HL Deb 16 March 1967 vol 281 cc450-60

4.29 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD DOUGLAS OF BARLOCH in the Chair.]

Clause 1 [Signification of Royal Assent]:

LORD GRIMSTON OF WESTBURY moved to add to subsection (1): ( ) Her Majesty's Assent shall, so far as practicable, be pronounced in the form and manner customary before the passing of this Act at least once in each Session of Parliament.

The noble Lord said: I beg to move the Amendment which stands in my name. The purposes of this Amendment is to write into the Bill a view, which was expressed on both sides of the House during Second Reading, that our procedure of giving the Royal Assent by Royal Commission should be preserved at least once in a Session. I should like to make clear that this Amendment is not intended to cast any reflection upon the intention which the noble and learned Lord the Lord Chancellor indicated during the Second Reading, that this old procedure would take place at least once in every Session. But, of course, the noble and learned Lord will appreciate that he will not be in Office forever. For myself, and I am sure I speak for all your Lordships, so long as the noble and learned Lord is in office we are quite happy that this procedure will be carried out once a Session, but after that there will be nothing in the Bill to provide that that should be done; and it would be quite easy for the procedure under subsection (1)(b) to come to be used entirely and for the procedure under subsection (1)(a) to fall into desuetude. As your Lordships know, once something has been abandoned it becomes a precedent that it is abandoned, and it may never be used again. As I say, the purpose of this Amendment is to see that, that shall not happen in this case.

I think that, before coming to the terms of the Amendment, I should first remind your Lordships of the position with regard to the prerogative, because if your Lordships will refer to column 1181 of Hansard of March 2, you will note that at the commencement of the Second Reading debate the noble and learned Lord the Lord Chancellor said this: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Royal Assent Bill, has consented to place Her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill. Of course this Bill is entirely concerned with the prerogative, and Her Majesty sent that Message which was read out by the noble and learned Lord the Lord Chancellor at the commencement of the proceedings of the Second Reading debate.

Now I turn to the actual terms of the Amendment. Your Lordships will see that it reads: Her Majesty's Assent shall, so far as is practicable…".

I have put in those words because it is conceivable that there could arise a situation in which it was not possible to comply with the Amendment without the addition of those words. Perhaps I can best illustrate that by quoting a hypothetical case. The Government of the day might decide, at short notice, either to ask for a Dissolution or to prorogue. It might be that at that moment there were no Bills awaiting the Royal Assent. In such a case the Statute could not be complied with, and I think it will be agreed on both sides of the Committee that we must not put something on the Statute Book which, in certain events, could become a nonsense. That is the reason for the insertion of those words: to cover a hypothetical case, possibly a case such as I have quoted, which might never occur but could occur.

There is another matter which I think I should mention. During the Second Reading debate the hope was expressed that perhaps Her Majesty might, again at her pleasure, come to your Lordships' House and give the Royal Assent in person. The hope was generally expressed that perhaps she would do that on some occasion. That position of course is safeguarded in the Bill already by the provisions of Clause 1(2) and nothing in the present Amendment would affect it. On Second Reading the noble and learned Lord the Lord Chancellor was good enough to say that he would consider whether something of this sort to preserve the procedure under paragraph (a) could be put into the Bill. This Amendment is an attempt to do that. It might not be the right way to do it, but I very much hope that it is. It is an attempt to preserve in the Statute, as the Bill will become, a ceremony which, in the words of the noble and learned Lord, is full of history. I believe it is the wish of noble Lords on both sides of the Committee that that should be done, and therefore, in the hope that this Amendment may do what I intend, I beg to move.

Amendment moved— Page 1, line 13, at end insert the said paragraph.—(Lord Grimston of Westbury.)

4.37 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

This is an Amendment which I think the Committee will receive with sympathy. I said on Second Reading that all Parties had agreed that the present intention was that we should have several Royal Commissions in the first year after the Bill was passed, and afterwards at least one every Session and, I think they also agree, at every Prorogation. I think we are all united in not wanting to lose this ceremony and that that intention should be carried out. Therefore it is natural that we should all sympathetically receive an Amendment designed to ensure that that is so.

There are, however, one or two considerations, none of them being of a Party political nature at all, to which I think I ought to draw the attention of the Committee. In the first place, such an Amendment would be very unusual. We do not ordinarily legislate in a matter which does, or even may, affect the prerogative without first asking Her Majesty. This was done on this occasion, and, as the noble Lord has said, the House is on such occasions informed by a Minister, who must be a Privy Counsellor, that that has been done. The proposals to which Her Majesty's Assent has been invited are proposals which do not in fact infringe the prerogative in any way at all. The Bill, as the Committee will understand, leaves the prerogative exactly as it is; it leaves the Royal Assent in person exactly as it is and it leaves the Royal Commision exactly as it is. All it does is to provide a third and simpler method, not strictly of giving the Royal Assent, but of declaring it to both Houses; and it leaves Her Majesty free to decide which method is to be used at which time.

This Amendment, however, limits the prerogative. It is saying, "You must employ this particular method on these particular occasions". The noble Lord has not told us whether he has asked Her Majesty whether she has any objection to that; and if not, this would, I venture to think, be somewhat irregular. I am not quite clear what the effect of it is. The words are, "so far as practicable", whatever they may exactly mean. But who is to decide whether it is practicable or not? Is it Her Majesty or is it the Government, is it this House or Parliament? What happens if there is a disagreement as to whether it is practicable or not? I am sure that the Committee would agree that when we are dealing with anything so fundamental as the legality of legislation we must be certain.

I am not even clear about the legal effect. Suppose that three weeks before the end of a Session a number of Bills were ready, the Government wanted them to pass into law at once and there was a Royal Assent by the new method, and then the usual channels agreed that there was another Bill which would have to receive the Royal Assent before the end of the Session and they intended that that Bill should receive the Royal Assent by a Royal Commission. If that Bill did not in fact receive a Third Reading and there was therefore no Bill for the Royal Commission, without anybody intending it the Session would end without there being a Royal Commission. Is the effect of that that the previous Royal Assent is invalidated? Though it was praticable to have a Royal Commission for the Bills taken together, because the usual channels believed there to be another Bill to come, there was in fact no Commission. Is the effect of this that the Royal Assent is invalidated because it should have been by Royal Commission? Does it mean that all the Bills which purported to receive the Royal Assent on that occasion are invalidated, although people had been relying on them as an Acts of Parliament? When dealing with the power to legislate we should be quite certain of the effect of the legislation which we are passing.

There is also this consideration—and I hope the noble Lord will not regard me as too old-fashioned or conservative, stuffy or reactionary, if I say that I think that nearly everybody in this country is glad that we do not have a Written Constitution. We have a Constitutional Monarchy, and that must mean, must it not, that there are conventions which it is important to observe? There are a great many things in law which only the Sovereign can do or decide, but it is the convention that the Sovereign, in acting or deciding, will heed the advice of his or her Ministers. Somebody may say that that is all very conventional; that it would be better to take all these legal powers away from the Sovereign and give them to the Government of the day. But if that were done, we should no longer have a constitutional Monarchy.

Let me take a simple and perhaps apposite example. If the Government have a number of Bills which have passed through both Houses and want them to receive the Royal Assent, they do not say to the Queen, "On March 22 we are going to have a Royal Commission." Not at all. Every time the Government want a Royal Commission, I write to the Queen and I say:

The Lord Chancellor with his humble duty to your Majesty submits for Your Majesty's signature, if you shall so please, a Commission for giving the Royal Assent to certain Bills, the Titles of which are herewith enclosed. Then Her Majesty graciously agrees, and we proceed from there.

Here is a Bill about which it is possible to take the view (I say it is possible because I myself take this view) that it is of a kind which ought not to be introduced at all, except after proper discussions and after it has received the approval of the Leaders of all Parties, in both Houses, and of Her Majesty. It does not infringe the prerogative at all, but it is accepted, with the agreement of all Parties that the present intention—because I agree that nobody can bind the future—is that there shall be several Royal Commissions in the first year, and after that at least one a Session, and one at each Prorogation. I suggest that this is the right way to do it. This Amendment, however, says that it must be done in a certain way. If, for some reason, Her Majesty thought it more convenient to use the new method, this Amendment says that she cannot do it; that it has to be done in this particular way. I respectfully suggest that this is not the right way of doing it.

I am sure that a number of these considerations would not naturally have presented themselves to the noble Lord's mind when he put down this Amendment. I can quite understand that. But I hope that he will not divide the House on it—and I say "divide the House", because I cannot accept the Amendment as I am bound by the agreement which has been made, after long discussion and with Her Majesty's approval. The noble Lord may remember that I read to your Lordships on Second Reading not only the terms of the Royal Warrant, which is in the Bill, but also the terms of the Certificate which is to be given by the Clerk of the Crown in Chancery to Mr. Speaker, and even what the two Speakers are to say. In these circumstances, I would invite the noble Lord to consider whether this is not a matter which ought to be dealt with by common consent; and I suggest that it would be unfortunate if on a Bill of this kind the House were to be divided.

4.47 p.m.

VISCOUNT DILHORNE

I listened with interest to the observations of the noble and learned Lord the Lord Chancellor. He has deployed a number of reasons, some cogent and some less cogent, for non-acceptance of this Amendment. One of his reasons I should like to answer, if I may, because, with great respect, it did not seem to me in the least degree right or convincing. He said that we must be quite certain about the effect of this Amendment; and I agree. I should have thought that it was certain that this Amendment imposed a duty on someone to secure that there should be a Royal Commission at least once in every Session of Parliament. I was surprised to hear it suggested that the imposition of that duty on someone could possibly have the effect of invalidating the Royal Assent to Bills previously given, by whatever method that was given. I do not think that the effect of this Amendment could conceivably be understood as having that result.

The noble and learned Lord the Lord Chancellor has made clear what the process is for securing a Royal Commission for giving Assent to Bills. He writes to Her Majesty. It is Her Majesty's decision. I think it is clear that the effect of this Amendment would be to impose a duty on Her Majesty in relation to a matter which is entirely within Her Majesty's Prerogative. I sympathise to a great degree with what my noble friend Lord Grimston of Westbury said, but I think that it would be quite wrong to insert this Amendment into the Bill and in that way seek to fetter the exercise by Her Majesty of Her discretion and Her Prerogative.

I think that everything that has been said shows that we all agree that we want to see this old ceremony continued, and I would suggest to my noble friend that he should not press his Amendment, but should withdraw it. Then, should this Bill pass through all its stages, he should consider tabling a humble Address, which we could all support, with the view to acquainting Her Majesty of the views of this House that if possible—I would use the word "possible", and not "practicable"—the Royal Commission procedure should be used.

Such an Address does not seem to me in any way an infringement of the Royal Prerogative, or in any way seek to interfere in matters which are not properly within the province of this House. Therefore, I would support the noble and learned Lord the Lord Chancellor the whole way, except for one of the reasons he advanced, in saying that this Amendment ought not to be made. I hope that my noble friend will not press it. If he does, I shall feel constrained to vote in the opposite Lobby. On the other hand, if he feels that it would be right to table such an Address, then I should certainly give my support to it.

LORD CARRINGTON

It is for my noble friend Lord Grimston of Westbury to decide what he is going to do, but I must say that I was impressed by what the noble and learned Lord the Lord Chancellor said, and what my noble and learned friend Lord Dilhorne has said, and particularly with the suggestion made by my noble and learned friend in the latter part of his remarks. I wonder whether my noble friend Lord Grimston of Westbury would consider doing something on the lines suggested.

However, I rise primarily to ask one question of the noble and learned Lord the Lord Chancellor. Either I misunderstood him, or he has inadvertently misled me. I understood him to say that there was to be a Royal Commission at the end of each Session, as well as one at Prorogation. Surely, the ceremony of the Prorogation does not come under the terms of the Bill. Therefore, there must in any event, regardless of what is laid down in the Bill, be a ceremony at Prorogation. I think that, perhaps inadvertently, the Lord Chancellor may have misled the House in this respect.

THE LORD CHANCELLOR

I entirely accept what the noble Lord has said.

LORD CONESFORD

In common with many of my noble friends I have the greatest sympathy with the object which I am sure prompted the noble Lord to put down the Amendment, but I think, for the reasons which have been so amply given, it would be unfortunate for these words to appear in the Bill. Although there would be alternative ways of drafting what is in the Bill, the Bill as it now stands reads in a straightforward and dignified way that does not appear to cast any particular duty regarding the way in which the prerogative should be exercised. I think that is right. I think that what my noble friend intends to insert would have an unfortunate effect, and for that reason, as one who supports him in his object, I would add my word in support of the advice that has been given that he should withdraw the Amendment.

LORD GRIMSTON OF WESTBURY

I may say that I had no intention at any time of dividing the House on this matter. However, I think this debate has produced a reaffirmation of the general desire that this ceremony should not disappear. My noble and learned friend Lord Dilhorne, an ex-Lord Chancellor, has answered the present Lord Chancellor, and I will not attempt to do so. However, before I withdraw the Amendment I do not know whether the noble and learned Lord the Lord Chan- cellor could say a word in relation to the suggestion of my noble and learned friend Lord Dilhorne about the possibility of an humble Address to Her Majesty, which I understand should be done at the same time as the Bill is passed. It would, perhaps, be a little unfair to ask him to give a Yes or No at this moment, but perhaps he can say whether the Government would facilitate a procedure of this sort, in order that, in a proper way, we may make it known that we should like the old procedure to be continued every so often in order to preserve the old historical system.

THE LORD CHANCELLOR

I have not had an opportunity of considering this point, but I will certainly do so. It is, I think, always open to noble Lords to move such a Motion. I should like to consider it; and perhaps noble Lords would consider whether it would or would not be a good thing for one House to express their view to Her Majesty. One would have to see, I suppose, what the position was in the other place. This is a matter for consideration, and I will certainly consider it.

LORD GRIMSTON OF WESTBURY

In view of what the noble and learned Lord has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

4.55 p.m.

VISCOUNT DILHORNE

I wish to raise a point with regard to Clause 1. It really links up with a point that I wish to raise on Clause 2; the two go together. A few minutes ago the noble and learned Lord the Lord Chancellor said, perfectly accurately, that the Bill leaves the Royal Commission as it is, and indeed provides a third method of notifying a Royal Assent to Bills. I agree that that is the object. But if that is so, I should like an explanation of the inclusion of paragraph (a). I can see no need for those words in the paragraph if the purpose of the Bill, as the noble and learned Lord said, is merely to provide for a third method of giving the Royal Assent.

The provision for giving the Royal Assent by Royal Commission is contained in a Bill of Attainder of Catherine Howard, and I think the Short Title of that Act is: The Royal Assent by Commission Act, 1541. So that if one left that Act in force, there would be no need to say anything in the Bill about the holding of a Royal Commission; this Bill need only be confined to adding the third method. But, for some reason which I do not understand, we find in subsection (2) of Clause 2 that an Act of 1541 is to be repealed; and instead of the Royal Commission procedure depending upon statutory authority it will in future, if I understand this Bill aright, depend upon what is the form and manner now customary at this time. I find it difficult to understand why that change should be made. Presumably, there is some object.

So far as I can see, the purpose of the Bill would be completely achieved if paragraph (a) of subsection (1) in Clause 1, and subsection (2) of Clause 2, were omitted. I hope that the noble and learned Lord the Lord Chancellor (and I think I wrote to him about this matter, in the belief that I might not be able to be present when it was coming up at an earlier stage) will be able to satisfy my anxieties about this. It seems to me undesirable that we should replace a statutory provision for a Royal Commission, made, it is true, by a very old Act of 1541, by a reliance on custom, which is provided for in paragraph (a), unless there is very good reason for it.

THE LORD CHANCELLOR

This is, of course, the sort of point which Parliamentary draftsmen consider most carefully, and in this case, in view of the importance of the Bill, it was done by the chief Parliamentary draftsman, who drafted the Bill himself. One could, I suppose, in principle, have left the old Act and dealt only with the new method in this Bill, though I suppose there might then be some question as to whether this Bill was intended to replace the old method by a new one, or whether the old Act had impliedly been repealed. The reason why I understand the draftsman did it in this way was, first, because we all know to-day, from the ample records, what the present procedure of a Royal Commission is. One of the draftsmen is going steadily through the Statute Book chronologically from the point of view of Statute Law revision. He has now got up to about the Reformation—that is to say, about this period—and I am told that the old Act would in any event have been in the next Statute Law Revision Bill, as something which it was no longer necessary to keep on the Statute Book. Of course, it will remain so far as historians are concerned. But we all know to-day exactly what happens when there is a Royal Commission.

The old Act, in fact, does not really describe it. It provides that the Royal Assent is made by letters patent, declared and notified to the House. But its title was: The Bill of Atteynder of Mestres Katherin Hawarde late Quene of England, and divers other psonnes her complices. It contains no actual reference to the Royal Commission at all, and it was nor until 1948, when Bills were given Short Titles, that it was given the short title of the "Royal Assent by Commission Act". In fact, all it does is to provide for a Royal Assent to be lawful if given by Letters Patent signed by the Queen's own hand, and for this to be declared and notified to the two Houses in the Upper House. As I say, it does not actually refer to the Royal Commission, so there is really no point in keeping it on the Statute Book. It was for those reasons that it was drafted in this way.

VISCOUNT DILHORNE

I should like to thank the noble and learned Lord the Lord Chancellor for his explanation of matters which, to say the least, were not clear on the face of this Bill. Of course it could have been made clear, as a matter of drafting, that this new procedure was additional to the old procedure; but, in the light of what the noble and learned Lord has said, I think perhaps there are advantages to be derived from the inclusion in this Bill of the subsections to which I have referred.

Clause 1 agreed to.

Remaining clause agreed to.

House resumed: Bill reported, without amendment: Report received.