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16 Oct 2009 : Column 600

I would simply ask whether the clause is really necessary. It cannot cover any new powers or functions; rather, it relates only to existing powers and functions. It creates neither new powers in respect of the Lord Chancellor or the Government, nor any directly enforceable rights and obligations. I would therefore ask whether such a protocol is necessary. If we can get Departments working with each other more closely and taking the Law Commission's work more seriously, the protocol will probably be a waste of time. Indeed, it is a bit of an insult to what should already be a close and positive relationship between the Law Commission and the Lord Chancellor.

We welcome some of the recent changes introduced by the Government, particularly the recent internal reorganisation of the Ministry of Justice into five divisions, including one covering democracy, the constitution and law. The Law Commission now sits within that pillar, rather than coming under the courts division. That definitely makes sense, and the Government need a pat on the back for making that change. In April the House of Lords finally approved a special procedure for non-controversial Law Commission Bills, which was also a good step forward.

Recently the Ministry of Justice belatedly upgraded the ministerial committee for the Law Commission, which always used to comprise junior Ministers from different Departments. I believe that the intention now is for the committee to have much a wider reach than over the past, say, 10 or 12 years. I hope that that will address the disconnect between Departments and the Law Commission, as well as the problem that we are all so concerned about, which is that numerous excellent reports are simply sitting on shelves gathering dust and no one is taking them seriously.

Today's Bill is a small step forward. We wish it well and hope that it gets through as quickly as possible, because although it is modest, it is an important step in the right direction.

2.3 pm

David Howarth: I, too, welcome the Bill on behalf of my party and congratulate the hon. Member for Islington, South and Finsbury (Emily Thornberry) on getting it this far and, I hope, to its final destination in a few moments.

However, I would not want people to think that because a lot of Law Commission reports are about technical law they just do not have political or policy consequences. Every one of them has some political or policy content. There are gainers and losers in almost every proposal, even if they are simply in the legal profession. Therefore, non-implementation of a Law Commission report is not automatically a bad thing. There might be a genuine political difference between the assumptions made by the Law Commission and the Government of the day. However, the Bill does something important: it forces the Government to give their reasons.

Hon. Members might remember the attempt when the Legislative and Regulatory Reform Act 2006 was going through to reform how Law Commission reports come forward. The Government insisted that they would never obstruct a non-controversial proposal-they said that they would use the powers in that legislation only
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for non-controversial proposals and would not put through controversial ones-but could never offer a definition of what was controversial.

This Bill does something much more reasonable, which is simply to say to the Government: "If you're not going to implement this proposal, you'll have to say why." That might involve financial reasons, or a disagreement with the moral basis of a Law Commission report-that might well be the problem with the report on cohabitation. The Government will not, however, be allowed not to give a reason. It is possible that the Government's real reason may not be a proper reason. For example, they may fear the way in which a matter could be reported in the Daily Mail. They would not give that as their reason, of course; they would be forced to give a different one.

I believe that there will be occasions when the Government, faced with the choice of either giving a reason other than their real reason or simply getting on with it, will choose simply to get on with it. For that reason, the Bill, even though it looks modest, might have some real-world effects. Some Law Commission reports might go through because the Government decide that it is not worth giving a false reason for not implementing them. I welcome the Bill. I do not think it is quite so modest as the hon. Member for North-West Norfolk (Mr. Bellingham) thinks it is. I believe that it will have good effects in the long term and I wish it well.

2.5 pm

Bridget Prentice: I should like to add my congratulations to my hon. Friend the Member for Islington, South and Finsbury (Emily Thornberry) on getting her Bill to this stage. I hope that, within the next few minutes, it will receive its Third Reading. These are important issues. As the hon. Member for Cambridge (David Howarth) said, they might look technical, but they will have a real effect on our constituents' lives.

It is a great privilege for my Department to be associated with the Law Commission. The Commission has made a significant contribution to law reform since it was founded in 1965, and that contribution is much valued by the Government and those in the legal and judicial world. Contrary to what people might infer from earlier contributions to the debate, many Government Bills have originated with the Law Commission. I can cite two current examples in my Department. The first is the Perpetuities and Accumulations Bill, which is nearing the end of its parliamentary stages. I hope that, by the end of Monday, it will have completed most of its Commons stages. The second is the bribery Bill, which is included in the draft legislative programme for 2009-10.

As my hon. Friend the Member for Islington, South and Finsbury has said, the task of the Law Commission is fundamentally important because its aim is to make the statute book fairer, more appropriate to the circumstances of the time, simpler, more easily comprehensible and more cost-effective. The good health of our statute book is fundamental to the good health of our democracy.

As my right hon. Friend the Lord Chancellor has previously said to the House, we are committed to strengthening the role of the Law Commission. I should
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like to give the House two recent developments as evidence of this. First, as the hon. Member for North-West Norfolk (Mr. Bellingham) mentioned, we have introduced a new procedure in the House of Lords for the consideration of politically non-controversial Law Commission Bills that are strongly supported by the Government. The Perpetuities and Accumulations Bill is the first Bill to go through this procedure, and, as I have already said, we hope it will achieve Royal Assent very soon. I hope that many more Bills will use this system, leading to even higher levels of implementation of the more technical Law Commission Bills.

Secondly, we have amended the Law Commissions Act 1965 to provide that the chair of the Commission must be a High Court or Court of Appeal judge. We believe that that will enhance the standing of the Commission as a whole, and that it will provide a symbol of its independence and political neutrality, both of which are extremely important to it. The newly appointed chairman of the Law Commission, Sir James Munby, is a Court of Appeal judge, and we wish him and his team well in the course of the next few years.

During the debate, allusions have been made to the length of time it has taken for some Law Commission reports to be implemented, and I agree that, in some cases, that has been shockingly long. There has also been a suggestion that very few such reports make it to the statute book. I have to say that the facts do not bear that out. Currently, we have implemented 67 per cent. of Law Commission reports, or two out of three. We obviously want to improve on that, but it is not such a bad figure; it is a testament to the commission's impact on our law. All that has been achieved with the Government's support, and we support this important Bill because it is a mark of our commitment to the commission.

Mr. Chope: I had the opportunity to speak to Sir James Munby since his appointment and I know that he takes this issue very seriously. I wonder whether the Minister is able to give him a piece of news today about what the Government are going to do in respect of each of the reports on which the Government's decision remains outstanding. If she cannot answer me across the Dispatch Box now, will she write to hon. Members and place her answer in the Library for us?

Bridget Prentice: I will certainly raise it with the Minister within whose portfolio the Law Commission sits, and I will ensure that either he or I write to hon. Members or put in the Library a response to the question that the hon. Gentleman rightly asks.

We see the Bill as a key mechanism for delivering higher implementation rates of Law Commission reports, which will benefit both law reform and the taxpayer. The requirement on the Lord Chancellor to report on the extent of implementation of Law Commission reports each year will keep up the pressure on us, the Government, to account for decisions on implementation. Of equal or perhaps more importance is the protocol that will set out best practice in terms of working relationships between the Law Commission and Departments on individual projects. That is what should assist in developing the collaborative relationship between the Law Commission and Departments that experience teaches us is the key to successful implementation.

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Finally, I want to stress our commitment to the work of the Law Commission. The more effective the Law Commission is in having its reports on reform accepted and then implemented, the more successful it will be in achieving its overall objective of making the law fairer, more modern, simpler and as cost-effective as possible, which I believe the whole House would want to support. I am thus very pleased indeed to support the Bill. My hon. Friend the Member for Islington, South and Finsbury can go back to her constituency, having shown herself to be a true parliamentarian in taking through a private Member's Bill. That is not an easy thing to do and it does not happen very often. My hon. Friend has every reason to be proud of her achievements today.

Emily Thornberry rose-

Mr. Deputy Speaker: Order. I am about to put the question. We do not want any obstacles at this late stage.

Question put and agreed to.

Bill accordingly r ead the Third time and passed, with an amendment.

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Crown Employment (Nationality) Bill

Consideration of Bill, as amended in the Public Bill Committee.

New Clause 1


'(1) A person who is ineligible to be employed or hold office in a civil capacity under the Crown by reason of the rules made under section 2 may appeal to a Crown Employment (Nationality) Rules Tribunal ("the Tribunal") for an exemption from the rules.

(2) The Secretary of State shall make regulations with respect to the composition, conduct and operation of the Tribunal.

(3) The Secretary of State may not make regulations under this section unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.

(4) The power to make regulations under this section is exercisable by statutory instrument.'.- (Mr. Chope.)

Brought up, and read the First time.

Mr. Christopher Chope (Christchurch) (Con): I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: Amendment 1, page 1, clause 2, leave out lines 13 to 16 and insert

(1A) A post is a reserved post if-

(a) it is a post in any of the security and intelligence services, or

(b) it is within subsection (1B) or (1C), and a Minister of the Crown has determined that it is necessary for requirements as to nationality to be satisfied in relation to the post.

(1B) The posts within this subsection are-

(a) posts in Her Majesty's Diplomatic Service and posts in the Foreign and Commonwealth Office, and

(b) posts in the Defence Intelligence Staff.

(1C) The posts within this subsection are posts whose functions are concerned with-

(a) access to intelligence information received directly or indirectly from any of the security and intelligence services,

(b) access to other information which, if disclosed without authority or otherwise misused, might damage the interests of national security,

(c) access to other information which, if disclosed without authority or otherwise misused, might be prejudicial to the interests of the United Kingdom or the safety of its citizens, or

(d) border control or decisions about immigration.

(1D) A determination under subsection (1A)(b) may relate to a particular post or posts, or to posts falling within a description specified in the determination.

(1E) In this section "the security and intelligence services" means-

(a) the Security Service,

(b) the Secret Intelligence Service, and

(c) the Government Communications Headquarters.'.

Amendment (a) to amendment 1, line 3, after 'services', insert ', or the Home Office'.

Amendment 2, page 2, line 9, at end insert-

'(e) any brother or sister of a person within paragraphs (b) or (c).'.

16 Oct 2009 : Column 605

Amendment 3, page 2, line 37, leave out from 'section' to 'House' in line 38 and insert

'may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each'.

Amendment 4, page 3, line 3, clause 4, leave out subsection (2).

Mr. Chope: I feel as though we have discussed the subject of Crown employment and nationality before. When I looked at my records, I found that I was not wrong. Indeed, new clause 1 has been put forward in similar terms on previous occasions, using the iterative process. That concept is well known to the hon. Member for Hendon (Mr. Dismore), as I cannot recall how many times this Bill has been before the House. Each time, the Bill has been an improvement on its previous incarnation, but it still lacks that extra ingredient of new clause 1, which would improve the Bill enormously.

2.15 pm

New clause 1 introduces the concept of natural justice into these procedures rather than requiring them to rely on a ministerial fiat. If there is no right of appeal, people may rightly feel aggrieved. This is the last time that I shall draw the analogy today, but some Members of this House feel that they should have a right of appeal against the rulings of Sir Thomas Legg. I think that the House is likely to find some means of ensuring that there is such a system of appeal, and it is in exactly the same spirit that I tabled the new clause. People who are aggrieved as a result of a decision by the Government under the terms of clause 2 will ask "What can I do about this? Am I unable to obtain any remedy for the Minister's decision?" I consider that it would be reasonable, and in accordance with the system of British fairness and justice, to enable that to happen.

A significant number of people will be affected by clause 2. I understand that if Government amendment 1 -which deals with reserved posts-is accepted, as many as 5 per cent. of all civil service posts may be affected. I stand to be corrected on that figure, but in view of the size of the civil service at present, we are talking about potentially tens of thousands of posts.

We no longer have full employment, as we did when the hon. Gentleman first presented the Bill. We now have a desperate and significantly increasing level of unemployment. I believe that, in the last year, unemployment has effectively doubled in my constituency. Against that background, we should expect many more applicants for any such posts than there may have been in the past. There is scope for many more people to be disappointed, and therefore many more people will feel that their rights have been trampled on. New clause 1 offers a safety valve by allowing appeals to be made to the tribunal.

I know that my right hon. Friend the Member for East Yorkshire (Mr. Knight)-who could not be present today-is enthusiastic about the new clause, and I am grateful to my hon. Friend the Member for Shipley (Philip Davies) for supporting it today.

Government amendment 1 effectively rewrites clause 2 by removing the generalities contained in lines 13 to 16 and explaining the concept of reserved posts much more specifically. The Government are suggesting that reserved posts should include

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I do not think any Member present would disagree with that proposal. They also suggest that a post should be designated a "reserved post" if

That brings in posts within the

and also

which, together, cover a significant number of posts.

If the Minister were to decide that it is necessary for nationality requirements to be satisfied in relation to those posts, that could have significant implications for people who wanted to apply, hence the importance of new clause 1 in order to satisfy applicants that justice has been done, the rule of law has been applied and decisions are not arbitrary. That is important because one way of challenging arbitrary decisions by Government is by seeking judicial review, but that process is extremely long-winded, very hard and expensive to access. That is another reason why I think it would be better to establish a specific tribunal with responsibility for the matter.

The next group of posts is set out in proposed new subsection (1C). They include

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