First Standing Committee on Delegated Legislation

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First Standing Committee on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Mr. Mike Hancock

†Byrne, Mr. Liam (Birmingham, Hodge Hill) (Lab)
†Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Clelland, Mr. David (Tyne Bridge) (Lab)
†Coaker, Vernon (Gedling) (Lab)
†Djanogly, Mr. Jonathan (Huntingdon) (Con)
Dorrell, Mr. Stephen (Charnwood) (Con)
†Harris, Mr. Tom (Glasgow, Cathcart) (Lab)
†Hermon, Lady (North Down) (UUP)
Lewis, Mr. Terry (Worsley) (Lab)
†Luff, Mr. Peter (Mid-Worcestershire) (Con)
Mallaber, Judy (Amber Valley) (Lab)
†Organ, Diana (Forest of Dean) (Lab)
†Palmer, Dr. Nick (Broxtowe) (Lab)
†Pearson, Mr. Ian (Parliamentary Under-Secretary of State for Northern Ireland)
†Taylor, Mr. John (Solihull) (Con)
†Wright, Mr. Anthony D. (Great Yarmouth) (Lab)
Geoffrey Farrar, Committee Clerk

† attended the Committee

 
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Monday 28 February 2005

[Mr. Mike Hancock in the Chair]

Draft Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2005

4.30 pm

The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Ian Pearson): I beg to move,

That the Committee has considered the draft Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2005.

It is a pleasure to serve under your chairmanship this afternoon, Mr. Hancock. A draft of the order was laid before the House on 7 February 2005. The order deals with a number of discrete and mostly technical subjects. Part II of the order relates to what may seem to be the fairly esoteric subject of deeds and escrows. By way of explanation, a deed is a particular type of transaction that must comply with certain formalities. It must, for instance, be written on paper or parchment. It must be sealed—it must have a seal fixed or impressed on it. It must normally be signed and in order to be effective, it must be delivered. Hence the expression “signed, sealed and delivered.”

In England and Wales the requirement for a deed to be sealed by an individual was removed in 1989 and new rules were brought into operation in relation to deeds. The Law Reform Advisory Committee for Northern Ireland recommended in its 2002 report that the same changes should be made in Northern Ireland and the provisions in this order give effect to that recommendation.

Mr. John Taylor (Solihull) (Con): On that point, I very much welcome the Minister’s remarks because he will remember that when I had the honour of being my party’s spokesman on Northern Ireland I always applied three tests to any Bill brought before the House. One test was that if possible the measure should make the law more, rather than less, convergent as between Northern Ireland and the rest of the country. Therefore I welcome what he has just said. There is a convergence, and in a country where the citizen is deemed to know the law, the fewer regional variations the better.

Mr. Pearson: I thank the hon. Gentleman for his comments. I am sure that I will be able to carry him with us on this order.

The purpose of the order is to read across legislation that currently exists in England and Wales to Northern Ireland. The order also contains provisions giving effect to other recommendations of the advisory committee. I draw particular attention to the abolition of the rule in Pigot’s case, which has long since been considered anomalous by the legal profession. The final part of part II also gives effect to a further
 
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recommendation of the committee: the abolition of the rule in Bain v. Fothergill, another rule that no longer has credence in 2005.

Lady Hermon (North Down) (UUP): The Minister has just referred to the Law Reform Advisory Committee for Northern Ireland. It would be helpful if he could say something about its composition, its status and the importance of its recommendations, as its website says very little.

Mr. Pearson: I do not have the names of its members to hand, but I hope to be able to provide them before the end of the debate. I wanted to stress that its members are all recognised law experts.

Part III of the order deals with reforms to domestic violence legislation. In 1998 the Family Homes and Domestic Violence (Northern Ireland) Order was enacted. It significantly strengthened the law in this area. A review of that order was carried out and the results were published in October 2003. Further consultation on the issues identified as in need of reform was included in an inter-departmental consultation, “Tackling Violence at Home”, which was also published in October 2003.

The order includes the reform measures identified by the review and consultation. Domestic violence affects approximately one in four women and one in six men in the course of their lifetime. Part III contains reforms that will strengthen civil protections for victims of domestic violence, while ensuring that the human rights of perpetrators are respected. The categories of relative who can apply for protective orders will be widened and clarified. Those who are suffering domestic violence within same-sex relationships will be able, for the first time, to avail themselves of the protections offered by occupation orders and transfers of tenancies. The facility to attach exclusion zones to non-molestation orders will also be afforded, and penalties for breach of protective orders will be increased.

The Family Homes and Domestic Violence (Northern Ireland) Order 1998 will be amended to ensure that when victims have obtained emergency ex parte orders, the perpetrator will be given a speedy opportunity to have their version of events heard by the court. The order also makes provision to ensure that anyone breaching a protective order will be guilty of an offence unless there is a reasonable excuse such as, for example, non-service of an ex parte order. Those collective measures will enhance and strengthen the existing law in Northern Ireland.

Part IV of the order relates to changes to the law of matrimonial property in Northern Ireland and each change is necessary in order to comply with the European convention on human rights. Protocol 7 to article 5 of the convention requires the law to treat a husband and wife equally. There are three common law rules that do not match those criteria, and the order remedies that. The issues were originally included in a draft Family Law (Divorce etc.) Bill, which was being considered by the Northern Ireland Assembly before it was suspended. Although the other provisions in that Bill relating to divorce law had been
 
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the subject of intensive debate in the Assembly, there had been universal agreement to the changes to those rules. I am therefore taking this opportunity to address them.

Lady Hermon: Could the Minister say a little about the views expressed by the Assembly on those sensitive issues, especially reform of the law relating to domestic violence? Will he give some indication of how Members of the Legislative Assembly felt at the time?

Mr. Pearson: I assure the hon. Lady that the Members of the Legislative Assembly who expressed an opinion in the debate and responses to the consultation supported the measures proposed today. The controversy was about the proposals relating to divorce, not those relating to matrimonial law.

The final part of the order involves the repeal or amendment of existing statutory provisions, which fall into four main categories. The archaic statute relating to the admission of certain overseas solicitors to Northern Ireland—the Colonial Solicitors Act 1900—is repealed. It was repealed in England and Wales some years ago, but it is still on the Northern Ireland statute books. It is unusual in that it applies to some former Commonwealth jurisdictions but not to others. The repeal is long overdue.

The order also deals with the repeal of the Trading Stamps (Northern Ireland) Act 1965. Since it was introduced, a comprehensive regime of consumer protection measures has appeared which has overtaken the protective measures in the 1965 Act. For example, the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 provide broadly similar implied terms concerning the satisfactory quality of goods that are sold or otherwise transferred to consumers.

It is important that businesses and consumers across the UK know where they stand in relation to their rights and responsibilities. The repeal, mirroring the repeal of parallel legislation in Great Britain, is a sensible and timely measure.

Finally, the order contains some necessary amendments, first, to the Census Act (Northern Ireland) 1969 to bring legislation into line with England and Wales, and, secondly, to amend an oversight in earlier legislation as it applies to the Damages Act 1996.

This is a diverse and technical order, but the changes that it makes are necessary and will be appreciated by those who have cause to use it. I commend it to the Committee.

4.39 pm

Mr. Jonathan Djanogly (Huntingdon) (Con): The order would improve Northern Irish law in several different areas. The legal changes are those that the Northern Ireland Office of Law Reform has identified as necessary. The amendments are based on recommendations made following research work by the Office of Law Reform and the independent Law Reform Advisory Committee for Northern Ireland. They have the benefit of synchronising the position between English and Northern Irish law in various
 
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respects, as my hon. Friend the Member for Solihull (Mr. Taylor) said. The changes have been consulted on and the official Opposition support them.

Part II of the order would bring about a number of changes in the law relating to deeds and escrows in Northern Ireland. We are pleased to see that they follow the advice of the Law Reform Advisory Committee for Northern Ireland, as set out in its 2002 report, “Deeds and Escrows”. As a practising solicitor, I am well aware of the need to maintain a balance between retaining the legal safeguards offered by the use of legal instruments such as deeds and escrows, and ensuring that the legal rules governing them remain workable. Removing the requirement for sealing of deeds, for example, seems a constructive move, which would bring Northern Ireland into line with England and Wales. The other changes relating to execution of instruments by liquidators and donees of powers of attorney, and the abolition of the rule in Bain v. Fothergill regarding damages for title defects seem equally sensible. I note that the Law Reform Advisory Committee has recommended further changes to contracts for the sale of land. Can the Minister say when the work required on those will be carried out?

Following the Office of Law Reform’s October 2003 review exercise, part III of the order makes a number of changes to the Family Homes and Domestic Violence (Northern Ireland) Order 1998, which relates to the use of civil orders for non-molestation and occupation of the family home. Those two types of order can be used together to protect victims of domestic violence. Occupation orders on their own can also regulate the short-term occupation of the family home when no violence has taken place but a family relationship has broken down. We are pleased that article 11 would close loopholes whereby orders do not currently apply to first cousins or certain in-laws. It would also, rightly, increase the maximum criminal penalties for breach of the civil orders. We are glad to note that the Government have addressed the issue of making the 1998 order human rights compliant, by providing that ex parte orders must only be made for a short duration.

I would be happy were the Minister to address one issue relating to the 1998 order. The report of the Office of Law Reform’s 2003 review highlighted dissatisfaction with a number of other issues, including difficulty in processing the amount of paperwork needed for the court, and legal aid time for an emergency ex parte hearing, which could result in lack of access to the court. Does the Minister intend to take further action to improve on that and other weaknesses highlighted by the review?

Part IV of the order is necessary in order to bring Northern Irish legislation in line with the European convention on human rights regarding equal treatment of husbands and wives. The three proposed changes are logical, and have already been debated by the Northern Ireland Assembly as part of the draft Family Law (Divorce etc.) Bill. The first change would be the removal of the common law presumption that a transfer of property by a husband to his wife is intended as a gift. Secondly, the common law duty of
 
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maintenance on the part of the husband would give way to the modern statutory provisions. Finally, the archaic rule about savings from a household allowance paid by a husband to his wife would be abolished.

Part V of the order contains further measures to modernise the statute books in the Province. My hon. Friends and I are always supportive of legislation that removes unnecessary legal and administrative burdens on businesses, and the order should be a welcome consequence of the repeal of the Trading Stamps Act (Northern Ireland) 1965. As the Minister pointed out, part V of the order also includes the repeal of the anomalous Colonial Solicitors Act 1900 relating to the admission of overseas solicitors, and an amendment of the Census Act (Northern Ireland) 1969, in relation to the collection of statistical information by the Registrar General of Northern Ireland.

In conclusion, as I have stated, my hon. Friend and I support the order. The proposed changes should prove useful in clarifying and modernising law in the areas that we have discussed.

The Chairman: The hon. Gentleman did remarkably well to keep a straight face for so long.

4.44 pm

Lady Hermon (North Down) (UUP): It is, of course, a pleasure, Mr. Hancock, to serve once again under your chairmanship. I am happy to welcome much of the order, and do not intend to detain the Committee long. I was particularly pleased that in the explanatory notes, mention was made of the Northern Ireland Office of Law Reform. It is one of those offices in Northern Ireland that has worked diligently behind the scenes for a long time, and rarely ever gets a word of praise, so I should like to put on the record my appreciation of its work over many years, and of its current director, Mrs. Ethne Harkness, whom I have known for long as a professional, industrious and hard-working individual. She sets very high standards and, I am sure, encourages her staff to follow suit.

That said, the Minister will know from my intervention that I have some concern about the lack of information on the work of the Law Reform Advisory Committee for Northern Ireland. Its website suggests that it is a powerful committee. The Honourable Mr. Justice Girvan is the chairman and Judge Burgess is the vice-chairman. Currently, six members are drawn from the legal professions and academia. I should be delighted if, at the end of this Committee, the Minister could furnish us with the names of those members; that would be helpful.

A colleague of the Minister was responsible for the Justice (Northern Ireland) Act 2002, which brought a lot of controversy but also many welcome changes, including the provision in section 50 establishing the Northern Ireland Law Commission. The commission is expected to consider criminal and civil law in Northern Ireland to bring about much-needed codification. With Northern Ireland having had its own Government at the Stormont Parliament for such a long time, there are still statutes on the statute book
 
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exclusively for Northern Ireland. The overlap with legislation from Westminster still causes problems for the legal profession and for law students at Queen’s university and other universities, who have to use textbooks that do not chime in all cases with the legislation in Northern Ireland.

The establishment of the Law Commission was a welcome development. It would be helpful if the Minister could tell us about any progress that has been made in the commission, or is everything on hold until the devolution of justice to the Northern Ireland Assembly? That may be a long way off, but the Minister will, I hope, be able to fill in the details.

I am pleased that much of the order brings legislation in Northern Ireland into line with that in the rest of the United Kingdom. It is one of those welcome developments. The order also brings all the UK into line with our obligations under protocol 7 to the European convention on human rights. One of the best things that the Government have done since taking office is making the ECHR part and parcel of our domestic law, so any advancement in improving human rights is to be welcomed. I say that on behalf of my party colleagues; I shall tell them afterwards what I said on their behalf. [Interruption.] I could not possibly speak for the Democratic Unionist party, but I will on this occasion speak for the Ulster Unionist party in strongly welcoming the fact that we are meeting our obligations under the ECHR. I am probably the only Ulster Unionist with life membership of the European movement, but do not tell anyone—do not let the secret out.

I should be most grateful if the Minister could clarify three small but important provisions. One is particularly important to me, as I should make clear from the beginning. It is in article 5 on the execution of an instrument by the donee of a power of attorney. Under paragraph (2), there will be the substitution of a provision in the Powers of Attorney Act (Northern Ireland) 1971. Paragraph (2) states:

“If the donee of a power of attorney is an individual, he may”—

I presume that that includes “she may”—

“if he thinks fit—

(a)   execute any instrument with his own signature, and

(b)   do any other thing in his own name,

by the authority of the donor of the power”.

That provision is of particular interest to me because, as some members of the Committee will know, my dear husband was diagnosed with Alzheimer’s more than two years ago, so I, along with my sister, have power of attorney for him. He would not be able to give me power to do the things set out in the article. I am talking about its wording. The Minister looks puzzled. It is a new substitution clause. For the donee of a power of attorney to execute any agreement with their own signature they would need the authority of the donor. That is my difficulty, and I would like clarification on that point on behalf of many people who find themselves in exactly the same position as me, with a spouse or partner who unfortunately has developed Alzheimer’s.

 
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I have simple concerns for the Minister to clarify on the other two provisions. Under article 16,

“The presumption of advancement is abolished in relation to married or engaged couples”,

and the hon. Member for Huntingdon (Mr. Djanogly) has welcomed that change. It is always a sensitive situation when an engagement falls apart: engagement rings have been exchanged and presents have been given by relatives, friends and colleagues who wish the couple well. Will the Minister advise all of us with children or friends who are engaged what the abolition of the presumption of advancement actually means if the engagement goes badly wrong?

Finally I move on to article 18, which deals with the housekeeping allowance. We all think that the provision is long overdue, and some of us wondered if there was still a presumption in relation to the housekeeping allowance being returned to the husband. My views are well known: I always seek equality between men and women in such matters. Other provisions throughout the order are very careful about the commencement date of the measures. For example, article 16(2) on the presumption of advancements clearly states that the presumption

“shall not have effect in relation to anything done before the coming into operation of this Article or anything done pursuant to any obligation incurred before the coming into operation of this Article.”

Time scale has been carefully considered in that case, but no account has been made in relation to the housekeeping allowance. There is no indication when the provision will come into effect—perhaps hon. Members could enlighten me if I am wrong.

Sadly, marriages fall apart too regularly. In the case of a legal action before the courts, will this provision have retrospective effect, or will it come into force at the end of these proceedings or on the date of commencement of the order? Will the Minister clarify that point, particularly if court proceedings could be affected by the ending of an arcane practice that I am glad to see the back of? With clarification of those points, I will welcome the order.

4.53 pm

Mr. Alistair Carmichael (Orkney and Shetland) (LD): I welcome you, Mr. Hancock, to the Chair. The business of law reform is not always one of the most glamorous aspects of either the legal profession or parliamentary business. In that respect, I echo the sentiments of the hon. Member for North Down (Lady Hermon) regarding the work of the Law Reform Advisory Committee and the importance of the Law Commission.

I am reminded that, some years ago, the Law Society of Scotland ran a series of lectures entitled “Law Reform: Who Cares?” That was a reflection of a substantial bone of contention among the legal profession and civic Scotland in the wider sense that, in Scotland, we were frequently hit not only by orders containing a number of minor consequential amendments, but often by wide-ranging provisions under the general Law Reform (Miscellaneous Provisions) (Scotland) Acts, of which there were several. They were always unsatisfactory beasts, and
 
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their absence is a positive aspect of the creation of the Scottish Parliament. That brings me to thinking that the consideration of changes such as those proposed today should properly take place in the Northern Ireland Assembly. As far as my colleagues and I are concerned, that cannot happen soon enough.

In referring to article 5, the hon. Member for North Down touched on one of the first matters dealt with by the Scottish Parliament after its creation—the Adults with Incapacity (Scotland) Act 2000. That Act is often cited by my colleague Jim Wallace as exactly the sort of thing that was highlighted by the Scottish Law Commission years ago but for which there was never time for proper consideration in this place. I suspect that the provision in article 5 is being passed only because it is in its current form.

The hon. Lady and the hon. Member for Huntingdon have already made it clear that they support the order. I do likewise; there is a lot of sensible tidying up in it. The article on formalities for deeds executed by individuals took me back to a different and altogether more painful age for me. I am delighted to say that the only use for my notary public seal these days is my children playing with it. They derive great fun from using my seal to make impressions in plasticine, and I am sure that other seals abolished by the order will be similarly put to good use.

The Chairman: As no one else is eager to speak, I call the Minister.

4.56 pm

Mr. Pearson: I welcome the support from all the Members who have spoken. The hon. Member for Orkney and Shetland (Mr. Carmichael) said that the order was a lot of sensible tidying up, and in many respects it is exactly that as a number of discrete pieces of work are contained in the order. The hon. Member for Huntingdon also said that the measures are sensible, and I very much agree.

When considering such pieces of legislation, it is important to realise that they can be very important to those affected by them. Although they are often technical in nature, it is important that they receive a proper level of scrutiny, and the hon. Member for Huntingdon provided that in a thorough analysis of the order’s contents. He asked some questions, including about contracts for sale of land and when any changes would be put into operation. The matter is currently receiving attention by the Office of Law Reform, and it is a component of its business plan for this year. We hope to issue a further document for consultation during this year and, depending on the outcome of that, we would expect legislation to be introduced in the future.

The hon. Gentleman also asked about paperwork and legal aid time, particularly with regard to ex parte injunctions. We have considered that carefully. I am not a solicitor by profession, which I am sure is obvious, but having discussed the matter with officials, it seems to me that the current level of paperwork is what is required for the applications. The courts must be able to make decisions based on all the evidence,
 
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especially in ex parte applications. Ex parte orders are significant, so all the evidence must be shown. However, it is a valid point for the hon. Gentleman to make, and we will continue to keep it under close review.

The hon. Member for North Down raised a number of questions. I will first refer to the composition of the Law Reform Advisory Committee and then say something about the Law Commission before moving on to clarify the three particular provisions that she mentioned in her contribution. The LRAC is an independent non-statutory body that has as its remit to keep the civil law under review and to make recommendations for its reform. It is a part-time body. Everyone is agreed that it has produced a number of excellent reports, many of which have been given legislative effect; indeed, that is what we are doing this afternoon.

The committee is currently composed of a High Court judge and up to nine other members. Its chair is Mr. Justice Morgan, and its vice-chair Judge Marrinan. The hon. Member for North Down referred to Mr. Justice Girvan; she might not be aware that he resigned from the committee a couple of months ago. The rest of the committee is composed of barristers, solicitors and academics. It includes Mr. John Neill, the senior solicitor, Mr. Patrick Kinney, also a solicitor, Mrs. Sheena Grattan, an academic, and Ms Mary Connolly, a barrister. There are currently three vacancies, which are subject to appointments procedures.

The hon. Lady also referred to the Law Commission, and mentioned the Justice (Northern Ireland) Act 2002. We hope that the Northern Ireland Law Commission will be set up soon. In our view, it is preferable, but not essential, for a devolved Assembly to be up and running before a Law Commission is put in place. I hope that we will see an early return to devolution. As the hon. Member for Orkney and Shetland said in his contribution to the debate, it is much better for detailed legislation of this kind to be scrutinised by an Assembly.

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Prepared 1 March 2005