§ 3.10 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
My Lords, in rising to move that this Bill be now read a second time, I have it in Command from Her Majesty the Queen, and from His Royal Highness the Prince of Wales, to acquaint the House that, having been informed of the purport of the Wild Creatures and Forest Laws Bill, they have consented to place their prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, I must apologise for inviting your Lordships once more to enter into the animal kingdom. This time we are no longer concerned with the distinction between animals ferœ naturœ and mansuetœ naturœ, cattle trespass or sheep sitting on the roads. This is a Bill very largely of historical interest. In the course of their attempts to reduce our Statute Book to a manageable size the Law Commission lighted upon an obscure branch of the law, of paramount importance in the days of the Norman and Angevin kings, but largely obsolete for the last few centuries. If we can abrogate this obsolete law, the seven pages of archaic enactments in the Schedule to the Bill can be repealed, and this will be a useful step towards the Commission's goal.
This is not a simple Statute Law Revision Bill, otherwise under our Standing 714 Orders it would be taking a slightly different course. It is a law reform Bill because, as well as repealing many spent and obsolete enactments, it abrogates the whole of the forest laws and abolishes certain of Her Majesty's prerogative rights. I do not think the House will expect me to enter into a great deal of detail, which would be possible were I to embark upon a discussion of essarts and purprestures, free warren, legal parks and galees and the Court of St. Briavel. I think that I can deal with the Bill in a more intelligible and perhaps more contemporary way.
Clause 1 does two things. In the first place, it abolishes certain Royal prerogative rights (together with some now obsolete franchises) relating to wild creatures other than swans; and, secondly, it abrogates the whole of the forest law except in so far as it relates to verderers. These two provisions are the essence of the Bill, and I must explain them a little more fully.
The origin of these prerogative rights is said to be that at common law certain articles thought to be particularly valuable and distinguished are set aside for the King. That they should include swans and sturgeon is, perhaps, only right, as in the Middle Ages they were considered great delicacies, until the native swan was superseded by the alien turkey—and the sturgeon, perhaps, by canned tuna. As for Royal fish, there is an agreeable tradition that the head was for the King, the body for the fishermen and the tail for the Queen. This was based upon an anatomical fallacy, because it was supposed that the whalebone, which was used for the Royal corsets, was in the tail. In fact it is in the head of a whale. However whales, I must rule, are Royal fish, whatever the scientists may say; and if anyone says that a whale is a mammal I shall refer him to the Gospel according to St. Matthew, chapter 12, verse 40, and leave him to the Bench of Bishops.
Quite apart from this, the existence of the prerogative right to Royal fish is of no benefit to Her Majesty; and occasionally, as students of A. P. Herbert's Misleading Cases will remember, it causes some inconvenience to other people. In particular, the disposal of the carcase of a stranded whale poses problems, because it is not often realised how to get authority to dispose of the carcase. Everyone thinks that there is 715 something special about it, but not everyone knows what to do. In practice, the Receiver of Wrecks carries out what is a disagreeable business.
My Lords, I have lighted on a marginal use to which the Royal prerogative on whales has been put, and this was well stated in a centre page article in The Times last Saturday. This may be a Committee matter, but I am anxious to reassure naturalists, among the greatest of whom I include my noble friend Lord Cranbrook who, I am glad to notice, is present in the Chamber. The point is that the Receiver of Wrecks informs the British Museum whenever a whale is stranded, and this has enabled the Museum to make an important compilation of information about cetacea. I understand that some noble Lords may be anxious lest the abolition of the prerogative would result in the Receiver of Wrecks no longer being willing or able to inform the Museum of a stranding. I am happy to say, my Lords, that the Receiver—whose present activities anyway are purely discretionary—is willing to continue to inform the Museum of the stranding of a whale, until assurances satisfactory to the Museum are received from any authority who may take over responsibility from the Receiver for the disposal of the carcases. I hope that this undertaking will prove satisfactory to those who are concerned with the point.
Swans, however, are another matter. The existence of the Royal prerogative enables Her Majesty to make highly cherished gifts to foreign Heads of State and is also the authority under which is organised the conservation of swans on the River Thames by the immemorial custom of swan-upping. Her Majesty's prerogative is, therefore, of some value to-day; and this Bill does not seek to interfere with it. I could leave the swans there, but I must make it clear that to be the object of the Royal prerogative the swan must be white, swimming in open and common rivers, and wild and unmarked. Why the black swan should be discriminated against in this way I cannot pretend to know—perhaps the Race Relations Board can tell me. At any rate, as noble Lords may know, the Dyers' Company and the Vintners' Company each have a one- 716 third interest in the swans on the River Thames, these rights having been granted by the Crown by Royal Charter.
My Lords, by Clause 1(2) the forest law is abrogated. Again, to explain fully what it was and still, theoretically, is would take me, even if I had the necessary scholarship, a somewhat long time. If I may put the matter to your Lordships somewhat generally, in mediæval times the King had a special right to preserve his own hunting in what was called "the forest", which did not necessarily belong to him at all. Complaint was made that the Norman and Angevin Kings wanted to expand the area of forest to suit their own sporting convenience, and it was to regulate this that much of the subsequent legislation was passed. In those days protection of the deer was the main object of the law, and it is now.
One of our oldest authorities, the Dialogus de Scaccario—in which scholars will recognise our old friend the Exchequer—makes the constitutional point that the forest law was at the King's will, and it was not surprising that the King's will did not always coincide with his subjects' interests. Be that as it may, the great 16th century authority on the forest law, Manwood, who wrote in 1598, could already say that the forest laws were by thengone clean out of knowledge in most places in the lawand hadgrown into contempt with many individuals in forests.The fact is that they were largely obsolete by the reign of Queen Elizabeth, and in spite of an unsuccessful attempt by King Charles I to revive them for the purposes of raising revenue, they have been obsolete ever since. The only point in the forest administration which still exists actively consists of the verderers of the New Forest and the Forest of Dean. These will continue to function under enactments which will not be repealed if the Bill is passed.
My Lords, I hope that I can take the rest of the Bill very shortly. Clause 1(3) will not prejudice the close seasons applicable in the Forest of Dean or the New Forest because any currently effective restriction on rights of common for this purpose operates under enactments 717 which are not repealed. Clause 1(4) introduces the repeal Schedule; Clause 1(5) preserves existing rights of common or pannage, which is feeding swine on acorns; Clause 1(6) preserves the system for electing verderers for the Forest of Dean, and Clause 1(19) preserves the statutory right of purchasers from the Duchy of Lancaster to appoint gamekeepers. Whether there are any such purchasers enjoying any such right to appoint gamekeepers I frankly do not know. If there are, they are free under this Bill to go on appointing them. Perhaps it is only a salute to Lady Chatterly's lover.
On Clause 2, which is the application to Scotland, I have only two points to make. Apart from a technical point on the Night Poaching Act, Scotland's only interest in the Bill is in Royal fish. Again, for reasons that I do not pretend to understand, in Scotland, Royal fish do not include sturgeons, and they do not include things like little whales, but only "whales of a large size", the test of whether it is of a large size being the possibility of dragging the whale to land on "a wain with six oxen". In Northern Ireland the forest law is inapplicable, but the prerogative relating to Royal fish and wild creatures applies. To repeal this is beyond the power of Stormont, and it therefore has to be done in this Bill.
There is obviously a great deal of learning behind this Bill, and I should like to express my gratitude to the Law Commission for the pains that they have taken in unearthing this extraordinary piece of almost archæological law. We ought to get rid of it, however picturesque it may be; and this Bill gets rid of much of it. If any noble Lord wishes to cross-examine me on the details of the Schedule, or even of the substantive clauses, I hope that he will give me adequate warning. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.22 p.m.
§ LORD GARDINER
My Lords, the House will want me to thank the noble and learned Lord the Lord Chancellor for the entertaining manner in which he has moved the Second Reading of this Bill. I would respectfully congratulate both the Law Commission for their Report and the Government on having introduced the Bill. Some years ago, being interested 718 in our Statute Book, I read large parts of Manwood on Forests, which is the leading textbook, published in 1598, and a number of the ordinances, charters and statutes, of which there are some 50, and I came to the conclusion that there were so many and they were almost incomprehensible, and that nobody, including the Law Commission, would ever be able to do anything about this particular black patch on our Statute Book. However, nothing seems to be beyond the Law Commission, and I am delighted that they have been able—and it has indeed been a great work of erudition—to produce this Bill for the consideration of the House. I hope that we shall speedily give it a Second Reading.
This having been in the past such a black patch, may I, without I hope trespassing on the time of the House, ask the noble and learned Lord the Lord Chancellor, having given him due notice, about four other rather black patches on our Statute Book. First, there are the burial laws, which the leading textbook in 1956 described in this way:This particular branch of the laws of England is indeed unrivalled in its complexity of authorities, areas, enactments, procedures and personnel. For instance, more authorities are directly or indirectly concerned with burial and cremation than any other modern public service. The relevant burial legislation is mainly to be found in nineteenth century statutes which have long been in dire need of simplification, amendment and consolidation.Whenever the appropriate Ministry—that concerned with local government—has been asked about this the answer always has been that they are just about to produce a Consolidation Bill.
As many of your Lordships will remember, on February 5, 1963, the noble Viscount, Lord Colville of Culross, took the brave course of himself introducing a consolidating Bill. I remember he told us that when sitting in a train outside Oxford he had composed this verse:Stinking gasworks, burning bright,Beside the sidings half the night,What immortal hand or eye,Made this awful cemetery?There was a very learned discussion as to when a graveyard is not a graveyard, when it is a cemetery or when it is a burial ground. The Bill was supported in all parts of the House: by my noble friends Lord Taylor and Lord Birdwood; by the noble Lords, Lord Amulree and Lord Milverton, and by the right reverend 719 Prelate the Bishop of Winchester. In replying for the Government, the noble Lord, Lord Hastings, said (and I quote from the OFFICIAL REPORT, Vol. 226, col. 508) that the noble Viscount had agreedto withdraw his Bill in order to leave the way clear for a more comprehensive Bill to be prepared for him on the lines I have described.The noble Lord, Lord Hastings, went on:I am sure that this was the right decision. I have, as he has said, undertaken, on behalf of my right honourable friend the Minister of Housing and Local Government, that instructions to the draftsman will be prepared as quickly as possible. By that I mean without delay, though I cannot yet say definitely, as the noble Lord, Lord Taylor, knows perfectly well, when the comprehensive Bill will be ready. Therefore I cannot give a definite date, any more than he would be able to do if he were in my position.My noble friend Lord Colville of Culross and other interested parties will be consulted regularly and from time to time as the work proceeds, and the House may rest assured that no one will be more pleased than my right honourable friend and I when this bewildering mass of nineteenth century legislation is brought up to date. We intend to proceed on those lines, as I have said, without unnecessary delay and as soon as possible.Next week, my Lords, it will be seven years since those remarks were made, and I wondered if I might properly ask the noble and learned Lord on the Woolsack whether the instructions to counsel have got there yet; and, if not, when they will.
Then, secondly, are we not a little tired of being told the position about those guarantees, very often with beautiful scrolls, accompanying contracts for the sale of goods, the sole object of which is to take away the statutory rights under the Sale of Goods Act of the unfortunate purchaser? Here successive Governments keep making promises. Only as recently as the 15th of this month the Under-Secretary of State for the Department of Trade and Industry in another place said—and I quote from col. 483 of the House of Commons OFFICIAL REPORT for the day:The fundamental question is whether it is right for anyone to take those rights away from the consumer by the so-called exclusion or exemption clauses to which the hon. Gentleman referred.The balance of opinion is clear—that it is not right that such exclusion clauses should be allowed.720 One might have thought from that statement that legislation was very near, but the Minister ended by saying (col. 486) only that he hoped that:one day we will be in a position to bring forward legislation to deal with the matter.I appreciate that this is one of the branches of our law which the Board of Trade arrogated to themselves and not one, maybe, for which the Lord Chancellor is responsible. However, I am sure that the House would be grateful, and particularly those here representing consumers, if we could be told what the immediate prospects are.
The third black patch is the law about hall-marking, of importance to the commercial community. Here again, I am afraid, it is the responsibility of the Board of Trade, and no one would complain perhaps, the Law Commission having quite enough to do, if the Board of Trade decided that it would like to get on with the reform of certain branches of our law. But as the Chairman of the Law Commission has recently pointed out, in this field we have the ordinance of 1238, and then we have the statute of 1300. He says:These two ordinances—for Parliament had as yet hardly aspired to the production of statute law—were the fore-runners of a long and confused strand of statute law regulating the standards to be observed in the manufacture of gold and silver. So confused had the law become that in 1855 a Select Committee was appointed 'to inquire into the offices for assaying silver and gold wares in the United Kingdom'. This Committee reported in 1856 that the law was in a most confused and unsatisfactory state, and strongly recommended that its anomalies and confusion should be ended by consolidating into one statute all the provisions requisite for the establishment and regulation of Assay Offices throughout the United Kingdom. Parliament did nothing. In 1878 another Select Committee looked into the matter and reported the existence of considerable uncertainty in the application of the law in consequence of the number of statutes in which it is found, and expressed the opinion that consolidation and amendment should be carried out without further delay. Parliament did nothing. In Westwood Ron v. Cann Lord Justice Denning said:'I would observe that in 1856 and 1879 Select Committees said that the law as to hall-marking was uncertain owing to the number of statutes in which it was to be found; and they expressed the opinion that the consolidation and amendment of the law should be carried out without further delay. Now, 73 years later, in 1952, I may perhaps be permitted to express the same opinion.'721Nothing has since been done …. In 1959 a Departmental Committee under the chairmanship of Sir Leonard Stone took another look at hall-marking and reached the by now hardly original conclusion:My Lords, for 114 years various Committees have gone on saying this, but nothing happens. The last time that I looked at the Civil Service List there appeared to be more lawyers in the Board of Trade than in the Lord Chancellor's office. What they do I am not sure, but I believe that something is now stirring, and for this reason. Lately, our EFTA partners have said, "Would it not be sensible if we all had the same hall-marking laws? These are ours. What are yours?" My Lords, ours are so awful that the Board of Trade dare not tell them. I believe that they have now got into a corner hurriedly to try to do something. I should like to ask the noble and learned Lord the Lord Chancellor: What is afoot?'that the numerous statutes that touch upon hall-marking and the protection of the public against the flood of adulteration in its purchases of wrought gold and wrought silver are so confused and obsolete as to be incapable of being patched up by amendment so as to form a workable and enforceable code.'They went on to recommend the substitution of a consolidating Statute in place of the existing confusion.
THE LORD BISHOP OF CHESTER
My Lords, may I remind the noble and learned Lord, before he leaves that part of his speech, that at least ten years ago, when a Bill was before the House to suppress the assay office in Chester, I raised this point on the Stone Committee and I was assured then. I think by the noble Earl, Lord Waldegrave, that the matter was to be dealt with immediately. As I say, that was ten years ago.
§ LORD GARDINER
My Lords, I am much obliged to the right reverend Prelate. The fourth example is the one about which I feel most strongly, because of the great hardship which it has caused to so many individuals, all of whom are deserted wives. The point is very simple. In 1920, Parliament, with general approval, passed the Maintenance Orders (Facilities for Enforcement) Act. All that Act did was to enable our Government, if they thought fit, to make with other Commonwealth countries reciprocal arrangements for the enforcement of maintenance orders. As the 1920s went 722 on, it was generally thought by everyone (because there is nothing Party political about this) that that Act was defective in two respects. First of all, it ought to have included affiliation orders, for somewhat similar reasons. Secondly, neighbouring European countries were beginning to ask whether we would not make with them a reciprocal agreement for the enforcement of maintenance orders, and we had to say that we were sorry but the British Government had no power to do so without legislation. It became even graver when Eire left the Commonwealth, because that meant that women in England who were deserted by husbands who had gone back to Eire could obtain no maintenance at all. I know that in recent years the Government of Eire themselves have been pressing us strongly to enter into a reciprocal agreement with them.
This being generally recognised in the 1920s, I believe that in 1931 a Bill was drafted and prepared to be introduced, but in the end it was squeezed out from that Session's programme. On a matter which is in no way Party political and on which, so far as I know, there is no controversy at all, it appears to me, if I may respectfully say so, that there is something wrong with a Parliamentary system under which 39 years later the Bill has still not been introduced. The only reason for this, so far as I know, is—and this again is not a Party issue; it does not matter which Party is in power—that each year the Home Secretary of the day has always had other Bills that he wanted to deal with. I was aware of this during the lifetime of the last Government. I think I can say that had that Government been returned to power at the Election, that Bill would have been included in this Session's programme. I should like to ask the noble and learned Lord the Lord Chancellor whether I am right in so thinking. If so, it must be observed that there must be a Bill ready, and I should like to ask when it is going to be introduced. My Lords, I apologise for having taken up the time of the House on this review of other black patches of our Statute Book. Nothing I have said detracts in any way from my already stated admiration, both for the Law Commission for having prepared this Report, and for the Government for having introduced the Bill.
§ BARONESS SUMMERSKILL
My Lords, may I ask my noble and learned friend a question before he sits down? While he rightly said that the omission to introduce legislation making maintenance orders reciprocal has involved hundreds of thousands of women and children and caused them great hardship, would he not agree with me that this year, when the new Divorce Act comes into operation and when it is possible for a woman, completely innocent of any matrimonial offence, to be divorced against her will, it is even more necessary to introduce this legislation? Then the man or woman responsible cannot entirely divest himself or herself of all responsibilities by getting on a hovercraft to France or an aeroplane to Ireland. I ask the House to bear in mind what my noble and learned friend has said, and, when the time comes, to give their support to any legislation which I hope the noble and learned Lord the Lord Chancellor will be introducing.
§ 3.35 p.m.
§ THE EARL OF CRANBROOK
My Lords, it is with some diffidence that I return to the Bill which we are supposedly discussing this afternoon. We have heard a very interesting dissertation on cemeteries, guarantees, hall-marking, Bishops, and deserted wives. I must confess, my Lords, that it tempts me, as the main point about which I wish to speak this afternoon is whales, to go off at a slight tangent, which I had not otherwise intended to do, and remind your Lordships that the Royal prerogative in whales was due to the shortages of oil and meat in early centuries, when the Crown insisted on having these oily creatures to render down when they were washed ashore.
The earliest record that we have of the use of whale oil and meat for human consumption is, curiously enough, associated with one of the points that the noble Baroness, Lady Summerskill, was mentioning. We find in Xenophon's account of the return of the Greeks from the Persian Expedition the first record that I know of, not only of the use of whale oil and meat but also of the permissive society, of which the noble Baroness disapproves so much. As the Greeks came to the country of the Abominable Mossinoiki they found that the Mossinoiki were in the habit of doing publicly things which the Greeks thought 724 ought to be done only in the privacy of the bedroom. They decided that of all the barbarian tribes they encountered, they were the most barbarous—a lesson which some people might learn to-day and adopt in this country.
Going further into the land of the Mossinoiki, as they looted the country they found large jars filled with whale oil and, what is more, filled with cooked whale meat preserved in hot oil, which had been allowed to become cool. It is interesting that not only did the Mossinoiki, in advance, see the sort of thing which is going on in many countries to-day as far as sexual mores are concerned, but they also anticipated Leibig, Pasteur and Lister, by a couple of millennia in finding out that you could keep things which had been boiled in oil in good condition for a long time.
Having been able to divert myself a little from the right way, may I return to the Bill? I suggest that the noble and learned Lord who sits on the Woolsack was rather by-passing some of the more important parts of the Royal prerogative so far as whales are concerned. I speak as an interested party. I am a trustee of the Natural History Museum, which for some sixty years has had an arrangement with the Board of Trade, as representing the Crown, under which, as the noble and learned Lord said, the appearance of any of these cetaceans on the coast of England is reported. The museum is allowed to take the first pick, either of the whole specimen or a part of it, and, as a result, has been able to build up a collection of material which is probably unrivalled by any comparable institution in the world. The museum is consulted by scientists from all over the world, and a great deal of extraordinarily interesting and important scientific research has peen carried out.
The noble and learned Lord who sits on the Woolsack, and his noble and learned predecessor, were congratulating themselves that some six pages (I believe that is the number) of obsolete Statutes are being removed from the Statute Book by this Bill. Only one of those refers to the Royal prerogative and the Royal prerogative over Royal fish, which is far more important than the noble and learned Lord has led us to believe. The fundamental point about the prerogative 725 is that the coastguard who finds the whale or dolphin is enabled, by reason of the fact that it belongs to the Crown, to prevent the casual tripper from taking odd pieces of it, thereby destroying the specimen and its usefulness for science. It is of fundamental importance that somebody should continue to have the rights to these things in order that the scientific material necessary to the museum may continue to go to it, not by the permission of the local authority, who would in future have the responsibility of disposing of the carcase, but as a right delegated to it by the Crown.
I can certainly well understand that that large number of Statutes which we see in the Schedule relating to the forests, completely, as the Report of the Law Commission says. "obsolete and unnecessary" enactments, should go. They are obsolete because the Crown no longer exercises a prerogative which it can under those Statutes; they are unnecessary because there would be no national advantage if they did. But that is not the case so far as Royal fish are concerned; they are not obsolete. The Crown has never ceased to exercise its prerogative. They are not unnecessary because they are still needed in order that the material may be available for the museum.
I should like to draw your Lordships' attention to one other point made by the Commission in their Report. There is a statement therein that it is necessary to revoke the Royal prerogative because the carcase of a whale may become a public health menace and considerable delay may be involved in seeking the permission of the Crown to dispose of it. That simply is not a fact. I have made every inquiry that I can. I can find no case where there has been any unnecessary delay which made it unfortunate that any reference had to be made to the Crown or elsewhere. What in fact happens is that the coastguard discovers the body; he immediately sends a telegram to the Museum, asking whether or not the material is required. A telegram is immediately sent back, either asking for it or saying, "Destroy it immediately". The only delay is that involved in sending the telegram.
726 There has possibly been one occasion when some slight delay occurred, when a telegram was received to the effect that the "Countess of Wales was floating in a rocky pool and unapproachable". I believe that some delay was caused by the Museum looking through the Peerage to try to find the name of the noble Earl whose Countess was so unapproachable. Very soon the confirmatory telegram arrived, and it was the carcase of a whale that was rotting and unapproachable. That was an apocryphal story, but that is possibly the maximum amount of delay which has occurred.
The other point I would make is that here we have a Bill which vitally affects one of our more important scientific institutions, and which to a lesser extent affects the public health authorities, who are now going to have to take upon themselves a duty which was previously carried out by a Government Department. I have made inquiries of the associations of local authorities, who were not consulted in any way. Most certainly we at the Natural History Museum were not consulted in any way. I cannot think that any deliberate discourtesy was intended to either body, but I am bound to feel that the Commission did not have before them all the facts which they ought to have had before them when they reached the conclusion that this one Statute out of the long list in the Schedule should be repealed. It is neither obsolete nor unnecessary. It is in fact almost exactly on a par with the Crown's right to treasure trove. So far as treasure trove is concerned, as your Lordships will be aware if there is any inquest and some discovery is found to be treasure trove—a good example are the half dozen gold torques recently discovered near Ipswich—the antiquity goes to the British Museum and the finder is rewarded. This is exactly the same, mutatis mutandis, as treasure trove. If the whale is required for scientific purposes, or the porpoise is required for scientific purposes, it goes to the museum, and not the finder. But the local authority who would otherwise be responsible does not have to incur the expense of disposing of it.
My Lords, I hope that between now and the Committee stage the noble and learned Lord will give this matter serious 727 consideration. Real damage will be done to science if whales are not combined with swans in being excluded, even if to collect the whale does not appeal to the same pageantry as swan-upping does.
§ 3.47 p.m.
My Lords, since my home is in the centre of a small one-time Royal forest long since alienated, and since I took my Title from its name, perhaps I have an excuse for being a little more romantic than some of the speakers in this debate. I, as are other noble Lords, am all for simplifying the law where it can be done, but I am not convinced here that the Government and the Law Commission have not gone too far, and not least since in line 4 of page 2 they have to fall back on claiming that certain subsections to be repealed are no longer of practical utility, which I feel could cover almost anything that might enter into a bureaucrat's mind.
The noble Earl, Lord Malmesbury, who unfortunately is not here to-day because he has not been well, has drawn my attention to one point which I think is of interest to nearly all noble Lords in the Chamber at this moment. It is in Chapter XI of the Charter of the Forest, which is the first item in the Schedule of Enactments repealed, on page 3. Chapter XI reads as follows:What deer noblemen may take.—Whatsoever archbishop, bishop, earl or baron",but not, let it be noted, Duke, Marquess or Viscount,coming to us at our commandment. [passing by] our forest, it shall be lawful for him to take and kill one or two of our deer, by view of our forester, if he be present; or else he shall cause one to blow an horn for him, that he seem not to steal our deer. And likewise they shall do returning from us, as it is aforesaid.I would assume that "passing through our forest at our commandment" would include answering a summons to attend Parliament and to attend your Lordships' House, and that this Chapter XI of the Charter of the Forest could still have some practical significance. It could indeed be of advantage to noble Lords who live some distance from London. I am not sure how many Royal Forests there still are, but the tedious journey to London that many of us have to make weekly from different parts of the country 728 could be made of greater interest if on occasions we were entitled to have a day's recreation en route.
The deer population of this country has not decreased recently. Since the war it has increased, and since there is likely to be a rise in the price of meat if we join the European Economic Community, I do not think we should be over-hasty in letting this small privilege be taken from us by the Government, aided and abetted by lawyers.
§ 3.51 p.m.
§ LORD DAVIES OF LEEK
My Lords, I had not intended originally to take part in this interesting debate; and had it not been for the brilliant explanation given to us by the noble and learned Lord the Lord Chancellor I should not have done so. There are three relevant details that I would wish to comment on. First of all, may I thank the noble Earl opposite for his contribution; I am fully aware of the great contribution his ancestors gave to forestry in this little island of ours centuries ago.
The noble and learned Lord the Lord Chancellor was talking about the Forest of Dean. One section of my family were famous hammer throwers, and my great grandfather learned the art of hammer throwing because he had the right in the Forest of Dean of going there with a mandrel or pick, which we colliers knew about in those old days. As far as he could swing a pick he would draw a string, and the entire area round his feet was his to work privately to get coal. In fact, now that the Government in power are so much for the apotheosis of private enterprise I would suggest that they abolish the National Coal Board and go back to this old-fashioned method, which was full of virility and competition. Has that right been abrogated?
Looking at the Schedule to the Bill, "Enactments Repealed", I see at page 8 a reference to Section 25 of 24 & 25 Vict.:An Act to make further provision for the management of Her Majesty's forest of Dean, and of the mines and quarries therein and in the hundred of St. Briavel's in the county of Gloucester.Has that right been abrogated? If my ghostly forefathers could come back, would they still have the right to work those areas for coal?
729 I was glad to see a reference on page 4 to:An Act for the better cultivation of navy timber in the forest of Alice Holt in the county of Southampton.I wish we had kept that in, because I deprecate the nature of the reafforestation right throughout Britain, and especially on our hills in Wales and in the Peak District, where the deciduous trees and the grand old English oak are no longer planted. I would have kept that Act and said that we need it still to plant the oak, because the silhouette of the mountains in the Highlands, in Scotland and in Wales is being changed. I hope that in repealing these forest laws that are supposed not to fit in with the times in which we live we shall still keep up our forests and see that a little more deciduous wood is planted for the generations that come after us, because this is our duty to our descendants.
§ 3.55 p.m.
§ LORD MONTAGU OF BEAULIEU
My Lords, I rise briefly to welcome the Bill, and to raise one point which affects my particular area in the New Forest. It is not unnatural that a Bill dealing with wild creatures and forest laws should include a number of New Forest Acts which are considered no longer of practical use. I have been asked by the Rural District Council of New Forest to raise one matter. I am not a member of the Council, but as a ratepayer I have an interest to see that their functions are carried out efficiently and for the general good of the public.
Among the Acts scheduled for repeal is the new Forest (Sale of Lands for Public Purposes) Act 1902, mentioned on page 9, line 37. This Act authorised the sale of forest land to a local authority for public health purposes free of any rights of common, and under it the Council have purchased land for sewage disposal works, cemeteries and so on. Then Section 102 of the Housing Act 1957, which is also up for repeal, provides that the provision of houses shall be deemed to be a local sanitary requirement for the purposes of the 1902 Act, subject to a limit of 30 acres. These provisions apply also to other local district councils, such as Ringwood and Fordingbridge.
When it was pointed out to the Law Commission that it was considered that the procedure under the 1902 Act was 730 advantageous to the councils, they replied that the powers of the Commissioners of Woods under the 1902 Act are now vested in the Forestry Commissioners, who cannot exercise them since the ownership of the New Forest is now vested in the Ministry of Agriculture, Fisheries and Food. Unfortunately, the Forestry Act 1945, which vested the Forest in the Minister, did not include a provision for transferring to him the powers of the 1902 Act. Whether this was deliberate or an oversight it is difficult to say.
The Law Commission state that it is not possible to include in the Bill a provision transferring the powers to the Minister as such a provision would be quite outside the scope of the Bill. Nor can the transfer of powers be made by Order in Council under the Ministers of the Crown (Transfer of Functions) Act 1946. It is the view of the Law Commission that a special Bill would have to be introduced for this purpose. However, the Commission are unwilling to remove the 1902 Act from the Repeals Schedule. They state that this would not take the matter any further, as the 1902 Act is quite short, and any Bill to transfer its powers can just as easily be done. There is, unfortunately, so far as I am aware, no other statute which confers a general power to sell to the New Forest Rural District Council land free of commoners' rights, and if the proposed repeal takes place without a concurrent vesting of similar powers in the Minister, it appears that the effect will be that land cannot be sold to the council without such rights of common and the Council will be left to clear off these rights as best it can. It will be appreciated that this will lead to delays while negotiations are taking place with the Verderers and others.
I wonder whether between now and the Committee stage the noble and learned Lord would perhaps look into this matter and see whether it would not be more appropriate if Section 102 of the Housing Act 1957 were removed from the Repeals Schedule and the appropriate steps were taken for the powers of the Commissioners of Woods to be vested in the Minister of Agriculture. If this was in fact an oversight when the 1945 Act was being drafted, then perhaps it is up to the Government to rectify the situation. In the meantime, considerable delay in public works and housing, and 731 so on, in the New Forest, and considerable embarrassment and suffering to local residents, could be caused.
§ 3.59 p.m.
§ LORD BROOKE OF CUMNOR
My Lords, I have been listening with fascination, as I am sure all of your Lordships have been, to this short debate. I would like to assure the noble and learned Lord on the Woolsack that I am not going to spring any questions on to him to which I desire an immediate answer. There may be other noble Lords who, like me, have been waiting with excitement to hear whether we are to have any authoritative explanation of either the fence month or the winter heyning—phrases which no doubt should be intelligible to me but I must confess are not.
However, my principal reason for rising is to express some disappointment that neither the noble Lord, Lord Davies of Leek, nor my noble relative, Lady Brooke of Ystradfellte, nor any other noble Lord of Welsh descent has called attention to the proposal to repeal an Act of 1535 described as "An Act for the abuses in the forests of Wales". It may be that the noble Lord felt that as this was an Act for abuses, and not against abuses, it was high time after 436 years that it should be repealed. But I have refreshed my memory as to the terms of this Act; naturally I was fully familiar with it when I was Minister for Welsh affairs, but since then the precise provisions had slipped my memory.
The Act appears to be misnamed, as it really is against abuses in the forests of Wales. Perhaps it does not matter so much; the principal abuse against which it was directed appears to have been a custom employed by Welsh "foresters, rulers, walkers or farmers", to stop anybody they found going through a forest who could not produce the appropriate token, and deprive him forthwith of all the money and gold on his person. I do not think that kind of thing happens in Wales now, and I doubt whether this 1535 Act is still required. But it certainly seemed to me, from my experience as a former Minister, that I should alert noble Lords of Welsh descent to the proposed repeal of this Act, so that between now and the Committee stage of this Bill 732 they can give the question more careful study.
§ 4.1 p.m.
§ THE LORD CHANCELLOR
My Lords, in dealing with some of the points that have been raised, may I start first with that of my noble friend Lord Brooke of Cumnor, the "Act for the abuses in the forests of Wales", 1535, 27 Henry VIII, Chapter VII. It is proposed to repeal that Act as being obsolete. The Forestry Commission and the Welsh Office have both been consulted and see no objection. The Act is referred to in the Chronological Table of Statutes as, "Local forests in Wales". It is not in the Statutes Revised. It will, however, be found in the Statutes of the Realm, volume 3, at page 536.
The Act abolished certain longstanding unreasonable customs and exactions whereby the foresters imposed tolls and fines upon persons going through the forest. In default of payment a person straying from the highway was liable to lose a joint of one of his hands. The foresters also seized cattle which they retained unless redeemed by their owners. Hence, perhaps, the phrase, "Take two cows Taffy". The Act declared that all subjects may pass through forests without the exaction of any such tolls or fines, but any cattle straying or fief taken in the forests might be reclaimed by their owners within a year, upon reasonable payment for their keep. My Lords, I think perhaps there is no useful purpose in retaining this particular Statute.
Dealing with the case put forward by my noble friend Lord Montagu of Beaulieu, it is proposed to repeal the Act of 1902 because it has become inoperative since Crown Land in the New Forest was transferred to the Ministry of Agriculture, Fisheries and Food under the Forestry Act 1945 (Chapter 35), now re-enacted in the Forestry Act 1967 (Chapter 10). I could give a rather longer explanation than that, but I hope that this will satisfy his correspondents in the matter. However, I will look at the matter again in the light of what he said, and I will write to him if there is anything to add.
The noble Lord, Lord Davies of Leek, was interested in two factors. First, the hammer-throwing method of obtaining coal in the Forest of Dean. I suspect, 733 without knowing, that that was abolished when the mines were nationalised generally by the Labour Government of 1945–50. Again, should I prove to be wrong I shall have to write to him. His point about navy timber is truly taken, but the plantation of national forest does not now take place under the Act which it is proposed to repeal. The Forestry Commissioners have more up-to-date machinery. I take the noble Lord's point about the desirability of a certain proportion of deciduous timber, if only for its amenity value.
My noble friend Lord Inglewood raised a point about the privilege of Peerage. I happen to know something about this, for a rather peculiar reason, which I will now confide in the House. When I was much younger I did not want to become a Peer at all. My father took quite a different view and was quite determined that when the time came I should become a Peer. I, however, discovered by reading in the old books what I thought would be a way of making the Peerage ridiculous: because I too, like my noble friend, read of this practice of taking a deer on your way to Parliament after sounding your horn. I said to my father, "If ever I succeed to your Peerage of Hailsham of Hailsham I shall shoot a deer in Richmond Park, blowing a motor horn first". My father went into the matter and told me the privilege was wholly obsolete and that, so far as he could ascertain, it had never been exercised. So I hope this repeal, too, may not be considered a serious encroachment upon the rights of your Lordships' House.
My noble friend Lord Cranbrook raised a point about whales and accused me of bypassing the point. I do not think I did. I had thought that the assurance which I gave him in the course of my opening speech more than covered the point he was raising, because I assured him that the present procedure would be followed as regards notification to the Museum, until one which they found acceptable was substituted for it. At least, that is what I thought to be the effect of the assurance I gave. If, on reflection, and reading what I said, he considers it to be in some way inadequate, I certainly would seek to improve upon it, if possible. But I think it is taking a sledgehammer to crack a nut to insist 734 that every porpoise which is landed on the coast of Norfolk is the property of the Crown, and can be removed only by the Receiver of Wrecks, if all that is wanted is for the National History Museum to be sure they have another porpoise for the purposes of science. I think perhaps my assurance will cover that case. But, as I say, if it is not good enough I hope the noble Earl will let me know, and I will then look at it again, before the Bill becomes law—and preferably before the Committee stage if he can let me know in time.
The noble and learned Lord, Lord Gardiner, asked me about four matters which are neither in the Bill nor in the Long Title to the Bill. I never know quite how far one can go in this House, but I think I could not give a disquisition on the whole of the law relating to hall-marking, burial grounds, exemption clauses and reciprocal enforcement of maintenance orders. But if the House will bear with me I think I can give some kind of answer to the noble and learned Lord, although I seem to have lost most of my notes.
First, as regards the reciprocal enforcement of maintenance orders I think that the Home Office will have a Bill ready before long. It will probably be the first of the four subjects to be ready for legislation. I cannot confirm or otherwise what the noble and learned Lord told us about the state of what would have been the Labour Government's programme, because he probably knows that there is a constitutional convention whereby civil servants are completely prohibited from telling successor Governments what was in the minds of their political predecessors. So I cannot confirm that, but I have no doubt that what the noble and learned Lord has said is correct. It would never cross my mind to doubt his account of the matter.
As regards burial laws, I think I can confirm that the law is in a state which demands action; indeed, the noble and learned Lord gave reasons for making it difficult to do 'anything else. I can tell the House that discussions between the Department of the Environment, which is the Department with the right of initiative in this matter, and the Law Commission have been taking place to see whether the matter can be considered by the Commission. Certainly 735 I shall be happy if this turns out to be the case.
I know something about the hall-marking law because by a curious coincidence for the first time in my professional life I was asked to advise about it last year. I again confirm what the noble and learned Lord has said. I am told that work on the reform began in 1969 and has now reached the stage where it should shortly be possible to put proposals before the interested bodies for comment and discussion, which is the necessary stage in our modern technique of law reform. Obviously, we need to repeal all the old legislation and replace it by a modern Statute, but I could not give a date for the Bill at the present time.
As the noble and learned Lord said, the Sale of Goods Act is a matter for the Department of Trade and Industry. It is a matter not quite so easy as it sounds, because the English and the Scottish Law Commissions arrived at diametrically opposite conclusions on certain points; but the situation is, I hope, that advances and progress will be made. Again, I cannot give much better news to the noble and learned Lord than that the subject is under more or less active consideration by my right honourable friend. I am afraid that it would be imposing on the House to deal more than summarily with the four points put forward by the noble and learned Lord. I hope that I have dealt sufficiently with them and have covered all the points raised in the debate. I hope that the House will now be prepared to give a Second Reading to this imperious little Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.