Examination of Witnesses (Questions 80-90)
1 MARCH 2004
Mr John Saunders, Ms Elizabeth McElhinney and Mrs
Susan Sutherland examined
Q80 David Cairns: In the introduction Mr
Saunders said that they consulted with the Scottish Executive
and they were happy for this all to go through without recourse
to a Sewel motion?
Mrs Sutherland: Yes.
Q81 David Cairns: I am not quite sure what
the mechanism is then? This is for everything else apart from
Part 15, those bits of these acts which are UK acts which apply
to Scotland but have been devolved to the Scottish Parliament.
If we are effectively deleting bits of legislation which it is
really the provenance of the Scottish Parliament to delete in
so far as they apply to Scotland, how can they agree to that without
a Sewel motion?
Mrs Sutherland: My Lord Chairman, the guidance
on the Sewel Convention provides that the Parliament is quite
content for the Westminster Parliament to repeal Scottish devolved
provisions without any need for a Sewel motion.
Q82 Chairman: In the context of Statute
Law (Repeals) Bill?
Mrs Sutherland: That is the point. Yes, that
is correct, in the context of the Statute Law (Repeals) Bill.
Q83 David Cairns: Should somebody in the
Scottish Parliament object, what process would they have to object
to this? How can they say no to that? The whole process of Sewel
motions is very controversial in Scotland, different parties take
different views on it. Parties regularly get the opportunity when
there is new legislation to object to the way in which the Sewel
motion has been used positively in a sense. Here we have a de
facto negative Sewel motion, as I understand it, do they have
any recourse to objecting?
Mrs Sutherland: My Lord Chairman, Scottish Ministers
have indicated they are quite content for these repeals to go
ahead in this Bill but we must remember that this is not a policy
bill, it is purely obsolete legislation upon which we have consulted
extensively for Scottish interests. Therefore the Sewel motion
which is to protect the right of the Scottish Parliament to legislate
on devolved matters does not really come into play because this
is not a policy bill.
Q84 David Cairns: If we were deleting an
obsolete UK bill which has subsequently got issues which are devolved
to Scotland and the Scottish Parliament objected and still wanted
the original bits of the original 1894 Government Act or whatever
to apply in Scotland, how would they do that? If we are deleting
the Bill, how would it still apply in Scotland?
Mrs Sutherland: It would not have come to that
because we have consulted extensively. We have ensured throughout
the course of the project that we have consulted with the Scottish
Executive and the Scottish Ministers to make sure we only bring
forward repeals that in relation to Scottish devolved matters
they are content can go forward.
Q85 David Cairns: This is my last question.
Out of curiosity, did they object to any? Are there any you would
have put in here if they had said "We want that to still
apply"?
Mrs Sutherland: There were one or two provisions
I think which were deleted.
Mr Saunders: They were minor points, perhaps
on public health, to do with destruction of rats and other pests.
Yes, legislation relating to destruction of rats was thought to
be more useful in Scotland than in England and for that reason
it was kept in Scotland.
David Cairns: I will not
inflict a letter on the whole Committee on that.
Q86 Mr Burnett: On the mechanics of this,
where a matter has been devolved to the Scottish Parliament, the
British Parliament—we here at Westminster—can always,
can we, legislate on it?
Mrs Sutherland: My Lord Chairman, that is correct
because the United Kingdom Parliament has retained sovereignty
to legislate on all matters.
Mr Burnett: Just to make
that clear beyond all doubt.
Sir Patrick Cormack: We
have the power to abolish the Scottish Parliament tomorrow!
Chairman: As I understand
it, there is full legislative power but the Sewel Convention is
the convention as to the areas in which that power will be exercised.
As Mrs Sutherland says one of the agreed things is that the United
Kingdom Parliament should be able to deal with matters of statute
repeal of this kind, getting rid of redundant things in the UK
statute which apply in a devolved area in Scotland. That is one
of the agreed areas for Westminster they can confront without
the need for a Sewel motion. It is just as well to clarify that.
As far as I know this is the first time this Committee will have
dealt with this kind of legislation since devolution.
Sir Patrick Cormack: My
Lord Chairman, I have just had a message that there is to be a
vote in three minutes.
Chairman: Shall we see
if we can make some further progress?
Sir Patrick Cormack: We
have another day.
Chairman: Are there any
points on Part 16? Part 17, miscellaneous, no? If there are no
points to be raised then that would complete the whole of the
first Schedule and, with your permission, I will put the question
that Schedule 1 as amended be the first Schedule to the Bill.
As many as are of that opinion will say "content",
the contrary, "not content", the contents have it.
The same is agreed to
Q87 Lord Brightman: I was caught by the
rather charming entry at page 51, line 25, Carriers Act 1830:
"In section 1 of the Carriers Act 1830, after `or lace' insert
`(other than machine-made lace)'". I could not find the Carriers
Act 1830 in the preceding parts of the Bill so I wondered how
this could be a consequential or a connected provision?
Mr Saunders: It appears in Part 17 of the Bill,
Group 11, sub-group 4.
Chairman: Page 50, line
20.
Mr Burnett: Line 19.
Chairman: Page 50.
Lord Brightman: I beg
your pardon, I missed it. Thank you so much.
Chairman: We had better
adjourn for ten minutes.
The Committee suspended from 6.05 pm to 6.14 pm
for a division in the House of Commons
ON SCHEDULE 2
Q88Chairman: Can we start again. Schedule 2. Mr Saunders,
can you speak to Schedule 2?
Mr Saunders: Yes. In Schedule 2 the provisions
are necessary as a result of the repeals set out in Schedule 1.
Sometimes you find an Act you want to repeal has amended the effect
of the earlier Act or contains words or a definition that is relied
upon by a later Act. If you simply repeal the Act you punch a
hole in the other Act. Again, sometimes it is useful with an Act
containing only one or two provisions that still have any life
left in them, to repeal that Act and shift the surviving provisions
into another Act on the same subject matter which leaves the first
Act an empty shell which can be repealed. All these amendments
are as a direct consequence of what the Committee has already
approved in Schedule 1.
Chairman: Any points on that Schedule?
Can I put the question that Schedule 2 be the second Schedule
of the Bill? As many as are of that opinion will say "content",
the contrary, "not content", the contents have it.
The same is agreed to
ON CLAUSES 1 TO 3
Chairman: We come now
to the clauses in the Bill, 1 to 3, I think. There are points
to be raised. Lord Brightman?
Lord Brightman: May I
mention an interchange between Lord Renton and the Lord Chancellor
on the 23 February reported in Hansard at column 12. Lord
Renton said "There is a greater need for consolidation of
statutes now than for many years, especially those statutes relating
to criminal justice, of which there are about a dozen amending
statutes. Will he . . ." that is the Lord Chancellor ".
. . therefore advise the Joint Committee, when it is appointed,
of the need to get down to the consolidation work, especially
in relation to criminal justice Acts". Of course Lord Renton—this
is not material to my point—was thinking of true consolidation,
not this type. The Lord Chancellor answered "I shall pass
on to the Committee the points he has made. I also thoroughly
agree with what he said in relation to the need for consolidation
being urgent now and far more urgent than before". The Lord
Chancellor's answer seems to point to us as having some sort of
jurisdiction to say what consolidation should take place and of
course we have got none. It is the Lord Chancellor who instructs
the draftsman. Ought we to get some sort of answer to the Lord
Chancellor as he has put the ball into our court and we ought
somehow or another put it back to him, I think?
Chairman: I think that
would be a good idea. Clearly it is not for us, it very much is
for him since he has said to the House it would be a good idea,
it would be a good thing if he was to take that on board and carry
that forward.
Lord Brightman: Yes. Could
a letter be written by you or somebody to put this right?
Sir Patrick Cormack: I
would like to support Lord Brightman. I think what he says is
entirely right but, as I have indicated to you when we adjourned,
I am rather unhappy about this whole exercise. This is not casting
any criticism or reflection on anybody and those who are appearing
before us today have clearly worked extremely hard and diligently
and I am not criticising them. I think this is an unsatisfactory
and not very thorough way of dealing with things. Viscount Colville
pointed to one or two areas where he was unhappy and although
he allowed it to go and we have concurred with that, I did not
actually vote in favour because I was concerned. I think the whole
procedure of looking at this sort of Bill needs improving, it
should be done more thoroughly. We are, in fact, relying entirely
on a small group of dedicated officials and we are providing a
rubber stamp. I do not think that is a proper use of Parliament.
I do think, my Lord Chairman, that as our Chairman perhaps you
could reflect upon this and have some discussions with the Lord
Chancellor and others.
Chairman: There is considerable
force to that. I am conscious of exactly the phenomenon to which
you point. It is true. Of course it is well known that there are
certain things which can only get through Parliament if they are
done in a particular way, if you cannot do it in that way it is
very difficult to get them through at all. The advantages of producing
this legislation are there. Whether we can do it in a better way
and still get the legislation through, that is the point on which
we should reflect.
Viscount Colville of Culross:
My Lord Chairman, so far as it concerns consolidation in general
I absolutely agree with what has been said but we might possibly
say that we do not confine ourselves to criminal justice. It is
actually a very difficult subject because as there is a Criminal
Justice Bill every single year I do not think that would be the
one we might usefully start with. There are many other subjects
and we might perhaps take that issue out of the generality of
your reply so we are prepared to look at any Consolidation Bill
that the Lord Chancellor is prepared to give instructions to have
carried out.
Chairman: I know the draftsmen
have been working on consolidation, they have not got any which
are ready for us yet and that is unfortunate, it is very unfortunate,
but I think the desirability of consolidation from the point of
view of practitioners and everybody else is great. It would be
good if a programme could be devised.
Viscount Colville of Culross:
I have been on this Committee for very many years. We used to
have lots of them but I think in the past five years we have had
two.
Chairman: I shall undertake
to write to the Lord Chancellor conveying the views of the Committee.
Viscount Colville of Culross:
Will you copy the letter?
Chairman: Yes. In that
case, can I propose that we put the question that clauses 1 to
3 be agreed?
Q89 Viscount Colville of Culross: Can I
just ask about clause 2. This is something that our witnesses
can answer. The only deductions I can make from the extent provisions
is if you are going to apply it to the Isle of Man you have to
say so, if you are going to apply it to Northern Ireland you have
to say so, if you are going to apply it to Scotland you must not
say so because it only does not apply to Scotland if you say it
does not. We have therefore got a very strange drafting convention
and I hope that is correct?
Mr Saunders: I believe that is broadly correct,
my Lord Chairman. The drafting convention is that a Bill normally
states if it extends to Northern Ireland. It does not normally
say if it extends to Scotland. Sometimes it will say that it applies
only to England and Wales. In general one has to look at the subject
matter of the Bill to see how far the extent can be. In the case
of the Isle of Man, the Bill, indeed, has expressly to state that
it extends. Otherwise it will not.
Q90 Viscount Colville of Culross: But it
also extends to Scotland and the one thing you must not say is
that it does?
Mr Saunders: It extends to Scotland because
it is repealing the Scottish enactments. If it were not doing
so it would not be extending.
Chairman: You can deduce that it does
extend to Scotland. I think it is correct to say that the convention
is that an act applies to Scotland unless and to the extent it
says not to. In the case of Northern Ireland the convention works
the other way round. Whether that is a convention which could
or should be revisited, I do not know.
Viscount Colville of Culross: I only
raise this because we have already had the discussion, Mr Cairns
raised the points, about the ability of Scotland. Now there is
a devolution system and a Parliament in Edinburgh I just wonder
whether the drafting convention might not be revisited because
if this has been discussed with the Scottish Executive and various
elements of the Scottish authorities and they are content this
should occur but they have taken some bits out, therefore it is
affecting consultation which has taken place, it might be worth
thinking again about saying "Yes, it does apply to Scotland
because we have consulted on it and everybody is happy that it
should". It is silent at the moment and I find it a little
bit unsatisfactory as a drafting convention now that there is
a Parliament in Edinburgh.
Baroness Mallalieu: My Lord Chairman,
can I support that, also, particularly if we are attempting to
make this clear to practitioners or, indeed, to lay people. Anyone
looking at clause 2 of this Bill, who is not aware of the existing
convention will be left with the clear impression it did not apply.
If there is a time now to re-examine the convention this would
seem to be the appropriate moment to draw it to the attention
of those who are responsible for the decision.
Chairman: It would have to be borne in
mind that the convention applies to people interpreting acts right
the way through. It would need to be clear that the convention
was only going to apply with effect from a particular date because
otherwise in Australia with an act five years ago, shall we say,
you would say "Well, since Scotland is not mentioned it is
still covered" but it would be different. I think it would
have to be considered how it is done. There may be room for change
but it would need to be carefully considered, as no doubt it would
be. Any other comments on the clause? I put the question that
clauses 1 to 3 stand as part of the Bill? As many as are of that
opinion will say "content", the contrary, "not
content", the contents have it.
The same is agreed to
ON THE TITLE Chairman: The question
is that this be the Title of the Bill? As many as are of that
opinion will say "content", the contrary, "not
content", the contents have it.
The same is agreed to Chairman: I
would propose that we report to the House in the following terms:
"that the Committee has considered the Statute Law (Repeals)
Bill which was referred to it and also the report of the Law Commission
and the Scottish Law Commission on the Bill. We have heard evidence
on the Bill and have made amendments to it. The amendments are
set out in the annex to this report. The Committee is of the opinion
that the enactments proposed to be repealed are no longer of practical
utility except in so far as their effect is preserved and we approve
their repeal. There is no point to which the special attention
of Parliament should be drawn". This will be the First Report
of the Joint Committee for this session. I would invite the senior
Commons' Member to present the Report to the House of Commons
and also to report the minutes of the proceedings. I will ask
the leave of the Lords' Members to make the Report to the House
of Lords. I can say that unfortunately there is unlikely to be
another meeting of this Committee in this session. That is precisely
because there is no consolidation legislation that is coming forward
this session. We have already dealt with that matter. May I thank
all those who have attended and for the questions and the witnesses
for their attendance and for answering the questions this afternoon.
I adjourn the meeting sine die.
Letter to the Chairman from Mr John Saunders,
Law Commission
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