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Clause 2 — Protocol about the Law Commission's work

Part of the debate – in the House of Commons at 1:33 pm on 16th October 2009.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 1:33 pm, 16th October 2009

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."

Sir Terence also refers to the fact that

"the Commission has produced 180 final reports, recommending reforms that affect citizens every day", and he notes:

"The Government has accepted and implemented"- only

"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"- where-

"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"- and-

"statutory backing to a protocol."

But that was in March 2008.

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, 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."

That was a poor show.

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."

I am sure that it is, but they are easy words for the Government to offer. Stuart Bridge continues:

"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 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. 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.

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