Clause 1 — Reports on implemenation of Law Commission proposals

– in the House of Commons at 12:14 pm on 16th October 2009.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 12:14 pm, 16th October 2009

I beg to move amendment 1, page 1, line 4, after 'practicable', insert 'and no later than six months'.

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Amendment 2, page 1, line 16, leave out from second 'year' to 'and' in line 17 and insert 'ended 31 March 2010'.

Amendment 3, page 1, line 19, leave out subsection (4).

Amendment 11, page 1, line 23, leave out '(in whole or in part)'.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Amendments 1 and 2 try to introduce a better and tighter definition of when the Bill will take effect and, in particular, of when the production of the first of the reports called for in clause 1 will be required. At the moment, clause 1 is very vague, because it uses the words:

"As soon as practicable after the end of each reporting year".

It suggests that the first reporting year would begin on the day that this statute came into force. That would mean that if the Bill obtained Royal Assent this week, the first reporting year would not start until this week and would expire this time next year. By October next year, the time that was "as soon as practicable" after the end of that period would probably be January 2011, perhaps March 2011-in fact, knowing the Government, it might even be December 2011-and that would be the first time that one of these reports would have to be produced on the basis of the definition in clause one. By contrast, the amendments that I and my hon. Friend Philip Davies have tabled would require that the first reporting year end on 31 March 2010, and on the same date in each year thereafter. That would mean that the first report would be produced on 31 March next year, nine months or a year ahead of the date proposed in the Bill.

Bearing in mind the fact that the Law Commission's most recent annual report for the year 2008-09 covers the year that ended on 31 March, I cannot understand why we cannot have the first of these reports by March 2010 and on that date thereafter every year. That is the proposal and if the Government are true to their word, as they have suggested they are, and if they support the Bill, they should be ready to accept that the reports should be produced sooner than is proposed and that there should be more clarification of when they should be produced. To say that they should be produced "as soon as practicable" is not satisfactory. The previous debate illustrated the extent to which such vague phrases can be exploited by the Government to the detriment of Parliament.

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Photo of Simon Burns Simon Burns Opposition Whip (Commons)

My hon. Friend raises an important point, which, as he is aware, is the nub of the Bill. One thing that puzzles me about all this reporting and designation is that the Bill says throughout that it should be done by the Lord Chancellor. If a future Government-or this Government for that matter-were to abolish the position of Lord Chancellor, as Tony Blair sought to do three years ago, would that totally invalidate the Bill if it had become an Act?

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

As an experienced parliamentarian, my hon. Friend will know that the title of Lord Chancellor is incorporated in statute, so the post cannot be abolished without legislation, as the Government found to their great embarrassment. That is why they got themselves into difficulty and decided that rather than test the will of both Houses they would climb down and retain the position of Lord Chancellor. Were they to want to do away with the post of Lord Chancellor, or if a future Conservative Government wanted to do so, which is unlikely, there would have to be legislation. One of the consequential amendments to such legislation would be to change the provisions of the Bill if it had by then become an Act of Parliament. I hope that clarifies the position for my hon. Friend. Ultimately, of course, the person who knows most about the Bill is its promoter, and I am delighted that she is in the Chamber eagerly awaiting the opportunity to respond to this brief debate on the amendments.

Amendments 1 and 2 are straightforward. They introduce clarity and modest expedition. Amendment 3 would remove subsection (4) of clause 1, which states:

"If a decision not to implement a Law Commission proposal (in whole or in part) is taken in a reporting year, subsection (1)(b) does not require a report for a later reporting year to deal with the proposal so far as it is covered by that decision."

If the subsection remained in the Bill, it would mean that once the Government-any Government-had decided not to implement a Law Commission recommendation, that would be the end of the matter. However, the significance of Law Commission recommendations is that often their wisdom becomes more apparent with the passage of time. We can see from the commission's most recent annual report that some of the recommendations that are still to be implemented date back many years, including on topics that have assumed new public concern and importance-for example, from the commission's report on cohabitation.

I think the proposed process is rather bureaucratic, but if we are to have reports on the implementation of Law Commission proposals, we should deal with all the outstanding reports, including those on which no action has hitherto been taken. The reports should contain a useful compendium for members of the public, covering Law Commission recommendations that have not yet been implemented in law, in whole or in part. That would strengthen the purported purpose of the Bill.

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Photo of Simon Burns Simon Burns Opposition Whip (Commons)

My hon. Friend makes an extremely powerful point. Given that, in this day and age, people rightly believe that there should be far more transparency within our Government and among our politicians, does he agree that it is incredible that his amendment is not already in the Bill?

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I hear my hon. Friend, and in a sense it is incredible that the provision is not already in the Bill. On the other hand, we are talking about something that is technical and bureaucratic, because the Law Commission is ultimately a creature set up by and accountable to the Government. So why do we need new legislation to set up a protocol whereby the commission and the Government can operate and a system that is designed to bring pressure to bear on the Government, to whom the commission is already accountable, to implement and take action on commission reports? If we had proper, joined-up government that was not so bureaucratic and really got on with things, we would not need all that.

The Bill emanates from a proposal by the Lord Chancellor in early discussions on the draft Constitutional Renewal Bill. He is an expert, as are many members of the Government, on producing vessels that appear to be full but are in fact empty. People get really excited and think, "This is a really radical change for the better," but when they look at the vessel they see that it contains nothing. The Law Commission decided that the vessel was-to carry on the metaphor-beached, following the Government's decision not to go ahead with the draft Constitutional Renewal Bill, and after I and Emily Thornberry, the promoter of the Bill before us, had spent long hours on the Joint Committee considering the draft Bill. The Government did not do anything about it, so the commission thought, "Let's pick this gem out of the draft Bill and make it the subject of separate legislation."

The Bill before us therefore started with Law Commission supporters in the other place. They proposed it, saying, "Let's take this nugget forward." Little did they realise that, far from being a diamond, that nugget was totally worthless-not even as valuable as a piece of costume jewellery. Now that we have the Bill, I am trying with my amendments to give it a little value-at auction probably not much, but a bit. It certainly does not have any value at the moment.

I have spoken to people who are involved with the Law Commission, and I know that some, the more excitable ones, are really excited about the Bill.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Perhaps the hon. Member for Islington, South and Finsbury is really excited about it.

I told them that the Bill contains nothing that any Member could not do by asking the Lord Chancellor/Secretary of State for Justice, "Why haven't the Government implemented this proposal from the Law Commission; and when do they intend to implement it?" We do not need a report some 18 months after the event, saying, "These are the outstanding proposals, what are we going to do about them?"

I have said to senior people in the Law Commission that they need to engage with the House, and perhaps the other House, to carry forward their proposals, to persuade colleagues to take them up in private Members' Bills, or to put pressure on the Government to find parliamentary time to implement them.

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Photo of Philip Davies Philip Davies Conservative, Shipley

I absolutely agree. Does my hon. Friend agree, therefore, that the thrust of his argument is that the Bill is a solution looking for a problem?

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I am not sure that I do, because there is a problem: the Government treat most Law Commission proposals with near contempt. That is sad, because the commission was set up by Lord Gerald Gardiner, who was in the chambers of which I was privileged to be a member and who had the good sense to appoint my father to the circuit bench. I therefore have a lot of time for the work of Lord Gardiner, and the Law Commission is one of his great legacies.

The Law Commission is tasked with making proposals for law reform and simplification, and it does that assiduously. When it presents them, the Government often put them on the backburner. If we get to Third Reading, I will give some specific examples of the Government's failure and of their letting down the Law Commission badly. Again, the matter could have been addressed or drawn to public attention through questions, early-day motions and activity in the House.

To revert to the intervention of my hon. Friend the Member for Shipley, there is a problem and the Bill will not solve it because it will not produce action. Nowadays, we are much concerned with action plans as a substitute for action. The Bill proposes reports as a substitute for action and clause 2 includes a protocol, which needs no legislative cover. It is a new concept-a trendy phrase that the Government are using at the moment. Departments should talk to the Law Commission without the need for a protocol-it should be routine, but apparently it is not. As my hon. Friend implies, the whole proposal is a pretty good waste of space. However, I do not necessarily want to rain on the parade-it is not my wont.

Amendment 11 would remove the phrase "(in whole or in part)" from subsection (5) of proposed new section 3A in clause 1, which currently states:

"If a decision not to implement a Law Commission proposal (in whole or in part) has been taken before the first reporting year, 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 decided not to implement part of a Law Commission proposal, the remaining parts, about which they had not reached a decision, would not be subject to the reporting requirements. That is another gaping loophole in the process.

The Bill has been produced by the Government and, because it is all about gesture politics, they do not want it to have teeth. If I am wrong, I hope to hear from the Minister words to the effect that the Government think that all four amendments are excellent, will strengthen the Bill and can be supported. I await her response with eager anticipation.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Mr. Deputy Speaker, your predecessor in the Chair was here for a previous debate, to which the Minister did not respond. In fairness, she responded to the next two, and we hope that she will keep up her record of responding, perhaps after- [Interruption.] The Minister is making some signs to me, perhaps indicating that the promoter will respond first or that she will respond instead of the Minister. I hope that we will hear from both on this important group of amendments, which goes to the heart of whether the Bill has any substance and is worthy of a place among our great statutes, or does not warrant being even a minor statutory instrument because it basically deals with interaction between Departments and the Law Commission.

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Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

I am grateful for the support that has been shown both for the Bill and for the Law Commission. The Law Commission was established in the 1960s to ensure that citizens were the subject of clear, accessible and up-to-date law. Although a considerable number of its reports have been implemented over the years, there is great frustration that too many have had to wait too long to be implemented and that they have lain mouldering away on Government shelves, and that some have failed to be implemented at all.

I gave some examples in Committee on 8 July. For the sake of brevity, I shall repeat only my favourite now. Hon. Members may remember a homo-erotic poem about Christ published in the Gay Times to which Mary Whitehouse took exception. As a result, a prosecution for blasphemous libel was taken out. The whole team at Gay Times were prosecuted. The editor was fined and given a nine-month suspended prison sentence. The case went all the way up to the House of Lords and failed, but the House of Lords made it perfectly clear that it felt that the law was very unsatisfactory. As a result, in 1985, the Law Commission was charged with reporting back on the issue, but its recommendations failed to be implemented until 23 years later, in the Criminal Justice and Immigration Act 2008. The purpose of the Bill is to address that problem.

We need to find more ways of increasing the momentum for reform, so there are two main provisions in the Bill. The first is the hair shirt clause, which requires the Lord Chancellor to report to Parliament on why reports have not been implemented and what plans he has for doing so. Opposition Members suggest that that kind of accountability can be achieved by early-day motions or parliamentary questions, but we need a systematic approach. It is never comfortable to write such reports and that annual discomfort should bring the Government to heel on the matter. They would need to go on record and say why they have not implemented a report or why they are still considering one. The Lord Chancellor, the Minister responsible for the Law Commission, would come to this place to do that.

The second major provision in the Bill would give statutory support to the protocol. Opposition Members state that that is "trendy", but I make no apology if it is. The protocol is being devised by the Law Commission and the Government, with the intention to provide a more effective collaborative approach to desirable law reform, and to increase the likelihood of the commission's work being relevant and appropriately implemented.

The hon. Members for Christchurch (Mr. Chope) and for Shipley (Philip Davies) tabled amendments aimed at tightening my proposals. I have some sympathy with those amendments and certainly agree with the spirit in which they have been tabled, which is one of support for the Law Commission-an attempt is being made to ensure that the power and authority of the commission is increased.

It is important for the commission to succeed in its statutory task of keeping the law accessible and up-to-date, but there is a risk of losing the entire Bill if the proposals are tightened. The Bill started in the other place. Therefore, any amendments at this stage will mean that the Bill will have to return there. The risk is that it will fail because of timetable considerations. Passing the Bill without amendment today will mean that it can go on to receive Royal Assent and become law.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Lady was in the Chamber during the debate on the Damages (Asbestos-Related Conditions) Bill, which went to Third Reading and which is going to the other place. A hint was given that it will get Government time there and that any subsequent amendments would be considered here in Government time.

My understanding is that the other place will have an additional Friday sitting at the beginning of November. The hon. Lady's Bill is much more advanced than the Bill we considered earlier, because it has already been through the other place. Therefore, any amendments to make the Bill stronger would no doubt be accepted in the other place. They could be dealt with on the extra sitting Friday that their lordships have allocated. I do not think that her fears are well grounded in such circumstances. I agree that they may have been in some years, but surely not this year.

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Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

Those matters have been considered and the Bill has been carefully looked after through both places. I hope that we are about to make it law, and we do not wish to risk all at this stage. The amendments might be attractive, but the Bill is not, as it has been described, costume jewellery. It has authority and it will make a difference. Those at the Law Commission have considered this matter carefully, and it is their view that this Bill is suited to their purposes and provides a useful addition to the statutory provisions relating to the commission. The allegation has been made that the idea for these changes came from the Ministry of Justice, but the Law Commission might wish to claim the original idea, which was then subject to negotiation between the two.

The Law Commission believes that the Bill is suited to its purposes and it supports it. It is certainly concerned that we might lose all at this very late stage-

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Lady's objections to my amendments seem to be procedural rather than substantive. Why does she oppose the idea of a clearer reporting requirement or of the reporting requirement coming into effect earlier than the Bill currently proposes?

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Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

I am a pragmatist, and I wish to improve the law. We are all here to make improvements to the law. We may all have ideas about the ideal law that we would wish to pass, but politics is about compromise and we do what we can. I am doing what I can to ensure that the powers of the Law Commission are improved and that we get better law as a result. It is my judgment that we should proceed with what we have rather than risk all by accepting any further amendments.

I am also interested in the assurances that the Minister may be able to give us, as it is clear that the Government are acting in good faith on this matter. I salute the spirit in which Opposition Members have tabled the amendments, but I ask them to withdraw them and join me in ensuring that the Bill makes its way securely on to the statute book.

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

In support of my hon. Friend's attempt to persuade Opposition Members to withdraw their amendments, I have a couple of points to make. First, Mr. Chope has talked, in this debate and in a previous one, about Government time in the other place. The other place does not work in quite the same way as we do, and I would not want anyone to think that we can manipulate the programme there. We cannot do so in the sense that the hon. Gentleman suggests.

Secondly, I hope that the hon. Gentleman will withdraw the amendments for various reasons. Amendment 1 covers the timing of the report, but in fact it would be prepared very quickly after the end of the reporting year-indeed, it would be started before the end of the reporting year. I expect that it would be laid before Parliament well before the six-month requirement in amendment 1. Amendment 2 is flawed because it is not clear which year is meant. The effect of amendment 3 would be that whenever the Government decided not to implement a Law Commission proposal, they would have to report on that decision every year. That does not make sense. Once the Government have said that they do not wish to implement a proposal-and have reported that with their reasons-that should be the end of the matter. The drafting of amendment 11 would mean that the report would deal not just with the pending tray of issues that must be decided, but with historical issues, and that would lead to some confusion over the position of an historic decision to implement only part of a proposal from the Law Commission.

I understand and sympathise with the hon. Gentleman's belief that we should be as upfront as possible about when the reports will be laid and what will be in them, but the amendments are not sufficiently clear and would add to confusion rather than achieve the transparency that he desires.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I am grateful to Emily Thornberry for her remarks, but I am disappointed that she feels that she cannot accept amendments that would strengthen the Bill.

The hon. Lady talks about the powers of compromise and the possibility that the Bill might not get on to the statute book. As she knows, however, the Bill began as a proposal to form part of the Constitutional Renewal Bill, the Second Reading of which is scheduled for next Tuesday. If, as a consequence of strengthening the Bill before us along the lines that we all want, the legislation does not reach the statute book this Session, it will make no difference, because it can be incorporated into the Constitutional Renewal Bill. It could be introduced as a new clause, which no doubt the Government themselves would table or accept, because, as we understand, it is a Government proposal.

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.

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Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury 12:45 pm, 16th October 2009

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.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

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?

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Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

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.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

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 Dr. Harris want to intervene?

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Gentleman leant forward, and I was wondering what he was going to do next. However, he does not want to intervene so I shall not take the matter any further.

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 do not understand why the Minister thinks that my proposal would make things worse.

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.

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Question put, That the amendment be made.

The House divided: Ayes 4, Noes 36.

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Division number 223 Todmorden Rail Link — Clause 1 — Reports on implemenation of Law Commission proposals

Aye: 4 MPs

No: 36 MPs

Ayes: A-Z by last name

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Question accordingly negatived.

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