Clause 1. — (Repeal of Obsolete etc. Enactments.)

STATUTE LAW REVISION (SCOTLAND) BILL [Lords] – in the House of Commons at 12:00 am on 24th July 1964.

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Question proposed, That the Clause stand part of the Bill.

2.45 p.m.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

I hope that we are going to get a more satisfactory explanation of the Schedule to this Bill than we had from the Solicitor-General on the previous Bill. Of course, I can quite appreciate that the Minister is under some difficulty because he is not the Solicitor-General for Scotland. Here we find ourselves obviously handicapped by the fact that the Law Officers of the Crown are not in the House of Commons.

It is rather difficult for hon. Members who are not well versed in law and the history of law and the implications of the law as set out in this Bill to understand and follow all the different Acts that are outlined in this Schedule. I wish to ask the Minister if he can give us some idea of how this Schedule was compiled. Was it compiled by a Joint Committee of the House or was it compiled by a Joint Committee of Peers and Members of this House? How did they come to the conclusion that the various Acts outlined in the Schedule were obsolete, spent, unnecessary or superseded enactments and should appear in the Schedule?

It is obvious that we have a grievance in this case. Whereas the English Act only dealt with Acts from 1766 onwards, this list of Acts as outlined in the Schedule and as far as Scotland is concerned goes back to 1424. It must have merited a considerable amount of research. I think that Scottish Members are entitled to complain that this very large assortment of old Acts, with all their implications and all that they may mean, has been thrown at us in this sort of rag-bag at the very end of the Session. It has certainly meant a considerable amount of research for hon. Members in order to try to find out the details of this legislation with which we are confronted today.

Of course, I would not dream of asking the Minister to go into complicated details of this long list of very ancient legislation, but I ask him on what grounds these Acts have been inserted in the Schedule. Has all this old legislation, dating from the fifteenth century, been carefully examined in order to see that it is not obsolete and unnecessary in view of the conditions of today?

Those of us who have taken some trouble to go through the ancient statutes of Scotland wonder on what criteria these various Acts have been brought into the Schedule. What, for example, makes one of these old Acts obsolete, unnecessary or needed to be superseded at the present time? If I had been sitting on this Committee I would certainly have regarded as obsolete, unnecessary or superseded some of the ancient Acts which are to be found in the annals of Scottish law in the Library.

For example, on page 360, referring to the Parliament of James VI, there are certain Acts which by some strange way have completely escaped the attention of this Committee. There are certain references to grants of land by the King at that time, in 1606. They include grants of substantial areas of land in Jedburgh in the Border counties of Scotland. We are told that for quieting the borders of the Realm and for the repression of insolence and disorder in these counties certain grants of land in Jedburgh and the Burgh of Coldinghame were granted to a Scottish nobleman by the name of Alexander Earl of Home, who appears to have discharged the duty of repressing insolence and disorder with such competence that he was granted these considerable areas of land in that part of the country. Had I been a member of the Committee of learned gentlemen which discussed what Acts should be placed in this Schedule, I should have said that this Act was obsolete. But we have not had the necessary Parliamentary opportunity to move Amendments which would place in the Schedule Acts which should be repealed.

I believe that the Committee should have made a good job of it and repealed Acts which gave to the Earl of Home in 1606 the right to extract rents in perpetuity from these Border lands. Had we been given an opportunity, we should have been able to convince the House that this Act should have been included in the Schedule as one to be repealed. In that event the land would have reverted to the Crown. Legislation which granted land on the Borders of Scotland in perpetuity to this family is obsolete, spent, unnecessary, and it should be superseded. I should like an explanation why this Act did not come under the scrutiny of the Committee. It is possible, of course, that it may have been repealed throughout the centuries. It may have been repealed in the Theft Act of 1606, or when some of the obscure legislation was repealed which is only hinted at in the Schedule.

I should like an explanation why the Act of 1594 For the better observing of the sabboth day is to be repealed. This will cause a certain amount of apprehension at the meetings of the General Assembly. We could go through column after column of these ancient Acts, some of which appear to be obsolete but others for which the case is not so strong. On page 11 of the Bill there is an "Act concerning Patronages". Why is that being repealed? It is an Act of 1690. Is there less patronage or more at the present time and is that the reason why this Act is considered obsolete? On page 13 there is an Act of 1706 "for preserving the Game". Can the Minister tell us why that Act is obsolete? I understand that such a practice is not obsolete.

I appreciate that I am posing difficult questions to the Minister, but I hope that he will make a real attempt to answer them and not just say, as did the Solicitor-General, that the Committee has decided. The right hon. and learned Gentleman did not seem to know the details of his brief and he gave no reasons for the decision of the Committee. We expect a Minister representing the Scottish Office, with all the ancient tradition and history of Scotland behind him, to be well versed about the Schedule to this Bill. We do not expect a great deal of knowledge about Scottish matters from the Solicitor-General for England. We do expect a Scottish Minister to be adequately briefed.

I should like the Minister to deal specifically with the question why an Act which granted large areas of land on the Border of Scotland to the Earl of Home in the sixteenth century has not been included. It is impossible to refer this to the Prime Minister for an answer because when I asked the right hon. Gentleman a Question about this Act he gave me a statement which was apparently historically incorrect. A certain gentleman who is versed in Scottish history wrote a letter to The Times saying that the reference by the Prime Minister was either to the wrong century or to the wrong king. The Prime Minister did not seem to have any idea of the legislation which granted the land to his family for all these centuries and so I wish to ask the Minister whether, even at this later stage, it would be possible to remedy the present state of affairs by which 60,000 acres of the land of Scotland has passed into the hands of one family. Should not such legislation, in 1964, 400 years after these transactions took place, be considered obsolete, and should not steps be taken to supersede this legislation and so bring the law of Scotland into line with conditions prevailing at the present time?

3.0 p.m.

Photo of Mr Willie Hamilton Mr Willie Hamilton , Fife West

I am very interested in the mechanics of how the Schedule came to be what it is at the moment. It is a great pity that the Bill was given a Second Reading late at night when we could not have as much discussion on it as otherwise we might have had. It is a greater pity that the Committee stage was not taken in Scottish Grand Committee where we could have given it the consideration it deserves. I should like to ask the Under-Secretary one or two questions about the Schedule.

There is the question of the selection of the Acts mentioned in it. This seems fairly arbitrary. One does not know why these particular Acts have been selected other than by the explanation given in Clause 1 that they are "spent or unnecessary or superseded" by other Acts. I think I am right in saying that not all Acts enacted between 1424 and 1706 have been superseded. My hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) has given one example of an Act which so far as he knows, and so far as I know, is still on the Statute Book. We do not know why it is there.

If we are supposed to be modernising Britain, I should have thought that all these Acts passed in the 14th, 15th, 16th, 17th and 18th centuries should have been repealed, or very good explanations should have been given why they were not repealed. Because this Bill has been rushed we have not been able to engage in the research in which one normally likes to engage. I went into the Library and asked for the Acts of the Parliament of Scotland passed between 1567 and 1592 and an enormous volume was brought out. It is in old Scottish language which is very difficult to read. It is like a foreign language.

I asked members of the Library staff to translate. Unfortunately, there was some difficulty in finding anyone who could translate the Acts into modern English. I will give an example of an Act which is not in the Schedule. It is an Act of 1578 entitled: The pacificatioun grantit to the Lord Home. So far as I could understand, it said: the faid Alexander home had made forfeiture of land and property for certain crymes of treason … committed by him. So he forfeited land which, apparently, was given back to him under the Act of 1606 to which my hon. Friend referred.

The family record of the Prime Minister is bad enough what with cattle-stealing, theft of land and so on, but to leave an Act like this on the Statute Book by which the history of treachery of the family remains on the Statute Book is indefensible. I urge the Under-Secretary to get rid of the stigma on the family of the Prime Minister. There is no reason why this should stay on the Statute Book where everyone who wants to read it can see that this family was guilty of treachery at one time in the history of the country.

I refer to another Act not in the Schedule, the Act of 1581: Ratificatioun grantit to Alexander home of manderftoun. The spelling is very difficult and I hope that the Official Reporters will see me later so that I can give the wording to them. It says: Ratificatioun grantit to Alexander home of manderstoun and alexr Commendatar of Coldinghame of the landis of fymprene and toftis … to have full force, ftrenth and effect In all tyme cuming. Apparently the crime of treachery had been forgiven and the land was given back to the family for all time. Maybe this is the reason why the Statutes have not been repealed but I do not see any reason-why we should leave this stigma on the Statute Book nor why the land should remain for all time in the ownership of this family. Lastly, I refer to an Act of 1592 entitled Ratificatioun to fr Alexander hwme of fnwk knicht … priorie of coldinghame to be made commander ffor all the dayis off his lyftyme. Here we have several Statutes which, so far as I know and so far as the Committee knows, remain on the Statute Book.

I should like to ask the Under-Secretary of State, why they are still there and why, having decided to repeal roughly 200 Acts of Parliament which have stayed on the Statute Book for more than 500 years, we are not getting rid of those which my hon. Friend and I have mentioned. We should be glad if he would give an explanation of these omissions.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

I understood that the language of this place was English and that we were in very doubtful order indeed if we started using foreign languages. In those circumstances, it seems to me that I am in considerable difficulty, because if I read out any of the titles of these Acts I should produce things which were no doubt well understood in the Scottish Office but which were not always quite clear to English Members such as myself.

If the Under-Secretary of State for Scotland will look at page 14 he will find, under 1424, chapter 25, Of hostilaris in burowis townis and thruchfaris". I have done it all except the word "hostilaris". This is to be called The Innkeepers Act, and it is equally consistent with a reference to hostelries or ostlers. Since they obviously know these things in the Scottish Office, would the Minister tell us whether "hostilaris" are hostelries or ostlers?

I ask him that by way of illustration of the difficulty into which he is putting English Members, but it is, in fact, worse than that. I am referring to the Acts which are staying and which are being equipped with a short title with the perverse object of giving them a longer life. There is a fine collection of Hornings Acts. I think that English Members ought to be told what Hornings is, since they may not know, although I have my own suspicions.

May I also ask about the Interruptions Act? What is the relation of the Interruptions Act to the Vitious Intro-mitters Act? What is the difference between an interrupter and a vitious in-tromitter? Do they deal with more or less the same subject, and do they relate to Parliamentary procedure? I notice that they are being preserved with great care and equipped with short titles. In fact, in a rather odd spelling, the Vitious Intromitters constitutes a short title.

I do not want to carry this kind of thing too far, but what is the function which we are supposed to perform today? This Bill has been sent to us by a Committee of learned men. Indeed, it may have been submitted to a joint Committee of both Houses. We are presented with a remarkable collection of unintelligible Statutes in a foreign language. Cannot we have a translation if we are asked to do anything serious about it? If we are not asked to do anything serious about it, is it not possible for the House as a whole to look at the procedure and to see that it is doing what is required of it?

I give these illustrations, but I am serious on the main point. We have previously had these things before us, particularly from Scotland, where they seem to specialise in weird Acts dating from before the Union. I do not see why, just because we, the English, have been united with the Scots, we should have to spend so much time digging up their graveyards, preserving some of their dead Statutes with new titles and pushing aside others as spent. I cannot believe that all the Hornings Acts are really necessary still.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

On a point of order. My hon. and learned Friend has raised a point of substance. He has pointed out that many of the words contained in the Schedules, are, if not in a foreign language, in a language which is incomprehensible to a very distinguished and learned gentleman familiar with the law of this country. I myself have found exactly the same difficulty, although I have lived for 40 years in the country which produced Robert Burns. It is known how difficult it is for people today, even Scots people, to understand the poems of Robert Burns without a glossary and a dictionary.

Yet today we are presented with Schedules containing words which even Robert Burns would not have understood, because they would have passed out of use before his day and generation. I submit that there is a point here. Ought not this discussion be adjourned so that we could be supplied with a glossary or a dictionary, because the House of Commons is now asked to pass legislation containing words which nobody really understands? If my hon. and learned Friend, who lives for the greater part of the year in Scotland and who is associated with a distinguished Scottish family, finds difficulty in understanding these words, what about the rest of the Members of the House of Commons?

The Deputy-Chairman:

I would not regard the Schedules as being in a foreign language, but perhaps as being in rather obscure terms. The hon. Gentleman's redress is to ask the Minister for an explanation of what they mean.

Photo of Mr Willie Hamilton Mr Willie Hamilton , Fife West

Sir Robert, how will you be able to decide which is in order and which is not? Can you understand all this?

The Deputy-Chairman:

The hon. Member must leave it to me. I, too, shall be listening to the Minister.

Photo of Mr Gordon Campbell Mr Gordon Campbell , Moray and Nairnshire

The point made by the hon. and learned Member for Kettering (Mr. Mitchison) leads me straight to the reason why the Houses of Parliament, when his Party was in power, decided that these things should be handled by a joint committee to avoid these very technical and difficult linguistic matters having to be pursued on the Floor of the House of Commons. None the less, I will do the very best I can to help all the hon. Gentlemen who have raised questions and also to keep in order.

I am sure that I have the hon. Members for South Ayrshire (Mr. Emrys Hughes) and Fife, West (Mr. W. Hamilton) with me—I do not think either is Scottish in origin; none the less, they represent Scottish constituencies—when I say that we in Scotland wish to preserve our ancient Scottish law, where it is still intelligible to Scots and also serves a useful purpose. At the same time, this means that we need to remove from the Statutes some of these ancient laws which are no longer of any use.

I must tell the hon. Member for South Ayrshire that the previous Bill was not an English Bill. It was a United Kingdom Bill. This Bill is a Scottish Bill aimed particularly at tidying up the Scottish Statutes prior to 1707. This exercise was started by the Statute Law Committee, whose job it is to consider the state of the Statutes. About three years ago the Committee decided that this operation was necessary. Two learned Scottish Q.C.s were appointed to investigate the Statutes before 1707. They made exhaustive inquiries and, after that, two members of the Lord Advocate's Department consulted all the bodies in Scotland which they thought could be concerned with this. They consulted, for example, the Church of Scotland on doctrinal measures, the Crown Office, the Lord Lyon King of Arms and any other bodies which could be concerned in Scotland with these ancient Statutes.

3.15 p.m.

The results of their inquiries came to the Joint Committee of both Houses of Parliament, to which the Solicitor-General for England referred earlier today. On that Committee there has been a distinguished Scottish Law Lord and that Committee also examined orally the two members of the Lord Advocate's Department about the work they had been doing. It is after that exhaustive research and examination by a body representing both Houses that the Schedule to this Bill has come forward.

Extremely technical and legal problems are involved in this, and that is, no doubt, why the House adopted this procedure in 1949. It is all the more technical and legal with regard to the Scottish Measure because of what the hon. and learned Member for Kettering said about the language of these ancient Statutes.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

Can we be told why this matter was not sent to the Scottish Grand Committee, which is comprised of a large variety of hon. Members who are acquainted with these matters?

Photo of Mr Gordon Campbell Mr Gordon Campbell , Moray and Nairnshire

For the very reason that it was decided by the House in 1949 that, because these matters were so technical, a different procedure was necessary. For that reason a Joint Committee of both Houses was considered a proper and convenient method to examine this list of enactments. It would, for most Members of the Scottish Grand Committee, be extremely difficult for them to go through not only the titles but the Acts when they are in the ancient Scottish language, fairly well intermixed with Latin, I understand. This being a specialist job, this procedure was adopted. I suggest that, on the whole, the Scottish Grand Committee, which has important tasks to deal with affecting current legislation which occupies a great deal of its time, would gladly have been spared this exercise, which would have required a great knowledge of languages, as well as of the ancient Statutes.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

I did not mean to suggest that the Scottish Grand Committee should go into the philological, ecological, historical and other adjectival facets of the origin of ancient Scottish words. I merely asked why the Bill was not submitted to the Scottish Grand Committee instead of the House?

Photo of Mr Gordon Campbell Mr Gordon Campbell , Moray and Nairnshire

I am sure that the House in its wisdom realised in 1949 that if this Bill were submitted to the Scottish Grand Committee in that way, that Committee would feel, because of its great responsibilities and duty, that it could not possibly consider it without going into all the philological, historical and other sides of the problem. I am sure that the hon. Member for South Ayrshire realises that the Scottish Grand Committee would find it very difficult not to feel that, having been given such a task, it was its duty to go into these matters—and, as he agreed, the ordinary Members of that Committee would not feel very well equipped to do that because it is not part of their normal Parliamentary duties.

I was then asked about an Act which was not in the Schedule but which, it was stated, was an Act passed under James VI of Scotland for a grant of land in 1606 to a family called "Home". I think that the hon. Member must have looked this up in the Statutes At Large, which includes all the Statutes that have existed. If he had given me the year and the chapter number I would have been able to identify the Measure even in this short space of time. However, I think that I have correctly identified this as an Act repealed in 1906. There certainly was such an Act repealed at that time.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

This story becomes more and more interesting. If this Act was repealed in 1906, does it mean that the family of Home no longer has the right to the rents of the land?

Photo of Mr Gordon Campbell Mr Gordon Campbell , Moray and Nairnshire

The particular Act to which the hon. Gentleman refers may have nothing to do with present-day matters, which I think he was being tempted to consider. In 1906, there was a similar Scottish Statute Law Revision Act, and it was under that Measure that a number of Statutes, including the one referred to, were repealed.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

Is this the last Measure?

Photo of Mr Gordon Campbell Mr Gordon Campbell , Moray and Nairnshire

No. As my right hon. and learned Friend the Solicitor-General said, this is a continuing process and it is now done under United Kingdom Acts. Only those Scottish Acts that came into existence before 1707 need this procedure.

I note that this particular Act, according to the hon. Gentleman who quoted from it, made a grant of land because the person named at that time had successfuly dealt with questions of insolence and disorder, and I have the feeling that my right hon. Friend who has the same name may sometimes find himself coping very effectively with similar situations today.

A question was asked about a Pacification Act of 1578 relating to the same name; this seems to be a local and personal Act, which is not the type dealt with in this operation. I was also asked about a Patronage Act of 1690; that was abolished, but the General Assembly of the Church of Scotland agreed to that being done. An hon. Member asked about a Game Act; this was superseded by the Protection of Birds Act, 1954. As to the Sabbath Day Act of 1594, the General Assembly of the Church of Scotland agreed that this should be repealed.

I think that I have covered questions asked about Acts but questions have been asked about terminology. First, I can tell the hon. and learned Gentleman that in the Innkeepers Act of 1424, it is hotels and hostelries that are referred to rather than ostlers and grooms. Hornyngs is an ancient Scottish legal term, so the hon. and learned Gentleman will be interested in that. It is connected with diligence, also a Scottish legal term, but a modern one—it is a way of executing in court. That is why the hornyng provisions are now being repealed—

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

Has it any connection with "Old Horny"?

Photo of Mr Gordon Campbell Mr Gordon Campbell , Moray and Nairnshire

I should doubt it, but I do not think that I can reply to that question without notice.

A question was asked about "vitious intromettors" and "interrupters". An intromettor is one who wrongfully takes a hand in certain transactions, and an interrupter interrupts or breaks a period of prescription of title to land.

The hon. Member for Fife, West (Mr. W. Hamilton) raised some interesting points about former Acts passed in relation to a family that had been considered to have committed treachery, these being later overtaken by other Acts making awards of land. As the hon. Gentleman knows, this is a reflection of the Scotland of those days, when the country, unfortunately, was not only divided on religious grounds but the Highlands were opposed to the Lowlands. In those days, unless the example of a famous English figure—the Vicar of Bray—was followed, it was highly likely that any leading family in Scotland would find itself suffering fortunes of an opposite kind at different times depending on its religion or allegiance.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 2 to 4 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

Bill reported, without Amendment; read the Third time and passed, without Amendment.