CONSOLIDATION BILLS (Hansard, 5 June 1967)

§ VISCOUNT DILHORNE
My Lords, I should like to say a word or two about the Motion moved by the noble and learned Lord the Lord Chancellor. Although it is phrased in very innocuous terms, it is a Motion which is of considerable importance, as I am sure he would agree. The noble and learned Lord began his speech by a review of the past history with regard to consolidation, and I am sure he would be the first to agree that many of his predecessors on the Woolsack have also been 192 keen on consolidation. Some of them have achieved greater success than others, and the history which he gave indicated that sometimes the efforts made had not met with success. One hopes that the efforts now being made will be successful.
The noble and learned Lord was good enough to write to me about, and indeed to discuss with me, the proposals which lie behind the Motion which he has explained to the House to-day. So far as the Sea Fisheries (Shellfish) Bill is concerned, I think that it could have been dealt with under the 1949 Act. I think that a narrow view has been taken of the power to make corrections and minor improvements under that Act. If that view is correct, it is indeed odd that in the Bill which we shall shortly be considering it was left to the Consolidation Committee to resolve and to determine whether in the case of a statutory conflict, justices should be required to sit in open court. If it were the case that we were being asked now to agree to the proposition that Parliament should treat as a Consolidation Bill, not requiring consideration by Parliament, any Bill produced by the Law Commission with such amendments as the Commission thought were required for producing a satisfactory consolidation, then I should have asked your Lordships to oppose that proposal.
In the programme laid before Parliament by the Law Commissions they expressed the hope that Parliament would apply the consolidation procedure (which involves Parliament not considering the whole of the Bill) to any Bill prepared by the Law Commissions to consolidate, with such amendment as appeared to the Law Commissions desirable for producing a satisfactory consolidation. They expressed the hope that this would be done, on the ground that the Law Commissions are independent of the Executive.
My Lords, if Parliament were to agree to any such proposal it would mean that Parliament would be delegating to the Law Commissions a part, and a not unimportant part, of its legislative functions. I should be against Parliament's doing so and against its abandoning control over legislation to anybody, whether or not independent of the Executive. But from what the noble and learned Lord the Lord Chancellor has said, I think it is clear that that is not what is proposed. 193 As I understand it (if I have it wrong I should be grateful if the noble and learned Lord the Lord Chancellor would correct me), what is proposed is that the Law Commission should produce a Consolidation Bill with such amendments of the law as they think necessary for the purposes of consolidation; that that Bill and their amendments should go before the Joint Committee of both Houses. It will then be the task of the Joint Committee (of course, there is no mention of this in the Motion before the House) to examine the whole of the Bill and the changes of the law proposed by the Law Commission, to consider whether the drafting carries out those changes, if they think that those changes are desirable, and to alter the drafting if they think fit—that, I understand, will also be open to the Joint Committee—and that then the Joint Committee will report to Parliament on the Bill as a whole. I want to stress that: I think they should report on the Bill as a whole, and not just on the proposed amendments.
I think it is also clear—though again I should be glad if the noble and learned Lord the Lord Chancellor would confirm this—that the Joint Committee, when they get a Bill from the Law Commissions, should reject, as under the 1949 Act the Committee are required to reject, proposed amendments of the law which are of such a character as to warrant separate enactment by Parliament. I do not think it very likely that the Law Commissions will propose such amendments, but I still think it a safeguard that should be clearly established. I say that for this reason: that I think the Joint Committee recently had to consider a Consolidation Bill which affected the burden of taxation on particular classes of taxpayers. Changes in tax law which affect the burden on taxpayers or on classes of taxpayers surely warrant separate enactment by Parliament and separate consideration, and should not be made either under this new procedure or under any other procedure for consolidation.
If that be the position, I do not myself think that there is anything objectionable about this proposed procedure. Through the Joint Committee, Parliament will still have control over legislation. Parliament will still be able to debate and, if 194 necessary, redraft and reject amendments of the law proposed by the Law Commission, even if they have been approved by the Joint Committee. Under the 1949 Act, once amendments have been approved by the Joint Committee Parliament has no power to do that. It seems to me, therefore, that in fact this procedure will not involve any real abandonment of control by Parliament. Indeed, one hopes it will serve a very useful purpose, as the Lord Chancellor no doubt thinks it will. I should just like to stress the point that under the 1949 Act publication has to be made in the London Gazette, I think it is, of the proposed changes in the law. I think it important that publicity should be given to the changes proposed by the Law Commissions, and that, before they are considered by the Joint Committee, there should be an interval of time to allow representations to be made with regard to them.
My Lords, I trust that this procedure will not be used as a back-door method for making changes in tax law which ought to be included in the Finance Bill. But if it will facilitate what one might call the proper process of consolidation, then it will serve a useful purpose. I think that the Sea Fisheries Bill could well have been dealt with under the 1949 Act, but, in case a contrary view is taken, I must say that I have considered the amendments proposed in the Sea Fisheries Bill and I see nothing objectionable in any of them. I can only hope that this trial, this experiment, as the noble and learned Lord the Lord Chancellor has described it, will prove to be a success; although, as I have said, I feel that this particular Bill—and it may be the only one this Session—could have been dealt with under the 1949 Act.

§ LORD ROYLE
My Lords, I speak with a great deal of temerity, particularly in the presence of the noble and learned Lord, Lord Upjohn, the Chairman of the Joint Committee; and I speak as a very humble member of that Committee. I appreciate to the full the reservations which have just been expressed by the noble and learned Viscount, Lord Dilhorne, but in very recent days the Joint Committee have had great difficulties with regard to the limitations of the 195 1949 Act. It is because of those difficulties, of which we are very aware, that I appreciate the proposals which are now before the House. Therefore, as one of the members of that Committee (the members of which, apart from myself, are very experienced and very knowledgable in these matters), I would say only that I am quite sure the present proposals of the noble and learned Lord on the Woolsack will be welcomed by the members of the Joint Committee as a tremendous advance towards the solution of the problems which have beset the Committee in the past.

§ LORD ALPORT
My Lords, I also intervene with a great feeling of temerity, because I merely want to ask the noble and learned Lord the Lord Chancellor for clarification of a point which I probably should have understood perfectly clearly had I been able to follow his speech as attentively as I should have done. According to the Motion which the Lord Chancellor is moving, it is proposed that …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". Does that wording refer only to amendments relating directly to consolidation, or does it include amendments to reform the legislation, amendments which are not absolutely or directly related to the process of consolidation?

§ LORD NUGENT OF GUILDFORD
My Lords, perhaps I may briefly support the Motion moved by the noble and learned Lord on the Woolsack. In particular, with regard to the Sea Fisheries Bill and the consolidation therein contained, I would add that it befell me, in 1958, to be responsible for the consolidation measure with regard to the Highways Act, and that I had a particularly awkward time with it. It calls, of course, for a good deal of forbearance from the Opposition of the day to make a sort of semi-consolidation of this kind—done, on that occasion, with the assistance of the Departmental Committee—work. I think it is a good thing to try to invent a kind of machinery to make consolidation more perfect by making smaller amendments which, 196 though going beyond strict consolidation, do not amount to anything of substance. If this new attempt by way of the Law Commissions makes things a little less awkward for Ministers than earlier attempts by means of a Departmental Committee did, then, with personal experience still in my mind, I would only say that it has my best wishes. So far as I can see from looking at the Bills, there is nothing here of substance, and I think this is a very sensible way to proceed to make the law more intelligible in its use to all the interests concerned.

§ LORD MITCHISON
My Lords, with due deference, may I ask my noble and learned friend a question which has always puzzled me? How are subjects for consolidation selected? I was once engaged with a Bill about cremation, and I remember the appalling confusion of the Burial Acts. They have been in force for "donkey's years". Is anybody ever going to consolidate them? And how? For years, too, we were told that the income tax law of this country was so tangled as to be incapable of consolidation. At last a very wise and active and comparatively young man has ventured the task and produced a draft of some sort. At what intervals are these major subjects reconsidered for consolidation? Are we nearly ripe for a little more financial consolidation?

§ THE LORD CHANCELLOR
My Lords, I am grateful for what has been said on this Motion. I would only say that I listened with care to what the noble and learned Viscount, Lord Dilhorne, said as to his understanding of how this scheme is going to work; and it was in accordance with my understanding. In answer to the noble Lord, Lord Alport, I would say, Yes, the amendments proposed in this or any subsequent similar Bills will all be related to the consolidation. They deal merely with difficulties which are found to arise when the Parliamentary draftsmen attached to the Law Commission start to consolidate. In answer to the noble Lord, Lord Nugent of Guildford, I hope very much that the Members of both Houses—although I do not know that I am entitled to express any opinion about the other House—will exercise restraint on the Floor of the House. Of course, many people hold 197 strong views on highways. I am hoping that fewer people will have emotional views about shellfish.
In answer to the question of the noble Lord, Lord Mitchison, as to how matters for consolidation are selected, I would say that it depends, in the first place, on who are the selectors. The modern selectors are the Law Commission. What they do is to consult the consumers. Now the "consumers" of Acts of Parliament, so far as reading and understanding them is concerned, are, by and large, lawyers. So they asked the Bar Council, the Law Society and academic lawyers: "The consolidation of which branch of the law would save you the most time?". As one man, they all said, "First, the Finance Acts; second, the Rent Acts". So the Law Commission said: "Very well, we will take those first". The Finance Acts were last consolidated in 1952; and it took five years to do it. The Law Commission have already started on that. The consolidation of the Rent Acts has gone so far that I hope to introduce the Bill in October next.
But there are a few other things which have also to be taken into account. There are some subjects, apart from the Finance Act, which attract Bills nearly every year. Ordinarily, one has to wait for the gap. It is unsatisfactory to try to consolidate something when a Bill on the subject is going through one or other House of Parliament. One must wait for the gap. There are one or two technical questions of that kind; but that, I hope, is a sufficient answer to the interesting question raised by the noble Lord.

§ LORD MITCHISON
My Lords, may I ask my noble and learned friend how you "consult the consumer" with regard to the Burial Act? He is dead.

§ THE LORD CHANCELLOR
My Lords, I appreciate the noble Lord's difficulty. I am not sure whether he ought not to ask the noble Viscount, Lord Colville of Culross, because I remember when I first came to this House his raising the appalling state of our laws on burial. But whom he consulted, I am afraid I do not know.