Examination of Witnesses (Questions 60-79)
1 MARCH 2004
Mr John Saunders, Ms Elizabeth McElhinney and Mrs
Susan Sutherland examined
Q60 Mr Burnett: Presumably there is no-one
there to benefit, if benefit there was, from the Judges Pensions
(India and Burma) Act 1948?
Mr Saunders: All known recipients have now died.
Q61 Mr Burnett: Can I add a supplementary
to that because I think it used to be a quirk of being in the
Indian civil service that one's unmarried daughters could benefit
from a pension. Were there any provisions similar to that in the
Judges Pensions (India and Burma) Act?
Mr Saunders: Sadly the pensions died with the
judge under that Act.
Mr Burnett: I am grateful
for that bit of clarification.
Q62 Chairman: All recipients have died?
Mr Saunders: Yes.
Sir Patrick Cormack: No
judges any more.
Mr Burnett: They have
all died, and their daughters, but they did not have any!
Sir Patrick Cormack: Why
has the Honourable Lady Hylton-Foster's Annuity Act been repealed?
Lord Brightman: She is
dead.
Q63 Chairman: A lot of acts with attractive
titles are biting the dust: Queen Anne's Bounty.
Mr Saunders: Yes.
Chairman: Part 12, property.
Q64 Mr Burnett: Could I make a mention about
the Settled Land Act point because Settled Land Act settlements
cannot now be created, I believe, since the Trustee Act came into
force. I should have had a chance to look at the repeals but,
of course, existing Settled Land Act settlements do continue and
are subject to the Settled Land Act. Could you just explain to
us the extent of the repeals and why they could not now be relevant?
Ms McElhinney: The repeals are dealing with
examples of instruments that were needed at the time in 1925 when
property lawyers at that point in time were dealing with the concept
of settlements. That requirement is no longer necessary. This
is not a new regime that is now in place. Existing settlements,
as you say, are not affected. They do not need instruments to
show them how to deal with this matter, there are plenty of other
precedents.
Chairman: Any other comments or questions
on Part 12? Part 13, public health, any questions there? Part
14, road traffic.
Q65 Viscount Colville of Culross: I have
two questions on this. They are very obscure. In the smaller red
book, paragraph 14.4, we deal with section 47 of the London Hackney
Carriages Act 1843 which has already been repealed once. It is
said that nobody is happy that it has been effectively repealed.
Now the repeal took place as a result of the Public Authorities
Protection Act 1893 and it is one of the pieces of legislation
which was repealed by the Schedule to that Act. There are however
12½ pages of other acts which were reported to have been
repealed, what has happened to them? Is there still doubt about
them or is it only section 47 which has caused trouble? That is
my first question, perhaps I can go on to the second one. It is
about not giving the name and address of the person who rides
a bicycle. Now I can quite see that bicycles do not have registration
numbers but you can do a great deal of damage to other people
if you ride your bicycle furiously, and I speak as a cyclist,
though I have never done it. Nowadays bicycles are in fact marked,
or sensible owners mark them and I wonder whether in fact section
232 of the Road Traffic Act ought to be repealed because it may
be if you have had a bicycle abandoned at the scene of the accident
you can find out whose it is because it says so on it but nevertheless
if you repeal this particular provision you will not be able to
get the owner to say who was riding it on that particular day.
Now that was what I thought when I read the small red book, I
am not so sure that I still think it now I have read the big red
book. They do not seem to say the same things. I would be grateful
for clarification on that point.
Mr Saunders: On the first point, section 47
of the London Hackney Carriages Act of 1843, there is doubt as
to that repeal, though to my mind I do not think there is much
doubt because it has been repealed expressly but some editors
record it as being in force. I think there is a point about interpretation
of the repealing enactment. So to put the matter beyond doubt
we have expressly repealed it in this Act.
Q66 Viscount Colville of Culross: My Lord
Chairman, I understand this but it has already been repealed once.
It is one of 12½ pages of repeals, all of which go to the
same point which is jurisdiction and the place where the case
can be heard. Now if there is something wrong with the attempt
to repeal this in 1893, what has happened to all the other repeals
which are reported to have taken place? There are numbers of them.
Mr Saunders: I think the editors of text books
have not found the same doubt with the other 12½ pages. It
is this particular section which they record as still being valid.
This is, with an abundance of caution, being repealed.
Chairman: So I understand it, if there
is a doubt about this one, why is there a doubt about this particular
one and not about the other sections?
Q67 Viscount Colville of Culross: That is
what I am saying.
Mr Saunders: I do not know the answer to that,
my Lord Chairman. I have not seen any doubts expressed as to the
others. It was this particular one, which appears on databases
and in editorial texts, this particular section which was questionable.
So to put the point beyond doubt we have double repealed it, if
you like, nailed the corpse.
Q68 Viscount Colville of Culross: My Lord
chairman, I am extremely unhappy about this. It is all very well
having the learned text book writers guide us but if they are
going to be definitive so that we have to have a double repeal,
it seems to me that it is a very unsatisfactory system. I would
have thought this ought to be left out because it has been repealed
once already and if we repeal it again the difficulty is then
going to arise that another text writer is going to ignore the
acts in the 12½ pages and say "Perhaps that one has
not been repealed properly either so we will say that it is revived
and it was not repealed in 2004 like section 47". So there
is still the jurisdictional point in existence. I do find this
is an unsatisfactory approach.
Mr Saunders: I think the answer to that is that
anyone looking at the second repeal would have access to this
report and would be able to see why it was done. It will not cast
doubt on any other repeals. There can be no harm at all in nailing
this particular repeal.
Viscount Colville of Culross: I will
have one more go, if I may, my Lord Chairman, very quickly. Yes,
they have got access to the report and they will see the text
book writers have said that they are not sure that this has been
repealed. If somebody wishes to challenge the repeal of some of
the others, they may or may not be able to bring forward the text
book writers but they can still argue on the same basis that text
book writers have done in this case in which case it will never
be repealed. It throws doubt upon all repeals in the 1893 Act.
Q69 Chairman: I wonder if you would like
to think about this and perhaps write to Viscount Colville about
it. The point, if I may say so, has force in what is said and
maybe you should reflect and think whether it is wise repeal?
Mr Saunders: Indeed. What could be done of course.
If there is a point here—and I am not aware of it—in
our next Bill we could do the same with any other repeals where
there may be some doubt. But I am reluctant to make an undertaking
about that. I will examine the point, certainly, after this hearing.
Q70 Viscount Colville of Culross: Thank
you. Bicycles?
Mr Saunders: The Road Traffic Act 1960?
Q71 Viscount Colville of Culross: Section
232, the offence of failing to give information about the person
who was riding it. If you can find out whose it is, at the present
moment, I understood it to be an offence but that was before I
read the green book. I do not think it is about that at all. I
can see what this is intended to achieve.
Mr Saunders: It appears to be an obsolete reference
to persons riding unmotorised bicycles or tricycles. Again, my
Lord Chairman, I have not got the point in my head but I am perfectly
willing to write.
Chairman: It is page 673
of the volume.
Viscount Colville of Culross:
That is right, of the green volume. That does not say the same
as paragraph 14.17 of the smaller volume.
Lord Campbell of Alloway:
My Lord Chairman, it is far from plain why we are doing this repeal
and what we are achieving. It has been said that somebody could
find out by looking at what we have done but I do not think at
the moment I understand exactly what we are doing and why.
Chairman: I think that
is a point on which I will ask Mr Saunders to write.
Lord Campbell of Alloway:
Yes.
Q72 Viscount Colville of Culross: I am very
happy to have an explanation but we started off with 14.17 in
the small book, now we have got an explanation which says that
actually section 232(2) has only got an application to things
which are listed at the bottom of page 673 and presumably cannot
apply to people who ride bicycles. If that is the case why were
we not told that in the first place?
Mr Saunders: My Lord Chairman, I have now had
a chance to look at the papers and section 232(2) is dealing with
motor vehicles, goods vehicles and passenger vehicles. Clearly
it has no relation whatever to somebody riding a motorised bicycle
or tricycle.
Viscount Colville of Culross:
I understand my Lord Chairman, I do not want to spend any further
time on it. What has happened, I think, is that section 232 has
already been very substantially reduced in extent by other legislation
and all that is left of it now is what is at the bottom of 673.
If it had had the effect which we were originally told then I
would have thought it was unwise to repeal it.
Chairman: I understand
what you are saying.
Q73 Viscount Colville of Culross: If it
could just be confirmed that is all that has happened and that
is what is left.
Mr Saunders: There is no difficulty at all in
covering that point.
Mr Burnett: Do these letters
get circulated, my Lord Chairman, to every Member of the Committee?
Q74 Chairman: I think that would be desirable.
Mr Saunders: I will write to the Clerk of the
Committee.
Mr Burnett: Thank you.
Chairman: Any other points
on the transport section? Part 15, Scottish Acts?
Q75 David Cairns: I have a few questions.
These repeals relate to obviously the Scottish Acts which still
fall within the powers of Westminster under the Scotland Act.
Who owns the obsolete Westminster Acts which fall within the devolved
parliament. Am I correct in assuming that is the Scottish Parliament
which now owns that legislation point?
Mr Saunders: The reserves?
Q76 David Cairns: No, these are reserves.
Those obsolete acts which apply only to Scotland which fall within
the devolved parliament in Scotland, even though they are Westminster
Bills from the 19th century they are now owned by the Scottish
Parliament, is that correct?
Mrs Sutherland: My Lord Chairman, the Scottish
Acts that are on devolved matters would be for the Scottish Parliament
to repeal and indeed the Scottish Law Commission is working at
the moment on one or two candidates for that.
Q77 David Cairns: So there is a parallel
process going on in Scotland?
Mrs Sutherland: To some extent, yes, there is,
although we concentrate on the work at the moment with the Law
Commission.
Q78 David Cairns: They are only dealing
with matters which have been devolved?
Mrs Sutherland: That is correct.
Q79 David Cairns: Not with UK legislation
which still affects Scotland?
Mrs Sutherland: That is correct.
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