Report stage, 3rd reading in the Commons
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Mr. Christopher Chope (Christchurch) (Con)Conservative- Quote
- I beg to move amendment 1, page 1, line 4, after ‘practicable’, insert ‘and no later than six months’.
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- Mr. ChopeConservative
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- 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 the Member for Shipley (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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Mr. Simon Burns (West Chelmsford) (Con)Conservative- Quote
- 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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- Mr. ChopeConservative
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- 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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- Mr. BurnsConservative
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- 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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- Mr. ChopeConservative
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- 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 the hon. Member for Islington, South and Finsbury (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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Philip Davies (Shipley) (Con)Conservative- Quote
- Name them!
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- Mr. ChopeConservative
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- 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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- Philip DaviesConservative
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- 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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- Mr. ChopeConservative
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- 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.
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- Philip DaviesConservative
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- Will she respond this time?
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- Mr. ChopeConservative
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- 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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- 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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- Mr. ChopeConservative
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- 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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Emily ThornberryLabour- Quote
- 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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- Mr. ChopeConservative
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- 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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- Emily ThornberryLabour
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- 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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- 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, the hon. Member for Christchurch (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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- Mr. ChopeConservative
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- I am grateful to the hon. Member for Islington, South and Finsbury (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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- Emily ThornberryLabour
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- 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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- Mr. ChopeConservative
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- 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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Mr. Henry Bellingham (North-West Norfolk) (Con)Conservative- Quote
- 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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- Mr. ChopeConservative
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- 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 the hon. Member for Oxford, West and Abingdon (Dr. Harris) want to intervene?
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Dr. Evan Harris (Oxford, West and Abingdon) (LD)Liberal Democrat- Quote
- indicated dissent.
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- Mr. ChopeConservative
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- 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. Question put, That the amendment be made.
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- Mr. ChopeConservative
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- I beg to move amendment 4, page 2, line 12, leave out ‘may’ and insert ‘shall’.
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Mr. Deputy Speaker (Sir Alan Haselhurst)Conservative- Quote
- With this it will be convenient to discuss the following: Amendment 5, page 2, line 12, after ‘(1)’, insert ‘no later than six months after the coming into force of this Act’. Amendment 6, page 2, line 15, leave out ‘may’ and insert ‘shall’. Amendment 7, page 2, line 23, at end insert— ‘(d) the way in which any breaches of the protocol shall be publicised and remedied.’. Amendment 8, page 2, line 24, leave out ‘must’ and insert ‘may’. Amendment 9, page 2, line 28, leave out ‘have regard to’ and insert ‘comply with’.
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- Mr. ChopeConservative
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- 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, the hon. Member for Leeds, East (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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- Mr. BellinghamConservative
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- Does my hon. Friend not find it somewhat peculiar and disconcerting that this draft protocol has not been made available to Members? After all, this Bill has been around for a while; its gestation goes back many years. As I understand it, over the years a number of members of the Law Commission have been calling for such a Bill. Therefore, we could have been given a draft protocol to look at as part of our deliberations on this Bill this morning and this afternoon.
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- Mr. ChopeConservative
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- My hon. Friend makes a very good point, which draws out of me a few comments on a letter sent to me by e-mail yesterday by Mark Ormerod, the chief executive of the Law Commission. I asked him to send me some information on the proposed protocol, and he writes: “This is in an advanced stage of drafting and we are hoping it will be finally agreed soon. On current plans it will cover: (a) the process by which projects will be initiated, including scope and resource considerations; (b) guidance on handling for the currency of the project, with the emphasis on regular communication and co-operation; and (c) action upon completion of the project, to ensure that interim and final responses are completed within their timescales”. That is what it will cover, as far as he can tell me at present. Basically, that only sets out the headings, but it is the best result I have been able to achieve. My hon. Friend will immediately be making comparisons between those headings and the contents of clause 2(2) and wondering how they fit in together. I must say that I find it extraordinary that at present it is necessary to have a protocol to ensure regular communication and co-operation between the Lord Chancellor and the Law Commission, as I would have thought that that should go without saying in any well-organised Government.
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- Mr. BellinghamConservative
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- The Law Commissions Act 1965 makes it precisely clear what is the relationship between the Law Commission and the Lord Chancellor, and the relationship with Parliament as well. It seems to me that this part of the Bill is completely unnecessary. It lays down in legislation something that should be taken as normal in any sensible, constructive relationship that is already itself based on statute. All it does is complicate the Bill, as well as throw into it a bit of extra new Labour jargon, so it is completely unnecessary.
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- Mr. ChopeConservative
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- I am grateful to my hon. Friend for those observations. During my conversation with Mr. Ormerod, he said that he hoped that the protocol would require other Government Departments to take the Law Commission more seriously. Again, that suggests that we have a dysfunctional Government with no discipline and no proper co-operation between Departments. That the Law Commission feels that the Government do not take it seriously is a reflection on the Government, and I am sure that when we have a Conservative Government, my hon. Friend will ensure that that failing is remedied. I look forward to that prospect eagerly. If the amendments were accepted, the protocol would have some teeth, which it certainly lacks at the moment. I should be interested to hear why the promoter and the Minister are against these sensible amendments, as I anticipate will be their position.
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- Emily ThornberryLabour
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- For the reasons that I gave in my speech on earlier amendments, I do not support these ones and I ask that they be withdrawn.
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- Mr. ChopeConservative
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- We have almost got dialogue of the deaf—except that I am speaking and nobody seems to want to engage with me. The hon. Lady who is promoting the Bill suggests that she does not want to debate the amendments, and she has given no reasons for what she sees as flaws in my argument on tightening up the protocol. The Minister sits there silent, not explaining why the Government find fault with these amendments. I suppose that, if the Bill gets on the statute book, it will be left to some of us to table similar amendments to the Constitutional Renewal Bill, to try to tighten things up if necessary. [Interruption.] The Minister is speaking—I do not know whether she wishes to intervene, because I could not hear her sedentary intervention. I am quite prepared to give way to her so that I can hear it; but again, neither you nor I, Mr. Deputy Speaker, can force the Minister to speak if she chooses to remain silent, irrespective of how much that might be regarded as being in breach of the conventions of this House. The Minister was saying informally that at one stage she was minded to offer me a concession. I am still waiting for a concession to be offered across the Floor of the House, and I hope that in due course it may be and it will not be left until after the House has risen. If it was, my wife might get a bit worried, but leaving that to one side, I think it a pity that none of these amendments, which would give some teeth to the protocol, have found favour with the Government, so I hope the House will reverse the decision that it took during the last Division and support me in proposing them. Question put, That the amendment be made.
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- 13:15
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- Speaker
- Emily ThornberryLabour
- Quote
- I beg to move, That the Bill be now read the Third time. I feel remarkably tired but I am very pleased to have reached this stage. I thank all Members on both sides of the House for their support today and for the time they spent in Committee. I thank also, the large number of Members who have given me advice and shared their wisdom—the numbers are far too embarrassing to mention. The Ministry of Justice was entirely helpful and entirely non-Sir Humphrey-like. The Minister of State, my right hon. Friend the Member for North Swindon (Mr. Wills), has been pragmatic throughout. I thank the Law Commission, including the assistance given to us by Mark Ormerod, the tenacity of the previous chair, Lord Justice Sir Terence Etherton, and the help we received this week from Lord Justice Sir James Munby. I am also thankful for the cool head of a young lady called Miss Chloe Wright. The Bill is small but important. The most important thing about it is that it will ensure that we make better law, which in the end is what we are here to do. I commend the Bill to the House.
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- 13:32
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- Mr. ChopeConservative
- Quote
- 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, the hon. Member for Islington, South and Finsbury (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 the hon. Member for Hendon (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. The hon. Member for Oxford, West and Abingdon (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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- 13:33
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- Dr. Evan HarrisLiberal Democrat
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- I congratulate the hon. Member for Islington, South and Finsbury (Emily Thornberry) on seeming to get this Bill through, and I suspect, knowing her part of the world as I do, that this is a hot topic there. It is important that there is some parliamentary accountability for the Government’s response to the Law Commission. We are spending money on the work of the Law Commission and, far too often, its excellent reports lie idle. As the hon. Member for Christchurch (Mr. Chope) mentioned that issue, I just wish to draw attention to some reports that have taken a long time even to look as though they will reach the statute book. The hon. Lady mentioned the report on blasphemy. I had a small hand in getting that on to the statute book by tabling amendments to the Criminal Justice and Immigration Act 2008. The 1975 report on sedition has taken 34 years to approach statutory form, as the Government have tabled amendments to the Coroners and Justice Bill in the other place, following the amendments tabled in Committee by Lord Lester and on Report here by me. Criminal defamation was dealt with in the 1985 Law Commission report, which recommended—possibly wrongly by today’s standards—abolition and replacement with a slightly less draconian criminal provision, and that is covered by the welcome Government amendments tabled this week. Those are two examples of it having taken decades for anything to be done, and they are important issues even though the laws in question are not in use here. Other countries use them in an anti-human rights way and point to the fact that we retain them on our statute book against the advice of the Law Commission as a justification for repressing journalists and freedom of speech. The only other example that I wish to give is that of the way the Law Commission report on homicide has been handled. It was not satisfactory—my hon. Friend the Member for Cambridge (David Howarth) is more of an expert than I am and, as he pointed out during the passage of the Coroners and Justice Bill through this House, the Government only half legislated for the Law Commission’s provisions, therefore undermining them because they need to be taken as a whole. Further, we did not get a chance to debate revisions to the law of murder on Report stage.
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David Howarth (Cambridge) (LD)Liberal Democrat- Quote
- The situation is even worse than the one that my hon. Friend describes. The Government gave the Law Commission a very restricted brief, and then failed to debate what it came up with in this House.
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- 13:50
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- Dr. HarrisLiberal Democrat
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- Exactly, and I hope that, as the hon. Member for Islington, South and Finsbury said, the report that the Government will have to produce will cause them to hesitate before agreeing the non-implementation of Law Commission reports without debate in this House or ignoring them completely. It is good that we are having this debate now. There is a question of procedure, because it cannot be right that otherwise reasonable amendments to this Bill are defeated by the argument that we should not amend this Bill because it might run out of time, even though it has general support. I hope that the Reform of the House of Commons Committee, of which I am a member, will address itself to ensuring that any private Member’s Bill—I congratulate the hon. Lady and her colleagues in the other place on getting this one this far—is not faced with the threat of running out of time, whether it has Government support or not. I am delighted that it looks as though this Bill will get its Third Reading unamended and will not have to go back to the Lords, but the prime objective is that this House should not be fettered by such concerns when considering amendments. I congratulate the hon. Lady because it looks as though the Bill will get its Third Reading.
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- 13:50
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- Mr. BellinghamConservative
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- I congratulate the hon. Member for Islington, South and Finsbury (Emily Thornberry) on introducing the Bill. The Opposition support it. We think it is long overdue, but are disappointed that the Government have not used an existing Bill over the past couple of years or so to accommodate its contents. As the hon. Lady pointed out, Lord Gardiner, who was Lord Chancellor in the mid-1960s, was the architect of the Law Commission. Its key functions were to update the law, to advise on repealing old laws and to make recommendations for new ones. At the time, Lord Gardiner’s vision was considered fairly radical, imaginative and almost revolutionary. In the early years, the Law Commission was afforded great respect by the Government. However, as hon. Members have pointed out, one problem was that too many reports were simply parked on shelves and left to gather dust. Some good examples have been given. I shall not repeat them all, but I remember feeling quite strongly about the recommendations on mental capacity, which took 10 years to reach fruition in the Mental Capacity Act 2005, the inauguration of the Office of the Public Guardian and other new arrangements. The hon. Member for Cambridge (David Howarth) and I were members of the Public Bill Committee that considered the Coroners and Justice Bill, and we dealt at length with its provisions on homicide. I agree entirely with what he just said about that. Cohabitation, on which the Law Commission also produced a report, has been mentioned. The commission believes strongly that legislation is needed to afford new rights to cohabitees in certain circumstances, yet the Government have not moved on that at all—extraordinarily, they have not even produced a consultation paper. All too often, therefore, the Government ignore the Law Commission. Under the Law Commissions Act 1965, the Lord Chancellor must lay before Parliament programmes prepared by the Law Commission that he has approved, as well as proposals for reform. The Law Commission must make an annual report to the Lord Chancellor, who must then lay it before Parliament. However, under existing rules, the Lord Chancellor is not required to lay before Parliament his own report on the implementation of Law Commission proposals. He does not have to set out plans for dealing with any such proposals that are not implemented, nor provide the necessary reasoning behind his decision. That was a serious flaw in the Law Commission’s armoury and is why we support the first part of the Bill. Hon. Members have asked whether that is necessary, because colleagues can table parliamentary questions and hold Ministers to account. I agree that hon. Members can use written parliamentary questions to mine data and information from the Government, but that presupposes that Ministers are prepared to co-operate and enter into the spirit of the exercise. All too often, we might feel very strongly about something one day, but events move on quickly and things are easily forgotten. In terms of the equality of arms, therefore, all the power is on the side of Ministers, and it requires very tenacious Back-Bench Members to push them to give the right information. The new arrangements in the Bill would therefore be an important and welcome step forward.
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- 13:55
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- Mr. ChopeConservative
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- I agree very much with my hon. Friend, but can he assure the House that the Opposition are already actively looking at the Law Commission’s outstanding recommendations with a view to deciding which of those pearls of wisdom should be implemented early under an incoming Conservative Government?
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- 13:55
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- Mr. BellinghamConservative
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- I assure my hon. Friend that those of us on the Front Bench, watched over with eagle eyes by those in the Whips Office, use virtually every spare moment of our time to prepare for government. Our team is looking at the Law Commission’s recommendations and preparing Bills for the first Queen’s Speech, in the event of our winning the election—we are not allowed to say “when”; we are saying “if”, because we need to win the public’s confidence and people’s trust. Clause 2 would insert a new section 3B into the Law Commissions Act 1965, which would introduce a protocol designed to provide a framework for the relationship between HMG and the Law Commission. Clause 2 also says: “The Lord Chancellor must lay the protocol…before Parliament.” I would simply ask whether the clause is really necessary. It cannot cover any new powers or functions; rather, it relates only to existing powers and functions. It creates neither new powers in respect of the Lord Chancellor or the Government, nor any directly enforceable rights and obligations. I would therefore ask whether such a protocol is necessary. If we can get Departments working with each other more closely and taking the Law Commission’s work more seriously, the protocol will probably be a waste of time. Indeed, it is a bit of an insult to what should already be a close and positive relationship between the Law Commission and the Lord Chancellor. We welcome some of the recent changes introduced by the Government, particularly the recent internal reorganisation of the Ministry of Justice into five divisions, including one covering democracy, the constitution and law. The Law Commission now sits within that pillar, rather than coming under the courts division. That definitely makes sense, and the Government need a pat on the back for making that change. In April the House of Lords finally approved a special procedure for non-controversial Law Commission Bills, which was also a good step forward. Recently the Ministry of Justice belatedly upgraded the ministerial committee for the Law Commission, which always used to comprise junior Ministers from different Departments. I believe that the intention now is for the committee to have much a wider reach than over the past, say, 10 or 12 years. I hope that that will address the disconnect between Departments and the Law Commission, as well as the problem that we are all so concerned about, which is that numerous excellent reports are simply sitting on shelves gathering dust and no one is taking them seriously. Today’s Bill is a small step forward. We wish it well and hope that it gets through as quickly as possible, because although it is modest, it is an important step in the right direction.
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- David HowarthLiberal Democrat
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- I, too, welcome the Bill on behalf of my party and congratulate the hon. Member for Islington, South and Finsbury (Emily Thornberry) on getting it this far and, I hope, to its final destination in a few moments. However, I would not want people to think that because a lot of Law Commission reports are about technical law they just do not have political or policy consequences. Every one of them has some political or policy content. There are gainers and losers in almost every proposal, even if they are simply in the legal profession. Therefore, non-implementation of a Law Commission report is not automatically a bad thing. There might be a genuine political difference between the assumptions made by the Law Commission and the Government of the day. However, the Bill does something important: it forces the Government to give their reasons. Hon. Members might remember the attempt when the Legislative and Regulatory Reform Act 2006 was going through to reform how Law Commission reports come forward. The Government insisted that they would never obstruct a non-controversial proposal—they said that they would use the powers in that legislation only for non-controversial proposals and would not put through controversial ones—but could never offer a definition of what was controversial. This Bill does something much more reasonable, which is simply to say to the Government: “If you’re not going to implement this proposal, you’ll have to say why.” That might involve financial reasons, or a disagreement with the moral basis of a Law Commission report—that might well be the problem with the report on cohabitation. The Government will not, however, be allowed not to give a reason. It is possible that the Government’s real reason may not be a proper reason. For example, they may fear the way in which a matter could be reported in the Daily Mail. They would not give that as their reason, of course; they would be forced to give a different one. I believe that there will be occasions when the Government, faced with the choice of either giving a reason other than their real reason or simply getting on with it, will choose simply to get on with it. For that reason, the Bill, even though it looks modest, might have some real-world effects. Some Law Commission reports might go through because the Government decide that it is not worth giving a false reason for not implementing them. I welcome the Bill. I do not think it is quite so modest as the hon. Member for North-West Norfolk (Mr. Bellingham) thinks it is. I believe that it will have good effects in the long term and I wish it well.
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- 14:03
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Bridget PrenticeLabour- Quote
- I should like to add my congratulations to my hon. Friend the Member for Islington, South and Finsbury (Emily Thornberry) on getting her Bill to this stage. I hope that, within the next few minutes, it will receive its Third Reading. These are important issues. As the hon. Member for Cambridge (David Howarth) said, they might look technical, but they will have a real effect on our constituents’ lives. It is a great privilege for my Department to be associated with the Law Commission. The Commission has made a significant contribution to law reform since it was founded in 1965, and that contribution is much valued by the Government and those in the legal and judicial world. Contrary to what people might infer from earlier contributions to the debate, many Government Bills have originated with the Law Commission. I can cite two current examples in my Department. The first is the Perpetuities and Accumulations Bill, which is nearing the end of its parliamentary stages. I hope that, by the end of Monday, it will have completed most of its Commons stages. The second is the bribery Bill, which is included in the draft legislative programme for 2009-10. As my hon. Friend the Member for Islington, South and Finsbury has said, the task of the Law Commission 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. As my right hon. Friend the Lord Chancellor has previously said to the House, we are committed to strengthening the role of the Law Commission. I should like to give the House two recent developments as evidence of this. First, as the hon. Member for North-West Norfolk (Mr. Bellingham) mentioned, we have introduced a new procedure in the House of Lords for the consideration of politically non-controversial Law Commission Bills that are strongly supported by the Government. The Perpetuities and Accumulations Bill is the first Bill to go through this procedure, and, as I have already said, we hope it will achieve Royal Assent very soon. I hope that many more Bills will use this system, leading to even higher levels of implementation of the more technical Law Commission Bills. Secondly, we have amended the Law Commissions Act 1965 to provide that the chair of the Commission must be a High Court or Court of Appeal judge. We believe that that will enhance the standing of the Commission as a whole, and that it will provide a symbol of its independence and political neutrality, both of which are extremely important to it. The newly appointed chairman of the Law Commission, Sir James Munby, is a Court of Appeal judge, and we wish him and his team well in the course of the next few years. During the debate, allusions have been made to the length of time it has taken for some Law Commission reports to be implemented, and I agree that, in some cases, that has been shockingly long. There has also been a suggestion that very few such reports make it to the statute book. I have to say that the facts do not bear that out. Currently, we have implemented 67 per cent. of Law Commission reports, or two out of three. We obviously want to improve on that, but it is not such a bad figure; it is a testament to the commission’s impact on our law. All that has been achieved with the Government’s support, and we support this important Bill because it is a mark of our commitment to the commission.
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- 14:05
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- Mr. ChopeConservative
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- I had the opportunity to speak to Sir James Munby since his appointment and I know that he takes this issue very seriously. I wonder whether the Minister is able to give him a piece of news today about what the Government are going to do in respect of each of the reports on which the Government’s decision remains outstanding. If she cannot answer me across the Dispatch Box now, will she write to hon. Members and place her answer in the Library for us?
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- Bridget PrenticeLabour
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- I will certainly raise it with the Minister within whose portfolio the Law Commission sits, and I will ensure that either he or I write to hon. Members or put in the Library a response to the question that the hon. Gentleman rightly asks. We see the Bill as a key mechanism for delivering higher implementation rates of Law Commission reports, which will benefit both law reform and the taxpayer. The requirement on the Lord Chancellor to report on the extent of implementation of Law Commission reports each year will keep up the pressure on us, the Government, to account for decisions on implementation. Of equal or perhaps more importance is the protocol that will set out best practice in terms of working relationships between the Law Commission and Departments on individual projects. That is what should assist in developing the collaborative relationship between the Law Commission and Departments that experience teaches us is the key to successful implementation. Finally, I want to stress our commitment to the work of the Law Commission. The more effective the Law Commission is in having its reports on reform accepted and then implemented, the more successful it will be in achieving its overall objective of making the law fairer, more modern, simpler and as cost-effective as possible, which I believe the whole House would want to support. I am thus very pleased indeed to support the Bill. My hon. Friend the Member for Islington, South and Finsbury can go back to her constituency, having shown herself to be a true parliamentarian in taking through a private Member’s Bill. That is not an easy thing to do and it does not happen very often. My hon. Friend has every reason to be proud of her achievements today.
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- Emily ThornberryLabour
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- rose—
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- Mr. Deputy SpeakerConservative
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- Order. I am about to put the question. We do not want any obstacles at this late stage. Question put and agreed to. Bill accordingly read the Third time and passed, with an amendment.
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