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The Earl of Balfour: My Lords, I am grateful that this amendment has been tabled. I apologise to your Lordships. I am always slow in thinking. Clause 2(7) states:
- "The validity of proceedings of the Assembly is not affected by any vacancy in its membership".
Lord Monkswell: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, said in effect that a body of law stated that a simple majority of a body corporate meeting together was enough to determine the outcome. I believe that later in the Bill there is provision that the standing orders of the assembly can be altered only if there is a two-thirds majority.
If the existing law on the decisions of a body corporate made by a simple majority can be varied by later provisions in the Bill, the implication is that the decisions of the body corporate could be invalidated by there not being a full number of that body, unless that is specifically written into the Bill. As a layman and non-lawyer, while I would argue that there could be a simple majority for the determination of standing orders, I appreciate that that is not on the face of the Bill at present. As we are not at Committee stage it is difficult to have a debate. When the noble and learned Lord, Lord Simon, winds up, perhaps he can give me some advice on the relevance of the two-thirds majority to the decisions of the body corporate which, as he pointed out, should be on the basis of a simple majority.
3.30 p.m.
Lord Roberts of Conwy: My Lords, we are all grateful to the noble and learned Lord, Lord Simon of Glaisdale, for introducing these two amendments. I am particularly grateful to him for the simple reason that I have been taking some pride in the abilities of your Lordships' House as a revising Chamber because since this Bill has been with us it has grown in size considerably. Although I have on all occasions welcomed such growth, particularly since it has resulted for the most part from amendments and changes introduced by the Government, I would nevertheless not like to think that any of the augmentation was not fully justified. The noble and learned Lord has drawn our attention to the possible unnecessary aspects of the two subsections.
The Solicitor-General (Lord Falconer of Thoroton): My Lords, I think that we would all agree that there should not be any unnecessary prolixity in Acts of Parliament. I am sure that we would all share the views expressed by the noble and learned Lord,
Lord Simon of Glaisdale, in that respect. I am sure that we would all also agree that we should, if possible, try to get legislation right without reference to Pepper v. Hart. We should try to make legislation explicable in the terms in which it is put on to the statute book. It is an unhappy result if those seeking to construe the legislation have to read the debate in order to determine what the legislation means.I respectfully suggest that the two provisions which the noble and learned Lord seeks to remove are justified--and they are justified in order to avoid debates. Similar provisions have been included in a number of Acts stretching back well over 100 years. I refer to the Public Health Act 1875, the Municipal Corporations Act 1882, the Local Government Act 1894 and, more recently, the Local Government Act 1972. The fact that it has been done before does not mean that it has to be done again, but the fact that such provisions are there in previous Acts means that lawyers, no matter how regrettably, will seek to draw an inference from their absence from this Bill to say that there must be some significance in it. It may well be--indeed, I think it more likely than not--that any court confronted with the point would go along with the argument so eloquently put by the noble and learned Lords, Lord Simon of Glaisdale and Lord Brightman, but we must think of the uncertainty that would exist while that point was being resolved: one vacancy in the membership, leading to somebody taking this point, thereby providing a cloud over the proceedings of the assembly until the point has been resolved.
A sensible view must be taken of where the balance has to be struck. Should one take the view that one should strike the balance in a place where one gets rid of the point altogether or does one simply leave it out and recognise that the point might be taken and lead to uncertainty for a period of time? We think that the balance is struck by getting rid of the point once and for all. In relation--
Lord Renton: My Lords, before the noble and learned Lord sits down, could he say whether in any of the previous legislation that he has mentioned the clauses which he says form a precedent have turned out to be decisive and necessary?
Lord Falconer of Thoroton: My Lords, I cannot answer that question, but I can quote from a former Lord Chancellor, Lord Birkenhead, in 1919 when dealing with a similar clause. He said:
- "A moment's reflection will show how many cases might arise in which great annoyance, inconvenience and expense might be entailed by a controversy of this kind without any gain of any kind to the public interest. I think therefore that Parliament, in order to avoid such actions and objections determined to use language of a similar wideness".
Lord Ackner: My Lords, I am grateful to the noble and learned Lord for giving way, but as one of the six Law Lords responsible for Pepper v. Hart, perhaps I may ask whether the quotation that he has just given
has not been totally cancelled by that decision? Pepper v. Hart would put an end to this point, if the point were taken.
Lord Falconer of Thoroton: My Lords, first, that quotation from Lord Birkenhead does not cancel out the point. The point is that if that provision is not in this statute, people might take the point. Secondly, I am sure that I am right when I say that it is much better for statutes to be construed by reading them rather than the debates that led to them. For all of those reasons and with the greatest diffidence, I respectfully suggest that the judgment that the Government have made is correct and that to avoid doubt we should leave in those provisions.
Viscount Bledisloe: My Lords, before the noble and learned Lord sits down, he has cited certain statutes in which this provision appears. Is he suggesting that there is a similar provision in every statute that has been passed in which Parliament has set up a corporation aggregate? If not, is there not already an anomaly, and are not the Government merely seeking to perpetuate that anomaly? If the noble and learned Lord can assure us that there is a similar provision in every case where a corporation aggregate has been set up, I see the strength of his point.
Lord Falconer of Thoroton: My Lords, I am afraid that I cannot give the noble Viscount that assurance because I have not looked at every statute which sets up a corporation aggregate. However, all the statutes on which I have relied look like statutes setting up semi-public bodies where the point is obviously of great importance that there should not be a shadow over their proceedings when there is a vacancy.
Lord Simon of Glaisdale: My Lords, I am most grateful to those who have contributed to this debate. We have now heard from two of my noble and learned friends, from the noble Lord, Lord Renton, and from two eminent Queen's Counsel, the noble Lord, Lord Hooson, and the noble Viscount, Lord Bledisloe. That is a formidable body. I know that it does not intimidate the noble and learned Lord the Solicitor-General, but I am entitled to say that five Members of your Lordships' House are supporting me, with only the noble and learned Lord the Solicitor-General against me.
The noble and learned Lord used his favourite phrase, "We think the Government have got the balance right". That really will not do. The noble and learned Lord must answer the argument. He did not refer at all to the argument that these statutory provisions are equally liable to give rise to an argument that where they are not in the provisions of any statutory or non-statutory corporation, a vacancy invalidates the proceedings; nor did the noble and learned Lord answer the point about Pepper v. Hart.
In the end it comes down to this: the Government's argument is that because something unnecessary has been done four or five times in the past 130 years, we must go on doing unnecessary things to the inflation of
the statute book. That simply will not do. Your Lordships are, I think, likely to say, "Enough is more than enough".I must answer the noble Lord, Lord Monkswell, who valuably, with his eagle eye, spotted the provision for an entrenched majority in relation to the standing orders. They are perfectly reconcilable. The general rule applies to all corporations, in the absence of other statutory stipulation, that a decision of the majority binds the minority. I imagine that it is the same in Scotland too--I now see the noble and learned Lord the Lord Advocate in his place--but that is subject to statutory exception. Parliament can always say that on one particular matter more than a mere majority is required, and that is the position here. A majority binds the minority except when it comes to alteration of the standing orders where there must not be merely a simple majority but a two-thirds majority. That does not invalidate these amendments.
I respectfully agree with my noble and learned friend Lord Brightman that the argument put forward by the noble and learned Lord the Solicitor-General is simply untenable. It is quite wrong to believe that counsel will put forward any ridiculous argument that may be suggested to them. They owe a duty to the court not to put forward absurdities. The argument that without this statutory provision a vacancy or a disqualification invalidates would be a complete absurdity.
This issue is not a matter on which to divide the House if it can be avoided. I do not despair that the Government having gone so far may not reflect further and see wisdom. At this stage I shall seek to withdraw the amendment so that I may still have it in hand at Third Reading if the Government adhere obstinately to the position that they have adopted. I beg leave to withdraw the amendment.
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