HL Deb 12 June 1969 vol 302 cc775-89

3.20 p.m.

THE LORD CHANCELLOR

My Lords, I received this Bill only last month with the Law Commission's First Report on Statute Law Revision. The Commission undertook this task in pursuance of a proposal made in their first programme on consolidation and Statute Law revision. In that programme, which was published in January, 1966, the Commission proposed to review all the Statutes in chronological order with a view to recommending the repeal of all that cannot positively be shown to continue to perform a useful function. The Commission's method of working systematically through the Statutes was obviously sensible; but what was more important was their proposal to recommend the repeal not only of enactments which cannot strictly be treated as obsolete, but also all those that no longer serve a useful purpose. The early Statutes often contained no express provision for repeal, or merely repealed all previous Acts so far as there was inconsistency without showing which those Acts were. Although this type of Statute Law revision is now done as a matter of course by including repeal Schedules in amending Acts, there is still some room for it: for example, where temporary provisions have expired, or where there has been some change in circumstances, such as where the facts on which an Act operates can no longer occur.

In a sense, this Bill is another instalment of the long series of Statute Law Revision Bills the first of which was introduced in 1861. Forty-five of them have already found their way on to the Statute Book. Although this Bill in a sense continues the series of Statute Law Revision Bills, the Commission have adopted as its short title "Statute Law (Repeals) Bill" instead of Statute Law Revision Bill, to signify the fact that although it includes many proposals which could well have been included in conventional Statute Law Revision Bills, its scope is wider than that of such Bills and its Long Title makes it clear that the draft Bill's purpose is to promote the reform of the statute law by the repeal, in accordance with recommendations of the Law Commission, of certain enactments which (except in so far as their effect is preserved) are no longer of practical utility and by making other provision in connection with the repeal of those enactments". Because Statute Law Revision Acts have in the past operated only on enactments which were clearly shown to be obsolete, spent, unnecessary or superseded, there remains on the Statute Book a good deal that has been passed over largely because it raises awkward and abstruse problems. A great deal of spade-work and consultation is needed to resolve these problems; but, unless they are resolved, our Statute Book will continue to be cluttered up with quite useless enactments. The Law Commission have undertaken a large amount of research and have had very full consultation with those who are primarily interested in the enactments that are proposed for repeal, and so are able to recommend the repeal of many enactments which cannot positively be shown to perform a useful function. This approach will make it possible to clear dead wood from the Statute Book and enable the editorial board of the Statute Law Committee to organise the production of a new edition of the Statutes which is free from useless enactments and much more handy for lawyers and laymen to use.

Shortly before Whitsun the House agreed to my Motion to extend the terms of reference of the Joint Committee on Consolidation Bills to enable them to look at such Bills as this. A similar Motion has since been approved in another place. The Committee will no doubt consider the detailed provisions of this Bill and the repeals which are proposed, and your Lordships will not expect me to deal with them in any detail. My observations on the provisions of the Bill will therefore be of a rather general nature.

Clause 1 repeals the enactments which are included in the Schedule to the extent specified in column 3 of that Schedule. Clauses 2 and 3 merely reproduce in a modern form so much of the repealed enactments on advowsons and copyholds as are still required. Clause 4 provides that any common law right to inclose or approve common land is hereby abolished. Is it very doubtful whether any such right survives at all; but, if it does survive, it is clear that it is completely obsolete. I will now turn to the Schedule of enactments to be repealed. Part I contains constitutional enactments beginning with the Statute of Westminster the First of 1275. In their day some of these enactments were of great constitutional importance; but in the main what survives and is proposed for repeal are declarations of law which, although historically interesting, no longer serve any practical purpose.

I should like to mention the second Statute mentioned in the list in Part I, the confirmation of Magna Carta of 1297. Of the 37 Articles which originally comprised the Statute, 27 have already been repealed, so that 10 now survive. Eight of these remaining Articles are proposed for repeal on the ground that they are now of no practical significance, being either obsolete or superseded by the modern law on the subject. They relate to the obsolete aspects of widowhood and dower; the relationship between the Crown and its debtors; the making of bridges, obstruction of rivers and putting down of weirs; and the treatment of foreign merchants in time of war and peace. The Commission have not proposed the repeal of Article 9 which preserves the rights and privileges of cities, boroughs and towns, nor the repeal of Article 29, which contains the famous declaration of liberties.

Part II of the Schedule repeals ecclesiastical enactments which are either spent or are no longer necessary. There are among the enactments listed for repeal the Clergy Marriage Acts of 1548 and 1551, which first allowed the clergy to marry; but I am happy to say that the repeal of these obsolete enactments would not prevent the members of the clergy from marrying in future. Your Lordships will also have observed among the ecclesiastical enactments to be repealed some of which were designed to repudiate the authority of the See of Rome. They are now only of historical interest and their retention is no longer necessary.

Part III of the Schedule includes law of property enactments which are proposed for repeal. These are mostly consequential on the abolition of copy-holds and on the removal of disabilities that were formerly imposed on married women. Part IV contains enactments relating to Sunday observance. The proposals in this part are based largely on the recommendations contained in the Report of the Departmental Committee on the law of Sunday observance, which was published in 1964. The enactments are now largely obsolete and chiefly of historical interest, and while I respect the views of those, including members of the Lord's Day Observance Society, who are anxious that Sunday should be kept as a day of rest, it would be idle to pretend that the retention of these enactments would be of any value whatever. The proposed repeal of the hallmarking enactments in Part V is recommended largely as a consequence of the abolition of various assay offices throughout the country.

The enactments relating to the Commonwealth which are listed in Part VI of the Schedule contain powers which were taken to give effect to various constitutional changes within the Commonwealth—chiefly the attainment of independence by a number of former Colonies and territories—and these powers are no longer required. Part VII proposes the repeal of a miscellaneous collection of enactments. Some of these are spent and the remainder no longer serve any useful purpose. Part VIII contains Acts of the Parliament of Ireland which are counterparts of some of the English Acts which are contained in the earlier parts of the Schedule and which are now obsolete. Part IX mentions a Church Assembly Measure which is spent.

As the Law Commission have explained in their Report which accompanies this Bill, they have, in the course of its preparation, consulted widely on its proposals and, so far as they are aware, there is no objection to any of the proposed repeals. I should like to mention in particular the Commission's consultations on the ecclesiastical enactments which are proposed for repeal. There have been full discussions with a committee of eminent lawyers under the chairmanship of the Dean of Arches, which was established by the most reverend Primates the Lords Archbishops of Canterbury and York, to whom I am greatly indebted for their assistance in this matter. The consideration of the law of property enactments in Part III of the Schedule was another highly technical matter, and the Commission have been very much helped by a committee comprising another group of distinguished lawyers, to whom I should like to express my gratitude. Finally, I would say that although this Bill is primarily the work of the Law Commission, it has been prepared in close consultation with the Scottish Law Commission. My Lords, I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

3.30 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, I agree with the noble and learned Lord the Lord Chancellor that it would not be appropriate to go into the details of the various items in the Schedule to this Bill. However, since this is the first of what I think may well be a number of measures of a similar nature, it is perhaps as well that the House should realise that this is so and realise exactly what we are doing. It is perfectly true that if the Bill passes on Second Reading here and in another place it will go to the Joint Committee on Consolidation Bills, and I think it has already been provisionally arranged that some very substantial sittings shall take place to look into it. I think this is right, because, as is made plain in the text of the Appendix explaining the draft Bill which has been produced by the Law Commission, it is said, I am sure rightly, that a great deal of the legislation which it is proposed to repeal by this Bill has either been superseded or is unnecessary. It is in the case of legislation that has been superseded that I think the House ought to be particularly careful. This is not in any way intended to suggest that the Law Commission who have been engaged on this job, or indeed the draftsmen, are likely to have made any mistakes. But the fact remains that the Law Commission have told us that a number of fairly celebrated ancient Acts of Parliament, including some relating to the Constitution, are no longer necessary because there are modern Acts which take their place and in fact cover exactly the same ground. I think this is a very important point, and I hope that the Joint Committee on Consolidation Bills will confirm that this is so because I believe that it is the duty of Parliament and those of us who are involved, not only to rely on the excellent work of the draftsmen and the Law Commission but also to satisfy ourselves that we are not repealing something that still remains of value. So there will be this important job to be done.

I would also remind the House of this fact. When the procedural Motion to send this Bill to the Joint Select Committee upstairs was being discussed, the noble and learned Lord the Lord Chancellor reminded the House that, if the procedure he was suggesting was adopted, when the Bill came back to this House on recommittal it would be open to noble Lords to deal with it as they can deal with any Public Bill, and to put down Amendments and discuss any of the Bill's provisions in it. I imagine that there will be a recommittal, so probably it will be formally a Committee stage. I hope that the House will not consider that this is a purely technical matter. If they see something in the text of the Bill for which they do not care, there will be a full opportunity to discuss it. I think that it might be very useful if, perhaps after the Joint Committee have considered the Bill, any large matters of principle which emerged were then discussed again in the Whole House in Committee, so that we can make sure that there is no difficulty in relation to the procedure or in relation to specific matters dealt with in the Bill.

There are one or two small points that I should like just to mention to the noble and learned Lord at this stage. I see that the Law Commission have, in their usual way, discussed very fully, not only, as the noble and learned Lord described, on the ecclesiastical side and in relation to the law of property amendments, but in other cases as well. But the repeals of the Forest of Dean legislation have been discussed (and this appears on page 37) only with the Forestry Commission. I am unable to look at the Acts themselves because every single one of them is out of the Library; all the Statutes relating to this, I imagine, are being used for the purpose of advising on this Bill. But the titles of the Acts also indicate that they are to do with mines, and it is well known that there are, or used to be, coal mines in the Forest of Dean. I hope, therefore, that it was sufficient merely to discuss with the Forestry Commission the provisions which it is proposed for repeal. If not, it might be more satisfactory to ask the noble Lord, Lord Robens, and his team also whether they have any comments. I am sure that the noble and learned Lord is right in saying that the fullest possible consultation must be made before any Bill of this sort is brought forward. I only hope that I have not discovered one possible loophole; I am sure I shall be told I have not.

I am a little surprised that the part of the Schedule relating to Sunday observance laws finds its place in this Bill. I understand that a Bill on this subject is before another place; and, as was indicated by the noble and learned Lord the Lord Chancellor, it is not a subject that is by any means free from controversy. I should have thought there would not have been very great difficulty in putting repeals of this sort of legislation into a specific Sunday Observance Bill, if one comes forward, at any rate to this House, in this Session; and it may be that we should find it more suitable to take out this Part of the Schedule, Part IV, and consider it in conjunction with the whole subject of Sunday observance when this comes up in another measure. But this is a matter of principle, and it can be discussed later in the House, perhaps when the other Bill has proceeded further and we can see what its fate is likely to be.

There is one final point that I would make, and it is a very difficult one. A number of instances have been quoted by the Law Commission in their notes where the repeal of Statutes that prevented something which previously occurred will not, by virtue of the Interpretation Act 1893, revive whatever it is that the repealed Statutes used to prevent. There are all sort of cases of this; and I do not think I need draw particular attention to any of them. On the other hand, there is a technical difficulty here. Your Lordships will see that in Clause 4 of the Bill (and of course the Bill is unusual in that it replaces by a short modern statement some of the law thought worthy of maintaining) there is a specific abolition of any common law right to inclose or approve common land. Previously, as I understand it, this right, if it existed at all—which is very doubtful—was supported by two ancient Statutes, one the Statute of Merton, which was not repealed until 1953—in fact long after the Interpretation Act became law—reinforced by one of the Chapers in the Statute of Westminster, the First, and this is down for repeal in this Bill. There must, therefore, be a correlation between previous common law which has been either confirmed or, conceivably, repealed by subsequent Statutes and what happens when these Statutes are repealed.

I can see that it is arguable that in the case of the common law right referred to in Clause 4 all that had happened was that there were two confirming Statutes which had been passed sometime in the 13th century and the matter therefore needs to be cleared up. Nevertheless, there are ancient Acts. Some of them appear in this particular Bill, and some of them appear in such old law as will remain unrepealed and which may be the subject of further Bills of this sort. Some of these ancient Acts deal with very much more important matters of common law, of Parliamentary privilege, and relate sometimes to the Royal Prerogative and matters of that sort. Some of those old Statutes declared what was the law; some of them, like the ones to do with the See of Rome, said that it was no longer to apply, but others confirmed it. In every case, I think, it is extremely difficult to know what is the effect of repealing that ancient Statute in relation to the revival of what went on before. It is quite plain from the text of this Bill itself that repealing a confirmatory Statute does not in any way affect the common law that ran with it.

I do not know, however, whether the Interpretation Act applies to matters like Parliamentary privilege; whether it applies to the Royal Prerogative. Before we finally sweep away a lot of what may be thought to be ancient and out-dated legislation, which did, however, at its time deal with extremely important constitutional issues, we ought to be perfectly certain, and the House ought to be advised and to be quite sure, that none of the mischiefs and difficulties which these old Statutes were set up to deal with will now, by some side wind, come back. I do not suppose many of them will be of great importance, but some of them are, or were in their time, issues of tremendous principle, over which long battles were fought at various times throughout our history, and I think that the general concept of how far Section 38(2)(a) of the Interpretation Act goes in dealing with this sort of ancient law of a common law type (because it may not just be the common law; it may have other facets as well) should be most carefully examined.

This is an occasion on which it could be done, but if there are to be even more important repeals carried out in future, then the matter will be even more important still. I think it is something upon which the House at some stage would like to hear a word from the noble and learned Lord himself, perhaps after he has had an opportunity to consider it and, it may be, in relation to another Bill. That is the sort of problem that is going to arise on this type of legislation. It is a most important problem, and one on which constitutional lawyers and academic lawyers could make a great contribution if they were able to find time to turn their minds to it. I believe it would be of great assistance to Parliament if somebody could do this for them.

Meanwhile, there is ahead a long programme of detailed discussion of this Bill. I will try to persuade the Committee upstairs that the opinion that I wrote a few years ago relying on the prohibition in Magna Carta of obstructing rivers was in fact right, that I was correct in relying on it, and that therefore we ought not to repeal that chapter of Magna Carta. I have no doubt I was wrong, but it is strange how occasionally these old laws, even in Norman French, crop up. For all I know, I may move an Amendment on that point when the Bill comes back from the Joint Committee upstairs. Meanwhile, I hope that the House will give the Bill a Second Reading so that it may go upstairs for that examination.

3.44 p.m.

THE LORD BISHOP OF NORWICH

My Lords, I should like at the outset of my brief comments on this Bill to say unequivocally that the Church of England welcomes the Bill so far as it concerns Ecclesiastical Law. The mediaeval Statutes affecting the Church and the considerable body of Tudor legislation present a daunting aspect to the student and an impediment to Church authorities. The Bill will effect a notable simplification, and the Church is grateful to the Law Commission for their initiative and work in this field.

The noble and learned Lord on the Woolsack has already referred to the Law Commission's consultations with the Church, and I should like to give your Lordships an assurance that the Church is satisfied as a result of these consultations and its own examinations of the Statutes concerned that all the repeals can be safely and properly made. It may be noted that the group of enactments—those of 1531, 1532, 1533, 1536, 1558 and 1571—which abolish the jurisdiction of the Pope in this country in respect of appointments, licences, dispensations and appeals, will not revive the Pope's judisdiction, because of the section in the Interpretation Act 1889 which provides that a repeal is not to revive anything not in force before that repeal. I should also add that Section 8 of the Act of Supremacy 1558, establishing the Sovereign as Head of the Church, is excepted from repeal.

A further group of enactments—those of 1535, 1539, part of 1549, 1545 and 1592—are concerned with the suppression of religious houses and the dissolution of colleges. Those enactments are spent, but because they are not formally repealed they still clutter up the volumes of Halsbury containing the Ecclesiastical Statutes. The repeal of the Clergy Marriage Acts 1548 and 1551 will, as the noble and learned Lord on the Woolsack has already assured us, not revive the rule forbidding the clergy to marry. The effects of the repeals of the Acts of Uniformity of 1548, 1551 and 1558 (except for two sections) will greatly simplify a confusing situation by removing penal provisions which have become obsolete. Only Section 7 of the 1548 Act which allows psalms and prayers out of the Bible to form part of a service, and Section 13 of the 1558 Act which is the statutory position of the present law relating to "ornaments", are excepted from repeal.

Perhaps I should mention the Act of 1429, which gave freedom from arrest to members of Convocation. I am sure that I am not the only member of that body to have been wholly unaware of this privilege. Perhaps that was just as well. This privilege was granted in the days when Convocation had quasi-Parliamentary duties and has not been claimed in modern times. It does not apply to Church Assembly. Both Convocations have agreed to its repeal.

Turning to Part IV on the Sunday Observance section of the Statute Law Repeals which are listed at pages 13 and 14, perhaps I should say that the law on Sunday observance has recently been the subject of a good deal of attention. It was debated in the Church Assembly in July, 1965. Two Bills on the subject have already been through this House—the Shops (Sunday Trading) Bill, debated on February 5, 1968, and the Sunday Entertainments Bill, debated on several occasions in this House and now in Committee in another place. Several Bishops have participated in those debates in this House. As a result of all this, it can be said that a consensus of considered opinion would certainly support the repeals embodied in this Bill in view of the anomalous and confused situation created by the Sunday Observation Prosecution Act 1871 and the Shops Act 1950. The question of the extent to which the repeals would be supported apart from this is quite irrelevant to this Bill.

The primary substance of the provisions dons repealed by Part IV of the Schedule of the Bill deserves, I think, a brief mention to allay possible anxieties in regard to Sunday observance. The Sunday Fairs Act 1448 prohibits the showing of any goods or merchandise (Necessary victual only except) on a Sunday. The Sunday Observance Act 1625 prohibits meetings for sports by people out of their own parishes and bear-baitings et cetera within them, on the Lord's Day. The Act of 1627 forbids butchers to "kill or sell any victual" on Sunday. The Act of 1677 provides that: Noe tradesman, artificer workeman labourer or other person whatsoever shall doe or exercise any worldly labour, business or worke of their ordinary callings upon the Lords day (works of charity onely excepted). Also it prohibits exposing wares for sale, and drovers travelling. Also it says: noe person shall use employ or travell upon the Lords day with any boate, wherry, lighter or barge. But there is a proviso in this Act of 1677 that: nothing in this Act contained shall extend to the prohibiting of dressing or selling of meat in inns, cookshops or victualling houses nor to the crying or selling of milke before nine of the clocke in the morning or after foure of the clocke in the afternoon. The Sunday Observation Prosecution Act 1871 provides that prosecution under the Act of 1677 may be brought only with the written consent of a chief constable or judicial authority—which, of course, is to-day never given. The Shops Act 1950 is the main Act now governing Sunday trading and provides that trading carried on in accordance with its provisions 5 hall not be an offence against the Acts of 1448, 1627 and 1667; which means that these Acts are substantially ineffective.

This Bill, as I have said, does not involve the contentious arguments concerning Sunday as a day apart; the arguments of those who wish to see Sunday more firmly protected as a day of rest and worship; the arguments of those who wish to see Sunday freed as a day of recreation or freed from any restrictions whatsoever, or the arguments of those who resent or respect the varying claims of Sunday observance. So far as I understand the matter, such issues are not involved in the provisions of the Bill before us. It seeks to remove obsolete and irrelevant provisions which can do nothing but harm. The existence of such provisions provides a weapon for those who want to ridicule or denigrate all statutory restrictions on Sunday observance, and in no way aids an appropriate contemporary solution of the problem. I speak only for the two sections of this Bill which concern ecclesiastical law, but, judged by those, the Law Commission are to be congratulated on this Bill, and not least on the manner in which the consultations—which have been an important aspect of the formulation of it—have been conducted. My Lords, I therefore wish to support the Second Reading of this Bill.

3.51 p.m.

LORD CONESFORD

My Lords, I also wish to support the Second Reading, and to express my agreement with the proposal of the noble and learned Lord on the Woolsack that the provisions should now be carefully examined by the Joint Select Committee. I rise only to make public one point relating to the Act of 1297 of King Edward I confirming Magna Carta. to which the noble and learned Lord on the Woolsack has already referred. I can add a short footnote to what he said because of my own experience in this matter over twenty years ago when I was in another place. At that time, when the late Lord Attlee was Prime Minister, a Finance Bill was introduced, one clause of which contained provisions that I thought were quite inconsistent with the provision of Magna Carta dealing with merchants in war and peace, to which the noble and learned Lord on the Woolsack has already alluded. It seemed to me that that clause—which I may say was not a clause of which I approved—was utterly inconsistent with that section of Magna Carta which, speaking from memory, I think was Chapter 41.

In my zeal to ensure that legislation should at least be logical and tidy, I drafted and put down an Amendment in Committee saying, "Chapter 41 of Magna Carta is hereby repealed". At that time my noble friend Lord Mac-Andrew was Chairman of Ways and Means in another place—and, as we all know, a most admirable Chairman—and I regret to say he did not call my Amendment. Had he called it, the provision now in the Bill which will be examined by the Select Committee would have been discussed then, and, had my Amendment been carried, that provision would have gone over twenty years ago. Now I come to the incredible part of my story. When I approached my noble friend and asked him why he had not called my Amendment, he made the unbelievable reply that he had come to the conclusion that it had been set down in a spirit of mockery. My Lords, nobody will suspect the Law Commission, and the noble and learned Lord on the Woolsack, of a spirit of mockery, and the fact that over twenty years ago I made the proposal they are now making shows that for once my noble friend was wrong in his interpretation of my motives.

LORD MacANDREW

My Lords, I well remember the incident in another place, to which my old friend has referred, and I apologise to him for ever being so foolish as to think he might ever do anything in a spirit of mockery. I might add, for his consolation, that even had I thought that the Amendment was serious I should not have selected it.

LORD DOUGLAS OF BARLOCH

My Lords, I understand that this Bill proposes to repeal nearly all that is left of Magna Carta. I am not sure whether it affects a particular provision which I think is still of very great importance, and that is the Article which says: To none will we deny, to none will we delay or sell right and justice. I do not think that that has been replaced by any other legislation. I recall that I had occasion, a number of years ago, to put it to a tribunal before which I was appearing and which, without any good reason, had granted adjournment after adjournment to my opponents; and after I had quoted that I got a great deal more expedition. So I hope that that is something which will remain.

3.55 p.m.

THE LORD CHANCELLOR

My Lords, I am very grateful to the noble Lords who have welcomed this Bill. The noble Viscount, Lord Colville of Culross, referred to the legislation regarding the Forest of Dean. I have no doubt that one of the principal tasks of the Joint Committee will be to ascertain from the Law Commission exactly whom they did consult on the different classes of enactments. With regard to the Sunday observance laws, I would respectfully agree with what the right reverend Prelate the Bishop of Norwich has said. What we can and cannot do on Sunday to-day is, in substance, governed by Acts of a more recent date than those proposed for repeal. The old ones were not repealed but they have, in effect, been superseded by the most recent Acts.

The Joint Committee will, I have no doubt, read everything which noble Lords have said here to-day. The principle of the Bill having been accepted, the only effect of giving the Bill a Second Reading is to send it to the Joint Committee. One thing I can say, on behalf of the whole House, is that of course the noble Viscount was quite right in saying that there is nothing in the Bill to stop either House taking any course with this Bill it thinks fit after it has come from the Joint Committee. The only effect, therefore, of giving the Bill a Second Reading is that the House will be in a very much better position to consider the details of this legislation than it would be if it attempted to do so without the Joint Committee's assistance. I am quite sure that the whole House is greatly indebted to the Joint Committee for the labours which they are about to undertake.

On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.