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Mr. Maclean: Nearly everyone who has spoken today has said that the failure to include the terminology "guilty but insane" was clearly due to a drafting error. I have heard no evidence so far that that is so. Perhaps the omission was a deliberate act on the part of the draftsmen or the Ministers responsible. I hope that the Minister will be able to reassure us that it was a technical error and not a deliberate act on the part of this Parliament.
Mr. Luff: My right hon. Friend leads me neatly to my next and--the House will be relieved to hear--final point, which concerns retrospectivity. This is retrospective legislation. Just as hard cases make bad law and the House must be suspicious of them, retrospective cases often cause difficulty, for precisely the reasons that my right hon. Friend has just given. What was in the mind of Parliament when the legislation was passed? Was what it did intentional or unintentional?
Thornton's "Legislative Drafting" defines retrospectivity thus:
Mr. Eric Forth (Bromley and Chislehurst):
I shall continue in the spirit of the excellent speech of my hon. Friend the Member for Mid-Worcestershire (Mr. Luff). A number of points deserve our consideration, given the rather unusual route by which the Bill has reached this stage. If anything, it is even more incumbent on us than it might otherwise be to ensure that we are satisfied about those points before allowing it to proceed. Because it has come from the other place, this is the last opportunity for it to be scrutinised in a considered way and in detail, and for us to discharge our responsibility as one of the Houses of Parliament.
The Bill was considered briefly in the other place. That is no criticism--far be it for me to criticise the methods adopted in another place--but I think it fair to say that the consideration was fairly brief. I think that it is also fair to say that, even at this early stage, a number of important points have emerged. It may have surprised hon. Members that what at first blush appeared to be a Bill of modest scope is already raising significant issues of principle, and I think it incumbent on us to satisfy ourselves about those before we proceed too much further.
One of those points, which my hon. Friend the Member for Mid-Worcestershire touched on, has bothered me considerably. I refer to the vexed question of whether it is legitimate or desirable to legislate on the basis of one known case, or even a very limited number of known cases. It is an age-old question, which has confronted us as a legislature many times over a long period; but that does not diminished its importance. What we are really saying is that, if we are worried about a single case and the existing law does not cover that case adequately, we should--as the hon. Member for Sunderland, South
(Mr. Mullin) put it, eloquently and, he thought, persuasively--move as quickly as possible to change the law in order to acknowledge the problem.
That is, in a sense, self-evident, as far as it goes. The danger is that, in some instances, changing the law to deal with one case could put at risk the principles of justice, access to justice and the balance of justice in other cases. We must satisfy ourselves beyond reasonable doubt that that will not happen.
Mr. Maclean:
Is my right hon. Friend slightly mystified by the fact that the other place was keen for the Bill to proceed quickly, although it twice rejected a similarly retrospective measure involving only one or two individuals--the war crimes legislation? We had to pass it by means of the Parliament Act.
Mr. Deputy Speaker:
Order. We should not start discussing other legislation.
Mr. Deputy Speaker:
I was under the impression that the right hon. Gentleman was. I apologise. Let me, however, reinforce my ruling that we are not going to go into other legislation.
Mr. Forth:
And I shall not answer my right hon. Friend's retrospectivity point now, Mr. Deputy Speaker. I shall deal with it in a moment. Looking at my notes, I find that that formed the second of the points that I wish to cover in my brief contribution, but I want to do justice to the earlier point that I was making. I do not want to weary the House with it, but it is important. I shall answer myself, in a sense, and therefore satisfy, I hope, other Members.
The question I pose is whether it is legitimate or desirable to make a change in the law based on a single known case. To my surprise, when the question was posed to the Library, we got back a considerable list of such cases. I shall not weary the House with the entire list; a few examples will suffice.
The one that all colleagues will remember with affection is the Peerage Act 1963, which arose from the battle of the right hon. Member for Chesterfield (Mr. Benn) to ensure that he was able to renounce his peerage and take his elected place in the House. That is one obvious case. I skip through some of the others. The law was changed in the Grant v. Borg case, which involved overstaying immigrants; after the House of Lords judgment in the Regina v. Preddy case, which involved mortgage fraud and acquiring credit by deception; and in the Thai Trading Company v. Taylor, case, which involved conditional fees.
I make that point only to dispel any doubts that colleagues may have about the respectability, if I may put it that way, of basing a change in the law on one single known case. Therefore, in that sense, I am persuaded, but there is a lingering doubt, which we should bear in mind before we finally dispose of the Bill: that there is no likely risk of the change proposed in the Bill having an adverse effect on our judicial system, access to justice or the probability of justice being done.
Given the particular circumstances of the Bill, its thrust and content, that risk is minimal, or probably zero--of that I am fairly satisfied. Given our duty and responsibility in such cases to consider whether there is a danger or risk, I am satisfied. I mentioned only a few of the precedents because I did not want to weary the House.
Mr. Maclean:
I think that my right hon. Friend could be in danger of inadvertently misleading himself, not that he would ever mislead the House. I have studied the precedents, too. Some of the cases that he has mentioned have not resulted in specific legislation, Bills or Acts, but have merely hastened Governments to make amending clauses in other legislation that is going through the House. That happened with the Access to Justice Bill after the R.V. Khan case; it speeded up Government legislation. However, there are very few cases--I am familiar only with the Viscount Stansgate case--of an Act of Parliament being introduced for an individual.
Mr. Deputy Speaker:
Order. We would extend the debate if we went into those matters.
Mr. Forth:
I am grateful, Mr. Deputy Speaker. You have let me off the hook. When I am under scrutiny from my right hon. Friend the Member for Penrith and The Border (Mr. Maclean), I am always grateful for any escape route that is offered to me, which I gratefully accept. That brings me readily to the next point that I wanted to cover: retrospectivity. Again, one has to be careful, but there is a duty on us to consider how far one is entitled, or is under a duty, to seek to go back in terms of legislation.
Throughout my studies at university, as far as I can remember them now, and even on coming to the House, I was told that we did not legislate retrospectively here. That was my firmly held view. I clung to that. I thought it an important principle until I got here. Then I found, as one does with many things--I am sure that right hon. and hon. Members will share the experience--that those things that we thought were established, nay, almost sacred principles of the House of Commons and, indeed, of our unwritten constitution, were nothing of the kind, and that we live in a flexible and fluid world at Westminster.
"It is desirable that wherever possible a statute should indicate in express and unmistakable terms whether (and, if so, how far) or not it is intended to be retrospective . . . Retrospective laws offend against the general principle that legislation intended to regulate human conduct ought to deal with future acts and ought not to change the character of past transactions carried upon the faith of existing law".
I know that the Home Secretary shares that view. Almost exactly 13 years ago, during a debate on the Rate Support Grant Bill, the right hon. Gentleman--then an Opposition Member--said:
"The Government have become slap happy in the use of retrospective legislation."--[Official Report, 23 June 1986; Vol. 100, c. 86.]
As my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) said, it must be clear that we are simply correcting an innocent drafting error, and that there is no matter of substance behind the omission that is identified by the Iain Hay Gordon case.
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