MISREPRESENTATION BILL [H.L.] (Hansard, 27 October 1966)

§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I beg to move that this Bill be read a third time.

§ THE LORD CHANCELLOR
My Lords, I beg to move that this Bill do now pass. Your Lordships will remember that this is a Bill which occasioned us a little trouble. There were one or two questions which were very much open to doubt and on which different views could be taken; and there were difficulties of terminology. On the Motion that the Bill do now pass I should like to thank all noble Lords who have been good enough to apply themselves to the Bill and give us the benefit of their views, and particularly, if I may say so, the noble and learned Lords of Appeal in Ordinary for the assistance they have given the House throughout the passage of the Bill.

VISCOUNT COLVILLE OF CULROSS
My Lords, the noble and learned Lords of Appeal have been most justly thanked by the noble and learned Lord the Lord Chancellor for their assistance in the perusal of this Bill and its amendment, but I think the noble and learned Lord might also be thanked, with justification, by this House for the very great deal of trouble he has taken—and, indeed, the members of his Department—in getting it right. I certainly trust it has now been got right, because, of course, dry though the subject may be, and one the student learns to dread in his texbooks, the scope of operation of this Bill will be an extemely wide one in the commercial life 378 of the country, and it is most important that a very considerable change of this nature should be accompanied by the correct statutory language. This I hope to be the case.
There is, however, one small technical matter that I should like to mention to the noble and learned Lord; indeed, I have done so already, because it seems to me that it raises a question of draftsman ship which has points of subtlety of a nature such as I have seldom met. It runs like this. Your Lordships will see that there is only one subsection of this Bill which applies to Scotland—that is, Clause 4(2); and Clause 6(3) makes it quite clear that that is the only subsection which extends to Scotland. One of the things that I know the House is interested in these days is making legislation simple to understand when it is read. Your Lordships will therefore, I think, be surprised to be told—and I believe this to be the case—that subsection (3) of Clause 6 says almost exactly the opposite of what it appears to say.
The fact is that it is not only Clause 4(2) which applies to Scotland; Clause 5 and Clause 6 also apply. There appear to be good drafting reasons why, although this is apparently by all accounts agreed to be the case, and intended to be the case, in no circumstances should it be said to be the case. Apparently there might be called in doubt similar provisions in other Acts which have already been passed. Nevertheless, the provisions of Clause 5 are important, because they prevent the retrospective action of this Act when it becomes law, and they would also, of course, prevent the retrospective action of Section 4(2), provided that Clause 5 applies in Scotland. One cannot doubt those who advise that this is so, but I would draw this to the attention of your Lordships because it may be that, upon thought, the House may think that, however hard and fast may be the past rules of drafting, if what we mean is that Clause 4(2) and Clause 5 and Clause 6 should apply in Scotland there is some merit in saying so.

§ THE LORD CHANCELLOR
My Lords, I have listened with great interest to the points the noble Viscount has made. They are two cognate points, one of which is very similar to the point taken by the noble Lord, Lord Conesford, yesterday, inasmuch as while only one clause 379 is to apply to Scotland there is of course another clause which deals with the way in which the Act is to come into force. We had some discussion of this point yesterday on the Prices and Incomes Order.

§ LORD CONESFORD
It was the day before yesterday.

§ THE LORD CHANCELLOR
Tues day; I am much obliged. It is, in fact, very much an old chestnut. Since 1825 Acts have been drafted in the form of containing a clause whereby the Act is not to come into force until an Order is made by a Minister, or an Order In Council is made, and for the first 105 years nobody noticed the point. Then one day on the Road Traffic Act 1930 a sportsman wrote a letter to The Times in which he pointed out that the Act had never come into operation, on the ground that inasmuch as by virtue of subsection (2) of Section 123 the Act was to come into operation.
on such day or days as the Minister may appoint the power of the Minister to fix the appointed day could not come into operation until the provision authorising him to do this had itself been brought into operation, by fixing an appointed day, and consequently there was a complete circle and nothing could ever happen.
This led to an entertaining correspondence in The Times in which one writer asked, if this argument was right, what about Section 1 of the Matrimonial Causes Act 1857, which provides: This Act shall come into operation on such day not sooner than the first day of January 1858 as Her Majesty shall by Order in Council appoint. He said that if the point was a good one, a number of people were married to people they had no idea they were married to. And, for that matter, what about the Currency of Banknotes Act 1928, Section 13(2) of which provides that the Act is to come into operation on such a day as His Majesty may by Order-in-Council appoint"? If the point was a good one all the £1 and 10s. notes were of no validity at all.
After much discussion, it seems to have been generally agreed that if a 380 court ever had to consider the point the court would say, as the noble Lord, Lord Conesford, said the other day, ut res magis valeat, quam pereat, which may be translated, albeit somewhat inaccurately, as meaning that "Judges do not make nonsense of Acts of Parliament if they can help it." Then, your Lordships may remember that my noble friend Lord Stow Hill referred to an Act of 1951, regarding which Lord Justice Tucker (as he then was) had in fact dealt with the point on those lines.
As to the subsidiary point of retrospection, I am, as your Lordships know, on the one hand, always as anxious as anyone to see our Statutes written in plain English; on the other hand, some-what delicate in anything I say about our present methods of Parliamentary drafting. Yesterday, I received from the Law Commission a Report which I shall of course be laying before Parliament, recommending the sweeping away of most of our law on maintenance and champerty; and there is attached to it a draft of three clauses by which this could be effected. These clauses, I observe, are all written in English. On this point, as I understand it, the universal, un written but accepted convention under which Parliamentary draftsmen operate is that any reference in an Act to a specified provision of another Act is a reference to that provision plus or minus whatever is added or subtracted by the context in which it appears; and if a particular section is said to apply it is not usual, for example, to add "and the definition section shall also apply to Scotland", because that is part of the Act itself. If one is looking at a particular section which is to be applied to Scotland, a judge has in any case to look at the whole of the Act in order to give the right construction to the particular section; and therefore the effect of the Bill, as it stands, and of these clauses, on their true construction, is that only the amendment of Section 35 of the Sale of Goods Act is to be applied to Scotland, and that amendment is to apply only to contracts made after the Bill comes into operation.
Of course, there will be an opportunity to consider the matter when the Bill reaches another place, but I am certainly not in a position to give any undertaking about it, because my information is that 381 the Bill on this point has been drafted as Bills have for long been drafted on the same point, and if this Bill were to be treated differently it might throw into doubt the construction of Acts which already exist.