Examination of Witnesses (Questions 40-59)
1 MARCH 2004
Mr John Saunders, Ms Elizabeth McElhinney and Mrs
Susan Sutherland examined
Q40 Chairman: Do I understand Part 5 deals
with defunct bodies across the whole range?
Ms McElhinney: Yes. We have 20 groups. The defunct
bodies are in groups listing alphabetically the subject matter
for which the body is concerned. Unless you have a particular
question I do not propose to deal with each group.
Q41 Sir Patrick Cormack: Yes, I do have
a question. I am slightly concerned about what has just been said
because here we have the product of many years' labour and we
are told that sections 202 to 208 should go and then we are told
that after further consultation or after consultation with the
Department for Education and Skills they are still relevant. Who
decided that they were not relevant? Was the Department for Education
and Skills consulted and did it at one stage say "No, we
do not want these" and did it change its mind? How did this
come about? It is strange.
Ms McElhinney: There was consultation with the
Department and an initial view was reached that these provisions
were not required.
Q42 Sir Patrick Cormack: Right.
Ms McElhinney: But I think because of new provisions
a subsection was needed which could be used for interpretation
purposes and therefore en bloc it was easier to retain
these provisions for the time being. It was technically very messy
drafting. There was the knock on effect for keeping the subsection.
That was the result but there was consultation.
Q43 Chairman: It was after a change of mind
by the Department?
Ms McElhinney: Yes.
Q44 Lord Campbell of Alloway: Can I ask,
my Lord Chairman, what is the case for retention against the case
for removal? What is this all about?
Ms McElhinney: I am sorry, I cannot hear.
Q45 Lord Campbell of Alloway: It is a silly
question really. What is the case for retention? What is the case
for removal? What on earth is all this about? I do not understand
what is happening.
Ms McElhinney: In this particular amendment?
Q46 Lord Campbell of Alloway: Yes.
Ms McElhinney: Basically these provisions are
being kept for the time being.
Q47 Lord Campbell of Alloway: Why?
Ms McElhinney: Because the subsection is necessary
for use with other powers that the Department wants to retain.
Q48 Lord Campbell of Alloway: For what purpose?
Ms McElhinney: Interpretative purposes, as a
power in the subsection is needed.
Q49 Lord Campbell of Alloway: What is the
purpose? What is it all about?
Ms McElhinney: The actual subsection?
Q50 Lord Campbell of Alloway: Yes. Why is
the power being retained and not removed?
Ms McElhinney: It was a power for a regulator
to go into the universities, I think, and it is deemed necessary
because it is being used for other educational purposes.
Lord Campbell of Alloway:
Thank you very much.
Chairman: Are there any more questions
on Part 5?
Q51 Mr Steen: How do these particular education
amendments arise? Do they arise because the three of you, like
three wise men, are studying these acts day and night and seeing
whether they make sense or is it because you are the wastepaper
basket, in effect, of the departments who alert you to bits of
legislation which they feel need to be repealed?
Ms McElhinney: It is a mixture.
Mr Saunders: For the most part all the repeals
are found by the three wise people but with some help from departments
where they suggest their own candidates. For the most part we
do the research ourselves, topic by topic.
Q52 Lord Christopher: When will we tackle
the amendments?
Mr Saunders: In our next Bill.
Q53 Chairman: The question is Amendments
1 to 4 be agreed to en bloc? As many as are of that opinion
will say "content", the contrary, "not content",
the contents have it. (The same is agreed) Part 6, ecclesiastical?
Mr Saunders: The repeals in this part relate
to aspects of church law concerning the Church of England and
the Church in Wales. They include obsolete legislation covering
such matters as the constitution of the churches, the clergy themselves
and church property. Both the Church of England and the Church
in Wales have been fully consulted and are content with the proposals.
Q54 Lord Razzall: Could I just make a point
on this section, not an area that I am known for my expertise
in so I will apologise in advance for my ignorance. Looking at
pages 342, 343, 344 and 345 of the red book, I did find absolutely
fascinating the concept of the Parochial Libraries Act 1708.
Mr Saunders: Yes.
Lord Razzall: My question is why are
we not abolishing the whole of this piece of legislation? Given
that I come from a proposition that actually we ought to clear
the statute book of anything that is redundant I particularly
wonder why section 2, referred to on page 343, the action of trover
and conversion with a special remedy of treble damages for removing
a book from a Parochial Library is being retained and I would
wonder—and I would hazard a guess—that the number
of prosecutions or rather actions of trover and conversion with
a special remedy of treble damages since 1708 has been probably
somewhat limited. Secondly, and these are only by way of example,
I do actually wonder on paragraph 11 on page 344 why we are having
a saving provision to ensure that the 1708 Act does not apply
to Reigate Public Library! Now given that we are trying to clear
redundant measures from the statute book I do find it quite extraordinary
why this whole thing is not being totally removed?
Sir Patrick Cormack: In the intermission
I did raise that with the witnesses. I would like to associate
myself with those remarks. I would also like to question the premise
because it says "Much of the underlying purpose of the 1708
Act is now obsolete by virtue of the establishment of theological
colleges and other institutions to instruct and train the modern
clergy." I think the days of the scholar parson sadly have
gone. I would keep the whole lot.
Lord Razzall: We either keep the whole
lot or abolish the whole lot.
Sir Patrick Cormack: Absolutely.
Lord Phillips of Sudbury: If I could
interject, my Lord Chairman, as the only defendant of the Parochial
Libraries Act, it is alive and well in South Suffolk.
Lord Razzall: If I may say, that is another
reason for abolishing it.
Lord Phillips of Sudbury: No, seriously,
there are a number of libraries which are still subject to this
legislation and it is actually needed.
Q55 Chairman: The repeal is only to a certain
extent?
Mr Saunders: Yes.
Lord Razzall: If I can just follow up
on that, my Lord Chairman. Why is it that if I go into Balliol
library and steal a book that I am subject to criminal punishment
whereas if I go into Andrew Phillips' parochial library in his
parish in South Suffolk I am subject to an action of trover and
conversion with a special remedy of treble damages? It seems to
me to be entirely illogical. Indeed, if they are alive and well
in South Suffolk why are they not to be alive and well in Reigate?
Lord Phillips of Sudbury:
Could I interrupt again and say that one of the problems with
these parochial libraries is that they were ravaged because they
did not have any staff looking after them, unlike Balliol and
other collegiate libraries they are literally open to be ransacked
and have been over the years, many of them, tragically.
Lord Razzall: Like the
National Liberal Club!
Q56 Lord Phillips of Sudbury: So the reason
they have got this special heavy penalty is to deter the public
from taking advantage of them.
Mr Saunders: All I would say on this topic is
that we are dealing with ecclesiastical law and special Acts dealing
with church property. The repeals being put forward are those
which the church are happy with.
Q57 Lord Razzall: But not the others?
Mr Saunders: The others are believed to be of
value still. If the Church is not content to agree to the repeals
in this Bill we would have no option but to go along with their
views.
Q58 Lord Razzall: I understand that.
Mr Saunders: Just because an Act is as old as
the Parochial Libraries Act of course does not mean that it is
obsolete. I think the whole of property law in this country is
based upon the Quia Emptores Act of 1290, and that is not
an Act we can repeal.
Lord Razzall: I understand
the point that the commissioners do not want to accept any locums.
Q59 Chairman: They have all been positively
consented to by the bodies concerned?
Mr Saunders: Yes.
Chairman: Are there any other points
on Part 6, ecclesiastical?
Sir Patrick Cormack: I would still like
to know about Reigate.
Chairman: Perhaps somebody would write
to Sir Patrick about Reigate.
Lord Razzall: Can I have a copy of the
letter as well.
Lord Christopher: Consult Crispin Blunt!
Chairman: Part 7 education, anything
on that? Part 8, employment, any points?
Lord Razzall: The only
point I would make on employment, my Lord Chairman, we do have
a whole series of Employment Relations Acts which keep coming
through the two Houses and presumably this would be an open issue.
It may well be that following the next round of Employment Relations
legislation we are going to have to have some more repeals. One
of the complications for any practitioner in Employment Relations
law is the constant cross-referencing to previous pieces of legislation.
I do hope that the Commission will keep that under review. It
is a complicated issue for practitioners.
Chairman: It comes back
to Lord Brightman's point about consolidation being a very desirable
thing.
Lord Razzall: Exactly.
Chairman: Part 9, finance,
any questions there? Part 10, local government? Part 11, pensions.
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