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Under the Bill, the reporting year would not start until after Royal Assent-so the year would run from October 2009 to October 2010-and the report would be introduced as soon as practicable after that. Realistically, therefore, we would not get the first report until late 2010 or early to mid-2011. If my amendment were
incorporated, we could have the first report by next spring. It is a risk worth taking. If, as a result of being incorporated, the Bill does not pass through the other place-because the Government are too reluctant to accept even this modest amendment and to find the time to agree it-we would revert to consideration of the Constitutional Renewal Bill, and I could propose a similar amendment that could be implemented probably on exactly the same time scale.
Emily Thornberry: The hon. Gentleman refers to time scales. I am sure that he is aware, as a result of conversations, that some within the Law Commission have wanted the power in the Bill to be on the statute book for more than a decade. This is our chance.
Mr. Chope: The hon. Lady is trying to hold a gun to my head by saying, "Because you are sympathetic to the Law Commission, you should be sympathetic to not producing the best legislation in this House." If those within the Law Commission have been waiting for 10 years, why has a Bill been drafted that will not enable the first report to be issued for 16 to 18 months, or even two years?
Mr. Henry Bellingham (North-West Norfolk) (Con): On the point about the timing of the Bill, and the mechanism used-a private Member's Bill-had the Government really wanted to put this on the statute book, surely they could have used one of the Bills already before Parliament, such as the Coroners and Justice Bill, which covers a number of different responsibilities and could easily have accommodated another one covering this Bill. That way we could have spent time in Committee debating it. That might have been a more satisfactory procedure. I agree with my hon. Friend, and I want the Bill passed, but, if Members have concerns, they should be properly discussed.
Mr. Chope: I am grateful to my hon. Friend. We are almost in danger of finding ourselves in a similar situation to that which we face in Committees on statutory instruments, when those instruments cannot be amended. We are nearly accepting, in the main Chamber on a Friday, a self-denying ordinance. We are not sure whether the Government will accept our ostensibly very sensible amendment, which everyone supports, and so we are almost in danger of not pushing it to a decision. That is a ludicrous situation. Sometimes we should call the Government's bluff. I have every confidence that if the amendment is accepted, it will eventually be incorporated on to the statute book. [Interruption.] Does the hon. Member for Oxford, West and Abingdon (Dr. Harris) want to intervene?
The Minister said that the amendments make matters less clear, but I think that they make them much clearer. At the moment, the Bill simply reads: "As soon as practicable". That is much less precise than
"no later than six months".
I am afraid to say that the Government's response makes me suspicious, and not for the first time. I am not sure that their heart is really in this Bill. They may say that it is, but if it was, they would accept our amendments instead of quibbling about them. Most importantly, they would have dealt with the substance of clause 1 and done something about the Law Commission's outstanding proposals, on which the Government have taken no decisions. Those proposals are still being considered, thanks to a logjam or some ghastly disease of incompatibility between Departments, leading to paralysis, which is a function of the increased bureaucracy of recent years.
All I am saying is that this is a case where the best and the good go together. At the moment the Bill is less than good. We are putting forward a sensible proposal to amend it. I therefore take pleasure in promoting and supporting amendment 1.
Mr. Chope: The amendments have the same intention for clause 2 as the previous amendments relating to clause 1. Amendment 4 is there because "shall" requires that something should be done rather than making it merely permissive as "may" does. I hope that the amendment will be accepted, not least because I know that discussions are already taking place between the Lord Chancellor and the Law Commission on the contents of the protocol.
"no later than six months after the coming into force of this Act"
Amendment 6 would leave out "may" and insert "shall" again, so that the protocol must rather than may include, among other things, various provisions about principles and methods of working. What is the point of putting "may" on the statute book? Obviously a protocol can include anything, and no statutory backing is needed for it in the first place. In that sense the whole of clause 2 is redundant: it is mere window-dressing. However, if we are to take it at face value and accept that it makes an improvement that would not have been made otherwise, we need to give the protocol some teeth by, as a House of Commons, setting out what we think it should contain-not preventing additions from being made to it, but establishing what we believe should be its minimum content. The amendment would ensure that its content was appropriate, rather than our having simply to hope that it would be.
Amendment 7 would add a new part to the protocol. If amendment 6 is accepted, it would be a mandatory requirement; if amendment 6 is not accepted but amendment 7 is, it would be a possibility. I tabled the amendment because I do not see any point in requirements such as this without sanctions. So often we say "This shall happen" or "this may happen", but if it does not happen, what are the consequences? I see the Government Whip, the hon. Member for Leeds, East (Mr. Mudie) nodding in agreement, and I hope that the Government will support the proposal.
The whole purpose of the Bill is, in effect, to name and shame the Government, on behalf of the Law Commission, if they do not behave properly and do not show the commission sufficient respect in recognition of its hard work and endeavour. But the naming and shaming will be no good without proper publicity, which is why the amendment requires any breaches of the protocol to be publicised. We would also need to find a way in which such breaches could be remedied. As Dicey used to say, there is no point in a command without a sanction. I am sure that that principle applies
to the Bill and that the Law Commission holds it dear, and I hope that the Government do as well.
"from time to time review the protocol".
Oddly enough, the position in this instance is the other way around. I do not see any need to require the protocol to be reviewed unless the Lord Chancellor and the commission want to review it. Requiring it to be reviewed would be pointless if both parties took the view that no benefit would result from such a review, and that it would necessarily be a bureaucratic and expensive exercise. I think that this is a case in which the draftsmen have got the "musts" and the "mays" the wrong way around. Requiring a review when no one wanted it would be absurd.
"Ministers of the Crown and the Law Commission must have regard to the protocol"
mean? It is an empty gesture. It is possible to have regard to something without taking any notice of it. Requiring Ministers and the Law Commission to have regard to the protocol is very different from requiring them to comply with it.
I know from conversations that I have had that the Law Commission sets great store by the protocol that is being drawn up. I am sure it will be expecting that once it has been drawn up and agreed the Lord Chancellor will "comply with" it, rather than just "have regard to" it. Therefore, this amendment would strengthen the Bill and make the protocol more worth while than it is at present, and I hope it receives the Government's support.
None of these amendments would do anything other than strengthen and improve the Bill. They would make it tighter, and they are in keeping with the spirit of what the Law Commission wants. If the hon. Member for Islington, South and Finsbury tells the House that she is worried that they are not supported by the Government, I hope the Minister will put her right on that. The argument that if this amendment were carried the whole Bill would be threatened is even more ludicrous than the argument deployed in respect of the first group of amendments, because the protocol will be drawn up anyway. It is being drawn up at present; its contents are being agreed between the Law Commission and the Lord Chancellor. It does not need any legislative cover, so it would not be threatened by the failure of the Bill to get on to the statute book.
Mr. Bellingham: Does my hon. Friend not find it somewhat peculiar and disconcerting that this draft protocol has not been made available to Members? After all, this Bill has been around for a while; its gestation goes back many years. As I understand it, over the years a number of members of the Law Commission have been calling for such a Bill. Therefore, we could have been given a draft protocol to look at as part of our deliberations on this Bill this morning and this afternoon.
My hon. Friend makes a very good point, which draws out of me a few comments on a letter sent to me by e-mail yesterday by Mark Ormerod, the chief
executive of the Law Commission. I asked him to send me some information on the proposed protocol, and he writes:
"This is in an advanced stage of drafting and we are hoping it will be finally agreed soon. On current plans it will cover:
(a) the process by which projects will be initiated, including scope and resource considerations;
(b) guidance on handling for the currency of the project, with the emphasis on regular communication and co-operation; and
(c) action upon completion of the project, to ensure that interim and final responses are completed within their timescales".
That is what it will cover, as far as he can tell me at present. Basically, that only sets out the headings, but it is the best result I have been able to achieve. My hon. Friend will immediately be making comparisons between those headings and the contents of clause 2(2) and wondering how they fit in together. I must say that I find it extraordinary that at present it is necessary to have a protocol to ensure regular communication and co-operation between the Lord Chancellor and the Law Commission, as I would have thought that that should go without saying in any well-organised Government.
Mr. Bellingham: The Law Commissions Act 1965 makes it precisely clear what is the relationship between the Law Commission and the Lord Chancellor, and the relationship with Parliament as well. It seems to me that this part of the Bill is completely unnecessary. It lays down in legislation something that should be taken as normal in any sensible, constructive relationship that is already itself based on statute. All it does is complicate the Bill, as well as throw into it a bit of extra new Labour jargon, so it is completely unnecessary.
Mr. Chope: I am grateful to my hon. Friend for those observations. During my conversation with Mr. Ormerod, he said that he hoped that the protocol would require other Government Departments to take the Law Commission more seriously. Again, that suggests that we have a dysfunctional Government with no discipline and no proper co-operation between Departments. That the Law Commission feels that the Government do not take it seriously is a reflection on the Government, and I am sure that when we have a Conservative Government, my hon. Friend will ensure that that failing is remedied. I look forward to that prospect eagerly.
If the amendments were accepted, the protocol would have some teeth, which it certainly lacks at the moment. I should be interested to hear why the promoter and the Minister are against these sensible amendments, as I anticipate will be their position.
We have almost got dialogue of the deaf-except that I am speaking and nobody seems to want to engage with me. The hon. Lady who is promoting the Bill suggests that she does not want to debate the amendments, and she has given no reasons for what she sees as flaws in my argument on tightening up the protocol. The Minister sits there silent, not explaining why the Government find fault with these amendments. I suppose that, if the Bill gets on the statute book, it will
be left to some of us to table similar amendments to the Constitutional Renewal Bill, to try to tighten things up if necessary. [ Interruption. ] The Minister is speaking-I do not know whether she wishes to intervene, because I could not hear her sedentary intervention. I am quite prepared to give way to her so that I can hear it; but again, neither you nor I, Mr. Deputy Speaker, can force the Minister to speak if she chooses to remain silent, irrespective of how much that might be regarded as being in breach of the conventions of this House.
The Minister was saying informally that at one stage she was minded to offer me a concession. I am still waiting for a concession to be offered across the Floor of the House, and I hope that in due course it may be and it will not be left until after the House has risen. If it was, my wife might get a bit worried, but leaving that to one side, I think it a pity that none of these amendments, which would give some teeth to the protocol, have found favour with the Government, so I hope the House will reverse the decision that it took during the last Division and support me in proposing them.
I feel remarkably tired but I am very pleased to have reached this stage. I thank all Members on both sides of the House for their support today and for the time they spent in Committee. I thank also, the large number of Members who have given me advice and shared their wisdom-the numbers are far too embarrassing to mention.
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