HL Deb 05 June 1967 vol 283 cc177-84

3.52 p.m.

THE LORD CHANCELLOR (LORD GARDINER) rose to move, That it is desirable that, in the present Session, all Bills to consolidate any enactments with amendments to give effect to recommendations made by one or both of the Law Commissions, together with any Report containing such recommendations, be referred to the Joint Committee on Consolidation Bills. The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. There is, of course, some relationship between this Motion and the next two Motions on the Order Paper, and, if I have your Lordships' permission to do so, I propose to say on this Motion what I have to say on all three items, so that the next two Motions can be taken formally.

The consolidation of our Statute Book is a matter which has occupied the atten tion of Parliament unsatisfactorily for a good many hundred years. In 1549 the House of Commons sent to this House a proposal that the statute laws should be digested into a body under titles and heads and put into good Latin, and the young King, Edward VI, when he thought about this, said in the following year: I have showed my opinion heretofore of the statutes I think most necessary to be enacted this Session. Nevertheless, I would wish that besides them and hereafter, when time shall serve, the superfluous and tedious statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them; which thing shall much help to advance the profit of the Commonwealth. Bishop Burnett observed that this was: too great a design to be set on foot or finished under an infant King. Lord Keeper Bacon proposed as to consolidation: First, where many laws be made for one thing, the same are to be reduced and established into one law, and the former to be abrogated … and where part of one Act standeth in force and another part abrogated, there shall be no more printed, but that that standeth in force.

Nothing was done. James I, in the course of a speech from the Throne, spoke of divers cross and cuffing statutes and some so penned that they may be taken in divers, yea, contrary senses. And he ordered that both these statutes and reports, as well in the Parliament as common law, be once maturely reviewed and reconciled; and that not only all contrarieties should be scraped out of our books, but even that such penal statutes as were but for the use of the time … which do not now agree with the condition of this our time, might likewise be left out of our books. … Again nothing happened. But in the time of the Commonwealth two Committees were appointed: to revise all former statutes and ordinances now in force and consider, as well, which are fit to be continued, altered or repealed, as how the same may be reduced into a compendious way and exact method for the more base and clear understanding of the people. There is no trace of the fruits of the Committee.

In 1816 both Houses of Parliament passed Resolutions that a digest of the statutes should be made and that an eminent lawyer with twenty clerks under him should be commissioned to do the work, which was declared "very expedient to be done." My Lords, there is no trace of a digest.

In 1833, a Royal Commission was appointed with instructions:

  1. "(1) To digest into one statute all the statutes and enactments touching crimes and the trial and punishment thereof, and also to digest into one other statute all the provisions of the common or unwritten law touching on the same;
  2. (2) To inquire and report how far it might be expedient to combine both those statutes into one body of criminal law;
  3. (3) To inquire and report how for it might be convenient to consolidate the other branches of the existing law in England."
There were some paid Commissioners, including men of eminence. They made various Reports; but nothing really grew out of them.

My Lords, the difficulty has always been that for hundreds of years Parliament has wanted three things. First, it has insisted that we cannot go on any longer with the Statute Book we have now and that something really must be done about it; secondly, that it has not the time to do it; and, thirdly, that it is not going to let anybody else do it. Our first Statute Law Revision Act was in 1856; that is to say, getting out of our books obsolete facts. During the last years of the last century this work was extremely active: we had Statute Law Revision Bills in 1867, 1870, 1871, 1872, 1873, 1874, 1875, 1878, 1883, 1887, 1888, 1890, 1891, 1892, 1893, 1894 and 1898, after which Parliament sat back exhausted, and in the first half of this century we had one Act in 1908 and another in 1927.

Towards the end of the last century the Statute Law Committee did a great deal of valuable work, as indeed they have in this century. They divided Statutes into, first, those in which the subsequent amending enactments can be inserted without alteration, or nearly without alteration, into the framework of the original Statute—what we call paste-and-scissors jobs. The second class consisted of Acts principally departmental, raising no question of law but requiring to be redrafted, either wholly or partially. That, they said, they could take on. The third class consisted of Statutes which would raise no political questions but required to be reconstructed or amended on a new or partially new basis. They said "We cannot possibly do that."

At the end of the century we had Mr. Gibson Bowles in the other place who had a marked effect on all this because he, like one Member of the other House to-day, always spoke on every Consolidation Bill at length. He eventually persuaded the other place of his thesis that no two words in the English language have the same meanings, and that therefore if, when you are consolidating, you change a word you must necessarily be changing the law. And that virtually stopped consolidation for a very long time. This was the situation which confronted the noble and learned Viscount, Lord Jowitt, in 1949.

There are, of course, Statutes which you simply cannot consolidate without making some change of some kind. It has never seemed to me that there is any inherent difficulty about the whole process if Parliament wishes it and is sensible. As your Lordships know, a great many things in life are best done by some young man. Our Colonies inherited a good deal of our Statute law made by Governors in their Ordinances. In Kenya they had a young man who was a Parliamentary draftsman; he was in the Colonial Legal Service. He persuaded the Governor to make an Ordinance giving the Attorney General, the Solicitor General and the legal draftsmen pretty well carte blanche to do what they liked with the laws of Kenya, which were then in dozens of volumes, and not only the Ordinances corresponding to our Acts but the Regulations corresponding to our subordinate legislation. The Attorney General and Solicitor General were too busy to do this, so in substance he did it all himself. He did the whole thing in three years, and now the whole of the Ordinances and the whole of the Regulations are in eleven volumes. They are mostly in alphabetical order. Under every subject matter the relevant Ordinance is followed in the volume by the delegated legislation, so it is to be found all together. It is all on the loose-leaf principle, so that any amendment can be readily placed in it. There is no reason why we should not do the same.

But the difficulty to-day, as I have said, is that while the Act of 1949 allows consolidation to be made with what the Act calls "corrections and minor improvements", inevitably from time to time there are semantic discussions on the Joint Committee as to whether a proposed consolidation goes further than corrections and minor improvements as defined in the Act. So to-day we have two methods. There are pure consolidation Bills, and there are Consolidation Bills under the 1949 Act which go to the Joint Consolidation Committee of both Houses whose members are of extreme experience in this field. But the 1949 Act then forbids either House to alter what the Joint Consolidation Committee have done.

The problem of going rather further than "corrections and minor improvements" where it is necessary to do so in order to get a satisfactory consolidation, is one that we have met before. In 1958, for example, our highway Statute Law was in an awful mess, and it was obvious that a satisfactory consolidation must entail a number of Amendments. So the then Minister appointed a Departmental Committee to advise him what Amendments in the course of consolidation should be made. They did so, and the Government of the day subsequently introduced a Bill to consolidate the Highways Acts with the Amendments proposed by the Committee. Those of your Lordships who are familiar with the procedure in another place will know that, that being the Long Title, it would have been out of order for anybody who had a bee of his own about highway law to seek to move any other Amendment. But, of course, it did mean that both Houses, on the Floor of the House, could agree or disagree with the Amendments proposed by the Departmental Committee.

The two Bills which follow on the Order Paper are a Shellfish Bill and a Bill for the conservation of sea fish. The Bill for the conservation of sea fish is an ordinary 1949 Act Bill. What it does is to consolidate, with corrections and minor improvements, nine different Acts dealing with the conservation of sea fish. The Shellfish Bill, however, has raised further difficulties, because, while most of the proposed Amendments or alterations to be made in the course of consolidation come within the phrase "corrections and minor improvements", some of them cannot be said to do so. For example, it was found that two Acts create offences in this field of the same sort of character. One Act provides that the maximum penalty on a first summary conviction is to be £100; the other provides that the maximum penalty is to be 40s.

This may be supportable in two different Acts separated by a wide period of years; but if one is to consolidate them into one Act it is really absurd to continue those two things. Therefore, the Law Commissions have made a Report, which has been published, and it is proposed that the Bill, as its Long Title shows, should be: A Bill to consolidate various laws relating to Sea Fisheries (Shellfish), with Amendments proposed by the Law Commissions. In a sense this takes a leaf out of the Highways Bill procedure, only here it is the Law Commissions instead of a Departmental Committee. What the two Law Commissions, the English and the Scottish Commissions, say at the opening of their Report, is: In the course of the preparation of the Sea Fisheries (Shellfish) Bill, which is to consolidate certain enactments relating to shellfish fisheries and shellfish, it became apparent that to reproduce exactly all the provisions of the existing Acts would be unsatisfactory. In order to produce a satisfactory consolidation we therefore recommend a number of amendments, which are discussed in detail in the Appendix to this Report. The amendments which we recommend do not amount to changes substantially greater than could be authorised under the Consolidation of Enactments (Procedure) Act 1949. Indeed most of them would clearly fall within the limits of the definition of 'corrections and minor improvements' in section 2 of that Act; but with a few of them this is not so, or at any rate not so clear. It seemed better therefore not to rely on the procedure under that Act but to describe the Bill in its Long Title as what in fact it is, a Bill to consolidate with amendments to give effect to our recommendations. We have consulted the Ministry of Agriculture, Fisheries and Food and the Department of Agriculture and Fisheries for Scotland and, through them, the fisheries interests concerned and have taken account of the opinions expressed to us in formulating our recommendations. No comments adverse to those recommendations have been received by us. We realise that if the Bill is introduced in the form in which it accompanies this Report it will not enjoy the privileges of a Bill introduced under the Act of 1949 and it will be open to both Houses of Parliament, and not only to the Joint Committee, to consider the amendments incorporated in it and, if they think fit, to modify or reject them. But it is our hope that those amendments will be as acceptable to Parliament as they have been to those whom we have consulted and that little time will be needed for their discussion.

My Lords, the Motion which I am moving is: That it is desirable that, in the present Session, all Bills to consolidate any enactments with amendments to give effect to recommendations made by one or both of the Law Commissions, together with any Report containing any such recommendations, be referred to the Joint Committee on Consolidation Bills. Although the Motion, no doubt properly, refers to "any enactments", there will not in fact be any other similar Bill this Session. In substance, this is an experiment. It enables a satisfactory consolidation to be made, with some measure, perhaps, of greater change, where necessary, than the phrase "corrections and minor improvements" allows. On the other hand, Parliament has three guarantees that nothing will be done sub rosa—or nothing that ought not to be done. First, it can, I am sure, rely on the good sense of the Law Commissions, because if the Law Commissions were to propose changes which were controversial and which took up a great deal of time on the Floor of the House, obviously the Government Whips would say, "Never again". Secondly, Parliament can rely on the experienced Joint Consolidation Committee, which will of course be at liberty either to accept or to reject, or make some change in, the amendments proposed in the Law Commissions' Report; or, of course, it will also be open to them to say, as to any particular recommendation, "We think that this is a matter which ought to be the subject of a separate Bill". Thirdly, unlike under the 1949 Act, which forbids either House from debating the Report of the Joint Select Committee, it will be open to either House, on the Floor of the House, to agree or disagree with any particular recommendation made in the Report of the Joint Select Committee.

This being, as I have said, frankly, an experiment (and part, I hope, of the English genius if we have one, is perhaps to try things out and to see how they go), I have, I hope, properly consulted all those in the House who I thought might be particularly interested in this subject and I have no reason to think that there is any substantial opposition; and I believe that the experienced Chairman of the Joint Consolidation Committee, the noble and learned Lord, Lord Upjohn, concurs in it and sees no prac tical difficulty in it. As I have said, this is an experiment, but it is a further means, perhaps, of letting us get on with the consolidation of the Statute Book, which we all want to see, perhaps rather faster than we could otherwise have done. I beg to move.

Moved, That it is desirable that, in the present Session, all Bills to consolidate any enactments with amendments to give effect to recommendations made by one or both of the Law Commissions, together with any Report containing such recommendations, be referred to the Joint Committee on Consolidation Bills.—(The Lord Chancellor.)