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The Ministry of Justice was entirely helpful and entirely non-Sir Humphrey-like. The Minister of State, my right hon. Friend the Member for North Swindon (Mr. Wills), has been pragmatic throughout. I thank the Law Commission, including the assistance given to us by Mark Ormerod, the tenacity of the previous chair, Lord Justice Sir Terence Etherton, and the help we received this week from Lord Justice Sir James Munby. I am also thankful for the cool head of a young lady called Miss Chloe Wright.
Mr. Chope: As is apparent from the debates on the amendments, I am not against the Bill; I just feel that it is far weaker than it need be and is only necessary because the Government have failed to take the Law Commission as seriously as they should. We have a Law Commission that comprises some of the best legal brains in the country. They produce detailed reports on problem areas of the law, either where a fresh approach is needed for simplification or clarification, or to deal with a mischief that is causing problems for the public at large and is not being addressed by the courts, leading to frustration and correspondence-for example, with Members of Parliament. It is disappointing when the Law Commission proposes reforms and the Government disregard or ignore them. If I were a member of the Law Commission, I might find it quite humiliating to see so little regard for all that work.
I have been looking at the commission's annual report for 2008-09, which was printed on 7 July and is available in the Vote Office. It is the final annual report by the outgoing chairman, Sir Terence Etherton, and it addresses the Lord Chancellor, reminding him that, in Sir Terence's view:
"The establishment of the Law Commission was an inspired act of Government, born of the belief that accessible, intelligible, fair and modern law is the constitutional right of every citizen."
"the Commission has produced 180 final reports, recommending reforms that affect citizens every day",
"The Government has accepted and implemented"-
"135 of those reports."
In other words, 45 of the 180 reports that have been produced over that 40-year period have not been actioned. Sir Terence refers also to the fact that "12 await a decision"-in addition to the reports to which I have already referred-and says that
"the speed of implementation has been a cause of concern."
The purpose of the Bill is to try to remedy that concern, but, as I have already said, I am highly sceptical about whether it will make any difference, because it is not clear to me how a report that will be produced sometime between October next year and, let us be optimistic, the spring of 2011 will change anything that could not be changed now if we had a Government and a Justice Secretary who were prepared to implement the decisions that are outstanding. It is disappointing that
Sir Terence's success as commission chairman is praised on the basis that he has managed to bring forward the Bill. He describes as a
"significant development...the Lord Chancellor's statement to Parliament, introducing the Constitutional Renewal White Paper on 25 March 2008"-
"he announced his intention to bring forward proposals to place a statutory duty on the Lord Chancellor to report annually to Parliament on the Government's intentions regarding outstanding Law Commission recommendations"-
"statutory backing to a protocol."
Is it too cynical to say that, although the Lord Chancellor supposedly wanted legislation and made an announcement in 2008, nothing will happen until spring 2011? In the meantime, he could have been looking at all the reports-seriatim, to use that word again-and saying to different Departments, "What about this? Isn't this a good idea? Isn't that a good idea? Why don't we get on and implement these very important reports or at least come to some conclusions about them?" What is almost worse than that apparent lack of implementation is the fact that the Government are so slow and tardy at reaching conclusions on the commission's reports.
Sir Terence goes on to say how grateful he is to Lord Lloyd of Berwick for introducing the Bill to give effect to the Lord Chancellor's statement. Again, I can understand his excitement and enthusiasm. However, having heard the debate and the concerns expressed, I hope that, notwithstanding the Bill's contents, Members of this House and the other place will use them to put more pressure on the Government to implement Law Commission proposals that are waiting on the shelf for somebody to take them up.
The promoter, the hon. Member for Islington, South and Finsbury (Emily Thornberry), has already referred to one or two proposals. I do not want to mention many, but cohabitation affects an enormous number of our constituents, and the Law Commission carried out a project on the subject in 2007, focusing on the financial hardship suffered by cohabitants or their children on the termination of a relationship by separation or death. The Law Commission published its report to Parliament on 31 July 2007-more than two years ago. It contained final recommendations on the law affecting cohabitants' property and finances when relationships end, whether by separation or death. It was for the Government to decide what to do with it.
All that has happened is that the Government produced an interim response and issued a statement. I refer to that to illustrate the problem, which, I accept, the hon. Member for Islington, South and Finsbury believes that the Bill will address. The "Response to paper on cohabitation and relationship breakdown" came from the Ministry of Justice on 6 March 2008-nine months after the report was produced. The press release states:
"The report has been carefully considered and the government has decided it wishes to seek research findings on the Family Law (Scotland) Act 2006, which came into effect last year. This Act has provisions which are similar in many respects to those which the Commission recommends... The government propose to await the outcome of this research and extrapolate from it the likely cost to this jurisdiction of bringing into effect the scheme proposed
by the Law Commission and the likely benefits it will bring. For the time being, therefore, the government will take no further action."
If such a statement is made in an annual report-all we will get out of the Bill-how will life be any different? That concerns me. What pressure will be put on the Government to legislate on cohabitation when they have said that they have put the project on hold? Law commissioner Stuart Bridge said:
"We welcome the Government's view that the report is very thorough and of very high quality."
"The Government has indicated to us that it is postponing the decision...because it is concerned to establish estimates of the costs and financial benefits...We look forward to receiving the Government's final response."
The Law Commission still has not received that final response and, if the Bill gets on the statute book, we will not have a report for another 18 months or so on the Government's reason for not responding. That is only one example.
Another example, which is important and features in the newspapers almost every day, is intoxication and criminal liability, about which the Law Commission has made proposals for reform. Commission report No. 134 states that its
"recommendations for reform would render the law...logically sound as a matter of policy...more comprehensive and therefore more accessible; and...internally consistent."
There is a big history to this matter, because the commission undertook a thorough review of the law on intoxication prior to publishing a report in 1992 on intoxication and criminal liability. That went out to consultation, and the commission's recommendations were set out in its 1995 report. However, the draft criminal law intoxication Bill, appended to the 1995 report-the relevance of this example is that it shows that the problem has not occurred only under this Government, but under the previous Conservative Government-has never been implemented.
In 1998, after the present Government came to office, they produced a consultation paper entitled, "Violence: Reforming the Offences Against the Person Act 1861", about which people were quite optimistic. However, the Government concluded that the commission's recommendations were
"unnecessarily complex for the purposes of this Bill".
More than a decade later, the commission is extremely frustrated at the lack of progress. It wants to make the law more efficient and easier to apply. It produced a draft Bill, and perhaps the hon. Member for Hendon (Mr. Dismore) will take it up as a private Member's Bill in the next Session. That is another example of the sort of frustration that exists on all sides.
The final example-I could go on for a long time, but I do not wish to do so-is that of assisting and encouraging crime. Report No. 305, from 2007, deals with secondary liability. The consultation paper went back to 1993. The Serious Crime Act 2007 incorporated some of the commission's suggestions, but the implementation of the commission's recommendations is hit and miss. The hon. Member for Oxford, West and Abingdon (Dr. Harris) said earlier that the announcement that the
Government were going to legislate on sedition came about 20 or 30 years after the commission pronounced on it.
There are an enormous number of unnecessary Acts on our statute book. At the same time, our constituents face an enormous number of problems for which there is no proper, clear legal remedy. That could be put right if the commission's work were taken seriously and put into practice.
I am an enthusiast for the commission's work. I hope that the House will do more to put pressure on the Government to get that work incorporated into statute when appropriate, and that we will be less relaxed in future about letting the Government get away with not doing so. In so far as the Bill will do anything to assist in that process, I wish it well, but I fear that it might be being used as an excuse for further inaction. I hope that I am wrong.
The hon. Member for Islington, South and Finsbury told me that she does not have the largest majority in the House. Whatever happens at the next election, if she succeeds in getting a private Member's Bill on to the statute book, she will have achieved a great success, on which I would congratulate her. It may not be the hot news topic in the part of London that she has the privilege of representing, but that does not matter, because in this legislature, people will recognise that she has addressed a serious issue effectively, in her modest way.
Dr. Evan Harris: I congratulate the hon. Member for Islington, South and Finsbury (Emily Thornberry) on seeming to get this Bill through, and I suspect, knowing her part of the world as I do, that this is a hot topic there. It is important that there is some parliamentary accountability for the Government's response to the Law Commission. We are spending money on the work of the Law Commission and, far too often, its excellent reports lie idle. As the hon. Member for Christchurch (Mr. Chope) mentioned that issue, I just wish to draw attention to some reports that have taken a long time even to look as though they will reach the statute book.
The hon. Lady mentioned the report on blasphemy. I had a small hand in getting that on to the statute book by tabling amendments to the Criminal Justice and Immigration Act 2008. The 1975 report on sedition has taken 34 years to approach statutory form, as the Government have tabled amendments to the Coroners and Justice Bill in the other place, following the amendments tabled in Committee by Lord Lester and on Report here by me. Criminal defamation was dealt with in the 1985 Law Commission report, which recommended-possibly wrongly by today's standards-abolition and replacement with a slightly less draconian criminal provision, and that is covered by the welcome Government amendments tabled this week. Those are two examples of it having taken decades for anything to be done, and they are important issues even though the laws in question are not in use here. Other countries use them in an anti-human rights way and point to the fact that we retain them on our statute book against the advice of the Law Commission as a justification for repressing journalists and freedom of speech.
The only other example that I wish to give is that of the way the Law Commission report on homicide has been handled. It was not satisfactory-my hon. Friend the Member for Cambridge (David Howarth) is more of an expert than I am and, as he pointed out during the passage of the Coroners and Justice Bill through this House, the Government only half legislated for the Law Commission's provisions, therefore undermining them because they need to be taken as a whole. Further, we did not get a chance to debate revisions to the law of murder on Report stage.
David Howarth (Cambridge) (LD): The situation is even worse than the one that my hon. Friend describes. The Government gave the Law Commission a very restricted brief, and then failed to debate what it came up with in this House.
Dr. Harris: Exactly, and I hope that, as the hon. Member for Islington, South and Finsbury said, the report that the Government will have to produce will cause them to hesitate before agreeing the non-implementation of Law Commission reports without debate in this House or ignoring them completely. It is good that we are having this debate now.
There is a question of procedure, because it cannot be right that otherwise reasonable amendments to this Bill are defeated by the argument that we should not amend this Bill because it might run out of time, even though it has general support. I hope that the Reform of the House of Commons Committee, of which I am a member, will address itself to ensuring that any private Member's Bill-I congratulate the hon. Lady and her colleagues in the other place on getting this one this far-is not faced with the threat of running out of time, whether it has Government support or not. I am delighted that it looks as though this Bill will get its Third Reading unamended and will not have to go back to the Lords, but the prime objective is that this House should not be fettered by such concerns when considering amendments.
Mr. Bellingham: I congratulate the hon. Member for Islington, South and Finsbury (Emily Thornberry) on introducing the Bill. The Opposition support it. We think it is long overdue, but are disappointed that the Government have not used an existing Bill over the past couple of years or so to accommodate its contents. As the hon. Lady pointed out, Lord Gardiner, who was Lord Chancellor in the mid-1960s, was the architect of the Law Commission. Its key functions were to update the law, to advise on repealing old laws and to make recommendations for new ones.
At the time, Lord Gardiner's vision was considered fairly radical, imaginative and almost revolutionary. In the early years, the Law Commission was afforded great respect by the Government. However, as hon. Members have pointed out, one problem was that too many reports were simply parked on shelves and left to gather dust. Some good examples have been given. I shall not repeat them all, but I remember feeling quite strongly about the recommendations on mental capacity, which took 10 years to reach fruition in the Mental Capacity
Act 2005, the inauguration of the Office of the Public Guardian and other new arrangements.
The hon. Member for Cambridge (David Howarth) and I were members of the Public Bill Committee that considered the Coroners and Justice Bill, and we dealt at length with its provisions on homicide. I agree entirely with what he just said about that. Cohabitation, on which the Law Commission also produced a report, has been mentioned. The commission believes strongly that legislation is needed to afford new rights to cohabitees in certain circumstances, yet the Government have not moved on that at all-extraordinarily, they have not even produced a consultation paper. All too often, therefore, the Government ignore the Law Commission.
Under the Law Commissions Act 1965, the Lord Chancellor must lay before Parliament programmes prepared by the Law Commission that he has approved, as well as proposals for reform. The Law Commission must make an annual report to the Lord Chancellor, who must then lay it before Parliament. However, under existing rules, the Lord Chancellor is not required to lay before Parliament his own report on the implementation of Law Commission proposals. He does not have to set out plans for dealing with any such proposals that are not implemented, nor provide the necessary reasoning behind his decision. That was a serious flaw in the Law Commission's armoury and is why we support the first part of the Bill.
Hon. Members have asked whether that is necessary, because colleagues can table parliamentary questions and hold Ministers to account. I agree that hon. Members can use written parliamentary questions to mine data and information from the Government, but that presupposes that Ministers are prepared to co-operate and enter into the spirit of the exercise. All too often, we might feel very strongly about something one day, but events move on quickly and things are easily forgotten. In terms of the equality of arms, therefore, all the power is on the side of Ministers, and it requires very tenacious Back-Bench Members to push them to give the right information. The new arrangements in the Bill would therefore be an important and welcome step forward.
Mr. Chope: I agree very much with my hon. Friend, but can he assure the House that the Opposition are already actively looking at the Law Commission's outstanding recommendations with a view to deciding which of those pearls of wisdom should be implemented early under an incoming Conservative Government?
Mr. Bellingham: I assure my hon. Friend that those of us on the Front Bench, watched over with eagle eyes by those in the Whips Office, use virtually every spare moment of our time to prepare for government. Our team is looking at the Law Commission's recommendations and preparing Bills for the first Queen's Speech, in the event of our winning the election-we are not allowed to say "when"; we are saying "if", because we need to win the public's confidence and people's trust.
Clause 2 would insert a new section 3B into the Law Commissions Act 1965, which would introduce a protocol designed to provide a framework for the relationship between HMG and the Law Commission. Clause 2 also says:
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