§ 6.5 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, I 275 beg to move that the House do now resolve itself into Committee on Recommitment on this Bill.
§ Moved, That the House do now resolve itself into Committee on Recommitment.—(Lord Kirkhill.)
§ Lord SIMON of GLAISDALE
My Lords, before your Lordships' voices are collected on that question, may I say a word as Chairman of the Joint Select Committee on Consolidation Bills. There is one matter relating to this Bill that ought to be drawn to the attention of your Lordships. Your Lordships know that there is universal pressure nowadays to press on with the process of consolidation as an assistance to the rule of law so that persons can find their way about the Statute Book more easily than they do at present.
The essence of the procedure is that the House of Commons by its Standing Orders forgoes discussion on the merits of the measure—I say that because I view the presence here of my noble friend Lord Boothby with some alarm—and refer the Consolidation Bill, after a formal Second Reading, to a Joint Committee of both Houses who go through the Bill line by line primarily to ensure that it does not alter, in so far as it is pure consolidation, the enacted law as pre-existing. If the Committee have done their job properly there ought to be very little call for amendment of a Bill as reported. There are some exceptions to that. Occasionally the Committee suggest a possible improvement to the form of the Bill and leave it to the draftsmen to consider how that should be done and to propose the necessary Amendment at recommittal stage in order to avoid the dangers of instant drafting in Committee. All of the Amendments which are on the Marshalled List, except one, as to which I shall, if I may, say something shortly when we reach it, fall into that category. They are all purely drafting Amendments arising out of suggestions made by the Committee.
There is, however, one matter that I should draw to the attention of your Lordships. If noble Lords will look at the Bill they will see that it is shown, as reported by the Joint Committee, with Clause 4 consisting of two subsections and 276 a Clause 5 and a Clause 6. That was a mistake. The Bill as reported by the Committee consisted of three subsections in Clause 4. The Committee has amended Clause 4(2), and what is now Clause 5 was Clause 4(3). The Committee added a new clause after Clause 4 but that now appears as Clause 6. The draftsman divided Clause 4 into two parts. I do not think he is really to be greatly blamed for that. It is undoubtedly an improvement in the Bill and I do not doubt at all that if the Committee had been asked to accede to that it would have done so.
On the other hand, I think it should be clearly established that it is only by order of one of the Houses of Parliament, or its appropriate committee or joint committee, that a clause in a Bill can be severed. The reason for that is that the severance may affect the interpretation of the measure and the question is now, what should be done about that? By a misfortune the letter which the draftsman wrote to me about the Amendment which he wished to make at this stage miscarried, so that I did not see the Bill as it had been wrongly printed until the Amendments proposed were already on the Marshalled List. If your Lordships chose to be sticklers, I do not doubt that you would be fully entitled to send the Bill back for reprinting; but that would be an extremely expensive course and I think it would mean that the Bill would be lost to this Session, and it is in fact the only Scottish consolidation measure of this Session.
So my respectful advice to your Lordships is to make clear that this is not a precedent and to accept the Bill as it is printed. I have tried to seek what advice I can on that matter. I know that the noble and learned Lord on the Woolsack agrees with that. The noble Lord, Lord Janner, intended to be present but this business has come on rather earlier than he expected. He is the longest serving Member of the Committee, taking his service from both Houses into account. I know that he approves. I have been able to consult the noble Lord, Lord Wigoder, and he approves. I have also managed to consult the longest serving member on the Committee who is at present in the House of Commons, and he approves. So I hope your Lordships will agree that that is the right course to take.
§ 6.13 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, may I from this position say that the noble and learned Lord, Lord Simon of Glaisdale, mentioned this matter to me at an earlier stage. He has applied his highly expert mind to this matter and is of the opinion that the House would be well advised to proceed, in spite of a certain procedural defect. I entirely agree with him, and I hope we may now proceed to the Committee stage of this Bill.
§ Lord BOOTHBY
My Lords, I rise to say that I entirely agree with the noble and learned Lord, Lord Simon of Glaisdale, and that he need feel no cause for alarm so far as I am concerned. I wanted to move an Amendment to Clause 7 but I was advised that it would be out of order in a consolidation Bill. I accepted that advice, much against my will, and did not move any Amendment, and do not propose to do so. All I would ask the noble Lord who is to reply is that before we pass this Bill he should give me an assurance that the Government will give serious consideration, or at least take note of the Question which I put to your Lordships' House on 8th October, 1976, and in particular to the two subsequent questions put by the noble and learned Lord, Lord Wilson of Langside, who as a former Lord Advocate commands great authority in your Lordships' House.
Lord CAMPBELL of CROY
My Lords, before the Minister replies may I say that for my part, and speaking from these Benches, I see no objection to the procedure proposed. The noble and learned Lord, Lord Simon of Glaisdale, has explained how it has come to pass that a clause has been split, and certainly I would not be in favour of the Bill being rejected at this stage and having to be reprinted. But arising from what the noble Lord, Lord Boothby, has just said, may I ask, not on the substance of the Bill but just as a matter of practice, whether the Government would normally expect a consolidation Bill to include not only all the law as it stands in Scotland at present, which is expected to continue, but also any law which it is expected in the foreseeable or near future might be altered?
§ Lord KIRKHILL
My Lords, I did not intend to intervene at this point at all. I though that as we proceeded through the Amendments the noble Lord, Lord Boothby, might raise the point which he mentioned.
§ The LORD CHANCELLOR
My Lords, I am not sure whether there is going to be any answer to the noble Lord's question.
§ Lord KIRKHILL
My Lords, if we are drifting into this position I can certainly advise the noble Lord, Lord Campbell of Croy, that consolidation is often a prelude to reform; but of course the consolidation must precede the reform, and if it facilitates the business of your Lordships' House I can assure the noble Lord, Lord Boothby, that the Government have taken careful note of the point he made in his Question last Friday, as indeed they have of the points additionally made by other noble Lords.
§ House in Committee on Recommitment accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 [Procuring]:
§ 6.18 p.m.
Lord KIRKHILL moved Amendment No. 1:
Page 1, line 6, leave out from ("any") to ("to") and insert ("woman under 21 years of age or girl").
§ The noble Lord said: This is a drafting Amendment which arises out of the examination of the Bill by the Joint Committee on Consolidation Bills. It brings the wording of paragraph (a) of Clause 1 into line with the wording of paragraphs (b), (c) and (d) of the clause. I beg to move.
§ Clause 1, as amended, agreed to.
§ Clauses 2 and 3 agreed to.
§ Clause 4 [Intercourse with girl between 13 and 16]:
§ 6.19 p.m.
§ Lord KIRKHILL moved Amendment No. 2:
§ Page 2, line 40, leave out from ("1885") to ("with") in line 41 and insert—279
("(the provisions replaced for Scotland by subsection (1) above and section 10(1) of this Act); or
(iii) section 6 of the Sexual Offences Act 1956 (the provision for England and Wales corresponding to subsection (1) above), or").
§ The noble Lord said: This is a drafting Amendment arising out of the examination of the Bill by the Joint Committee on Consolidation Bills. It makes it clear that Sections 5 and 6 of the 1885 Act arc replaced by Clause 4(1) and Clause 10(1) of the Bill, and that Section 6 of the 1956 Act is the provision for England and Wales equivalent to Clause 4(1). I beg to move.
§ Clause 4, as amended, agreed to.
§ Clauses 5 to 7 agreed to.
§ Clause 8 [Abduction of girl under 18 with intent to have sexual intercourse]:
§ 6.20 p.m.
Lord KIRKHILL moved Amendment No. 3:
Page 3, line 30, leave out ("if it shall be made to appear to the court or jury").
§ The noble Lord said: This Amendment arises from a suggestion made after the Joint Committee hearing.
§ It brings the statement of the defence of reasonable cause to believe that a girl was of a certain age into line with the form in which similar defences under Clauses 4, 6 and 10 are already set out. I am advised that this Amendment does not make any change in the law since the defence in question cannot be upheld unless it appears to the court or jury that, on a balance of probability, the defence has been made out. The onus of proving the substantive charge nevertheless remains on the Crown.
§ Lord SIMON of GLAISDALE
This Amendment as proposed by the Government arises out of a suggestion I made to the draftsman, but I omitted to make in Committee, that he should reconsider these words. The words as printed in the Bill do no more than reproduce the existing law, but once that provision is consolidated, the terminology appears in odd contrast with Clauses 4, 6 and 10, 280 and I think will raise a question as to whether the difference in terminology was intentional, and might affect the onus of proof. On thinking it over, the draftsman thought the words that are proposed to be left out are unnecessary. I venture to agree with him, and, therefore, I would support the Amendment.
§ Clause 8, as amended, agreed to.
§ Clause 9 agreed to.
§ Clause 10 [Permitting girl to use premises for intercourse]:
Lord KIRKHILL moved Amendment No. 4:
Page 4, line 36, after ("1885") insert ("(the provisions replaced for Scotland by section 4(1) of this Act and subsection (1) above)").
§ The noble Lord said: I beg to move Amendment No. 4. This also arises from the examination of the Bill by the Joint Committee. The words to be added make it clear that Sections 5 and 6 of the 1885 Act are replaced by Clause 4(1) and Clause 10(1).
§ Clause 10, as amended, agreed to.
§ Clauses 11 and 12 agreed to.
§ Clause 13 [Proceedings against brothel keeper, etc.]:
Lord KIRKHILL moved Amendment No. 5:
Page 6, line 41, leave out from ("1885") to ("any") in line 42 and insert ("(the provision replaced for Scotland by subsection (1) above) or under sections 33, 34, 35 or 36 of the Sexual Offences Act 1956 (the corresponding provisions for England and Wales) as well as").
§ The noble Lord said: I beg to move Amendment No. 5. This Amendment, like most of the others, arises from the examination of the Bill by the Joint Committee. It makes it clear that Section 13 of the 1885 Act is replaced by Clause 13(1), and that the Sections of the 1956 Act referred to are the corresponding provisions for England and Wales.281
§ Clause 13, as amended, agreed to.
§ Remaining clauses and the Schedules agreed to.
§ House resumed: Bill reported with the Amendments.