The
Committee consisted of the following
Members:
Chairman:
Dr.
William McCrea
†
Baldry,
Tony
(Banbury) (Con)
†
Buck,
Ms Karen
(Regent's Park and Kensington, North)
(Lab)
†
Burrowes,
Mr. David
(Enfield, Southgate)
(Con)
†
Cooper,
Rosie
(West Lancashire)
(Lab)
Cox,
Mr. Geoffrey
(Torridge and West Devon)
(Con)
†
Heald,
Mr. Oliver
(North-East Hertfordshire)
(Con)
†
Hesford,
Stephen
(Wirral, West)
(Lab)
†
Howarth,
David
(Cambridge)
(LD)
Malins,
Mr. Humfrey
(Woking)
(Con)
†
Marris,
Rob
(Wolverhampton, South-West)
(Lab)
†
Pound,
Stephen
(Ealing, North)
(Lab)
†
Russell,
Bob
(Colchester)
(LD)
†
Slaughter,
Mr. Andy
(Ealing, Acton and Shepherd's Bush)
(Lab)
†
Thornberry,
Emily
(Islington, South and Finsbury)
(Lab)
†
Watson,
Mr. Tom
(West Bromwich, East)
(Lab)
†
Wills,
Mr. Michael
(Minister of State, Ministry of
Justice)Chris Shaw,
Committee Clerk
† attended
the Committee
Public
Bill
Committee
Wednesday 8
July
2009
[Dr.
William McCrea in the
Chair]
Law
Commission Bill
[
Lords]
10
am
The
Chairman: I welcome hon. Members to the Committee. Before
we begin consideration of the Bill, I need to make a few preliminary
announcements. Members of the Committee can take off their jackets if
they wish. That is quite in order. It is not in order to have mobile
phones or pagers on during sittings, unless they are switched to silent
mode.
Clause
1
Reports
on implementation of Law Commission
proposals
Question
proposed, That the clause stand part of the
Bill.
Emily
Thornberry (Islington, South and Finsbury) (Lab): It is a
pleasure to see you in the Chair, Dr. McCrea. I have not
done so before, and I have certainly never been the first person to
speak in a Public Bill
Committee.
The
Law Commission was established in the 1960s and charged with the duty
of ensuring that our citizens are subject to clear, accessible and
up-to-date law. Since then, the commission’s recommendations
have resulted in the repeal of more than 2,000 obsolete Acts in their
entirety and the partial repeal of several thousand others. However, it
does not just play the role of the grim reaper of out-of-date law. It
has been responsible for 90 new Acts of Parliament, which have affected
all aspects of life in
Britain.
However,
far too many of the commission’s excellent reports have been
mouldering away on shelves in Whitehall. Some of them have never been
seen again, while many have taken too many years to implement. I wish
to highlight that fact with three examples, the first of which members
of the Committee might remember. A homoerotic poem about Christ was
published in the Gay Times, and Mary Whitehouse took exception
to it. A private prosecution took place for blasphemous libel. The
whole team at the Gay Times was prosecuted, and the editor was
fined and given nine months’ imprisonment suspended. An appeal
to the House of Lords failed, but the House made it clear that the law
was very unsatisfactory. As a result, the Law Commission reported back
on the issue in 1985, but its recommendations were not implemented
until 2008 under the Criminal Justice and Immigration Act
2008.
Another
example is the Mental Capacity Act 2005, the original report having
been published in 1995. It dealt with the difficult issue of what to do
when people lack mental capacity to make decisions, including
those relating to managing their finances. The Law Commission went away
and thought about it, and made recommendations, but they took 10 years
to be implemented.
My third
example is more current. It is a favourite with the Law Commission, so
perhaps I can plug it on this occasion. The report was published in
2006 and its recommendations are important at a time of an economic
downturn. It was about the termination of tenancies, particularly in
cases of commercial rent, when there might be a dispute between
landlord and tenant. If the tenant ends up not paying the rent, but the
argument still goes on, as things currently stand the landlord has the
power to go in, repossess the premises and change the locks. That
method of ending a tenancy is most often used by landlords of
commercial premises where no one is living, but it can seriously
disrupt the tenant’s business. Among many things, the report
recommends the replacement of the current law with a modern strategy
scheme designed to encourage the negotiated settlement of disputes at
an early stage and, clearly, we hope that the Government can implement
such a provision in the near
future.
Mr.
Oliver Heald (North-East Hertfordshire) (Con): Does the
hon. Lady want to pay tribute to the huge contributions made by both
the Society of Labour Lawyers, which, in 1963, published the book
“Law Reform Now”, which led to the establishment of the
Law Commission, and the Society of Conservative Lawyers? There might
even be a Liberal
one.
Emily
Thornberry: As a long-standing member of the Society of
Labour Lawyers, following my father who was also a member, I certainly
wish to pay tribute. Some members of the society are here, and its
contribution is of enormous
importance.
Mr.
Heald: On a point of order, Dr. McCrea. I probably should
declare that I am the chairman of the Society of Conservative
Lawyers.
The
Chairman: That point of order has been
noted.
Emily
Thornberry: I had better move on to the substance of
clause 1, which places a statutory duty on the Lord Chancellor to
report annually to Parliament on the Government’s intentions
regarding outstanding Law Commission recommendations. It requires all
Departments to provide reasons for rejecting or delaying the acceptance
of the recommendations and gives Parliament the information and
opportunity to hold the Government to account for how they have dealt
with Law Commission
recommendations.
David
Howarth (Cambridge) (LD): It is a great pleasure, Dr.
McCrea, to serve under your chairmanship for the first
time.
I
fully support the Bill for all the reasons that the hon. Lady said. I
support clause 1 too, about which I have one question. Subsection (5)
says:
“If
a decision not to implement a Law Commission proposal (in whole or in
part) has been taken before the first reporting
year”—
which
means before the Bill comes into
force—
“subsection
(1)(b) does not require any report to deal with the proposal so far as
it is covered by that
decision.”
That
means that if the Government say that they do not want to implement a
Law Commission proposal, they only have to say so once; they do not
have to keep saying so in report after report—that is obviously
sensible. However, the problem is that I do not think there is an
existing requirement on the Government to say out loud that they are not
going to implement a Law Commission proposal. How do we know which are
the proposals that the Government have already, at that point in time,
decided not to implement and, therefore, which proposals subsection (5)
applies
to?
Mr.
Heald: I am as delighted as everyone else to serve under
your chairmanship, Dr.
McCrea.
The
chairman of the Law Commission, Sir Terence Etherton, made a speech
about two years ago to the Bar law reform committee in which he
identified some of the difficulties in implementing Law Commission
proposals. Can the promoter of the Bill comment on the reasoning behind
clause 1? Is the purpose to address some of the complaints that Sir
Terence outlined in that detailed analysis of what was going wrong in
the commission’s relations with
Government?
For
example, Sir Terence criticised the tiny budget of the Law Commission.
He made the point that, administratively, the commission is hidden away
in Her Majesty’s Courts Service, rather than having its own
administration. He pointed out that its proposals are regularly
sidelined by more eye-catching political initiatives, which are given
the necessary time, rather than law reform of the sort dealt with by
the commission being prioritised. He pointed out that, on average,
Ministers dealing with the Law Commission lasted in office for four
months, rather than for an extended period; he felt that that
interfered with how the commission operated and was able to get its
work done. He also commented that Ministers were failing to attend the
ministerial committee, sending officials instead, and that sometimes
even the officials were not turning up, leaving meetings
inquorate.
Yes,
reporting to Parliament regularly on the work of the Law Commission and
on implementation of its proposals is a good thing. However, I hope
that either the promoter of the Bill or the Minister will comment on
the analysis that Sir Terence made, whether there has been any
improvement since and, for example, whether Ministers are going to turn
up to the committee
meetings.
Tony
Baldry (Banbury) (Con): It was with some apprehension that
I received a telephone call from the hon. Member for Islington, South
and Finsbury because, although we are both members of the Bar, under
the new modernised hours in the House we never get to meet anyone,
unlike in the halcyon days of all-night sittings when one got to meet
people during the night. Therefore, I do not know the hon. Lady very
well, so I was slightly surprised to receive a telephone
call from
her.
As
I was listening to the hon. Lady, I suddenly remembered with horror
that she is my son’s Member of Parliament. I am sure that other
colleagues must have this difficulty. I occasionally get telephone
calls from my son, saying, “Dad, what do you know about such and
such an Act?” I reply, “I don’t know. I must have
voted for it or against it. Why do you ask?” He says,
“Well, Dad, I’ve just been arrested under its
terms for demonstrating against the Iraq war.” When I
got the hon. Lady’s call I suddenly had a moment
of horror: perhaps my son had started sending vexatious
correspondence to his Member of Parliament and she wanted to complain
to me and forward it to me. It was
therefore with some relief that I discovered that all I was being asked
to do was come and sit on the Committee, and I was happy to do
so.
I shall just
make three quick points. First, I am happy to be here. I suspect that
at some stage someone instilled in all the lawyers here a love of law,
particularly statute law and how to construe it. I was fortunate to
have as my law tutor at university a guy called Professor Colonel G. I.
A. Draper, a profuse writer of letters to The Times, who was
usually very informed on international law. Dear old Draper had been
one of the junior prosecuting counsel at Nuremberg and did much to
establish the whole concept of war crimes and the law of war. It just
so happens that this week is the 20th anniversary of his death, so I am
pleased to be able to note that.
I shall just
make a couple of points on the substance of the Bill. The Law
Commission is important because of its invaluable work not only in
dealing with the concepts and reports that the hon. Lady raised, but in
helping to consolidate statute legislation. I have often thought about
how it must be increasingly difficult for people to construe statute
legislation because far too little time and effort is now spent on
consolidating it. When attempts are made to consolidate statutes such
as the Rent Acts or consumer credit legislation, it is of enormous
benefit to practitioners and others. It must be a nightmare being a
magistrate in one of the youth courts nowadays, trying to work out,
depending on the age of a defendant, what sentencing powers one does or
does not have, because one is having to look through all sorts of Acts
of Parliament.
The Law
Commission has done much good work that has been unheralded for far too
long. It plays an important part in our particular system of law, given
that it is a combination, originating partly from Parliament and partly
from decisions of judges. The commission’s work, being both to
examine the concept and to help consolidate legislation, is very
important, and it should be given the respect and resources that it
needs.
Bob
Russell (Colchester) (LD): To follow the hon. Gentleman,
at a time when right hon. and hon. Members are often tarred with the
same brush, can I please put it on the record that I am not a
lawyer?
The
Chairman: I must confess, I was looking at the book to
find out how many more lawyers there were in the
Committee.
Mr.
David Burrowes (Enfield, Southgate) (Con): It is a
pleasure to serve under your chairmanship, Dr. McCrea. I am proud to
declare that I am a lawyer, practising as a criminal solicitor. I also
declare a family relationship in the same way as my hon. Friend the
Member for Banbury in that our sons go to the same school. However, an
interest in the Bill has brought me here.
I am
particularly interested as a practising solicitor. My hon. Friend
expressed concern about the number of statutes on the book and the need
to ensure proper codification and consolidation. I have seen for myself
in the youth court in Enfield how we are often trying to straddle years
of legislation to make sense of a sentence for a young person, and the
Law Commission’s work of consolidation and codification is
broadly welcomed. Its reports are non-political and non-party in
nature, and it is in that spirit that we support the Bill.
It is
important to consider how we can respond practically to the concerns of
the Law Commission about securing the implementation of its reports.
Clause 1 deals with implementation. However, it is also
important to recognise that the commission’s success is measured
not just by the implementation of its reports, but by its contribution
to academic discussion and research, to clarification and development
of the law by the courts, and to public debate in Parliament and
outside.
We must
recognise the concern expressed by Sir Terence Etherton and others
about the need to look at how implementation can take place in the
context of the amount of legislation going through Parliament. Looking
at how much legislation has gone through over the past 12 years, I
think that we must be up to the 500 mark in the number of Acts, and
close to 40,000 statutory instruments. It is important that the
Government—and any future Government—recognise the pace
of legislative change and the need to make proper provision for the
considered judgment of the Law Commission when they wish to propose
legislation.
10.15
am
The
Minister of State, Ministry of Justice (Mr. Michael
Wills): I am pleased to serve under your chairmanship, Dr.
McCrea. I want to congratulate my hon. Friend the Member for Islington,
South and Finsbury on this short but important Bill. As we have heard,
there is a great deal of appreciation for the excellent work that the
Law Commission does; indeed, there has never been any shortage of that
appreciation. Its task 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, which, as we know, is underpinned by the rule of
law.
However,
despite all the appreciation that there has been for the good work of
the Law Commission since it was founded by a Labour Government in the
1960s, we recognise that it has been sadly neglected by successive
Governments. The hon. Member for North-East Hertfordshire made those
points well, and I largely agree with everything that he said. I point
out, however, that I am not a lawyer, and I have been in post for
nearly two years. That is six times the average that he gave, so I hope
that I have now increased that average.
We have made
it clear that we intend to deal with this issue in a number of
different ways. We have disbanded the ministerial committee because we
felt it more appropriate for the work that it was doing to be dealt
with by a Cabinet committee. In other words, we have upgraded the
status of ministerial consideration, and that is part of the way that
we want to strengthen the role of the Law Commission.
The Bill has
an important role. It makes the Government’s role in relation to
the Law Commission more transparent, and transparency is crucial to the
effective working of our democracy. That will be a significant factor
in ensuring that the Government respond in a more timely and
appropriate fashion to the constant stream of good reports from the
commission. We need to do that and
put in place mechanisms to keep not only this Government, but successive
Governments, conscious of and responsive to the commission’s
work.
We are
fortunate with the current Law Commission, and with past Law
Commissions, to have had such excellent contributions to our law from
practising lawyers, academics and everyone who serves there—the
staff and the team under the chief executive. We are fortunate to have
such high-class professionals working in that way. Parliament and
Government now need to do their job in responding to that good work,
and that is why the Government are pleased to welcome the
Bill.
Emily
Thornberry: I shall deal with a couple of points that have
been raised. The position of the commission’s reports is
contained in the annexe to its annual report, which is published today.
I intend to give all hon. Members a copy of it as a form of party bag
after the Committee. Hon. Members will have heard what the Minister
said about complaints from the commission, but to be fair I think that
those have applied to Governments of all types. Hopefully, the next
clause that we discuss will help to develop a more positive
relationship between the Law Commission and the Government.
Question
put and agreed to.
Clause 1
accordingly ordered to stand part of the
Bill.
Clause
2
Protocol
about the Law Commission’s
work
Question
proposed, That the clause stand part of the
Bill.
Emily
Thornberry: The clause provides a statutorily backed
protocol governing the working relations between the Law Commission and
the Departments. We hope that it will ensure a more effective
collaborative approach to desirable law reform and increase the
likelihood of the commission’s work being relevant and
appropriately implemented.
Mr.
Burrowes: I want to take up the important comments made by
my hon. Friend the Member for North-East Hertfordshire about the
protocol, which goes to the heart of the relationship between
Government and the Law Commission. We support the clause, but ask why
the opportunity was not taken to provide more detail about the current
protocol and put it into statutory form, so that it could be subject to
revision and would have more teeth. There is, for example, a need to
ensure adequate departmental responsiveness to the commission’s
reports.
The clause
might also have been an opportunity to accept Sir Terence
Etherton’s recommendation to avoid the battle that has been
going on since 1963 over priorities for legislative timetabling: that
per Session there should be at least one Law Commission Bill that has
been accepted in principle by the Government. Perhaps those points
could be passed on by the Member in charge of the Bill or the
Minister.
Mr.
Wills: We support the clause. I am glad that the hon.
Gentleman also supports it and that he welcomes the protocol. That is
an innovation we brought in as
part of strengthening the role of the Law Commission. We are very
interested in his views and would be happy to discuss them further, but
I hope he recognises that this is a significant step forward. The
effective working of the protocol, which we think is already making a
difference to the relationship between the commission and the
Government, will ensure that more of the commission’s reports
are put into statute.
Question
put and agreed to.
Clause 2
accordingly ordered to stand part of the
Bill.
Clause
3
Commencement
and short
title
Emily
Thornberry: I beg to move amendment 1, in
clause 3, page 2, line 34, leave
out subsection
(3).
The
amendment essentially gets rid of a highly technical amendment made in
the House of Lords, which is now not necessary. It may have been passed
in the Lords only as the result of an excess of
caution.
Mr.
Heald: I have a question about the commencement. Will the
protocol be laid before Parliament before the Act is
commenced?
Mr.
Wills: I think that it falls mainly to me to respond to
that. We are working on that, so we cannot give the hon. Gentleman an
answer at the moment. I am happy to write to him and all members of the
Committee as soon as we have
one.
The
Chairman: That is
helpful.
Amendment
agreed to.
Clause 3,
as amended, ordered to stand part of the
Bill.
Question
proposed, That the Chairman do report the Bill, as amended, to the
House.
Emily
Thornberry: I thank all hon. Members for coming today and
supporting the Bill. I would particularly like to thank the chief
executive of the Law Commission, Mark Ormerod, who has held my hand
over the past few days and kept me calm and breathing. I would also
like to thank Sir Terence Etherton, the chair of the Law Commission,
who is as ever lively, interested and like a dog with a bone on this
issue. I thank everyone for giving up their time this morning to
support this small but perfectly formed Bill.
Question
put and agreed to.
Bill, as
amended, accordingly to be
reported.
10.24
am
Committee
rose.
