HL Deb 20 May 1969 vol 302 cc311-8

3.11 p.m.

THE LORD CHANCELLOR (LORD GARDINER) rose to move, That it is desirable that, in the present Session, all Bills prepared by one or both of the Law Commissions to promote the reform of the Statute Law by the repeal, in accordance with Law Commission recommendations, 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, together with any Law Commission report on any such Bill, be referred to the Joint Committee on Consolidation Bills; and that, on any such Bill, the Joint Committee do report whether the enactments proposed for repeal in the Bill ought to be repealed on the ground that they are no longer of practical utility, and do make such other report as they may think fit.

The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I think that the English legal system is probably the best legal system in the world. Of course, like all legal systems, it has its better points and its worse points. Its best point, perhaps, lies in the integrity and ability of the Judges and its worst point in the form of its law. So far as Statute Law is concerned, as your Lordships know, I have been very concerned about its size. In its first programme, the Law Commission pointed out that there were only two ways in which we could deal with the size of the Statute Book. The first is by Statute Law consolidation. It is evident that if we put five Acts dealing with one subject into one Act, it means not only that the one Act is a good deal shorter than the five Acts but also that we have reduced the total number of Statutes by four, and the resulting product makes the lives of those who use our Statute Law considerably simpler.

As your Lordships know, we have found how very convenient it is to refer these consolidation Bills to the Joint Committee on Consolidation Bills. We now have four kinds of Bills referred to that Committee: first, pure consolidation Bills; secondly, consolidation Bills with minor corrections and improvements under the 1949 Act, and thirdly, consolidation Bills with Amendments proposed by the Law Commission. There is also, your Lordships will remember, a fourth class of Bill which goes to the Joint Committee; these are Statute Law Revision Bills. I am not sure that that is a very apt name for them. They are simply Bills which repeal a number of Acts. Right back in their first programme the Law Commission pointed out in relation to the Statute Law revision clause that our great difficulty was that Bills cannot be repealed unless it can be shown that they are technically obsolete. This, they thought, was far too narrow a test. They thought that the test ought to be: Does it do anybody any good to keep this Act on the Statute Book? Is it of any practical utility?

The purpose of the Motion which I am moving is to create a fifth class of Bill which would go to the Joint Committee, because if we are to have Bills which repeal existing Statutes on the footing that I have suggested—namely, whether or not they are of any practical utility—then I am sure, having consulted the Opposition and other noble Lords interested, that it would be a great advantage to both Houses if our very experienced Joint Committee on Consolidation Bills could look into such Bills.

Your Lordships may say: "If that appeared in the first programme of the Law Commission, why have you not introduced such a Motion before?". The answer to that question is that I have not had a Bill before to which the Motion could have applied. If it is then said: "Why have you not had such a Bill before? "the answer is that the Law Commission have not been able to make available members of their legal staff with the requisite expertise. But they have now, and have had for some little time, two of their legal staff dealing with nothing else. The Bill which I introduced last week was, therefore, the first product. I cannot move the Second Reading of that Bill unless and until the other House passes a similar Resolution to that which is now before your Lordships' House, and, therefore, I do not propose to go in detail through the Bill. But it may interest your Lordships if I say that it is a Bill which would repeal the whole or parts of 206 different Acts of Parliament, starting in 1275. They are divided into seven groups: first, constitutional enactments; secondly, ecclesiastical; thirdly, law of property; fourthly, Sunday observance; fifthly, hallmarking; sixthly, enactments relating to the Commonwealth, and seventhly, miscellaneous.

I need hardly say that, in their usual way, the Law Commission have consulted everybody who they think could possibly be interested in the retaining of any of these Acts on the Statute Book. In regard to the ecclesiastical Statutes, for example, the most reverend Primate has been most kind in setting up a Committee to advise the Law Commission. Of course, on some grounds there are some Statutes of which sentimentally we may regret the passing, like the Act of the Attainder of Several Persons Guilty of the Horrid Murder of His Late Sacred Majesty King Charles I.

I notice that some of the newspapers which have been examining the Bill have expressed some surprise at the repeal of parts of Magna Carta. Originally, there were 37 Articles in Magna Carta, and 27 of them have already been repealed. We are not, of course, going to repeal the famous Article 29, which deals with the liberties of the people of England, or Article 9, which preserves the rights and privileges of cities, boroughs and towns. Those which it is suggested should be repealed relate only to obsolete aspects of widowhood and dower, the relationship between the Crown and its debtors, the making of bridges, the obstruction of rivers and putting down of weirs, and the treatment of foreign merchants in times of war and peace, which are enactments which have been effectively superseded by subsequent and more modern enactments.

Part of the trouble is that there have been times in which laws have been made and Acts have been passed by Parliament saying that this is to be the law not-withstanding any previous enactments to the contrary, but they did not actually repeal the previous enactments. So included is the Statute of Winchester, which forbids the holding of fairs and markets in churchyards; the 16th century Clergy Marriage Acts, which first made it lawful for clergy in this country to marry; part of the Act of Uniformity 1551, which makes it an offence punishable by ecclesiastical process for anyone not to go to church every Sunday and on Feast Days. No doubt there will be others which we shall miss, like the Act prohibiting common night walkers in the universities; but they would all be there, they would all remain part of our history; they would all be on the shelves of our law libraries in the volumes of the era in which they were passed. We shall make no headway with our Statute Book if we cannot begin now to get rid of a large number of Statutes which, however long they have been there—whether technically obsolete or not—do not serve any useful purpose remaining there.

Your Lordships will know that about every twenty years we have to reprint in some form or other the Statutes at Large, which of course must contain all the Acts which are now in force; and so we have gone on and on repeating all these old Acts in each edition. Obviously, there would be very great savings, as well as being good sense, if we could end that practice. I am told by the Law Commission that if the House can deal with this Bill this Session they will hope to have an equal sized Bill dealing with other fields next Session. There is, for example, a vast army of Acts on the Statute Book dealing with the laws of the forests.

Finally, your Lordships will notice that there is nothing in this Resolution limiting either House in any way from doing anything they like with this Bill. If the Joint Committee will be good enough to examine it, and report to us, it will then be open to either House to accept or to reject the Report, or do anything they like with the Bill, as they can with any other Bill. This, I hope, is a start, at long last, towards getting rid from our Statute Book of a lot of "junk" which has been there for such a long time. I beg to move.

Moved, That it is desirable that, in the present Session, all Bills prepared by one or both of the Law Commissions to promote the reform of the Statute Law by the repeal, in accordance with Law Commission recommendations, 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, together with any Law Commission report on any such Bill, be referred to the Joint Committee on Consolidation Bills; and that, on any such Bill, the Joint Committee do report whether the enactments proposed for repeal in the Bill ought to be repealed on the ground that they are no longer of practical utility, and do make such other report as they may think fit.—(The Lord Chancellor.)

3.23 p.m.

LORD BROOKE OF CUMNOR

My Lords, on behalf of my noble friends, I should like to welcome the Motion. I am not a lawyer. The noble and learned Lord the Lord Chancellor indicated to your Lordships it would be advantageous to lawyers if the law was simplified. We who pay the lawyers have always imagined differently. Undoubtedly to those of us who are laymen in the law it would often be of considerable advantage if the law was both shortened and simplified. Therefore, I feel that it is likely there will be a unanimous welcome for this Motion. I would not venture to express any view on the merits or demerits of the many Acts it is proposed to repeal, but I suggest that we can confidently leave it to the Joint Committee to examine them carefully, and then we will know in due course the outcome of their proceedings.

LORD STRATHCLYDE

My Lords, in his Motion the noble and learned Lord the Lord Chancellor talks of one or both Law Commissions. Are there two Law Commissions dealing with the English law?

THE LORD CHANCELLOR

My Lords, there are two Law Commissions. There is the Law Commission which sees to the law of England and Wales, and there is the Scottish Law Commission. It may be that at some future date both Law Commissions will want to present such a Bill. Maybe—as in this case—it is a Bill presented by the main Law Commission, but after consulting the Scottish Law Commission. Or it may be that it will be a purely Scottish Bill brought forward by the Scottish Law Commission, and repealing only Scottish Acts.

LORD STRATHCLYDE

My Lords, the noble and learned Lord will forgive me for asking the question, but in his very interesting remarks he made no mention of Scotland. The noble Lord said that the English law was the best in the world. I respectfully say to him that there are some people who believe that in fact the Scottish law is even superior.

SEVERAL NOBLE LORDS

Hear, hear!

LORD LEATHERLAND

My Lords, with that very deep respect which I always hold for the Lord Chancellor, may I direct his attention to a word which he used in his closing sentence? I do so in the interest of historians in the future. He used the word "junk", and he used it in a context which seemed to indicate that it might have included, among other things, Magna Carta. I should not like historians in the future to say that "Lord Chancellor Gardiner was the man who said that Magna Carta was junk". Perhaps he can therefore amend his closing sentence, in order to vindicate that ancient enactment.

LORD DRUMALBYN

My Lords, before the noble and learned Lord the Lord Chancellor replies on that point, may I just ask one question, arising out of the Motion itself. The Motion says: … that it is desirable that, in the present Session, all Bills prepared by one or both of the Law Commissions to promote the reform of the Statute Law by … and by making other provision in connection with the repeal of those enactments … I do not know whether there is any wide significance in those words and whether they will go so far as provision in substitution for or in lieu of any provisions in those enactments. I should just like to be quite clear exactly what we are being asked to approve in this Motion: whether we really are dealing only with the repeal of out-of-date legislation. I find it difficult to see what else is involved besides the repeal, and what these words can really mean. I should be grateful if the Lord Chancellor could help us with that.

THE LORD CHANCELLOR

My Lords, may I first withdraw the word "junk" and substitute the words, "Acts which are not to-day really of practical utility". The answer to the question put by the noble Lord, Lord Drumalbyn, is, as the Title of the Bill shows, that some parts of some Acts are expressly preserved in the first five clauses of the Bill, and indeed in the words "(except in so far as their effect is preserved)". That is intended to relate to these clauses. What the Law Commission have done is to take a particular subject, such as advowsons, and they find that it is almost all out of date, or is covered by later Acts. Then they find that there is some piece, somewhere in some Act, which ought to be left but that it is obscurely worded. Such pieces are reproduced in one of the opening clauses. These matters include advowsons, rentcharges under the Copy-hold Act, inclosure of common land and savings of one kind or another. What they have done in those cases is to state very shortly what would have been left, putting it in modern form.

On Question, Motion agreed to: Ordered, That a Message be sent to the Commons to acquaint them therewith and to desire their concurrence.

House adjourned at twenty-eight minutes past three o'clock.