot of Parliamentary time if we do that; all the Committee stage and all the Report stage will be saved. We will just take powers to do these things by regulation." Someone may then say: "Will that not create difficulties in the future? Regulations are subordinate legislation. What is going to happen if we want to have them as statutory provisions?" The answer will be: "When the time comes for consolidation, you can consolidate these regulations en bloc with the statutory provisions."
I feel that there is a real possibility, a real danger, of that happening. I should like the noble and learned Lord to allay my fears in that respect, because I should myself very much like to see this consolidation go forward. But, at the same time, I feel that if we do it in this way we are creating a very serious precedent. We are not ousting all Parliamentary control, but we are by-passing some of the normal Parliamentary procedure and some of the normal Parliamentary consideration which is given to the content of a Bill and which is not given to a regulation. I do not want to press the noble and learned Lord unduly. I shall be glad, and indeed grateful, if he can say something to allay my anxieties about the possibility of this kind of thing happening in the future. If it could be established, for instance, that this was a single occasion, unlikely to be repeated, and that Governments in the future, if this is approved, would not be tempted to include matters in regulations, then I 21 should feel that a satisfactory and useful purpose had been served by raising this matter. Unless I can feel satisfied about that, I consider we ought to see to it that this does not become a precedent of that nature; although I should be very sorry indeed if consolidation were to be postponed. I doubt whether it needs to be postponed for long. But I think it would be paying too high a price if we consolidated at the expense of setting an example which other Governments might be only too glad to follow.
§ THE LORD CHANCELLOR
I shall be glad to respond to that appeal, because I think this is to a large extent a unique case. I believe the reason why it has never arisen in anything remotely like this scale before, and the reason why it is never likely to arise in anything remotely like this scale again, is because this is a quite exceptional group of Acts, all dealing with the same field of law, and all the administrative provisions are in one case put into the Act and all the administrative provisions in two other cases are put into regulations. I do not know any other group of Statutes to which that applies. I have taken advice about that from the Parliamentary draftsmen. I have no doubt that they are right in thinking that this stands on its own as a rather unique case.
The reason why, except for a very limited case like the Agricultural Wages Act, it has never arisen in anything like this scale before, and the reason why, I think, it is never likely to arise in anything like the scale again, is because this happens to be a very unusual case in which there are first of all two minor Acts, in a sense, setting out everything in the Act. What is really the central Act comes later. No explanation was given—and I read what was said in this House when the National Insurance Bill was introduced—but it may well be that it was thought that as Parliament had quite recently gone through all the administrative provisions in the previous Acts and approved them, it would be convenient that the Minister should by regulation make exactly the same provisions in the Act itself. But, whether that was the reason or not, it is a most unusual case; and I hope very much that the noble and learned Viscount will be able to be satisfied with that assurance.
§ VISCOUNT DILHORNE
I am grateful to the noble and learned Lord for those further words. I am considerably relieved by his expression of view that he thinks this a unique occasion. I am inclined to agree with that view as we stand at present. I think he would agree with me in expressing the hope that this will not be treated as a precedent for future conduct. That is what I am concerned about. I think he will also agree with me in expressing the hope that where this question of embodying regulations in a Statute arises in the future—and I hope it will not arise in anything like this scale—the Joint Committee on Consolidation should bring it to the attention of Parliament. That would be some safeguard. It would also be a safeguard if it were recognised—as I think he has recognised—that what is being done to-day ought not in the future to be treated as a precedent for a repetition of this action. If, as I think, that expresses the view of both the noble and learned Lord the Lord Chancellor and myself, then I make no apology for raising the matter in your Lordships' House and for having taken some time in doing so. Having done so and having been given that clear expression of view, I do not think the Committee would wish me to press this matter any further. I therefore beg leave to withdraw my Amendment.
Before the Question is put, may I refer to a small matter of grammar which was raised by the noble Lord, Lord Conesford, in his opening remarks? Are we to take it that the noble and learned Lord the Lord Chancellor does, or does not, differ "than" the noble Lord, Lord Conesford?
§ Clause 13 agreed to.
§ VISCOUNT DILHORNE
The Amendments in my name on the Marshalled List all raise the same point. I do not propose to move any of them in view of the remarks that the noble and learned Lord the Lord Chancellor has made.
§ THE DEPUTY CHAIRMAN OF COMMITTEES
Does the noble Viscount, Lord Colville of Culross, wish to move his Amendment to leave out Clause 77?
§ Clauses 14 to 118 agreed to.
§ Schedules agreed to.
§ House resumed: Bill reported without further amendment; Report received.