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Road Traffic Reduction (National Targets) Bill

Read a third time, and passed.

Government of Wales Bill

3.8 p.m.

Report received.

Clause 2 [Membership]:

Lord Simon of Glaisdale moved Amendment No. 1:

Page 2, line 14, leave out subsection (7).

The noble and learned Lord said: My Lords, in moving Amendment No. 1, perhaps I may speak also to Amendment No. 24 which is grouped with it and raises a similar point.

Amendment No. 1 seeks to leave out subsection (7) of Clause 2. I move to leave it out because it is unnecessary. It merely states what the existing law would do without it. All the amendments I ventured to put on the Marshalled List have the same object of eliminating unnecessary provisions and thus shortening

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an already unwieldy Bill. That being so, perhaps I may give, as a background to all those amendments, what has been happening to the statute book.

In 1975, when the Renton Committee on the preparation of legislation considered the state of the statute book--I am pleased that the noble Lord, Lord Renton, has put his name to the amendment--it drew attention to the prolixity of the statute book. It then ran to three volumes of Public and General Acts. Within 10 years that had increased to five volumes, despite what the Renton Committee had said. There was then the ingenious idea of making fewer volumes by putting them in a bigger format. That was extremely inconvenient for those who had bookcases to fit the smaller format. However, that was done and it reduced the number of volumes from five smaller ones to three larger ones. That was in 1987. But the matter did not stop there. By the following year there were not merely three but five larger ones and since then there have been four or five in each year. So I think your Lordships will agree that, as an amending Chamber, your Lordships have a parliamentary responsibility to do all you can to eliminate unnecessary provisions which merely go to swell the statute book.

Perhaps I may add this. That is only the Public and General Acts--primary legislation. Secondary legislation runs to twice as much as the primary. In fact, such is the volume that the Stationery Office has not managed to publish all the volumes of any year since 1995. For 1996 the first part of the year has been published. That is six volumes, so there are likely to be a dozen volumes in that year. Nothing has been published since.

This amendment turns on a point of law--I hope your Lordships will bear with that--and, I am afraid, a rather recondite point of law concerning corporations aggregate. I do not think that in the end your Lordships will be concerned with the point of law, which in any case is not really a suitable subject for Division in the House. Indeed, I have taken it up with the noble Lord, Lord Williams, who has dealt with it with his usual courtesy and promptness. However, I think that your Lordships will not, as a result of his latest letter, be concerned with an argument that the provision which is sought to be excluded does other than state the existing law. I see the noble Lord nodding and so I shall proceed on that basis. I know that he has an alternative argument with which I shall deal in due course.

Clause 1(2) states:

    "The Assembly shall be a body corporate".
Since it is more than a one-member assembly, that constitutes a corporation aggregate. It is a quality of corporations aggregate that the decision of a majority binds the minority. Perhaps I ought to try to make that good by reading from the classic book on the subject, Grant on Corporations. The chapter is headed "Majority". It states:

    "The principle has been already laid down, that a corporation acts by the majority, or that the will of the majority is the will of the corporation, and binds the minority".

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It expands on that. The next paragraph states:

    "The rule of acting by the majority is so fully established as a principle of corporation law".
It goes on to state:

    "Subject, then, to the foregoing remarks, and to the further restriction ... the will of the majority binds the whole body, such will being in all cases collected at a corporate assembly duly constituted, and not from the aggregate of the assents of the corporators obtained separately and apart, for that would not be a corporate act".

Since the will of the majority expressed in a meeting binds the minority, there is no need at all to say that a vacancy does not invalidate the proceedings; nor, what is sought to be removed by Amendment No. 24, that a disqualification does anything different. It follows that the provision is unnecessary as a matter of law. If it were not there, the law would do itself what the subsection does.

However, when I took the matter up with the noble Lord the Minister his first reaction--an evading action--was that we were concerned with powers, vires, not with existence. That had always of course been the point. He went on to say that there were precedents for such a provision. That is the usual argument when you have unnecessary provisions in a statute. He went on to say--I think it was in a later letter--that there was a danger, therefore, if it were left out, that someone would argue that that was significant and it meant that the normal law would not apply. Well, of course, you cannot prevent people arguing that black is white and white is black. Indeed, Jonathan Swift said that lawyers were a race of people who were employed to argue black was white and white was black, according as they were paid. I need not tell your Lordships that Swift had recently lost a law suit. It is not true of course. We cannot really stuff the statute book full of anticipation of every silly argument that might be adduced. I believe that that is the position which the noble Lord finally adopted. We are not bound to go on perpetrating an unnecessary nonsense, and there is every reason why we should not do so.

The argument could be put the other way. There are hundreds and hundreds of corporations, both in common law and statutory law. It could well be argued that the presence of this provision in one or two statutes means that the normal law does not apply in all the other corporate bodies.

Finally, if there were any doubt about it, and if a silly argument were put forward, the courts now have the power under certain circumstances to look at what was said in Parliament. That was the decision of your Lordships' House in Pepper v. Hart. I welcome the support of the noble Lord, Lord Renton. I welcome the support of my noble and learned friend Lord Brightman since he is the leading authority on what is the most important class of corporation aggregate today; namely, commercial companies which are incorporated. The

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time has come to bring this nonsense to an end, and this is the time to do so. It will enure for the future. I beg to move.

The Chairman of Committees (Lord Boston of Faversham): My Lords, I must point out to your Lordships that if Amendment No. 1 is agreed to, I cannot call Amendment No. 2.

Lord Brightman: My Lords, I wish to support the amendment. In my submission there is no valid reason for the existence of subsection (7) of Clause 2, which this amendment seeks to strike out. The subsection reads,

    "The validity of proceedings of the Assembly is not affected by any vacancy in its membership".
It is inconceivable that the proceedings of a body exercising ministerial functions could be brought to a standstill because a member of that body has died or chooses to resign. That is particularly so when one considers that under Clause 8(6) the vacancy so arising could not be filled during the final three months of the statutory lifetime of the then assembly. The argument would mean that if, for example, a member resigned his seat or died in the second week of February in year four, no election could take place to fill the vacancy. The assembly would be hamstrung until after the election three months later. In my respectful submission it is a bad policy to build unnecessary clauses into parliamentary drafting for the avoidance of untenable doubts.

Lord Renton: My Lords, the arguments in favour of Amendment No. 1 have been so clearly and forcefully put already that I can make my speech very short. I do not wish to repeat those arguments, but, daringly, because this is Report stage, I shall attempt to anticipate the reply which may be given.

The noble and learned Lord the Solicitor-General, may well rely on previous occasions when a similar phrase has been used, and a similar precedent. The circumstances of the Bill are different from those which have arisen in the past when such a phrase has been used. It would be absurd and wrong for us to perpetuate what the noble and learned Lord might claim is a precedent when it does not need to apply in this case, as has been mentioned by the two noble and learned Lords.

The Government should reconsider the matter. I believe that this Session of Parliament is likely to be the longest since the Second World War. Parliament is being asked to get through an immense amount of legislation, which goes into a vast amount of detail, much of which some of us consider to be quite unnecessary. Therefore, if there is a doubt I suggest that it should be resolved in terms of brevity. That is a good point in itself. But here we really must avoid creating an unnecessary precedent for the years to come.

Lord Hooson: My Lords, from these Benches I do not wish to sound repetitive. Having heard the arguments of the noble and learned Lords in particular, it seems to us that the onus has shifted on to the Government to satisfy the House that subsection (7) of

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Clause 2 and subsection (5) of Clause 14 are not superfluous to requirements. If they are, why have them in the Bill?

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