Schedule 17 - Legislation no longer of practical use

Deregulation Bill – in a Public Bill Committee at 3:00 pm on 18th March 2014.

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Photo of Oliver Heald Oliver Heald The Solicitor-General 3:00 pm, 18th March 2014

I beg to move amendment 19, in schedule 17, page 143, line 11, at end insert—

‘Atomic Energy Act 1946 (c. 80)

10A Omit sections 6 and 7 of, and Schedule 1 to, the Atomic Energy Act 1946 (which confer powers to do work for the purpose of discovering certain minerals and to compulsorily acquire rights to work such minerals).

10B (1) The following amendments are made in consequence of paragraph 10A.

(2) In the 1946 Act—

(a) in section 15(1), omit the words “, except an order made under section seven thereof or an order varying or revoking such an order,”;

(b) in section 16, omit the words from “Provided that” to the end of the section;

(c) in section 19, omit paragraphs (c) and (d);

(d) in section 20(1), omit the words “, except sections six and seven thereof,”.

(3) In the Atomic Energy Authority Act 1954, in Schedule 3, omit—

(a) the paragraph beginning “In subsection (1) of section seven”;

(b) the paragraph beginning “At the end of section sixteen”;

(c) the paragraph beginning “In paragraph (c) of section nineteen”.’.

This amendment removes the Secretary of State’s powers to carry out work on any land to discover whether minerals from which “prescribed substances” (such as uranium) can be obtained are present and to acquire compulsorily the exclusive right to work such minerals. The powers have not been used for at least thirty years and are no longer needed.

The amendment will remove the Secretary of State’s powers to carry out work on land to discover whether minerals that are prescribed substances can be obtained at present or whether compulsory acquisition might be necessary. Those substances are uranium, plutonium and other substances prescribed by order under the Atomic Energy Act 1946. However, as that Act is no longer used, I hope that the Committee will accept the amendment to remove that power.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

Mr Hood, you have taken a close interest in how minerals are extracted, having been at the coal face over the years. We agree with the Government, given that we do not dig up uranium in the United Kingdom. I understand that we are now all in favour of nuclear power—it was great to see the Liberal Democrats embracing it so enthusiastically with such joy on their faces.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I have always supported nuclear power, as long as the fusion plant rests about 92 million miles away.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I am most grateful to the hon. Member for Birmingham, Yardley for that helpful intervention. Given that we are not digging up uranium in the United Kingdom—it comes from Australia and Canada—and that by my calculation the 1946 Act has been 68 years on the statute book, it is probably a good time to ease the pages a little bit.

Photo of Oliver Heald Oliver Heald The Solicitor-General

It has not been used for 30 years, either.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

My hon. Friend the Member for Dunfermline and West Fife has suggested that we are all in favour of nuclear power. Some of us are strongly opposed to it, as it is expensive, dangerous and unnecessary.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

That is also true of Liberal Democrats, but we have not outlawed them yet. No one is perfect, even my hon. Friend. I am sure that, given a bit longer, he will see the light—pardon the pun.

Amendment 19 agreed to.

Photo of Oliver Heald Oliver Heald The Solicitor-General

I beg to move amendment 20, in schedule 17, page 143, line 21, at end insert—

‘Nuclear Industry (Finance) Act 1977 (c. 7)

12A Omit section 3 of the Nuclear Industry (Finance) A ct 1977 (which provides for expenditure which the Secretary of State may incur with a view to, or in connection with, the acquisition of shares etc in the National Nuclear Corporation Limited to be paid out of money provided by Parliament).’.

This amendment removes the Secretary of State’s power to incur expenditure in the acquisition of shares or securities of the National Nuclear Corporation Limited (NNCL). NNCL is now wholly in private ownership and this power is no longer needed.

This amendment would remove the Secretary of State’s power to incur expenditure in the acquisition of shares or securities of the National Nuclear Corporation Limited. That was a company that was involved in constructing nuclear power stations and was part of a restructuring of the nuclear industry in years gone by. The power is no longer needed, as all share purchases have been completed and the corporation is no longer in existence.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I am particularly grateful to the Government for bringing this forward because, having worked in the nuclear industry, I had never heard of the National Nuclear Corporation. Despite my best efforts on the internet during the course of this Committee, I am still struggling to find much information. Will the Minister outline for my benefit which of the power stations in the United Kingdom that he just referred to the NNC was involved in constructing?

Photo of Oliver Heald Oliver Heald The Solicitor-General

I am happy to write to the hon. Gentleman. I am afraid that I do not have the list that he so wishes for in front of me. I can assure him that it did once have a role, but it is no longer with us.

Amendment 20 agreed to.

Photo of Oliver Heald Oliver Heald The Solicitor-General

I beg to move amendment 21, in schedule 17, page 146, line 5, at end insert—

‘Breeding of Dogs Act 1973 (c. 60)

23A In section 1 of the Breeding of Dogs Act 1973 (licensing of breeding establishments for dogs), omit subsection (4)(i) (requirement for local authority, in determining whether to grant a licence, to have regard to the need for securing the keeping of accurate records).

23B (1) The following amendments are made in consequence of paragraph 23A.

(2) In section 1 of the Breeding of Dogs Act 1973—

(a) at the end of subsection (4)(g), insert “and”;

(b) omit the “and” following subsection (4)(h);

(c) in the closing words of subsection (4), for “paragraphs (a) to (i)” substitute “paragraphs (a) to (h)”;

(d) omit subsection (4A).

(3) In the Breeding and Sale of Dogs (Welfare) Act 1999, omit section 2(3).’.

This amendment removes the requirement for licensed dog breeders to keep records in a prescribed form. From 6 April 2016, all dogs will need to be identified with a microchip and their details, along with the owners’ details, recorded on a database. This renders the current requirement unnecessary. This will apply to England and Wales only.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss Government amendments 22, 23 and 26.

Photo of Oliver Heald Oliver Heald The Solicitor-General

The repeal of section 1(4)(i) and (4A) of the Breeding of Dogs Act 1973 will remove an unnecessary burden on licensed dog breeders to record the details of their dogs in a prescribed way. From April 2016, all dogs in England—and from March 2015 all dogs in Wales—will be required to be identified by a microchip, and the details of dog and owner will be recorded on a database. There will therefore no longer be a need for licensed dog breeders to go on recording details of their dogs in a prescribed form after April 2016, because they will already be doing so through the microchipping requirements, which I have described, and the database. That will apply to all dog owners in England and Wales. The amendment will apply only to England and Wales because Scotland has not yet proposed to introduce compulsory microchipping of dogs.

Amendment 22 would remove the need for licensed dog breeders to continue to place an identifying tag or badge on any dog they sell to a licensed pet shop or Scottish rearing establishment.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

As soon as I heard the word “Scottish” my ears pricked up. Will the Minister explain what a “Scottish rearing establishment” is?

Photo of Oliver Heald Oliver Heald The Solicitor-General

It is obviously a very important thing, but perhaps some inspiration will come my way while I am completing my remarks.

As from 2016, which is when the repeal will have effect, all dogs in England—and, from March 2015, all dogs in Wales—will need to be identified by a microchip.  The dog’s details will be recorded on a database along with those of their owner, so there is no need to continue to require licensed dog breeders to identify their dogs by use of a badge or tag. Modern technology in the form of a microchip and accompanying database, which will be more difficult to change or lose, will be used to hold similar information.

Photo of Caroline Nokes Caroline Nokes Conservative, Romsey and Southampton North

I welcome the introduction of compulsory microchipping for dogs, but I have an element of scepticism about this. Since about 2009 it has been compulsory to microchip horses, yet there is no comprehensive database on which details of all horses in the country can be found, and the passport system for horses can be described only as a failure. I hope that the regime for dogs will be a success.

Photo of Oliver Heald Oliver Heald The Solicitor-General

I thank my hon. Friend for that intervention, because I was not aware of that problem. I will report that useful information to the Ministers concerned. It is important that the system works and is as effective as we all hope.

I turn briefly to amendments 23 and 26, which are consequential to amendments 21 and 22. Amendments 23 and 26 ensure that the repeals and other changes made by amendments 21 and 22 extend only to England and Wales. Their effect is also that the provisions inserted into schedule 17 by amendments 21 and 22 will come into force on a day appointed by the Secretary of State in a commencement order. I am afraid that I do not have more detail on the interestingly described Scottish rearing establishments so, if I may, I offer to write to the hon. Member for Dunfermline and West Fife.

Photo of Oliver Heald Oliver Heald The Solicitor-General

The whole Committee might indeed benefit from that letter, so I shall ensure that it is copied to all members of the Committee.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I will try to keep my remarks suitably brief, but perhaps I can pick up on the point made by the hon. Member for Romsey and Southampton North. If she was looking for horses, I think she would find that, certainly last year, many of them were in Tesco and Iceland. I am a vegetarian, but I have been informed by several of my carnivorous colleagues that they were very tasty.

Obviously we do not oppose these very sensible amendments. Today is an auspicious day for all activists in political parties and, much more importantly, for posties up and down the country, because today the Dangerous Dogs Act 1991, as amended, comes into force. Thankfully, that means that when a dog comes up to the letterbox as someone is putting a leaflet through, they will at least have the comfort, as they count what is left of their fingers, of knowing that the dog’s owner can now be prosecuted. Given that the legislation proceeded on a cross-party basis, we will obviously support these amendments.

The Minister is absolutely right that the new system will make the previous regime redundant, but perhaps he will return to a point that was made earlier and tell us—perhaps he already has, but I did not catch it—from  when this change will take effect. I hope that it will not be until the new microchipping system kicks in, because I am sure that we would not want a gap between the abolition of the existing system and the new microchipping system coming into effect. With those brief remarks, I will be as good as my word and sit down.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

This debate is of particular interest to me because I was bitten by a dog in the course of the previous election campaign.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

It obviously was not a dog of the left; I think it was perhaps a representative of a drug dealer.

Many of my constituents are worried about dogs and come to see me about dangerous dogs in their area that attack them and their dogs. Although they are all meant to be microchipped, which I very much welcome, not all of us will have immediate access to equipment to check a dog that has been microchipped. However, if a dog is wearing a collar with a name and address on it, we can immediately find its owner, so perhaps collars with names and addresses on them are a sensible addition to microchipping. I am not entirely at ease with getting rid of the requirement for collars with name tags.

We need legislation to deal with the serious problem of irresponsible dog breeding. People breed dogs in terrible circumstances. Dogs that are bred for fighting suffer, and often people suffer due to the effects of what the dogs do, because they can become very dangerous when they are not properly trained and cared for. I like belt and braces for such matters, rather than simply leaving it to microchipping. I will not vote against the amendments at the moment—my hon. Friend the Member for Dunfermline and West Fife suggested that we do not do so—but I hope that we will give constant attention to the need to ensure that we control dog owners and dogs in the long term.

Photo of Oliver Heald Oliver Heald The Solicitor-General 3:15 pm, 18th March 2014

The provisions in the schedule will be commenced by order and the aim is to ensure that there is no gap so that there will not be difficulties. The duties that we are talking about are on licensed establishments. Clearly many owners will want to put a tag and a nice little collar on their dog. In fact, I have recently bought my schnauzer, Boadicea, a very pleasant collar indeed.

Amendment 21 agreed to.

Amendment made: 22, in schedule 17, page 146, line 12 at end insert—

‘Breeding and Sale of Dogs (Welfare) Act 1999 (c. 11)

26A (1) Section 8 of the Breeding and Sale of Dogs (Welfare) Act 1999 (sale of dogs) is amended as follows.

(2) Omit subsection (1)(e) (offence for keeper of a licensed breeding establishment to sell to the keeper of a licensed pet shop or a licensed Scottish rearing establishment a dog which, when delivered, is not wearing a collar with an identifying tag or badge).

(3) Omit subsection (3) (offence for keeper of a licensed pet shop to sell a dog which, when delivered to him, was wearing a collar with an identifying tag or badge but is not wearing such a collar when delivered to the purchaser).

(4) In consequence of sub-paragraph (2)—

(a) in subsection (1), at the end of paragraph (c), insert “or”;

(b) in that subsection, omit the “or” following paragraph (d).’.—(The Solicitor-General.)

This amendment is also linked to the requirement, from 6 April 2016, for all dogs to be identified by microchip, and removes the offences relating to identification by a collar and a badge. This will apply to England and Wales only.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I beg to move amendment 1, in schedule 17, page 147, line 10 at end insert—

‘The Treason Felony Act 1848

The Treason Felony Act 1848 is repealed.’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment 13, in schedule 17, page 147, line 10 at end insert—

‘The Treason Felony Act 1848

In section 3 of the Treason Felony Act 1848, leave out from “to deprive” to “countries, or”.’.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I must make it clear I am not an antidisestablishmentarian, but I am also not a republican. I am very happy with the royal family and I think we should remain the United Kingdom—fully united. There is no question about that. However, if somebody were to imagine, for instance, that a Barack Obama was the president of the UK, I do not think it would be appropriate to deport them to Australia or New Zealand. The difficulty with the Treason Felony Act 1848, which is what my probing amendments 1 and 13 relate to, is that section 3 of it states that if any person shall

“compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom”,

that person will be subject to what would have been transportation, but is now life imprisonment. Interestingly, the Government thought that that measure had been repealed—they announced last year that it had been—but we then read a story in The Guardian with the headline “Calling for abolition of monarchy is still illegal” US “justice ministry admits”. It went on to say that the

“Department wrongly announced that section of law threatening people with life imprisonment had been repealed”.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

Did the hon. Gentleman mean the UK and not the US Justice Ministry?

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Did I? Sorry; I apologise to the Committee. Some people think that Barack Obama is our president, but I apologise for misreading the quote. It is the UK Justice Ministry that announced the abolition of the Act and then was embarrassed by having to say—

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire

As my hon. Friend was reading out that ancient legislation, it occurred to me that the previous Labour Government were in breach of it when they took the royal yacht from the Queen. Does he agree?

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

That is an interesting point, but the difficulty is the 1689 Bill of Rights, which offered them protections.

The Ministry of Justice went on to say:

“Section 3 of the Treason Felony Act 1848 has not been repealed. The Ministry of Justice has removed this publication and is reviewing its contents.”

We are considering two amendments—1 and 13—because, to be fair, the 1848 Act covers things that people would not want to go on, although they probably illegal under other statutes. Obviously we do not want people to encourage others to invade the UK or whatever, but we need to move on and make it clear—

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

No, this is not about an open-door immigration policy, but I am merely saying that advocating having a republic should not be a criminal offence. It is a question of freedom of speech and people’s right to express their views. I disagree with those views, but people should have a right to express them without the fear of life imprisonment. The Guardian, owing to the legislation, did not publish certain arguments in favour of the UK being a republic, although of course if the country was a republic, it would be difficult to call it the UK.

Research has found that the 1848 Act was last used in a prosecution case in 1879, so it is clear that the Act would fall within the remit of schedule 17, under the terms of clause 60, on the basis that it is, one hopes, of no further use.

Photo of John Cryer John Cryer Labour, Leyton and Wanstead

Can the hon. Gentleman give us further details about that 1879 case?

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I apologise for not having that information; I have only a short briefing note. One presumes, however, that the fact that the Act has not be used for more than 100 years means that it is of no further use, unless there is somebody who believes that we should resist people arguing for different constitutional structures in this country.

Obviously these are probing amendments, but the Act does have an effect, given that I understand it caused The Guardian not to advance certain arguments. I have been clear that I am happy with the royal family and I do not think we should become a republic, although, as I said, I am not an antidisestablishmentarian.

Photo of John Cryer John Cryer Labour, Leyton and Wanstead

This is an interesting pair of amendments. The hon. Member for Birmingham, Yardley implied that nobody would object to the removal of the measure from the statute book, and he is probably right, although one exception might be the hon. Member for Romford (Andrew Rosindell). As a former neighbour and a friend of the hon. Member for Romford, I can say that there are times when he seems to be the only thing between the royal family and the abyss. He is a royalist to his fingertips. Although we always got on when I was the Member for Hornchurch, I have always been a republican and, obviously, the hon. Member for Romford is an ardent royalist. Despite the fact that I am in a minority—I am happy to admit that I am in a small minority in this  country; there are probably about 20% of us, according to most polls—republicanism is a genuine tradition in British thought that has been there for many hundreds of years.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

It is interesting that, under the Treason Felony Act, even to imagine the country as a republic would be an offence that could result in transportation. How could 20% of the country be transported to Australia? Would it have those people?

Photo of John Cryer John Cryer Labour, Leyton and Wanstead

I spent four months in Australia in 1991-92 and thought it was a great country. If somebody had offered to transport me before I became an MP, I might have been happy to go. In fact, I came back to Britain in March 1992 to campaign in that year’s election when, of course, we got stuffed. I remember thinking on the day after polling day, “Why didn’t I just stay in Australia on a beach somewhere instead of coming back here?” I quite like Australia.

The context in which the 1848 Act was passed was paranoia and fear about what was then regarded as a spectre stalking Europe: the rising industrial working class. That was reflected in a number of publications that year, including “The Communist Manifesto”, which talks in its opening paragraphs about a spectre stalking Europe. I understand the fear among members of the establishment and the 1848 Government. It was only a decade after Victoria came to the throne and the monarchy was extremely fragile. She ascended to the throne at the end of a series of reigns that were deeply unpopular and tainted by continual scandal. I could say that that period of almost permanent instability remained with western Europe until 1945.

It is difficult to imagine now just how close Victorian society was to destabilisation, and a revolution might have taken place in certain circumstances. It is difficult to imagine now that that could happen again. It is only sensible that the 1848 Act is removed from the statute book, but perhaps we ought to contact the hon. Member for Romford to find out if he wants to pop along and speak in defence of the Act, although I do not think that even he would want to defend it.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I must confess that this is the debate I have been looking forward to for the past two weeks. My Front-Bench colleagues know that I have been enthusiastic about the amendment because it forms part of the fascinating story that was eloquently told at the start by the Member for Birmingham, Yardley.

As my hon. Friend the Member for Leyton and Wanstead said, we must look at the context of when the 1848 Act was passed. It was a time of huge turmoil. Revolutions were under way in Denmark, France, the German states, Italy and the Austrian empire. The monarchy was overthrown in France and I think I am right in saying that it was the end of absolute monarchy in Denmark. We had a young, new queen on the throne.

The United Kingdom had gone through a period of turbulence over the previous 200 years. One king—the last one to be born in Dunfermline—had his head chopped off in 1649, albeit not because he was from Dunfermline, but because he was a pretty terrible king. We had the restoration of the monarchy in 1660 and the so-called Glorious Revolution in 1688 kicked another  king off the throne. There were uprisings in Scotland and Ireland against the new monarchs throughout the 18th century. Our colonial cousins, in their infinite wisdom, chucked some tea overboard in Boston harbour and it all went horribly wrong from there, and France then went up in flames. If we fast forward to 1848, we understand entirely why the British establishment, very nervous about events in Europe, decided that such an extreme measure was needed on the statute book.

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire

I am worried about current events in Europe as well.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I am grateful that the hon. Gentleman has turned his lowly eyes towards Europe because we all rest better knowing that he is concentrating on things other than the BBC. Many of us are concerned about Ukraine and events elsewhere that are being discussed in the Chamber.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Does the hon. Gentleman find it particularly unusual that the offence is potentially a thought crime, in that imagining something is a crime? Is he aware of any other statute that legislates for a thought crime?

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

It is an interesting point. Part 4, which has already been repealed, said that if someone’s only crime was to speak about the overthrow of the monarchy, the rules for evidence were different. I was surprised, Mr Hood; I thought, “How can someone speak without thinking?” But having sat through this Committee for several days, I have begun to understand. The hon. Member for Birmingham, Yardley is right. Outside the Bible, the idea that someone commits a crime simply by imagining something is absurd.

The Opposition are clear. This matter should not detain the Committee long. We listened carefully to the Law Officer. When we discussed clause 54, he said that we should get rid of unnecessary laws. Well, we agree with the Government. We welcome the initiative shown by the hon. Member for Birmingham, Yardley, and we support his amendment. Given what the Government have already said, I am sure they will be supporting their Member too.

After everything we have been through in Committee—after all the happy afternoons we have spent together, Mr Hood—if we have learned one thing, it is that the Government are committed to taking off the statute book stuff that has never been used. I have it from Wikipedia that 1883 was the last time the 1848 Act was used in the United Kingdom, but we do not need to argue about whether it was in the late 1870s or in 1883. I can inform the Committee that the Act was last used in Australia in 1916 against members of the Industrial Workers of the World as part of the attacks on trade unionists. I am sure all historians of workers’ rights know, as I am sure you do, Mr Hood, that there is a suggestion that that was just an attempt to lock up people who were opposed to the first world war. I am not sure where they would have been transported to, given that they were in Australia.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

Dunfermline and West Fife. I do not think they would have been lucky enough to be sent to Scotland, which is unlucky for us.

My hon. Friend the Member for Leyton and Wanstead mentioned the hon. Member for Romford, and I checked with that other great parliamentarian, the hon. Member for North East Somerset (Jacob Rees-Mogg), who says that he is content that the Act should be abolished. As the Government will clearly support the amendment today, my only regret is that we will not have an opportunity on Report to hear the hon. Gentleman doing far better than me in taking us through the Act’s history.

As I have said, we are clear that the 1848 Act is exactly the kind of legislation that should be included in the Bill. It has not been used for a hundred and two score years, the Government have no intention of using it and there is no expectation on either side of the House that the Act will be used in future under any circumstances.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Does the hon. Gentleman accept that there are elements of section 3 of the 1848 Act that mean a better drafting of the amendments would be advisable? That is why amendment 13 is stronger.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I think the hon. Gentleman has done a good job of drafting the amendments. He is far too modest—he is well known for his modesty, and we often have to tease from him, after some reluctance, his views on the Bill of Rights and parliamentary privilege.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Let me explain to the hon. Gentleman that probing amendments are deliberately phrased to tease out the Government’s position. Amendments 1 and 13 are different in effect so that they may extract the Government’s views on different aspects of the 1848 Act.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

So it was a deliberate ruse by the hon. Gentleman. He keeps referring to probing amendments, but we will press the amendment to a vote in the unlikely event that the Government, having banged on for weeks about the need to take unnecessary legislation off the statute book, do not support it. We think the 1848 Act is exactly the type of thing that should be taken off the statute book. We know the Government are consistent, and we know they will welcome this helpful intervention by their friend, the hon. Member for Birmingham, Yardley. We therefore know that amendment 1 will pass on to the statute book as part of the repeal process in the very near future. Like the hon. Gentleman, we therefore commend the amendment to the Committee.

Photo of Oliver Heald Oliver Heald The Solicitor-General

Amendment 1 would repeal the entire Treason Felony Act 1848, whereas amendment 13 would repeal part of that Act. The background, of course, is that we have a number of treason Acts, which are designed to protect our constitution from overthrow by overt acts. Section 3 of the 1848 Act makes it an offence, punishable by a maximum sentence of life in prison, to contrive by an overt act to deprive the Queen of her Crown, to levy war against the sovereign or to encourage foreigners to invade the United Kingdom. The Act covers acts that have a violent character.

Photo of Oliver Heald Oliver Heald The Solicitor-General

In a minute.

The 1848 Act talks about

“compass, imagine, invent, devise, or intend”,

but of course the criminal offence is set out further down, where the Act talks about

“utter, or declare, by publishing”,

and so on,

“or by any overt Act or Deed…every Person so offending…guilty of Felony”.

That is ancient language and, as I will set out later, there is a case for reflecting on treason law generally.

What we are talking about here is violent acts—overt acts—that could be used “to deprive or depose” the Queen, or “levy war”. The Act also says:

“by Force or Constraint to compel Her…to change Her…Measures or Counsels, or…to put, any Force or Constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any Foreigner or Stranger with Force to invade”.

Photo of Oliver Heald Oliver Heald The Solicitor-General

In a minute.

Of course, that is ancient language, and we would not write laws in that way today. However, I can imagine circumstances where, in a case involving terrorism, one wanted to add to the indictment an offence that reflected the fact that what the people concerned were about was the overthrow of our Government. Of course, the reference to the Queen is the reference to the Queen who is the constitutional protection for our democracy; she is a constitutional monarch.

What I am saying to hon. Members—I will outline it more fully in a minute—is that although there is ancient language and of course there is no question of anyone being prosecuted for publishing anything these days, because that all has been established as a result of the European convention on human rights, when it comes to overt acts or violence in this country that might overthrow the Government, one would repeal this Act at one’s peril.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I am most grateful to the Solicitor-General for belatedly giving way; some of us might think that what he thinks of as making “one more point” is slightly more than that. He spoke several times about violence and violent acts—

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I am sorry, but the hon. and learned Gentleman referred to violent acts. Can he perhaps tell me how he thinks his imagination is an act of violence? What goes on in the Law Officer’s head that does not go on in anyone else’s head?

Photo of Oliver Heald Oliver Heald The Solicitor-General

The hon. Gentleman should read the original wording, because the 1848 Act says:

“if any Person…shall, within the United Kingdom or without, compass”—

“compass” means to contrive—

“imagine, invent, devise, or intend”,

and then it goes on to talk about deposing the Queen, waging war and so on. Then it mentions the offence, which is either to

“express, utter, or…publish”.

That is now defunct. However, it goes on:

“or by any overt, Act or Deed”.

An overt act of waging war is violence on a major scale, is it not? An overt act of using force to constrain the Government is an overt act of violence. What we are talking about are overt acts and if this Act is amended as suggested, there would be a gap in the protections.

Of course, the hon. Gentleman will say that this Act has not been used for many years, but that does not mean that it is not useful to have it in the locker for a particular kind of case that would come up only rarely.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I am genuinely struggling to understand what those specific cases are, given that the Act was not used during either of the world wars, when there were citizens of the United Kingdom plotting to overthrow the Government and the Crown; it was not used against the terrorists from Northern Ireland when they, for example, blew up members of the royal family, military personnel, civilians and politicians; and it was not used at any point in the more recent war on terror. What category of person would the Law Officer, in his distinguished role, see this Act being used against, given that it was not used against Nazis, Kaiserists, Irish terrorists or Islamic terrorists?

Photo of Oliver Heald Oliver Heald The Solicitor-General

The hon. Gentleman will understand that in the context of a war, such wide-ranging emergency powers are taken that it is a very different situation to peace time. Perhaps I can just develop the argument a little bit.

Let me deal with the point about writing or printing anything that advocated any of those actions. The effect of the amendment would be that it would no longer be an offence to contrive to deprive the sovereign of the Crown, or to advocate that by publication. That still leaves in section 3 of the 1848 Act the crimes of contriving to levy war against the sovereign and contriving to encourage invasion.

Treason felony is one of several treason offences. It was created at a time when treason was punished with death and juries were sometimes reluctant to convict. One of the purposes of the 1848 Act was therefore to provide that certain treasons were punishable with a non-capital penalty. Treason offences in general are rarely used: treason felony has not been used in the past 30 years and, we believe, not since the 19th century. Alternative charges are available where treason might have been the charge, such as murder or terrorism. Nevertheless, it is possible that there will be occasions when treason or treason felony might be appropriate to charge where a person advocates the overthrow of the monarch by violent or other unlawful means. It is a matter for the Crown Prosecution Service to decide under which legislation any prosecution in a particular case should be brought.

We recognise the concerns about the right to freedom of expression. The courts, however, are bound to interpret legislation in light of the Human Rights Act 1998 and the European convention on human rights, and that has been made clear. In the Rusbridger case in 2003, the  House of Lords indicated that in modern times, and in light of article 10 of the European convention on human rights, section 3 would not be used, or be capable of being used, in relation to the publication of articles advocating the abolition of the monarchy by peaceful means.

The Government recognise that the legislation is old and has not been used in recent times. However, that does not inevitably mean that any particular part of it is redundant. We do not support repeal without proper review and, if appropriate, consultation. Any changes would also require the Queen’s consent, as they would very much affect the Crown’s interests and it would be only right and proper to consult the royal household in the process.

There are numerous treason Acts—I think about 10—so this area of law could be reviewed more widely than simply looking at this provision. I emphasise that reform of the Treason Felony Act 1848 would take a good deal of work and consideration, and that is not a priority for the Government. I urge my hon. Friend the Member for Birmingham, Yardley to treat his amendment as a probing amendment and perhaps to withdraw it.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I said earlier that this is indeed a probing amendment and I intend to withdraw it. Such amendments would need drafting work for the exact reasons that the Solicitor-General gave. I think, however, that there is a mischief on the statute book. From reading the 1848 Act on the legislation website, it is clear that if someone published on Twitter that we happened to have a President, that would be in itself a criminal offence. In fact, the Human Rights Act requires legislation to be interpreted “where possible” in accordance with the European convention on human rights, but that does not override domestic legislation. If legislation is clear, as it is in that case, to imagine being a republic—

The Solicitor-General rose—

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I will respond—actually, I am intervening anyway. I will conclude, but the point is that the legislation on the statute book means that it is a criminal offence—[ Interruption. ]

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

Order. The hon. Gentleman is indeed intervening.

Photo of Oliver Heald Oliver Heald The Solicitor-General

The hon. Gentleman intervenes fascinatingly, if I may say. This is an offence with ancient language, so it needs to be read in the light of our modern convention obligations, international law and the way in which our current law has developed. In 2003, in a case brought by Alan Rusbridger of The Guardian , the House of Lords—our highest court—said that, in modern times, in the light of article 10, section 3 would not be used in relation to the publication of articles advocating the abolition of the monarchy by peaceful means. That would also cover imagining such an abolition.

Yes, the Treason Felony Act is old school and my hon. Friend raises a point that is right to consider and to review with consultation. However, I do not want to see the element of protection that it still provides removed in the case of overt acts of violence that might be  designed to change the decisions of the Queen in Parliament or to overthrow her position. The role of the monarch is as a guarantee of our democracy. This is not a case of reading something totally literally.

In circumstances in which there are hostile forces in the world that are keen to overturn our democratic institutions and constitutional monarchy, we would be leaving a gap were we to say that we only had the protection of being able to charge people if they were encouraging someone to invade or to wage war on this country. With someone who wants to engage in violent, overt acts in this country with the intention of overthrowing our monarchy or our constitutional arrangements, one can conceive of a situation in which the 1848 Act might be useful, although I accept that it could be better expressed.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley 3:45 pm, 18th March 2014

Does the Minister not accept that in the context of amendment 13, rather than of amendment 1, there is work to be done to make it clear to people outside this House that to argue for a republic is not in itself a criminal offence?

Photo of Oliver Heald Oliver Heald The Solicitor-General

I certainly agree that since the Rusbridger case in the House of Lords, publication of such views on a peaceful basis is not something that can be proceeded on.

There have been 10 Treason Acts going back to 1351 and, over the years, they have not been repealed, which is possibly to do with the wisdom of Parliament rather than with anything else.

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Cabinet Office)

Does the Minister see a contradiction in a measure, despite its not having been used for 140 years, remaining on the statute books? In other cases of legislation not being used—copyright for only three years, for example—it was determined to remove the legislation, even though the underlying issue remained.

Photo of Oliver Heald Oliver Heald The Solicitor-General

I do not think that we have used the Treason Act 1351 for many a year—I cannot imagine when we might have done—but we have never repealed it, because this House has recognised over the centuries that treason, the overthrow of our constitutional arrangements, is something so serious that laws against it are needed. I do not think that the sort of point made by the hon. Lady does justice to the question of where treason fits in our constitution. This is something at the high end of concern.

Photo of Karl Turner Karl Turner Opposition Assistant Whip (Commons)

I have to concede that the Minister’s remarks are persuasive. Will he confirm to the Committee, however, with the benefit of his position as a Law Officer, that there are other provisions in criminal law that cover the points he mentions? Overt acts of violence are already covered in criminal law.

Photo of Oliver Heald Oliver Heald The Solicitor-General

I have fully accepted that point, that there are terrorism and other offences that cover some of the criminality concerned. I think, however, that if someone commits such crimes with the purpose of overthrowing our constitutional arrangements, and  we could prove that that was the central intention, it is worth while at least having the provisions available for any indictment. I am not saying that the CPS will use the Act, but to abandon it would be a mistake. We should certainly reflect on it more. That is my feeling.

As the hon. Member for Leyton and Wanstead said, 1848 was a troubled time, with revolutions throughout Europe. People were determined to change the order, and in some cases they did so. The hon. Gentleman would have supported some of those challenges and not others but, having said that, we, too, live in a world that is changing rapidly and where there are some hostile forces abroad. I wonder whether we should rush to change our arrangements that have lasted over time.

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire

I have listened to the debate with great interest. Does the Solicitor-General agree that because we have no formal written constitution, all we have to support our great history of an unwritten constitution are ancient laws like these? Even though they are unused, they are still useful in supporting that great history.

Photo of Oliver Heald Oliver Heald The Solicitor-General

That is my view, and I ask the hon. Member for Birmingham, Yardley to withdraw his amendment.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

Before I call the hon. Member for Birmingham, Yardley, does any other Member wish to speak? After I call him, I will proceed to the vote.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I listened carefully to what the Solicitor-General has said, but it is completely contradictory. On the one hand, we have gone through a Bill revoking provision after provision, and the Government have said that they have not been used for years. The last provision we dealt with, I think, had not been used for 30 years. On the other, the Treason Felony Act 1848 has not been used for 140 years and the Government embarrassingly thought that it had been scrapped, yet they have no inclination to take it off the statute book. It makes us wonder what the purpose of the Bill is. We have been considering it for three or four weeks, and it is clear that it is a public relations exercise. It is an attempt by the coalition parties to say, “We have done something and we should be commended.”

The 1848 Act is a perfect example of something that is cluttering up the statute book, and we are clear that we want to have another look at it at an appropriate point. I am conscious that we have had a good-natured debate, and it would be unfair to show up the hon. Member for Birmingham, Yardley by making him vote against his own amendment. In the spirit of it being  towards the end of the day, and learning from your sunny disposition, Mr Hood—you have chaired us so well—I reassure the hon. Gentleman that we will not show him up today.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I do think this is unfinished business, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule, as amended, be the Seventeenth schedule to the Bill.

Photo of Oliver Heald Oliver Heald The Solicitor-General

Schedule 17 contains a number of specified Acts and pieces of secondary legislation that are no longer practically useful. Rather than going through every one, I will give a couple of examples. Part 2 of the schedule repeals sections of the Newspaper Libel and Registration Act 1881 that require owners of newspapers that are not companies to register, make an annual return and pay a fee. The sections were enacted to facilitate libel actions, but the world has moved on and libel law has changed.

Another example is part 7 of the schedule. It revokes a redundant piece of secondary legislation from 1948 that restricts admissions to the Greenwich Hospital school to the sons of officers and men of the Royal Navy and other seafarers. The Greenwich Hospital Act 1990 introduced wider admission criteria and the school, which is now the Royal Hospital school in Ipswich, admits boys and girls aged 11 upwards, regardless of seafaring connection. The 1948 order should have been revoked in 1990, but it was not. To regularise the position, it is included in the schedule. Although the removal of legislation in schedule 17 is a modest, tidying-up exercise, it is important to rationalise the statute book, to make it easier for people to use and to clear away the undergrowth.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

To speak briefly—I think we have got to the end of the debate—these are all sensible tidying-up exercises, although it is interesting that none of the pieces of legislation in the schedule have been fallow for 140 years like the Treason Felony Act 1848. None the less, we think that 140 years should not be the benchmark we aim for with repealing legislation and we therefore support the schedule.

Question put and agreed to.

Schedule 17, as amended, accordingly agreed to.

Ordered, That further consideration be now adjourned. —(Gavin Barwell.)

Adjourned till Thursday 20 March at half-past Eleven o’clock.

Written evidence reported to the House

DB 14 Local Government Association, further evidence