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Clause 1

Law Commission Bill [Lords] – in a Public Bill Committee at 10:00 am on 8th July 2009.

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Reports on implementation of Law Commission proposals

Question proposed, That the clause stand part of the Bill.

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

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 However, it does not just play the role of the grim reaper of out-of-date law.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.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

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.

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

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.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

On a point of order, Dr. McCrea. I probably should declare that I am the chairman of the Society of Conservative Lawyers.

Photo of William McCrea William McCrea DUP, South Antrim

That point of order has been noted.

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

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.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

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?

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

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.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

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.

Photo of Bob Russell Bob Russell Opposition Whip (Commons), Shadow Minister (Defence)

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?

Photo of William McCrea William McCrea DUP, South Antrim

I must confess, I was looking at the book to find out how many more lawyers there were in the Committee.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

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.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 10:15 am, 8th July 2009

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.

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

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.