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Clause 2 — Protocol about the Law Commission's work

Part of the debate – in the House of Commons at 12:45 pm on 16th October 2009.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 12:45 pm, 16th October 2009

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.

Because those discussions are already taking place in anticipation of the implementation of clause 2, I hope that amendment 5, which would require the protocol to be in place

"no later than six months after the coming into force of this Act" will also find favour with the Bill's promoter and the Government.

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, 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.

Amendment 8 provides that the Lord Chancellor and the Law Commission may, rather than must,

"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.

Amendment 9 would replace "have regard to" with "comply with". What does

"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.

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