§ Order for Second Reading read.
§ 4.12 p.m.
§ The Minister without Portfolio (Sir Eric Fletcher)
I beg to move, That the Bill be now read a Second time.
The Bill implements the announcement in the Queen's Speech of the Government's intention to appoint Law Commissioners to advance the reform of the law. It gives effect to one of the specific pledges in our election manifesto. This is the first time in the history of the law of England or of Scotland that a Government have produced concrete, constructive proposals to provide efficient permanent machinery for keeping the law up to date and abreast of modern requirements. This is, therefore, a major event in the campaign for law reform.
In moving the Second Reading, I am conscious, as the House will be, that the credit for the Bill is due in large measure to the initiative and drive of my noble Friend the Lord Chancellor, whose zeal and energy over many years in the cause of law reform, based upon long experience, is well known. One of the hallmarks of a civilised society is that its laws should not only be just, but should be up to date, accessible and intelligible. The state of our law today does not satisfy those requirements.
That is not to deny the great merits of English law. We are all justly proud of the contributions which it has made to our ideals of personal liberty, of the rule of law and of the subservience of the Executive, whether monarchical or bureaucratic, to the laws of the land. The rule of law and the independency of the judiciary constitute the bulwarks of our free society and one of the most cherished of our national institutions.
It is for these very reasons that the Government are concerned to take steps to ensure that the laws of the land are brought into line with modern requirements and are simplified, codified, consolidated and reformed by systematic review.
48 As the House will be aware, English law today consists in part of the common law as evolved by the process of judicial precedent over several centuries and in part of statute law, the enactments of Parliament. We have recently been celebrating the 700th anniversary of de Montfort's Parliament in 1265, itself half a century after the date of Magna Carta. Some of our laws dating from the thirteenth century are still in force.
No Act of Parliament becomes obsolete by the mere passage of time. It remains in force until repealed. Ancient Acts passed in wholly different circumstances are still from time to time invoked for the purposes of both civil and criminal law. It is only recently that any concerted attempt has been made to clear the Statute Book of quantities of Acts of Parliament that have become obsolete, spent or unnecessary or have been superseded.
Today, we find that English law is contained in about 3,000 Acts of Parliament, the earliest dating from the thirteenth century, several thousand Statutory Instruments and over 300,000 reported cases. Our fundamental conceptions of contract, of status, of personal relationships, of liability for negligence, of defamation and of conspiracy are embedded in the common law and are to be found in judicial decisions. During the last century or so, with the increasing complexity of modern society and economic change, Parliament has intervened more and more by legislative action to regulate social, commercial and economic relationships.
In recent years, there has been a spate of legislative activity that has not been digested into a readily accessible or codified form. The result is that today it is extremely difficult for anyone without special training to discover what the law is on any given topic, and sometimes, indeed, to know where to find it. That is bad enough for the practitioner and those who have to advice. It is intolerable for the citizen. He is still governed by the doctrine that ignorance of the law is no excuse. If the law were simplified, there would, presumably, be less protracted litigation and the costs of litigation could be reduced.
The aims of the law reformer are, therefore, threefold: to modernise, to simplify and to consolidate. I imagine that most 49 hon. Members will have had brought to their notice some anomaly, if not absurdity, in the law as it stands at present. I have, of course, received numerous communications on the subject. I should like to give the House one or two illustrations.
Consider the incongruous position of the law regarding minors, persons under 21 years of age. They are still technically called infants and the law treats them as such. A young man of 19 or 20 can drive a motor car, pilot an aeroplane and fight for his country. On the other hand, he cannot marry without the consent of his parents or of a magistrate. If married, he can bring up a family or can conduct a business, but he cannot enter into contracts, except for necessaries. He cannot even buy a house.
I quote from a letter just received by my right hon. Friend the Prime Minister. His correspondent states:
I have just attempted to buy my own house. To my amazement I was informed that I was not eligible to buy property because I am under the age of 21. I am a married man with a family and I am earning a substantial wage to buy a house. It troubles me to know that I am of age to fight for my country, also to be married with a family, but not to be able to buy a proper home for my family. I think that this is very unfair and trust you will change this law in the near future.These disabilities derive from Victorian conceptions and are long out of date. Therefore, one of the matters which would be appropriate for review is the legal status of minors. I hope that it would not be controversial for the legal status of minors to be brought into accord with modern ideas.
I mention a few other matters taken at random. Much of the law relating to landlord and tenant is still largely based on conceptions dating from a feudal or semi-feudal organisation of society. It has been modified from time to time by piecemeal legislation, but it is wholly inconsistent with the modern ideas of a property-owning democracy to provide security of tenure for those who do not own the premises in which they live.
Hire purchase law is surely due for a complete overhaul now that this method of acquisition of goods has become the rule rather than the exception. It is true that important changes were made by the Act of 1964, but the law is still generally thought to be in an
50 unsatisfactory state, and needs far more radical examination than it has yet received.
The law relating to accidents caused by animals on the highways dates from a time when the motor car was unknown. Changes which were recommended by the Goddard Committee, more than 10 years ago, still remain unimplemented.
Again, take for example the case of maintenance payable to a deserted wife and her children; this was fixed at £2 10s. for the wife and 10s. for each child in 1895; it remained at this figure for over 50 years until a private Member took the initiative in 1949 in introducing a Bill to raise the figures to £5 and 30s. respectively. It is true that by a Government Bill, passed in 1960, the figures were again raised, but this does not detract from the point that there is no machinery for ensuring that an important matter such as the amount of maintenance to be paid to a deserted wife is kept under constant review. Indeed, there is no machinery at all for adapting the law to the continuing effects of inflation.
Again, if the law and practice relating to the transfer of land were simplified very considerable savings could be effected by those concerned with the purchase of a house to live in.
I will not go on, although instances where action is required could be multiplied. It may be asked: how has this situation arisen? The short answer is that the existing machinery for law reform is totally inadequate. There is no single authority charged with the duty of keeping the law as a whole under review and making recommendations for its systematic reform. In practice, every Government in recent years has been so preoccupied with political affairs that they have not had the time, even if they had the awareness, to devote to a review of the non-political aspects of the law and consideration of the changes which are needed.
Moreover, each Government Department operates in its own sphere. The Board of Trade reviews the Companies Act from time to time and monopoly legislation. The Ministry of Transport is solely responsible for legislation relating to roads and transport matters. 51 The Ministry of Power handles legislation relating to most of the nationalised industries. The Home Office is responsible for legislation over a wide field, including the substantive criminal law as well as the law relating to a great many matters of varied social importance such as children and young persons, the licensing laws, betting and gaming. The Lord Chancellor is responsible for the whole of the civil law in so far as it is not the responsibility of some other Minister, and he also has responsibility for the administration of justice in civil and criminal courts.
Indeed, the task of keeping the criminal law under review, as the House knows, is nominally performed by the Home Secretary's Criminal Law Revision Committee. The limitations on its efforts were exposed, as the House will remember, in the Report of the Estimates Committee for the Session 1962–63 dealing with the Home Office, and I quote from paragraph 35, where it reads as follows:It was frankly admitted by the Assistant Under Secretary of State, when asked about the antiquity of some of the laws still in force, that"—and this is his admission—'there is a tremendous backlog of that sort of legislation.… We must just get on with it as we can and when we can.'Now I quote the Committee's comment:In Your Committee's opinion the Home Office has not been successful in this aim, and the backlog of legislation in urgent need of revision is in their view serious.It goes on to refer to an outstanding example of the failure of the Home Office in this field, the Fugitive Offenders Act, 1881, and it gives various other illustrations.
The House will, of course, appreciate that this was a criticism of the Home Office as administered by the late Government. It does not reflect on my right hon. and learned Friend the present Secretary of State.
§ Mr. Henry Brooke (Hampstead)
It was a criticism refuted by me in the House when the Estimates Committee's Report was debated. There is no doubt whatever that the principal difficulty in making faster progress has been the lack of Parliamentary time, which the Bill does not appear to tackle.
§ Sir E. Fletcher
I shall be dealing with the right hon. Gentleman's intervention later in my speech.
I was about to say that the Machinery of Government Committee, under the chairmanship of Lord Haldane, as long ago as 1918, recommended the creation of a Ministry of Justice. That proposal has never attracted popular support in the country, and the present Government reject it. Since Lord Haldane's time there have been notable changes in the structure and functions of the Lord Chancellor's Office, which is now far better fitted than it was then to discharge its increasing administrative duties, but what is still lacking is adequate machinery to grapple with the task of law reform.
In saying this I do not for a moment disparage or overlook the valuable work which has been done by the Law Reform Committee and its predecessor, the Law Revision Committee, to whose labours I should like to pay tribute, but a committee of judges and practising and academic lawyers, all of whom are busy men meeting in such time as they can spare from other tasks, and only infrequently, is obviously not fitted to deal with the reform of the law on the scale which is now required. They can merely scratch the surface.
We believe that the right solution is to set up a Law Commission for England and Wales—which is what the Bill does—to consist of five lawyers of high standing appointed by the Lord Chancellor and responsible to him, and with an adequate staff to assist them, and charged with the duty of keeping the whole of English law under review.
As the House will see from Clause 1(2), the Commissioners will be chosen from among lawyers appearing to my noble Friend the Lord Chancellor to be qualified either by experience on the bench oras a barrister or solicitor or as a teacher of law in a university.Clause 1(4) provides that a Commissioner who holds high judicial office, that is to say, as a Lord of Appeal in Ordinary or a judge of the Court of Appeal or of the High Court, will remain a judge during his term of office as a Commissioner, although he will not be expected to perform his duties on the bench during that period. My noble Friend the Lord Chancellor considers 53 that just as experience as a judge will be of value to a Commissioner so will service on the Commission prove useful to a judge on his return to the bench. I think that it is true to say that the experience of the Law Reform Committee has proved the value of what I may call cross-fertilisation in this field.
In taking experience as a barrister or solicitor or academic lawyer as an alternative qualification the Bill deliberately does not require that qualification to have been obtained in this country, although, no doubt, that would normally be so in the case of a barrister or solicitor, but an academic lawyer might well have gained most or some of his experience outside the United Kingdom, whether in the Commonwealth or, possibly, in the United States.
My noble Friend the Lord Chancellor is confident he will be able to appoint as Law Commissioners persons of such eminence and authority in the profession that their recommendations will command general confidence and support and that the task of implementing their recommendations by legislation will, to that extent, be facilitated.
I mentioned just now the restatement of the law, because it is in this field as much as in any other that the urgent need for reform is to be found. The sweeping away of dead and obsolete enactments and their replacement by modern consolidated statutes in which one will be able to find the whole of the law on any given subject within the compass of a single Act will be one of the most important tasks facing the Law Commissioners.
I have said that the aims of a law reformer are to modernise, to simplify, and to consolidate. I have said something of modernisation. The most obvious method of simplification is to codify. At the end of the nineteenth century the law on two important subjects was codified in the Bills of Exchange Act, 1882, and the Sale of Goods Act, 1893. Both were models of clear, lucid, precise English, but nothing comparable has been attempted during the last 50 years.
Consolidation is a different art, but equally necessary. All too frequently one finds that legislation on a particular subject, being the result of numerous Acts, repeals, amendments and supple- 54 ments, is cluttered in an unwieldy fashion over the Statute Book. Under the inspiration of Lord Jowitt, when Lord Chancellor, the work of consolidation was put in hand, and has been actively carried out since his time. Indeed, more than 90 consolidation Acts have been passed since 1947, but much still remains to be done. I should like to see established a rule that whenever a major reform of statute law is carried out, the reforming Act should consist of, and quickly be followed by, as is done in the case of the Companies Act, a consolidation Statute.
There are many other subjects where the existing law is so complicated and difficult to find that it cannot be reformed at all until it has first been consolidated into one intelligible Statute. The House will know that consolidation Statutes can be enacted under our simplified parliamentary procedure, and, indeed, since the Consolidation of Enactments (Procedure) Act, 1949, corrections and minor improvements can be made in a consolidating Statute. I am sure that all who reflect on the subject will agree that our ideal should be that the law on any subject can be found in a single Statute.
What the Government now have in mind is that the Law Commissioners should draw up programmes for the examination of different branches of the law and submit these to the Lord Chancellor with their recommendations as to the agency by which the detailed examinations are to be carried out. The Commissioners will, of course, work in the closest consultation with my noble Friend, and their programmes will be subject to his approval after he has consulted the other Ministers concerned.
Thus, the Commissioners will, I hope, put forward a phased programme for the review of certain branches of the criminal law and suggest that in certain fields the examination should be carried out by the Criminal Law Revision Committee, and in other fields possibly by some different body. It will be for the Lord Chancellor, after consulting the Home Secretary, to decide whether and to what extent such proposals should be accepted.
Where the programme covers a branch of the law which seems likely to be controversial in a political sense, or to have a broad social trend, it is highly unlikely that the detailed review would 55 be entrusted to the Commissioners themselves. In a case like this, it would be more appropriate that the matter should be referred, as is the practice today, either to a Royal Commission or to a Departmental Committee.
One of the functions of the Commission—and this is contained in Clause 3(1,f)—will be to obtain information about the legal systems of other countries, including, of course, Commonwealth countries. This is not intended to supersede the admirable work now being done by the British Institute of International and Comparative Law, and other bodies. I think it is a fair criticism of law reformers in England that legitimate pride in the superiority of English law over Roman law and other foreign systems has often blinded us to the experience that can sometimes be derived from developments in the Commonwealth and other countries, to say nothing of Scotland.
Here, I should say that the House will appreciate that I am deliberately confining my remarks to the law of England, and the urgent need for setting up a Royal Commission for England. It would be impertinent for me to attempt to deal with Scots law, the origins of which are very different from those of English law. My right hon. Friend the Secretary of State for Scotland, if he catches the eye of the Chair, will be able to deal with Scots law. I think that I should, however, point out that a great deal of modern legislation, particularly in the social field, applies to both England and Scotland.
In other fields, such as property, and criminal administration, there are great differences. I gather from my right hon. Friend that, just as is the case in England, so, equally, in Scotland, there is plenty of room for a systematic review and reform, and I imagine that my right hon. Friend will have no difficulty in justifying the desirability of establishing a separate Law Commission for Scotland.
The two Commissions will necessarily work in close co-operation, as is provided in Clause 3(4). I imagine that this will save duplication where the laws of England and Scotland are uniform, as for example, in the Companies Act, the Merchant Shipping Acts, and many other 56 Acts. I imagine that the English Commission will assume final responsibility, but that it will work in close collaboration and consultation with the Scottish one. This, I think, will have several advantages.
I have always thought that English lawyers can profit from the experience and wisdom of Scots law. To give just one example, I prefer the Scottish system, which denies the Crown exclusive right to claim privilege for documents whose disclosure may be required in the interests of justice. In Scotland, the law insists that the judge and not the Executive should decide in each case whether the Crown's claim to privilege is reasonable or not.
It remains for me to deal with the point raised by the right hon. Member for Hampstead (Mr. Brooke), who said that in his view it was not the fault of the Home Office, when he presided over it, that the Estimates Committee made these criticisms on his regime. He thought that it was due to the lack of parliamentary time. The White Paper which accompanied the Bill drew attention to this matter, and in its last paragraph—and I want to emphasise this—said:If a comprehensive programme of law reform is to be implemented means will have to be found of facilitating the passage of the necessary Bills through Parliament.I agree, and I think that this is something which the House must accept if we are to recast our law—which is the object of setting up these Commissions—in an accessible, intelligible, and modern form. In my view, Parliament will have to devise some means of revising its existing procedure so as to facilitate the passage of the necessary Bills.
I think it relevant, in this context, to observe that at present it is far more difficult than it ought to be to find time for a Government Bill on a subject with such comparatively little electoral appeal as many law reform Bills will have. Indeed, most Members with any experience of this House may recollect that a great many of the reform Measures, often of a peripheral nature, that have been passed since the war owe their existence to the initiative of private Members.
I have the statistics. There have been seven Acts in the past 10 years giving 57 effect to recommendations made by the Law Reform Committee, but only two of those started as Government Bills. Out of the nine Acts dealing with recommendations made by the Royal Commission on Marriage and Divorce, only two started as Government Bills. We find the same pattern elsewhere. The practice hitherto has been that a problem is referred to a committee, either one appointed ad hoc or one of the standing committees like the Law Reform Committee. The committee then makes a report. Its recommendations receive general approval. They are accepted by the Government, but, as the right hon. Gentleman has pointed out, there is often no time for legislation in the Government programme and, as often as not, action depends on the chance of finding a Member who has been successful in the Ballot, or who is willing to introduce The Bill under the Ten Minutes Rule.
To deal with this and other matters, the House has recently appointed a Select Committee on Procedure, and I understand that this matter will receive the urgent consideration of that Committee. I recognise that Parliament cannot delegate its responsibility for changing the law, whether this involves a matter of policy or pure technicality, but I should have thought that Parliament may well, while preserving the rights of Members, arrange for Bills resulting from the work of the Law Commission to be considered by a procedure perhaps analogous to that of the Scottish Grand Committee.
I would hope that any such Committee would not, of course, be restricted to lawyers. Lawyers, as a profession, are necessarily occupied with ascertaining and advising on the law as it is. The Law Commission will be concerned with stating what, in a changing society, the law ought to be, and that is a matter affecting not only lawyers, but all our citizens.
§ 4.43 p.m.
§ Sir John Hobson (Warwick and Leamington)
I am grateful to the Minister without Portfolio for the way in which he has introduced the Bill and explained the provisions which he has laid before the House, but the whole of his argument in support of the Bill has proceeded on the basis that there is no distinction between any types of law. It is all law; and all law reform within the purview of the new Law Commissions which it is pro- 58 posed to set up, the whole aspect of legislation, the common law, statutory rules and orders and all the rest of it, can be sorted out, codified, modified, simplified and improved by simply setting up five lawyers, all at a fairly expensive salary, with a substantial staff, at a cost of about £200,000 a year as an estimate to begin with.
Of course, every sensible hon. Member welcomes all and every step which will improve both the substance and the form of the law because the law, both common and statutory, affects the everyday lives of every citizen in this country. But we must recognise that the vast majority of the law that affects citizens is something which ought to be decided by and is the concern of, not lawyers, but the intelligent citizen with an inquiring mind.
It is for this reason that Parliament has always retained the right and the duty to review, amend, repeal or alter the law of this country. Even those subjects which appear at first to be of the most esoteric and technical nature, in fact, touch closely the lives, the liberties, the prospects, the future, the property and the interests of very many citizens.
It is for this reason that we have always retained in our legislative process the machinery of altering the law. The greatest fallacy of all is that lawyers know about the law and that, therefore, they alone should be concerned with its alteration. Many right hon. and hon. Members who were in the House in the last Parliament will remember a Private Member's Bill which attempted to fill a gap in the provisions of the law affecting insurance against third party risks. It was thought that it would be convenient, and to those who practised in the courts it was obvious that there ought to be a provision that passengers should be covered by compulsory insurance.
The Bill got a Second Reading "on the nod". It went through Committee without comment. Then, suddenly, the owner of every motor cycle and moped, all those who go to work daily on a mechanical vehicle, realised that they would have to bear an extra annual premium of between £25 and £30 a year to implement this little piece of law reform. They all began, with one accord, to write with vigour to their Members of Parliament, and the Bill quietly ceased to be on its way.
59 It is of the utmost importance that we should try to distinguish between those questions that affect social, economic or political matters which ultimately may have to be turned into law, and those questions which are very limited and of a small nature which involve the application of legal principle. The first are matters that ought to be decided by sociologists, economists and those with direct knowledge of the way in which people live, by ordinary practical men of affairs who know what the problems are and by citizens with an inquiring mind. When all of them have decided what the policy ought to be, there is not much difficulty in any competent lawyer or draftsman turning it into legal language. This is the overriding function of Parliament and of our legislators.
There is a narrower field which may be called, and I believe in a debate in another place last July was called, lawyers' law, where what one has to consider is the application of strictly legal principles on a matter that affects only legal principles or perhaps the administration of the law. The scope of such subjects and the opportunity for reform of such subjects is of a very limited character indeed.
The hon. Gentleman, in moving the Second Reading, gave some examples of some of the topics that he thought were of importance—minors, landlord and tenant, hire purchase and animals on highways. I entirely agree that all these are questions of the utmost importance to the citizens of this country, but they each and all contain a major question of policy which has been argued about by the political parties, between Departments of State, argued about for many years without a policy actually being finally decided, and they are not questions of law. They are purely and solely questions of policy.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
To follow up that point, which is extremely interesting, would the right hon. and learned Gentleman say, under the head, for example, of hire purchase, what is the kind of political, social and economic position that he has in mind? I am not quite clear about that.
§ Sir J. Hobson
One of the great issues is whether we should adopt the American system of hire purchase, which is com 60 pletely different. This is a question of policy, which might lead to a fundamental difference in our hire-purchase law. Every citizen in this country is touched by the Hire-Purchase Acts and anything that is done to alter them affects traders, retailers, finance companies and customers.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
Cannot the same point be made about practically every field—hire purchase, housing, and anything one likes to mention?
§ Sir J. Hobson
That is exactly my point. That was emphasised by many of the Lords of Appeal in Ordinary in a debate that took place in the other place. The strict ambit of lawyers' law is of a very limited nature.
§ Sir J. Hobson
All I am saying is that the Bill is merely an elaborate piece of expensive machinery designed to perform functions for which there is already full Ministerial responsibility. It adds an unnecessary spare wheel to the present machinery which is quite capable of meeting the necessity for accelerating law reform. I am not against law reform. I am in favour of it. Everybody recognises that part of the delay is caused by the Parliamentary machine. All I am saying is that we must catch our hare before we start cooking the pie, and the hare that we must catch is the speeding-up of Parliamentary procedures, to deal with the necessary reforms.
Let us suppose that we have caught that hare. It will then be possible, with the present machinery, to institute a more accelerated rate of law reform, provided that we make a few improvements in the existing machinery. We do not need to add this elaborate spare wheel which, apparently, will be attached to the Lord Chancellor's Department. The Bill may not do any harm. On the other hand, it will not do much good. It will be expensive.
As I understand, it does not deal at all with the overriding responsibility of the Government of the day for the legislative programme. This is the first position that remains absolutely unaltered. It does not do anything to alter the overriding responsibility of the Lord Chancellor for the reform of 61 lawyers' law. It does not do anything to alter the overriding responsibility of the Minister of each Department for the reform of the law which is within the sphere of his own Department. It does not do anything to interfere with the overriding responsibility of the Law Officers of the Crown for advising the Crown, the Cabinet and the Government on matters of law. It does not interfere with or affect in any way the responsibility for matters of law reform of the new Minister without Portfolio, from whom we have had the advantage of hearing today.
If each of these responsibilities remains completely untouched, to what purpose is this additional statutory cog in the administrative machine? I am only suggesting, that the administrative machine can be expanded to meet the delay and to deal with an improved rate of law reform.
§ Mr. Sydney Silverman (Nelson and Colne)
The right hon. and learned Gentleman concedes, fairly enough, that all the basic responsibilities are unaffected by the Bill. He then goes on to ask what the Bill is for. Is not the answer that there are so many and such multifarious questions in respect of which all these responsibilities must ultimately be exercised in Parliament that an expert advisory committee would be very useful in enabling the responsibilities to be discharged?
§ Sir J. Hobson
That was the question that I was coming to, as I developed my speech. That is exactly my point. I am grateful to the hon. Member for putting it so clearly.
I am glad that the White Paper acknowledges the fact that since the war progress has been made with the consolidation of Statutes. We hear that 90 such Statutes have already been passed through this House and that the activities of the Statute Law Revision Committee have been considerable. It is a major task, and it is bound to take time. Even with the machinery envisaged in the Bill, if it is set up, it will still be a very lengthy and prolonged process.
What I find of great interest is that in May last year we heard that the Labour Party was the great forward-looking party which would bring in every sort of measure of law reform and would do 62 so in the first three months of Parliament before bringing its major policy measures into operation. So far, the only measures it has introduced have been the Legal Aid Regulations and a Bill dealing with funds in court, both of which were wholly prepared by the previous Administration and ready for it when it took office.
§ Sir J. Hobson
They were about to be proceeded with last July. They were got ready and would certainly have been proceeded with by what is now the Opposition, had they been the Government. If there is this tremendous amount of essential and urgent law reform requiring to be undertaken forthwith it is surprising that we have not had one Measure, even a tiny one, dealing with some of the aspects of this extensive subject.
§ Sir Eric Fletcher
It is one of the criticisms of the late Government that they had no measures of law reform prepared. Therefore, it is quite inconsistent, on the right hon. and learned Gentleman's argument, to complain of a failure to act.
§ Sir J. Hobson
That is not quite right. Both Law Reform Committees were engaged on substantial reviews, quite well known to the hon. Gentleman, and under the last Government substantial measures of law reform were carried out. It was a continuing process. These were apart from major social measures, such as betting and gaming, licensing, and street offences. In the Mental Health Act we consolidated and brought up-to-date Measures affecting mental health. We dealt with suicide, the treatment of young offenders, the police, safety, health and welfare in shops and offices, in accordance with the tradition of doing pretty well all the legislation affecting the safety, health and welfare of those employed in gainful industry and employment, and we also brought in the Contracts of Employment Bill.
§ Mr. S. C. Silkin (Dulwich)
If Measures of that kind were comprehended in the right hon. and learned Gentleman's definition of measures of law reform, does he not then include such Measures as the Protection from Eviction Act?
§ Sir J. Hobson
No. I said that those were general social Measures, and not Measures affecting lawyers' law. I was going on to add that, in addition to those Measures of a general social nature, from 1951 to 1964 we passed a steady stream of legislation of what might strictly be called lawyers' law. I have a schedule of eight pages, with which will not trouble the House, referring to all the Measures passed by the last Government.
By way of illustration, however, I will take the first and the last years of the last Parliament. In 1960, we passed the Administration of Justice Act, dealing with appeals to the House of Lords in criminal cases and making amendments to the law relating to contempt of court and habeas corpus and certiorari. We consolidated the law on charities and improved it by replacing the whole of the Charitable Trusts Acts 1853–1939 by the Charities Act, 1960.
We passed the Corporate Bodies' Contracts Act, which dealt with the sealing of documents of contract by corporations. We passed the Legal Aid Act, raising the statutory limits for legal aid. We passed the Marriage (Enabling) Act, permitting divorced persons to marry certain relatives of their former spouses. We passed the Matrimonial Proceedings (Magistrates' Courts) Act, dealing with the jurisdiction of magistrates' courts in matrimonial proceedings—and in that year, also, the Statute Law Revision Committee was also operating.
That is a substantial body of lawyers' reform in a single year and is representative of what we were doing. It matches our last year, 1964, when we passed the Legal Aid Act, which enabled provision to be made for the payment out of the Legal Aid Fund to successful non-assisted litigants. We passed the Adoption Act, and the Criminal Appeal Act, giving the Court of Criminal Appeal the power to order a new trial in the case of fresh evidence.
We passed the Criminal Procedure Insanity Act, dealing with the difficult problem of how those suffering any mental disability should be dealt with in the criminal courts. We passed the Criminal Procedure (Right of Reply) Act, amending the law relating to the prosecution's right of reply at trials on indictment. We passed the Dangerous Drugs 64 Act and the Perpetuities and Accumulalations Act, modernising the law relating to a future interest in property. We introduced a scheme for the compensation of victims of crimes of violence, only the second in the world, and in that year for the first time we introduced a revision of the Rules of the Supreme Court, the first revision undertaken since the Judicature Act of 1875.
§ Mr. Weitzman
Will the hon. and learned Gentleman help us by telling us how much Parliamentary time was spent in any one year on any of these Measures?
§ Sir J. Hobson
The hon. and learned Gentleman may remember that some of them took quite a time. There was quite a discussion during the Second Reading debate and during the Committee stage proceedings on the Perpetuities and Accumulations Act. Some of these Measures were discussed and argued about a great deal. That, as I say, only shows that whatever may be said there was considerable time spent not only on major Measures of reform, but also on the actual reform of what might strictly be called lawyers' law.
§ Sir Eric Fletcher
I hesitate to interrupt the right hon. and learned Gentleman. I am sure that the House is very interested in the catalogue which he has read, but may I ask whether he disputes the statement contained in the Report of the Select Committee as recently as 1963, that there is a tremendous backlog in this sort of legislation?
§ Sir J. Hobson
That was dealing only with the position in respect of criminal law on the Home Office responsibility and nothing more. Most of the Measures to which I have referred have been the responsibility of the Lord Chancellor's Department, affecting civil law and many other Departments. The single sentence which the hon. Gentleman has read affects one Department.
I do not dispute—I think that it is common ground—that up to now one bottleneck preventing the acceleration of law reform has always been the lack of Parliamentary time. We have to recognise, though, that there are two important bottlenecks. There is not only the question of Parliamentary time, but 65 also the availability of Parliamentary draftsmen which is almost as important as the question of Parliamentary time. As we all know, the capacity and scope of the Parliamentary draftsmen's office is primarily, and must be, devoted to Public Bills. Up to now they have not had the people available to draft a large number of other Acts of Parliament.
There is another question which is bound to cause delay in any matter of law reform. It is the need for anybody considering the topic of law reform to consult all those persons interested. To take the purely lawyers' law type of reform, whether it be the Law Reform Committee or the Law Commissioners, they are bound to consult the Bar Council, the Law Society, the chairmen of quarter sessions—if it affects the criminal law—and other bodies from whom they must wait for suggestions and recommendations before embarking on any new scheme.
We all know that these bodies, through no fault of their own, but simply because they are heavily engaged in other things, always take time to formulate their views. Whatever machinery we have we shall still experience a substantial initial delay before we can have recommendations from all the bodies who certainly ought to be consulted and who often can contribute a very great deal to the discussion.
These three difficulties are quite untouched by the question whether we have Law Commissions or not. It is true that the While Paper deals with the question of Parliamentary time and says at the very end that means will have to be found to facilitate the passage of the necessary Bills through Parliament. I agree that it is a difficult problem. It is an important problem. I think it the most important question affecting an acceleration in the capacity for improving the laws and undertaking law reform. I am bound to say that I think it ought to be undertaken with a little caution. I do not think that we want to get into a state in which major Measures, or at any rate, important Measures affecting the citizen, go through the back door because five lawyers say that they think it would be a good thing.
The present period of gestation through both Houses of Parliament is prolonged and may appear to be somewhat pon- 66 derous, but at any rate it provides for publicity and an opportunity for consideration and objection. Perhaps the legislation dealing with motor cyclists provides a good example of the benefits of the present system of legislation. It enabled those with very serious objections to what seemed a somewhat technical Measure to learn what was going on and to lodge their objections. Therefore, while I entirely agree that we want to try to see whether we can speed up questions affecting lawyers' law, we must not be keen to by-pass the Parliamentary machine or remove the opportunities for publicity and objection which it gives.
Even if we can speed up the process of legislation the question is whether the present machinery could be adjusted to compete with the greater speed. If that were not possible it might be that there would be a strong argument in favour of having the Law Commissions as at present proposed. I think that the present machinery can deal with the situation. I think it may be necessary—and probably desirable—to expand the Lord Chancellor's Department.
After all, the Lord Chancellor is, historically, the appropriate Minister responsible for the reform of what may be called lawyers' law, other than criminal law. In this Parliament he has the benefit of the addition to his staff of an agent in this House in the person of the Minister without Portfolio. We understood that the hon. Gentleman was to be specially charged with the oversight of questions of law reform and we have never complained about that. We think that he would still be able to look after and to supervise this question if there were, perhaps, one or two additional civil servants within the Lord Chancellor's Department, on a long term. Surely this would be quite sufficient provided that in addition we add to the Law Officers' Department. It may be necessary to add an additional Legal Secretary to be specially charged with the question of law reform.
We should also—this has always been envisaged by my noble Friend and by other of my hon. and right hon. Friends—have to add to or sub-divide the Lord Chancellor's Law Reform Committee and the Home Secretary's Criminal Law Committee. These are flexible instruments which could be expanded or contracted indefinitely to meet the problems which 67 they would need to face. They could always be sub-divided, added to or expanded as was necessary to meet any basic examination required either in the case of civil or criminal law.
It might very well be desirable that some members of those Committees might be paid on either a part-time or a whole-time basis. If that were done, and if, in addition, the office of the Parliamentary Counsel was expanded and the bottle neck in the Parliamentary draftsmen's department removed, in our submission the machinery for the reform of law would be quite capable of dealing with the increased burden and increased pace of reform.
I think that everybody agrees that the office of Parliamentary Counsel is one of the most important features of this, and both the Bill and the White Paper leave quite vague what is to be the relationship between these Law Commissioners and the office of the Parliamentary Counsel. Our Parliamentary draftsmen, critical though many lawyers and others may be of them from time to time, are probably the most skilled in the world. We probably have a more experienced machine in producing legislation which the courts can interpret than any other country in the world.
I hoped that the real basis for an expansion of law reform would have been an expansion of the office of Parliamentary Counsel. This certainly is the area in which any steps to improve either consolidation or statute law revision must be taken—or is it envisaged that there will be two bodies who will be concerned with consolidation and statute law revision?
Is it to be the position that some of the staff and some of those skilled Parliamentary draftsmen are to be transferred to the Law Commissioners and do some work there while their brethren may or may not be doing exactly similar work in the office of Parliamentary Counsel? I would certainly have thought that any steps towards greater consolidation or greater reform of statute law must fundamentally depend upon an expansion and improvement of the facilities which can be provided for the office of Parliamentary Counsel.
The only difference is the idea that one should have much more codification. 68 Codification, of course, is completely different from consolidation. Consolidation is a reform of the law. It involves a consideration of questions of principle and can lead to great improvements and substantial alterations in the law, but it usually follows—I think it should follow—a long period in which common law and consideration by the judges have been developing.
Both the Acts which the hon. Gentleman referred to, the Bills of Exchange Act and the Sale of Goods Act, came at the end of a long period when the common law had been steadily developing, and when a stage had been reached at which it was right and obvious that the law should be codified. The hon. Gentleman said that there had been no cofidication since. There has been at least one important example, the Occupiers Liability Act of 1957, a remarkable piece of draftsmanship and codification, which drew together all the threads of the law which had been developing under the hands of the judges.
I think that the idea that one should codify first before the judges have considered the application of existing principles is wrong and that codification is a subject of great importance which should be done at a time when the common law itself has developed to a stage at which there ought to be a codification. It is not necessary for that purpose to have a machinery of this size and weight, because it could be easily done in the Lord Chancellor's Department in the same way that the Bills of Exchange and the Sale of Goods Acts were done in the nineteenth century. If one expands the Lord Chancellor's Department, the Law Reform committees, and the Parliamentary Counsel's office, one would be able to deal with it much more expeditiously.
After having said this, I should like to put a few points about the actual implications of the Bill. As I understand, from what the hon. Gentleman said, the first function of the Law Commissioners will be to produce a programme for the examination of different branches of the law with a view to reform. This is not action. This is only preliminary investigation of recommendations of what actions might be taken. As I understand, they will, and are expected to, not only consider questions of lawyers' 69 law, but any question of law reform and will produce a programme for examination for reform of any topic which involves legislation or the common law.
I find it difficult to understand why five lawyers, however eminent, should be able to form any judgment at all of whether, for instance, the law of trades unions or bankruptcy law should first be examined or whether the laws affecting the public ownership of industries or marine insurance should find a place in the list in their respective priorities, or, for instance, whether the law of landlord and tenant or the Income Tax law or super tax law or even ecclesiastical law should be in the programme. There is such an enormous amount which everybody would like to touch that it comes back ultimately to whatever pace or Parliamentary capacity there is, because the Government and the Ministers must take the final decision as to what are the subjects and topics which should next be dealt with.
As I understand, when the proposals of this programme for examination have been prepared by the Commissioners, they will not be made public. They will only be sent to the Lord Chancellor, and he will have to consider the political aspects of the matter, the convenience of dealing with bankruptcy law or the law affecting trades unions or employers or associations or whatever one likes. Parliament will not know at all what programme has been proposed to the Lord Chancellor, because all Parliament will know is what programme he has approved.
Why are five eminent lawyers needed to draw up a political programme of the way in which to reform the law? I think that the Minister without Portfolio and the Lord Chancellor's Department, slightly expanded, and the Law Officers could between them, without very much difficulty, do this, urged on by members of the public who write in to say what they are worried about, and helped by knowledge of what practitioners are saying. They should not have much difficulty in deciding what matters should next be dealt with.
§ Mr. Sydney Silverman
I hope that it will not be disrespectful for some of us to wonder what the right hon. and learned Gentleman is worrying about? If one 70 had Law Commissioners, they would consider whether they could usefully make the proposals with regard to anything committed to them. But if they think that anything is so far outside the range of law reform, or is trepassing on political considerations that they feel they cannot usefully report, they will not report and if they do the Government will have the responsibility of determining whether to act on it or not. What is wrong with this?
§ Sir J. Hobson
I do not understand that procedure—on the basis that the Law Commissioners will not consider matters with any political import. But this is where we come to the key of these proposals. Should they deal purely with lawyers' law? If so, it is surely unnecessary to have such a weighty machine. Or are they intended to deal with the whole range of the law, whatever economic, political, sociological, or other considerations there may be in the alteration of the law? The responsibility for such a programme should be that of the Government. It always has been that of the Government and it surely is unnecessary to have five expensive lawyers all recommending to the Government what that programme should be. It is the Queen's Speech which informs Parliament what the programme of law reform should be.
The Lord Chancellor is at present in close touch with the Home Secretary, the Lord Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division and other members of the Government about the topics which are urgent and important. It may take these lawyers some time, but it cannot be a full-time job to decide what a programme of law reform is going to do. It is conceded that all important social and political questions must still continue to go either to Royal Commission or to a Departmental Committee or some other form of inquiry which can call in all those with experience, and not merely lawyers. It is also conceded that other important politicial, social or economic questions must still continue to go to the responsible committee or Ministers who must oversee legislation of that nature.
We are, therefore, left with what I think is the problem which ought to be considered and which, in my opinion, 71 can be dealt with only by alteration and improvement of existing machinery—namely, that narrow field of topics which can and ought to be regulated by the application of strictly legal principles or which are concerned with the administration and machinery of justice.
§ Mr. Leo Abse (Pontypool)
I am considering the alternatives to the Bill which the right hon. and learned Gentleman suggests. Would he tell the House why nothing was done by the previous Government? Why did he wait? Why is he now putting forward this alternative of improved machinery? Had he these ideas before and, if he had, why was no action taken?
§ Sir J. Hobson
I thought that I had explained clearly. I said that there are three bottlenecks. The machinery as it existed was adequate for the pace of law reform bearing in mind Parliamentary time, the availability of Parliamentary Counsel and the need for consultation. We still had no necessity for accelerated machinery because we had to deal with all those three problems before we could accelerate the machinery. It was always envisaged that if we accelerated the machinery, the Lord Chancellor's Committee and the Home Secretary's Committee would be sub-divided. Additional topics could be submitted for their consideration and advice.
If we are envisaging that the Law Commissioners are for the most part to be confined to topics which are within the narrow field of what is properly the subject of legal principles and the administration of justice, what in that field will be the relationship between the Law Commissioners and the existing Law Reform Committees—because, as I understand it, it is not proposed that those Committees should be abolished? The Law Commissioners will have the advantageous position that they can recommend that they should do the job and not a Law Reform Committee. This may mean that they will get the work and that the Law Reform Committees will not.
That I would regret, because on these Law Reform Committees we have a very wide basis of experience. We are able to draw in those who are directly concerned with the living administration and processes of the law from day to day. We 72 have judges who are administering the law, we have the best practitioners at the Bar, we have some of the best solicitors and we have academics—and all those people concerned are at the top of their profession and bring to these Committees a service of the highest attainable quality and a day-to-day experience of the administration and practice of the law as it exists.
That brings me to the question of who these Commissioners will be and what their remuneration will be. We have not been told. There have been rumours that they are likely to be paid more than existing High Court judges, but I do not know whether that is true. As far as I can make out, I do not think that there will be a wide choice from the judiciary of those who wish to give up the independence and status of a High Court judge for the frustrations and subjections of a temporary civil servant without either power or authority.
§ Mr. A. Woodburn (Clackmannan and East Stirlingshire)
The right hon. Gentleman says that there have been rumours. I take it that he has read the Explanatory and Financial Memorandum to the Bill. It reads:Any person appointed to the Commission who holds high judicial office will continue as a Judge but will not be required to perform his duties as such as long as he remains a Commissioner".There is no question of rumour. It is stated in the Bill.
§ Sir J. Hobson
I was referring to these rumours in respect of others. I am sorry that I did not make that clear. It is plain that a High Court judge continues to draw his judicial salary. I was asking what was the position about the Commissioners who are not judges and who will be employed at a salary.
While it may be that there will be found a holder of high judicial office who is willing, for the benefit of the State and out of his interest in law reform, to become one of the Law Commissioners, the choice will be somewhat limited and certainly more limited than the wide range of persons who are willing to serve on the Law Reform Committees as they exist at present and as they could be expanded.
I suggest that the same comment applies to members of the Bar. We 73 know that some of the very best of the practitioners at the Bar have been willing to give their services to the Law Reform Committees. Indeed, the present Lord Chancellor, when a member of the Bar, devoted much service to these Committees. This is the quality of service given by members of the Bar. Shall we find a person in the best practice in the Bar who is willing to give up his practice to take up a full-time appointment for three years or more with these Commissions? It is almost inconceivable that any member of the Bar in good practice will do so. He would forgo all his good will and he would forgo almost certainly any prospect of a judicial preferment. Again, is it likely that a highly successful solicitor in good practice will find it possible to retire from his profession and to be lost to his clients for three years with the prospect of simply returning at the end of that period?
This is serious because the great advantage of the present Law Reform Committees is the strength of the representation of the very best judges, barristers or solicitors who are willing to serve on these Committees at present but who, I suggest, would not in any number, if at all, be ready permanently to serve on a Commission of this nature.
§ Mr. Daniel Awdry (Chippenham)
May I point out to my right hon. and learned Friend that the Law Society generally welcomes this Bill? I do not think that there would be any difficulty in finding suitable lawyers and solicitors of rank to serve. I do not think that this point is valid.
§ Sir J. Hobson
It may be so. I have other information. I have heard other views expressed. I am simply asking the question, for I should like to know and to be assured that we are not limiting the choice. I am balancing the advantages of the Law Reform Committees, which can draw on such a wide field of highly qualified persons, and of the Commissioners. For this reason I want to know. Of course, an academic can serve on both. But what holder of a chair at a senior university would give it up for the prospect of perhaps returning to it?
There are many distinguished academics who would be very willing to serve on these Committees. But I hope 74 that we shall not find ourselves in a position in which the Commissions are substantially staffed by people of an academic nature. It is essential that we should have the judiciary and both branches of the profession represented in equal proportions with the academics. This is the great advantage of the Law Reform Committees, and this is why in many cases, I think, careful consideration ought to be given to the status and position of these two bodies and to whether what we shall do is to allow the Law Reform Commissioners to take over the Law Reform Committees as they exist and can be expanded.
I am sorry to have detained the House for so long. Certainly, the Bill will do no harm, although I doubt very much whether it can do much good. It ought not to relieve the Government and Ministers of the responsibility for the reform of the law so far as it is political, social and economic and raises large questions of policy. This must be the responsibility of Ministers and of Parliament.
So far as it is dealing with questions of what is strictly lawyers' law, it may be thought that a single commissioner or a single High Court judge, devoting the whole of his time to it, would be useful, but I should prefer that it were done by the Minister without Portfolio, who can take both a legal and a political view of a problem which arises. To that extent I should have thought that his new appointment provides a substantial part of the answer to the problem of how to proceed with the reform of strictly lawyers' law—provided that the Lord Chancellor's Department were slightly expanded and the office of the Parliamentary Counsel were equally expanded. I suggest that if this were done the House could be assured that even if it speeded up its procedure, it could get on very satisfactorily with the proper reform of the law of this country.
§ 5.30 p.m.
§ Mr. A. Woodburn (Clackmannan and East Stirlingshire)
Having listened with the greatest attention and care to the speech of the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) I remain confused about what he meant or said in the course of it. As he spoke I began to think that it was 75 not so much a reform of the law we need as a reform of the lawyers.
If the right hon. and learned Gentleman's speech represents an example of the clarity of the law in our courts, it seems that someone other than a lawyer is needed to bring the matter into some order. I hope that when the committee is formed, teachers of English and businessmen—people who are accustomed to writing business letters and intelligible English—will be on it, with the lawyers, to see that what is stated in writing by the committee's members is in concise terms. I regret that Sir Winston Churchill is dead. A little of his language in the law would make it clear, even to the meanest of us.
Today, looking around the House, I feel rather like a Daniel in the lawyers' den. I hope that I will be excused, especially since it has been pointed out that on this question of law reform it is important that the ordinary person realises its importance. As an ordinary person, I feel entitled to be able to understand the law. The right hon. and learned Member's speech could be summed up in a few words: what is the good of anything? Why, nothing. He put up every Aunt Sally he could imagine and proceeded to knock them down. One committee was no good, so, he wondered, what was the point in having another? The present Law Reform Committees have not been able to do the job, so the right hon. and learned Gentleman objects to having another committee to assist with the task.
There is probably room for all these committees. The job is not being done now and it has not been done in the past, but that is no reason why the work should not continue. The right hon. and learned Gentleman himself pointed out that the present Lord Chancellor had devoted a great deal of time and energy, before acceding to his present office, to this work. It is based on that sort of experience that we are beginning to tackle the subject in a more systematic fashion. I was astonished to hear the right hon. and learned Member for Warwick and Leamington throwing so many wordy obstacles in the path of this new proposal. If it cannot succeed it cannot, but we should try it before we decide that it is not a success. Is not a trial the first part 76 of the law before judgment is passed? The right hon. and learned Gentleman passed judgment before this is tried, which is the antithesis of the law.
I welcome the proposal and regard many of the questions asked by the right hon. and learned Member for Warwick and Leamington as having nothing to do with it. Any law is obviously decided upon by the Government. It is drafted by Parliamentary draftsmen. That will not be done by this committee, which will not deal with policy or new law. This was the red herring which the right hon. and learned Gentleman introduced—a red herring which has no relevance to our discussion today.
I welcome the proposal and, in doing so, wish to give credit to those who have done something in this direction in the past. The Lord Chancellor has already been congratulated by the right hon. and learned Member for Warwick and Leamington. We should also remember Lord Jowitt, who made a considerable contribution to progress in this direction, as did Lord Reid. We should also recognise the work of the late Lord Cooper, who considerably improved the law by having it brought into some sort of regular order and who himself played a part in getting rid of a lot of obsolete laws, which no longer clutter up the Statute Book; and I refer, of course, to the Statute Book which is consulted by lawyers.
The first problem which must be tackled by the Law Commission is the means whereby lawyers can find out what the laws are all about. The amount of money at present spent by the ordinary citizen in paying lawyers to find out what is our present law is disgraceful. Large sums are spent while lawyers try to discover just what the law is. This state of affairs should be eliminated as soon as possible, and if the Law Commission does nothing but that, it will have performed a great service for the lawyers and the people who pay them.
Many existing laws date back to the fourteenth and fifteenth centuries, although today I will deal only with Scots law because I have not read English law in this connection. The Scots law of the fourteenth century is written largely in what is described as "old Scots". It may be old Scots, but it is old Greek to me. No ordinary 77 person could possibly understand the language, whether it is called old English or old Scots. It is all mixed up with Latin and every Scots lawyer must know some Latin if he is to know what is going on in the courts.
One used to find boys in the street talking about ad valorem and about "taking it to avizandum". Every Scot is said to be born half lawyer; at least, he has got to be if he is to have an intelligent understanding of the law. George Buchanan used to quote Latin regularly in debates in Parliament, not because he was a lawyer but because he was brought up in this atmosphere, in which every person had to know a smattering of Latin if he was to know what was going on.
§ Mr. A. J. Irvine
May I inform my right hon. Friend that throughout my boyhood in Scotland I never heard my contemporaries or anyone under the age of 20 regularly use the phrase ad valorem.
§ Mr. Woodburn
I am surprised. In my own family the phrase "taking it to avizandum" was used as a common term. When I was a boy these quotations were common. The ordinary people were accustomed to hearing and using them and I am sure that the Minister will confirm this from his experience.
The first thing to stress is intelligiblity. Can the right hon. and learned Member for Warwick and Leamington say why the Law Commission should not get the law made intelligible? As he said, there are at present half a dozen types of law, including common law and statute law. People are still able to quote laws dating back into the mists of antiquity and so confuse the courts. Intelligibility of language is of prime importance. For example, instead of "implement for digging the ground" the Commission might decide to use the word "spade". That might not be quite accurate, but—
§ Sir J. Hobson
We are not discussing whether the law should be made more intelligible but only the best instrument for tackling this problem. It would be difficult to describe in terms of a spade things like bond washing and dividend stripping.
§ Mr. Woodburn
The right hon. and learned Gentleman is more familiar with bond washing and dividend stripping 78 than I am. I will leave him to put that sort of thing into intelligible English. My right hon. Friend the Prime Minister gave a good description of bond washing and dividend stripping at the Dispatch Box not long ago, but the former Chancellor of the Exchequer did little to stop it, even then. My right hon. Friend explained it carefully. It still goes on to some extent, but intelligent listening might have improved the position considerably.
The criminal law also requires to be made suitable for appreciation by the ordinary person, who, after all, is mostly affected by it. I am glad that a Royal Commission is sitting now and is trying to get English law assimilated with Scottish law in regard to criminal prosecutions. We have always considered it fantastic that in England a man can be tried three times for committing a crime; before the coroner's court, the magistrates' court and, finally, before the High Court.
In these circumstances, all the evidence is published so that everybody knows all about the prosecutions' case, although nobody knows the case for the defence. The case is taken three times, and the evidence of the prosecution resembles an advertisement for Oxo. It is so imprinted on the public mind that it is difficult to get jurors who are entirely impartial.
I understand that our law in Scotland is more assimilated with French law, where a lot of this is prepared beforehand. The Crown decides whether there is a case to go for prosecution. The man is tried once, the evidence is published once during the trial and we consider that that is by far the fairest way to proceed. Indeed, I think that it was Lord Clyde who fined the Daily Mail £5,000 for printing pictures—never mind evidence—of an accused man, as being likely to prejudice the trial. We think that our method is good, and the Royal Commission will no doubt deal with this aspect, which will not necessarily be transferred to the Law Commission.
I think that the Law Commission will have quite a big job on hand even to start at the beginning and clear away all the cobwebs from the old law and, to some extent, at least, to bring it up to date. Bringing it up to date does not necessarily mean going much beyond codification, in the first instance. Care will have to be 79 exercised. For instance, I can imagine the hullabaloo that would be caused if it were suggested that the old laws passed before the union in regard to bishops, and the rest, should be altered.
That would cause a considerable amount of trouble in Scotland, because the Church itself has great difficulty in deciding the question of bishops. That would be better left as it is unless the Government decided on new legislation. The law will not be altered unless the Government do decide on legislation, but it can be cleared up and simplified, and many of the cobwebs removed from it.
Another thing that might be considered is reform of the lawyers. What is a lawyer? There are solicitors, advocates, writers to the signet and notaries, all of whom are considered to be lawyers. Is any lawyer entitled to give the ordinary person an interpretation of the law, or must a solicitor get the opinion of Crown counsel? Self-reform may be suggested to the lawyers, who would gain great credit from the public if they succeeded in the task.
Social policy is an entirely different matter. Nobody suggests that this Law Commission should consider that subject—this House argues enough about that as it is. Nevertheless, the Commission can tell us how to put that social policy into intelligible language and good law, and also eliminate a great deal of duplication—if not multiplication. If it were to do that, that also would do a great service to the community.
Among other legislation, the food Acts are amended from time to time by other social legislation, and one of the problems of local authorities is to keep up to date with the amendments. The Commission might consider means by which all these amendments could be consolidated—perhaps a new page incorporating the amendments could be issued for insertion. As it is, if one refers to the original Act, one has a week's work finding out what it is all about after considering all the amendments—and the amendments to amendments. The Commission might consider simplifying that process.
The Commission can also consider and do a great many things without getting involved in all the questions referred to by the right hon. and learned Gentleman. 80 It may look for work—it will not be looking for trouble. I agree that one of the problems is to get efficient people. One of the difficulties about the Law Reform Committee has been that its members are efficient people, but they are busy people, too, and cannot devote to the job all the time required by it. While it is desirable to get eminent people for this sort of work, it is much more important to get people who, though perhaps not so eminent, are capable of doing the job. The eminent people can perhaps later judge of their efforts.
The Parliamentary draftsmen are a most valuable asset, but I am sure that a great deal of Government legislation is being held back at the moment because they already have so much work on their hands. Parliamentary draftsmen cannot easily be recruited—they are highly-skilled men. When I was in office I never ceased to admire the tremendous energy they showed in getting the job done. But we cannot multiply them merely by saying that we want more of them—and some of these Parliamentary draftsmen could be eminent counsel if they devoted themselves to that part of the work. I therefore do not think that the right hon. and learned Gentleman's suggested cure—to enlarge the Lord Chancellor's Department and the Parliamentary draftsmen's department—is a cure at all. These things could have been done long ago, perhaps, but they are not so easily done now, and, as I say, legislation is being held up.
I hope that we will get good people to serve on the Commission—they will be asked to do an entirely different job. I am told that we want capable people, those who can give their time to the work. There will be those who have an inclination to it, and those who can adapt themselves to it. I hope that some members will be academic people, but I should also like there to be someone from the business world, and perhaps one or two teachers of English in case the lawyers cannot do better than the right hon. and learned Gentleman was able to do in trying to make himself clear.
The Bill says that the chairman and members of the Scottish Law Commission will be appointed by the Secretary of State and the Lord Advocate. Is it not a precedent that we have to rely on agreement between the two in order to get someone appointed? What happens 81 if they disagree? They are both members of the Government, and the Secretary of State is the representative of the Government. Why bring in the Lord Advocate? Why not bring in the Attorney-General to advise the Lord Chancellor?
The Secretary of State for Scotland exercises in Scotland the duties of the Lord Chancellor, and I fail to see why the Lord Advocate should be brought in unless there is some precedent for it. Everyone knows that the Lord Advocate advises the Secretary of State, and we value and appreciate his services, but I think that this is an unnecessary complication, and I should like to know whether there is any reason for it.
I welcome the Bill. I hope that the Law Commission will be successful, and that it will be able to do the job given it so that those following us will be the better able to know what the law is.
§ 5.48 p.m.
§ Sir David Renton (Huntingdonshire)
I listened to the right hon. Member for Clackmannan and East Stirlingshire (Mr. Woodburn) with interest, as I always do. I hope that he will allow me to correct one thing. He said that the law reform committees are too busy to get on with the job, but the facts are that the Law Reform Committee—the Lord Chancellor's one—which was set up in 1952, has produced 11 reports for reforming the law, and eight have been enacted. The Criminal Law Committee, established by Mr. R. A. Butler, as I think that we must now call him, in 1959, has submitted five reports, of which four have been implemented.
Being a keen law reformer, I wondered whether the Bill would contain something new, exciting and fertile, or be just an amiable piece of window dressing. I must say that it is a relief and a pleasant change to find the Labour Party doing anything so harmless. I hope that it will be harmless, because a lot depends on how the Bill works: by placing another tier on our already elaborate law-making machinery, the Bill could lead to delays in the reform of the law. None of us, I am sure, disputes the need for continuous law reform or the desirability of getting it done as quickly as possible.
82 I should have hoped that nobody could doubt that the machine has been driven very hard in recent years. I was surprised that the speech of the Minister did not in any way acknowledge what has been done. He spent a good many years as Shadow Joint Under-Secretary of State for the Home Department and did a lot of valiant work himself on our legislation, including the law reform Bills. I wonder whether, just to illustrate what has been going on, and to remind the hon. Gentleman, we might take the Home Office, which, I was surprised to hear, was alleged to have a backlog of legislation.
What are the facts? Mr. R. A. Butler was there from January, 1957, until July, 1962, and in that time 26 Home Office Bills went on to the Statute Book. Most of them were major ones, and they included such far-reaching and comprehensive measures of law reform as the Charities Act. That was the most important Statute dealing with the law of charitable trusts for three and a half centuries, and its two repealing schedules contain no fewer than 12 pages of lists of repealed Statutes.
Then we had the Betting and Gaming Act and the Licensing Act, both of which modernised the law and attempted to make it suitable for a mature society. We had the Criminal Justice Act and the Criminal Justice (Administration) Act. Dare I mention the Commonwealth Immigrants Act? Besides all our own legislation, we had a contingent interest in the Bills of many other Departments. For example, we had to share the Mental Health Act with the Ministry of Health, and we shared the Tribunals and Inquiries Act with the Lord Chancellor's Department. Also, the Home Office sometimes gets heavily involved in Private Members' Bills, and we often had to help in that direction.
It is hardly surprising, therefore, that when we left the Home Office in July, 1962, Mr. Butler and I both thought that the Department had, if anything, been overburdened with legislation and could well do with a break from it for a Session or two. But my right hon. Friend the Member for Hampstead (Mr. Brooke) had to keep pressing on. He had the Police Act and other major Acts.
I mention all this because I think that if the Home Office, or any other Department which had a great deal of legislation, 83 could be relieved of its legislative burden to any extent by the setting up of the Law Commission, I should be in favour of it, but I am afraid that the opposite will happen. Departments and Ministers will not be relieved of responsibility through having this Law Commission: they cannot be, for the reasons given by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) in his excellent speech.
Our whole system of government in a Parliamentary democracy depends on our having Ministers responsible for each activity of the State. Even a Trespass of Animals Bill must come within the responsibility of Ministers. Strangely enough, that subject comes within the responsibility of at least two Departments. When a private Member had an objection to the City of London (General Powers) Bill about the trespass of animals in Epping Forest, that, far from being lawyers' law, aroused fierce controversy among laymen. Every activity—I cannot think of one that has not—has to be covered by the responsibility of a Minister helped by a highly specialised Department manned by civil servants to carry out the policy.
Putting forward legislation for scrutiny by Parliament is an essential part of a Minister's function. He cannot carry out his policy without doing so. His Ministry, taking some advice from outside if necessary, considers how in detail the policy should be carried out and prepares instructions to Parliamentary draftsmen to draft the Bill. The main Departments have always got plenty of Bills that they would like to introduce, and it is not for the Law Commissioners to decide which of them should go into the Parliamentary timetable. Only the Cabinet can decide that, and there is a good deal of jockeying for priority among Ministers as to whose Bill should go into the timetable.
I heard with great interest what the hon. Gentleman said about the possibility of more Bills being fitted into the timetable. He referred us to the last paragraph of the Report. He mentioned the possibility of a Grand Committee, analogous to the Scottish Grand Committee, for considering Bills containing lawyers' law. By all means let us consider that, but I hope that in thinking of ways of pressing more legislation through the House, nobody will think in terms of 84 dispensing with the very thorough scrutiny that we make of Bills.
The anvil on which our law is, and always has been, and, I hope, always will be, hammered out is the freely expressed opinion of private Members of all kinds, not just the opinion of clever lawyers. Anyone who has sat in a Standing Committee knows that an hon. Member who does not perhaps take a very active part in a Bill or—I say this without being patronising, for I am not a very clever person—is not considered one of the brightest Members, will sometimes, because of his inability to see the precise point of a Clause, make a most vital point to be considered. As I say, hon. Members are the anvil on which the law must be hammered out, and they must have thorough opportunities of doing that work.
I hope the House will not think I am being ungenerous in this matter: I thought that the Minister without Portfolio was a little ungenerous. As a lawyer who is keen on it, I naturally welcome any good intentions for advancing law reform in the future. But let us carefully consider Clause 3. It contains the essence of what the Commission will have to do. This is not just Committee stuff; it is fundamental. Paragraph (a) says:to receive and consider any proposals for the reform of the law which may be made or referred to them".The Lord Chancellor and other Ministers have to do that anyway, and bright ideas are pouring in all the time from every quarter. With regard to paragraph (b), the Lord Chancellor already has a duty to refer matters to the Law Reform Committee and the Home Secretary to the Criminal Law Committee. As I understood the Minister's speech, those two Committees are to continue in existence.
What about "the agency" by which the examination of any particular recommendation of the Commission is to be carried out? If that is to be a Royal Commission, it is not for the Law Commission to suggest it. That is a matter upon which the Prime Minister, after discussion in the Cabinet, must advise Her Majesty.
It seems to me that in regard to paragraphs (a) and (b) the Bill seems to put an important part of the Lord Chancellor's duties into commission in part! 85 We know that the Lord Chancellor is a very busy man, but he is a Minister, and he should not be allowed by Parliament to surrender his obligations to a body which is not answerable to the House.
What will be the effect on Parliamentary Questions? I hope that the Government will tell us about that, because it is very important. Supposing I put down a question to the Minister without Portfolio asking him to introduce legislation to codify the law relating to libel and slander. Instead of politely saying, as I think that he would at present, that the matter was or would be under consideration by the Law Reform Committee and that it was hoped to introduce a Bill as soon as its proposals had been studied and Parliamentary time found, will he not give the curt reply, "This is a matter for the Law Commission"?
If the hon. Gentleman were to make such a reply, my supplementary question would be, "What is the Commission doing about it?" No doubt he would then answer, "My noble Friend the Lord Chancellor has so far received no recommendation from the Law Commission on this matter. We shall have to wait and see its next report." So far so good, but then I think he would have to add, being a candid man, "But I must frankly tell the House that it will be several years before time can be found to implement all the recommendations in the Committee's last Report."
I read in the Sunday Times yesterday the report of a most interesting interview with the Lord Chancellor. I hope that the Sunday Times got him wrong because the idea of these reports coming out once every five years would be putting the clock back. It would mean that the Law Commission would not be accomplishing anything like what has been accomplished in the last five or even 15 years. I should be glad to be corrected.
§ Sir Eric Fletcher
Surely the right hon. and learned Gentleman has overlooked Clause 3(2) which requires the commissioners to make an annual report to Parliament?
§ Sir D. Renton
I am most grateful to the hon. Gentleman. I saw that provision but was so shocked by what I read in the Sunday Times that it was 86 pressed out of my mind. It is splendid that we are to have annual reports. We can be reassured that the Sunday Times did not get it right. I am most grateful to the hon. Gentleman. But I still come to the question of what is to be the answer when hon. Members put down questions about the need for law reform. Will there still be clear Ministerial responsibility or is that responsibility being shifted to the Commission? Is the Lord Chancellor being put, in part, into commission?
Clause 3(1,c) overlaps the responsibilities of Ministers and the work of the two Law Reform Committees. Subsection (1,d) concerns consolidation and statute law revision but we know that both are already taking place all the time. I think that we are entitled to an explanation of why this paragraph contains the words:?…the preparation of draft Bills…Is the Commission to have its own staff of draftsmen or will the office of the Parliamentary Counsel be put at its disposal? Could we be told, whichever way that is to be done, how many more Parliamentary Counsel are likely to be required? I share the admiration that was expressed by my right hon. and learned Friend for the work of the Parliamentary Counsel. I have seen them given what looked like impossible tasks to do, sometimes at very short notice, and it was wonderful to see how they did the job.
We all know that they are very hard pressed for a great deal of the year and that many more will be needed. Can we be given some idea of what the Government have in mind in this respect?
Clause 3(1,e) is of great importance. It is envisaged that the Commission shall?…provide assistance to Government Departments and, at the request of the Minister,"—that means the Lord Chancellor or the Secretary of State for Scotland—?to other authorities or bodies…".We all know that Government Departments are already very good at drawing up their own instructions to draftsmen and it seems to me that that is about the only assistance that can be envisaged under this provision. Government Departments are good at it, and are bound to be good at it, because they are responsible for policy and know just 87 what they want. They know far better than the Law Commission will know. I doubt whether Government Departments will need the help offered under paragraph (e). Perhaps I have missed the point, but I would like to be told.
We are also told that this assistance will be provided:?…to other authorities or bodies concerned with proposals for the reform or amendment or any branch of the law;".Which other authorities or bodies? Government Departments, each with a Minister at its head, are the only ones which can produce Public Bills for consideration by this House. Does paragraph (e) mean those various public authorities or private individuals who may have Private Bills? I do not see what else it could mean, but if it does mean something else, let us be told.
Even Clause 3(1,f) is not necessary. It concerns finding out about overseas law. We already have an excellent procedure for finding out about the law of other countries. We do so through the Commonwealth Relations Department, the Colonial Office and the Foreign Office. They approach the High Commission Offices or Embassies in London, who are always proud to tell us what are their own countries' laws. I do not think that we need a Law Commission to improve on that procedure.
So it seems to me that all the work that is being given to the Commission is already being done by various Ministers and Departments. Therefore, the only question that arises is whether there will be any advantage in having the Law Reform Commission doing it in addition. There is overlapping. I am yet to be convinced that this is necessary. In order to show whether it will be an advantage or a disadvantage to have the Commission doing this work, I give an example that is certainly not likely to be hypothetical.
Everyone agrees that the trade union law is at the moment in confusion; much of it is out of date and needs redrafting. We are to have a short Bill to reverse the Rookes v. Barnard decision, which may get through this Session, and a wide-ranging inquiry into the unions. As a result of that inquiry, various changes in the law may be recommended in the Report. The Government 88 may or may not agree with the recommendations. What will happen then? This branch of the law needs clarification, which is law reform. Will it be the duty of the Commission to take action under Clause 3? If so, what action? Or will the Government reply, "No! The Commission must keep out of this. This is for Ministers to decide"? It is all a little puzzling, if rather fascinating.
We all want to foster law reform. There are only two obstacles to greater speed. One is that Parliamentary Counsel are already so heavily pressed. The other is the lack of Parliamentary time. This Bill will not remove either obstacle and will, therefore, not make very much difference, whether passed or not. I certainly do not wish it ill, because I support everything that can do anything towards law reform. But we must see that we do nothing that will delay the process. The Bill intends to mother Departments. We must make sure that it does not smother them.
§ 6.10 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I rise to welcome the Bill. I have listened with careful attention to the speeches of right hon. Members opposite and I am rather disappointed by the lukewarmness of the reception which the Bill has received from them. It is quite clear that we must first decide whether there is a need for the kind of machinery proposed by the Bill, and I would have thought that on the answer to that question the political divisions existing between us would not have any bearing at all. Yet I observed that both the very interesting speeches of the right hon. and learned Member for Huntingdonshire (Sir D. Renton) and the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) revealed, as I say, at the best a somewhat lukewarm reception to the Bill. This disappoints me, because, as a lawyer, I am one of those who believe that there has been shown to be an urgent need for the kind of provision which the Bill makes.
The right hon. and learned Member for Warwick and Leamington mentioned a considerable series of Measures, which he catalogued, which had been passed in the last Parliament and which could reasonably be regarded as coming under 89 the head of law reform. However, he did not satisfy me, and I doubt whether he succeeded in satisfying the House, on what is the cardinal point at issue. Is he suggesting that the process to which he referred would not have been facilitated if the kind of machinery proposed in this Bill had then existed? That is the test. Granted that significant measures of law reform have been passed by one Administration after another, would they not have been facilitated by the kind of machinery now proposed? Did they not suffer disadvantage from the kind of haphazard, chancy processes which have operated hitherto?
I have in mind, as a not unimportant measure of law reform, a Private Member's Bill introduced from the other side of the House in the last Parliament implementing a recommendation of the Law Reform Committee relative to a small but important change in the law of limitation. That Bill went through this House and was welcomed on both sides. Under the then existing processes, it was possible for that Measure to be pased only because a Private Member was fortunate in the Ballot for Private Members' Bills and because it occurred to him that it might be a useful opportunity to bring forward this Measure of law reform. Good luck to him. It was admirable and was welcomed by the whole House.
I am suggesting that this is a very haphazard process by which an important recommendation is made by the Law Reform Committee which because of shortage of time may be indefinitely stalled, unless the matter develops so propitiously that some hon. Member finds it appropriate to use his good fortune in the Ballot to bring a Bill before the House. This haphazard character in the process of law reform can be usefully eliminated or reduced by the kind of provisions now proposed.
Somewhat in the same fashion, I would be critical of the line of reasoning of the right hon. and learned Member for Huntingdonshire. Perfectly fairly, he brought forward for us to recall a list, a rather impressive list, of the Measures which had been drafted and brought forward by the Home Office in recent years. I acknowledge that gladly, but is he suggesting that this exercise by the Home 90 Office would not have been facilitated by the existence of the kind of machinery proposed in the Bill?
§ Sir D. Renton
I do not think that the legislation would have been facilitated by the Bill. It had such a tremendous inner momentum of its own that it did not need a Law Commission, or other outside body, to chivvy us. We were anxious to get on with it and most people were anxious for us to do the work.
§ Mr. Irvine
I am interested in that reply, for the right hon. and learned Gentleman has great experience of the Home Office. I do not want to challenge what he has said, but I am surprised that the pressures on the Department were not so great that it would not have welcomed the kind of assistance and cooperation which would have been available to it from the Law Commission under the provisions which we are now considering.
§ Mr. Henry Brooke (Hampstead)
In the last Session of the last Parliament, 11 Government Bills were introduced by the Home Office and the Home Office also gave assistance to ten private Members to get their Bills on the Statute Book. It is fantastic to suggest that some external machinery would have helped to get a larger number of Bills on the Statute Book.
§ Mr. Irvine
I am obliged for and interested by that observation. I acknowledge that this is the issue which goes to the very heart of the matter. I have heard now from two distinguished sources that in the Home Office—and I pay my humble tribute to the work done—there was, apparently, in point of time and availability of servants in the Department all that was needed for a substantial and extensive exercise in the drafting of Bills and the preparation of law reform. I do not want to argue on that with two right hon. Gentlemen who have undoubted experience in this matter, but perhaps I may be allowed out of my own experience to give illustrations of what I believe to be the proven need for the kind of machinery and procedure which the Bill provides for the preparation of other kinds of legislation. If one Department has all it needs for this purpose there may be others less happily situated. That the need overall exists for what is now 91 proposed is the conviction which I hold to be beyond dispute.
In the last Parliament, we saw the passing into law of the Hire-Purchase Act, a branch of the law mentioned by my hon. Friend and the right hon. and learned Member for Warwick and Lea-mington. I well remember the way in which the proceedings on the Hire-Purchase Bill of 1964 developed. It was generally felt—and this was not a party matter; it was agreed between hon. Members on both sides, whether they were lawyers or not—that the provisions of the 1938 Act affecting the measure of damages on default of hire-purchase agreements were open to criticism because they were too rigid and capable of working injustice. If we were right in thinking that there was mischief in that part of the 1938 Act, the mischief was extended by the 1964 Act, which substantially increased the scale and number of transactions made subject to hire purchase legislation.
Some of us, on both sides of the Committee, thought that the consideration of the Bill in Committee gave us the opportunity which should be taken to put into effect a change in the law to introduce the concept of the fair measure of damages in cases of default of hire-purchase agreements. We on what was then the Opposition side drafted an Amendment which was accepted in Committee and which is now part of the statute law of England. If anyone is sufficiently interested to follow it up, he will find it spelled out in Section 1(5) of the 1964 Act.
What I venture to think is of interest in the matter which we are discussing and illustrative of the need for the kind of machinery proposed by the Bill is this. Our Amendment to the Hire-Purchase Bill confessedly paid more regard to the position of the defaulting hirer than it did to that of the owner. In other words, it did not go the whole way, and we did not claim that it covered all the ground that it should have covered. Although it was recognised that our Amendment did not cover the whole ground, because it was felt there was a need for this matter of the measure of damages on default of hire purchase agreements to receive thorough and compendious agreement and investigation, 92 hon. Members on the Government side abstained. They did so with the express object of having the matter dealt with by the Department. Our insufficient Amendment, as I have acknowledged it to be, was passed in these circumstances. But the object of all of us was to have the matter compendiously and thoroughly dealt with. It was felt on both sides that there was need for this to be done and that this was the opportunity for study and investigation of it, and for action on the Report stage.
I very much desire not to be unfair to anybody, but I ask: what occurred? The plain truth is—and I am not being critical, because there are limits to what people can do—that the Board of Trade, which was the Department concerned, was, as I believe, far too busy to deal with the matter. It had the Retail Price Maintenance Bill on the stocks, and heaven knows that was giving rise to a sufficiency of novel and difficult points of draftsmanship and law. I am satisfied that the machinery was simply not available to make possible the carrying out of the kind of compendious and thorough investigation of this matter which hon. Members on both sides of the Standing Committee desired.
This stalemate occurred in a situation in which, as I hope I have made plain, hon. Members on both sides had resorted to the tactic or stratagem of supporting an Amendment which was acknowledged to be insufficient for the purpose and did not cover the whole ground because it was hoped that a Government Department might be persuaded or compelled at long last to deal compendiously and thoroughly with a problem which should not be allowed to drift.
We have heard the defences of right hon. Members opposite about the Home Office. The suggestion has been made that all that is needed in point of time and numbers of draftsmen is there readily available. That may be so; I am not in a position to challenge it. I am satisfied that it was not so in the Board of Trade during the last Parliament. I do not blame the Department; it would ill become me to do so. There is a limit to what can be done. Hon. Members on both sides were concerned with a nonparty matter needing reform but were not able to get the attention paid to it which was required.
93 Would it not have been entirely different and much more propitious and better for all if there had been available the kind of machinery proposed by the Bill so that there might have been carried out a careful, thorough, academic research into the appropriate treatment of this problem of the correct measure of damages in the case of default in hire-purchase agreements? Would it not have made a great difference to all of us, party considerations apart, if that had been a matter of programmed study by distinguished lawyers? Therefore, I should have thought that the answer to the question whether the need for this machinery exists is that it exists beyond doubt.
I have mentioned one example which was of particular interest to me, but it was not the only one; I can assure the House of that. I was concerned with the Weights and Measures Bill. All kinds of questions arose during the Committee stage of that Bill. Again and again we were told that certain provisions which we wanted incorporated in that Bill were not appropriate for it because it was recognised that there was a need for widespread improvement and reform of the law in the wider field of consumer protection. It was acknowledged by the Government that the Sale of Goods Act should be amended and brought up to date to take account of changed conditions. We were assured that many things which we wanted done on that Bill would not be attended to under that head because the Department was giving attention to them under other heads of its activity. But once again a Government Department, like, I should have thought, many others, simply had not the time nor the number of personnel, with great respect to those concerned—and nobody recognises their ability more readily than I do—needed for that scale of reform.
It remains true—and in the first year of a Government much requires to be urgently done under policy heads—that it is unreasonable to ask the Board of Trade to concentrate a substantial part of its time and activity on reform of the law on consumer protection or the Sale of Goods Act. It remains desirable, however, that that should go on in the public interest. Who would do it better or more authoritatively than the kind of Law Commission which is proposed in the Bill? That is why I suggest that on this 94 issue of need, those of us who have had experience of these matters are readily satisfied that there is a real need and that this is not an issue on which, particularly as between lawyers, there should be any party division.
I have found this also true in the case of Town and Country Planning Bills, landlord and tenant legislation and compulsory purchase provisions with which I have been connected at different stages of their passing through Committee and the House. A new Rent Act and a Land Commission will not reduce the need. It repeatedly occurs that hon. Members on Standing Committees as well as officials in the Departments on matters of that kind and of that degree of complexity are in need of the background of recommendations and advice from qualified and distinguished lawyers who have given whole-time research to the legal problems involved directed to the preparation of Bills. This is a clamant need. With all the respect in the world to civil servants, it is quite unreasonable to expect that they should be able to give the concentrated whole-time application to legal issues affecting their Departments which we can reasonably hope to receive from the members of the proposed Law Commissions.
I turn shortly to the matter of consolidation. I have the honour to serve upon the Joint Committee on Consolidation Bills and I have also had the honour of serving on the Committee which dealt with the consolidation of the highway legislation in the Highway Act, 1959, under the chairmanship of the late Lord Reading. What those of us who have served on these Committees have learned as most significant of all in their procedure is, I think, the dependence of the Committees upon the thoroughness and ability of the work done by the officials and servants of the Committees who have made the necessary preliminary and academic researches, investigations and recommendations which are brought before the Committees for them to supervise and examine upon.
All I would say—and I speak with great respect for the work that is done—is that in the work of Committees of that kind, necessarily meeting at comparatively long intervals, perhaps not more than once a week, and necessarily 95 confining their researches mainly to the process of investigation and questioning experts who have made the necessary preliminary inquiry, one may get admirable results. In the case of the Highway Act and other Measures which I could mention, admirable results were achieved. It is, however, bound to be a comparatively slow process. It would be a faster and more satisfactory process if it received the whole-time attention of distinguished lawyers. This would make all the difference in the world to both the speed and the effectiveness of the work done.
I venture in passing to mention one other aspect under the head of consolidation which is important. I hope that bearing in mind the importance that will still attach, under the new dispensation, to the preliminary academic work for the study and investigation of law and of Acts of Parliament which are to be consolidated, the greatest regard will be given to the recruitment of appropriate personnel to undertake that work. It calls for a very high intellectual quality and for considerable industry. I would wish to see, between this House and, for example, the universities, the closest liaison to ensure that there is an adequate flow of recruitment of sufficiently able and distinguished personnel to help in the undertaking and carrying out of this important work.
Upon the Second Reading of this Bill, I would say that it is a first-rate, most welcome Measure and one which cannot conceivably as between lawyers properly raise any party differences. So far as my experience goes—and in this field one cannot do much more than put before the House one's own experience—there is no possible doubt about the need for the Bill. So far as it will have a bearing upon the treatment of Acts of Parliament by way of consolidation, it makes provision for that matter in a way which is likely to lead to more efficient and more rapid treatment, although I should be the first to acknowledge that very distinguished work has gone into the work of consolidation heretofore.
Albeit that the work of the Law Reform Committee still goes forward, we are on the way to escaping a process under which the recommendations of the Committee, before they could be imple- 96 mented, were subjected to wholly undesirable haphazard factors, like the disposition of Private Members to use their good luck in the Ballot. Therefore, from every point of view, this is a Bill which I welcome and in which, as a supporter of the Government, I take pride.
§ 6.40 p.m.
§ Sir Hugh Lucas-Tooth (Hendon, South)
The purpose of this Bill is to facilitate the reform of the law. All of us in this House, from our contacts with our constituents, know the strength of the demand for clarification of the law. Probably, after questions about housing, most of us get more questions on subjects requiring legal advice than on anything else. We are not qualified to give that advice, but I think that that fact shows how much people in this country do feel lack of knowledge of the law. There is a widespread feeling of the need for improvement.
I suspect that that has always been the case and that it will always be the case. The background on which the law is made is constantly changing. Parliament is constantly changing the law. The courts are constantly giving decisions which create precedents, and these lead to complications requiring reform of the law. There will always be some considerable delay between those complications arising and the possibility of their being ironed out, however good our machinery may be; but there certainly is a need for machinery to bring the law up to date both in form and in substance, and I think that any attempt to improve the machinery should be welcomed, and whatever I may say which is critical here I wish not in any sense to do other than welcome this Bill on Second Reading.
To my mind, law reform has two ends, and those two ends are quite distinct. One of them is to make the law accessible and intelligible, to use words which are used in the White Paper in connection with this Bill. The other is to correct injustices and to make the law accord with modern needs. To my mind, the Government have somewhat confused those two ends, both in the White Paper and in the way in which they have drafted this Bill. Both ends, codification on one side, and modernisation on the other side, are desirable, but I think that the attempt to do both of those together by one piece of 97 machinery is likely to lead us into trouble, and I want to say why.
In codification I include consolidation, simplification, and cutting out of dead wood. That is essentially a lawyer's job. It cannot be done by anybody else. Modernisation and improvement of the substance of the law is essentially a politician's job, and it must always be the responsibility of the Government. This Bill, as drafted, proposes five lawyers to do both jobs together. I think the right hon. Gentleman the Member for Clackmannan, East Stirlingshire (Mr. Woodburn) said that it would be better to have five laymen to do it, and I am quite sure that that would be the view of the country.
It would be better to leave generalities and to try to consider concrete cases where we think that reform is necessary, and I should like to take three different examples. First of all, tax law. If there is any branch of the law which is outrageously incomprehensible it is our tax law, and in particular the law relating to Income Tax. For sheer mass and complexity there is nothing to equal it. The reason for that, I think, can be quite simply stated. There is a rule that a taxing Act must be construed in favour of the subject, and that rule means that if an Act is to be effective to impose a tax it must go into minutest detail, because unless it can be shown to apply precisely to the subject in question it will not be enforceable; and so long as that rule prevails our tax law is bound to be highly complex. If the rule were abolished we should be able to get a far greater measure of simplicity. It would be at the cost of precision and certainty, but in other countries the rule does not apply, and it is open to question whether it should be applied or should not be applied here.
However, that question is a question which, it seems to me, is essentially for politicians. It is essentially for us in this House, and what I want to ask whoever is to reply for the Government is, is such a question as the rule about construction of the taxing Acts to be one which is capable of being considered by these Commissions? I think it is of the highest importance that before we pass this Bill we should know what kind of things can be referred to them.
98 I refer to Clause 3(1,a). There it is a function of the Commissionto receive and consider any proposals for the reform of the law which may be made or referred to them".The most noticeable thing about that paragraph is that it does not say by whom such proposals are to be made, They may be made by anybody, and if the word "any" before "proposals" is to be construed in the ordinary way it will throw an obligation, I think, on each Commission to consider whatever proposal may be made from whatever source it may come. I do not think the Government intend that; it may be that we can consider that in Committee, but I should like to know whether proposals can come not only from Ministers but from anyone, from outside bodies, and in particular, from Members of this House. I know I have quite a lot of proposals I should like to refer to the Commission straight away.
Take another branch of the law—that relating to husband and wife. The main part of that, which is complicated and difficult, is the law relating to divorce. The difficulties in this branch of the law arise because of questions which are essentially questions for Parliament and not questions for lawyers. Our present law about divorce rests on the basic doctrine of the matrimonial offence. This is a legal doctrine. I should like to know. suppose it were decided to refer this branch of law to the Commissioners for consideration, whether it would be open to them to consider the merits or otherwise of the doctrine of the matrimonial offence? This is really the same question which I put in the last case, but I am only giving this as another instance because I think it does show the real problem which this Bill raises.
We cannot deal with particular anomalies in any branch of the law without considering the fundamental issues which underlie them. Where they are small anomalies they get dealt with pretty quickly. There may be a delay of a year or two, but nothing very much. There is no controversy; and we all of us know little Departmental Bills or Private Members' Bills which get passed quickly enough. Where our law gets into a state of confusion there is always some major problem which is a political problem. I cannot think that the way to deal with it is to hand such a problem 99 over to outside Commissioners, but we ought to keep this within our own powers here.
There is a whole range of points which have been referred to this afternoon as "lawyers' law" which need reform. I take one example, one of which I have some knowledge as I tried to deal with it myself some years ago in this House—reform of the law of domicile. It is the case which is mentioned by the Lord Chancellor in his own article on this subject. The law of domicile is archaic in the extreme. It is based on the supposition that we still are the rulers of a far-flung Empire and that travel is slow and a rare occurrence. There is every reason for saying that the law of domicile should be tackled and be made clear and put right.
If we propose to amend the law of domicile we had better be careful, because upon that law rests the liability of a great number of individuals to Income Tax and to Estate Duty, and the moment we start to make an alteration here we begin to tamper with vested interests. Hon. Gentlemen opposite may say "Hurrah", because vested interests are things which they want to cut down, but these are not simple vested interests. Most of these people who enjoy vested interests are connected with great organisations, and particularly industrial and political organisations, and we would at once be walking into a field where the Board of Trade, the Foreign Office, and other great Departments of State would step in and say that we could not do that because we were interfering with our overseas trade, with our exports, and so on.
I mention that to give one example of how easy it is to suppose that one cannot draft a simple set of rules to cover a purely legal question without at the same time finding that they impinge on the broad policy of the Government of the day. A legal solution is easy, but the practical results often make it impossible to accept that solution.
Those are only a few examples from an immense subject. Some parts of it raise little controversy. I am not sure about the truth of what has been said by some hon. Members about ordinary consolidation procedure and other procedures being sufficient to deal with the uncontroversial 100 part of this subject. I think that there is some reason for saying that the uncontroversial part of law reform might be viewed rather more compendiously than it has been in the past. I am not sure how much additional machinery it needs. I believe that a Lord Chancellor with drive can do quite a lot, but, all the same, I think there is reason for saying that there is need for something to be done here.
If something is to be done, we will need more Parliamentary draftsmen. The simpler the language in which the law is cast, the greater the effort involved. I think that some wit said, "I have not the time to write you a short letter", and this is even truer of drafting the law. If we want good, short, clear, understandable law, it will involve much more work on the part of draftsmen, and I do not know how the additional numbers will be obtained.
Hitherto the initiation of any change of substance in the law has rested with the Government and with the Minister in charge of the Department concerned. Private Members have done quite a lot to help, but I agree with what has been said by several hon. Members, that to leave this to private Members is like trying to win the war with guerrillas. Guerrillas are useful, but they cannot do the job.
The Bill as drafted may do some damage in the controversial part of the subject. It will certainly duplicate responsibilities. The answer to a question which I now propose to ask the Government will show what they intend. Are the Commissions to have direct access to the Parliamentary draftsmen? Or will they have to go through the Government, and through Government Departments? The Government's answer to that question will show how far they are going to try to avoid duplication.
The fundamental dilemma seems to be this: either these Commissions will have no power, they will be merely advisory bodies, or they will be able to interfere in Government policy. Neither of those alternatives would be a good thing. There must be some way of resolving this dilemma, but I do not yet see what the Government intend to do. It is not clear from the Bill, and I am not sure that they have really thought out the difficulties confronting them.
101 For instance, I think that it was the Minister without Portfolio who drew attention to Clause 3(2) which requires the Commissions to make an annual report which the Minister will have to lay before Parliament. It is Clause 3(3) which places the Minister on the horns of a dilemma, because under that subsection he is in effect given power to withhold programmes and proposals formulated by the Commissions. That means that the reports which the Minister is bound to publish will be annual reports of a backward-looking character, because quite clearly it would be nonsensical to put in Clause 3(3) if the Commissions could get round it simply by putting their programmes and proposals into their annual reports.
It is clear that the Government have every intention of retaining the strictest control over what the Commissions are thinking of doing for the future. I am not sure that this does not mean that the Commissions will be nothing but advisers to the Lord Chancellor and the Secretary of State for Scotland respectively. If that is so, they will be nothing more than elaborate additions to the Ministers' staffs. I am not saying that such additions should not be made, but I am not sure that that will do what is necessary, or what the House wants to have done.
I have a lively recollection of the Prison Commissioners. They were an excellent body. They did their job very well, but last year, I think with the unanimous approval of the House, we abolished them on the ground that it was better to have them as civil servants. I am not sure that what the Bill proposes would not be done better by civil servants.
These are difficult questions which we shall have to thrash out in Committee. It is a good thing that we should do so, and for that reason I welcome the Second Reading of the Bill. I hope that we shall consider it very carefully in Committee, and that we shall be able to resolve these questions so that we can make the Bill do what people in the country want to have done.
§ 6.58 p.m
§ Mr. William Wells (Walsall, North)
It was in a sense refreshing to hear the speech of the hon. Member for 102 Hendon, South (Sir H. Lucas-Tooth). Previously the tactics of the Opposition during the debate had been clear, and perhaps a little too transparent.
As this Measure is one which has been put forward by the Government, and supported by the Labour Government, as one of importance and something that is going to remedy an important defect in the machinery of Government, it was felt by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) and the right hon. and learned Member for Huntingdonshire (Sir D. Renton) that it was incumbent on them not to attempt to attack it from the front, because there they realised that they were involved in a task which would lay them open to a charge of misrepresentation, but rather to go through the Bill and to discuss the machinery of Government in relation to this matter in such a way as to prevent us as a House from seeing the wood.
If I may put it this way, the right hon. and learned Member for Warwick and Leamington was unable to see the wood for the wood, and the right hon and learned Member for Huntingdonshire was unable to see the wood for the trees. The right hon. and learned Member for Warwick and Leamington, unfortunately, as sometimes happens, was misled by his own metaphor. He said that the Commission was an unnecessary and expensive spare wheel. The truth is that it is not a spare wheel at all. The instrument that has been defective is the steering wheel and it is this need that this Bill meets. Everybody agrees that there are many admirable bodies and highly-skilled persons in Government Departments who are in different ways working to promote the reform of the law. This Bill provides central coordinating machinery, and it does so in such a way and with such authority that a general direction and impetus shall be given to the work. It is not for me to answer the questions asked by the hon. Member for Hendon, South, but it seems to me that if one looks at the Bill and at the functions that devolve upon the Commission these questions are not difficult to answer. As I see it, the Commissioners are there to take the initiative where they are so disposed, but, of course, it must mean, in the context 103 of our machinery of Government, taking the initiative subject to the Ministerial responsibility of the Lord Chancellor in this country and of the Secretary of State in Scotland.
Looking at some of their other functions, this is an expert full-time authori-tative body with no parallel in our present machinery of Government whose duty here is to answer such questions as may be put to them by people in a position to ask them—for example, Government Departments who may require assistance. This is not to say that there are not a number of difficult administrative questions which we may have to consider in Committee, but I would have thought the broad picture was already very clear.
There is, however, one matter that I should like to put to the Ministers for their consideration and it concerns the composition of the Commission. If one considers the Commission as at present constituted, within the framework of Clause 3, it seems to me that the Commissioners have three fundamental tasks. They have, first, to form a legal judgment in deciding where reform is needed, subject to the approval of the Lord Chancellor or the Secretary of State for Scotland. Secondly, they have to exercise a high degree of technical competence in deciding—what is the appropriate method how a reform is to be carried out: for these two purposes the kind of body that the Government have in mind to set up is clearly very sound. It will consist obviously of leading members of the judiciary and probably one leading representative each of the Bar, the solicitors' branch of the legal profession and of the academic lawyers.
It seems to me, however, that they have one further task for which this kind of body is not so admirably suited. Since they have to submit programmes, they have to exercise a number of social judgments in deciding on priorities. Of course, the ultimate decision is the Lord Chancellor's and the Government's, but even in proposing programmes surely it is appropriate that a sufficiently high quality of social judgment should be exercised as to help the Lord Chancellor and the Secretary of State in deciding how to formulate their programmes for inclusion in 104 the work of the Parliamentary Session. Thirty years spent in the higher reaches of the legal profession is not necessarily the best way to learn where the shoe pinches the foot of the ordinary man and woman, and it would appear that the work of the Commission, if it is to be done really well, should contain social judgments based on a wider kind of experience.
The Commission as proposed by the Government will do admirable work, but if it is to be another emanation of the top people of the legal establishment I feel that an opportunity will have been missed. I wonder whether it would not be appropriate, while leaving the full-time members of the Commission as they are to carry out their multifarious tasks, to enable them to call on part-time Commissioners who would probably be willing, as are members of Royal Commissions and Departmental Committees, to give their services quite voluntarily and to come in and help the full-time Commissioners where it is a question of submitting programmes to the Lord Chancellor and the Secretary of State. They could be lawyers.
After all, one has to remember that the most successful lawyers are not, as a rule, the kind of people who have a very intimate knowledge of the technicalities of hire purchase to which my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) referred, still less of the very complicated but often very important work connected with the numbers of tribunals set up to deal with such matters as pensions appeals and problems of that kind. All these are highly important from the point of view of the people, and I should have thought the Commission would be strengthened by making it possible for the Lord Chancellor and the Secretary of State for Scotland to appoint, from time to time as occasion requires, part-time Commissioners to strengthen the Commission on this side of their work. In putting forward this suggestion I may have misapprehended the whole purpose of the existence of the Law Commission and the type of work that it will have to do. I do not think I have; I hope I have not, and if I have not I hope that the right hon. Gentlemen will give some thought to this question. Whatever may be said by hon. Members opposite, 105 I at least unreservedly welcome the Bill as a most important measure in our social programme.
§ 7.10 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
The hon. and learned Member for Walsall, North (Mr. William Wells) used a rather goad metaphor when he said that the purpose of the Commissions is to take charge of the steering wheel of the car of law reform. At present, apart from the Home Secretary and the Lord Chancellor, very much as a side activity—although they have hitherto done it very well—there is nobody at the steering wheel. But if the hon. and learned Member wants someone at the steering wheel—as I do—he must leave that person with some initiative. The objection so far has been that, although the committees on law reform do excellent work, they have to wait passively until someone submits to them a programme of work. What is needed now is some body to take the initiative—to look round to see what is needed to be done and to propose that it should be done, and how, and in what order. It should also be able to do a great deal of the work itself.
Logically, the hon. and learned Member is quite right in saying that the people who can do it themselves are not necessarily the right people to decide what should be done, and in what order, because the latter functions involve some social knowledge which the former function does not require. But the hon. and learned Member is making unnecessarily heavy weather of the point. I feel strongly that this Commission, like all other human bodies, will create its own life and position and its tasks and momentum, and that logical difficulties of that sort will be solved.
I welcome the Bill rather more strongly than do some of my hon. and right hon. Friends. I believe that the speed of life and the speed of change now are such that it is no longer possible to rely for this task upon the part-time assistance of distinguished persons who are primarily engaged in earning their livings elsewhere. They have done admirable work. Their reports have been models and, on the whole, have been translated into legislation relatively quickly. But the speed of change and of life is such that it is no longer possible to rely upon a 106 distinguished group, gathering together at 5 o'clock every Monday, say, with the judges hurriedly de[...]wigging.
§ Sir D. Renton
Does my hon. and learned Friend appreciate that it appears to be intended that the two Law Reform Committees shall continue their work? I do not think that it is a question of judges rapidly taking off their wigs at the end of a day's work in the courts. Judges serving on these Committees allocate the whole day to meetings of those Committees.
§ Mr. Fletcher-Cooke
It may be a whole day, but it is usually after court hours. Of course, these Committees will continue. I phrased my remark very carefully. I said that it would no longer be possible to rely exclusively on such part-time bodies in the future. I am delighted that they will continue to operate, because, within reason, the more bodies there are to do this mammoth task the better. These Committees, which are charged with important functions, can do only one thing at a time and, as is inevitable when we have men of such distinction at the Bar, and at Oxford and Cambridge, who have to travel to these Committee meetings—and the judges may well be on circuit—the speed of progress is bound to be too slow if they are to continue to do the work exclusively and with the care which they have devoted to it ill the past.
Nevertheless, every day we come across cases where everybody agrees that there is an urgent need for inquiry and report into the reform of the law, which these Committees simply do not have the time to consider. Eventually we get into the sort of muddle that we got into last week, over the War Damage Bill. It was very revealing that in that debate everybody agreed that the distinction between battle damage and denial damage was out of date and wrong, and should have been abolished many years ago when considered in the light of conditions of modern warfare. But at present it is nobody's particular task or charge, within the general review of the state of our law, to study such a subject and to consider whether this ancient distinction is correct.
What happens as a result? The ancient distinction continues, until there is suddenly the most terrible problem. Then Governments are tempted to do 107 things which no Government ought to do, namely, legislate with retrospective effect, because the consequence of leaving the legal books in the state in which they are found to be would produce the most enormous anomalies. Legislation such as the Merchant Shipping Acts, which is not particularly in the forefront of politics or of our social life—although in some respects it is of great social consequence—is only one of hundreds of branches of the law of which hon. Members of the legal profession in this House can think of as they affect their own particular specialised interests, and which ought to be reformed. They are not examined simply because at present we place the task upon the shoulders of these part-time Committees and eventually depend upon them exclusively.
I therefore welcome very much the extension and speeding up of this process of examining the whole gamut of the law. I entirely agree with the remarks that have been made by several of my hon. and learned Friends that this is only one of three bottlenecks, and that it is probably not the narrowest bottleneck. The narrowest is Parliamentary time and the second narrowest Parliamentary draftsmen.
If, in setting up the Law Commission, we are successful in producing the sort of proposed reforms of the law which that Commission will produce, there is some danger of making the other bottlenecks even more intolerable, because more material than ever will be fed into the machine and the very narrow bottlenecks will become choked and jammed to a much greater extent than they are even now. Although the Bill is a good one, on its merits, I wonder whether it will not produce a sort of log jam in the other constrictions in the process, which will become rapidly intolerable.
At present, because the system of producing reports by the existing Committees is relatively slow, the stream proceeds at a slow but relatively even pace, and we get some very useful legislation, as was instanced by my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson). The law against per- 108 petuities has been cleared up; various branches of the law, especially that for which the Home Office is responsible, have had admirable reforms in the last few years. This slow-moving stream does not cause any great worry because it has these three locks, more or less evenly spaced and of even width. Once we do away with the first lock, which is that of the Law Reform Committee, we shall find that a wall of water is being built up against the second and third which will rapidly become intolerable. I think that they are far harder to deal with than was suggested. They involve much greater constitutional principles than does this reform which, to my mind, does not raise all the constitutional difficulties suggested by some of my hon. Friends.
A problem which requires a little more thought on exactly where responsibility lies is this: to what extent are the Commissioners to be civil servants under a more glorious name or to what extent have they to stand on their own? That needs more thought. On the whole, I do not believe that there is any very serious constitutional issue raised by this Bill. It will be when we come to the next stage of law reform that the real troubles will arise and I am sure that they will indeed be troubles.
I do not think that the consolidation, strictly so-called, of the law will be a difficult novelty for the Commissioners. Like the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) I served on the Consolidation Committee, and it seems to me that the extension of that process is not difficult so far as this is concerned. Regarding codification as opposed to consolidation, I think that there is an enormous field of activity for the Commission to undertake. I hope very much that codification will be speeded up as we were told by the Minister without Portfolio when he introduced the Bill. In the view of the hon. Gentleman, there has been very little codification in the last 60 years. I think he omitted one or two very remarkable cases, including all the property legislation in 1925, and one or two instances have been given by other hon. Members. These examples show how desirable is codification and how successful it can be, despite the Cassandra-like wails of some most ancient common law lawyers who when it was first started thought it 109 a Continental invention of the worst type. It certainly shows a knowledge and handling of the law to a remarkable extent, particularly legislation relating to the sale of goods, which is a model for us all.
The limits of codification can be discovered very quickly. It is not only, as I think the former Attorney-General suggested, that the law has to get into a certain state of growth, if not of hardening of the arteries, before it can be codified. It is also—perhaps this is another aspect of the matter—much easier to codify law dealing with conflicts between one subject and another, between private individuals, than conflicts between a private individual and the State, because the latter branches of the law are much more intractable to codify. They usually lack the sense of strong principle of the former and also they are in the modern world subjected to constant change; whether for better or for worse is another question. I think, therefore, that there are limits to the codification in the sort of law which unfortunately has become so predominant in modern society, whereas the old form of law between subject and subject is very much ripe for codification.
I have said enough to show that this is a good Bill, but I think I have also said enough to warn that unless it is accompanied very rapidly after its inception by a reform of the further obstacles to law reform it may do more harm than good.
§ 7.25 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
As I understand it, the main criticism of this Bill came first of all from the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) and the hon. and learned Member for Hendon, South (Sir H. Lucas-Tooth). First it was said that we have to be very careful as to the kind of law to be reformed. The right hon. and learned Member for Warwick and Leamington talked about law which came into the social, political and economic sphere, and what he called lawyers' law. I interjected to ask whether all matters of law reform are not affected by social, political and economic considerations. The right hon. and learned Gentleman said he thought that was so. It seems to me that there is no real difference there. Apparently, the objection of the right hon. and learned Gentleman was that when it comes 110 to a question of reform of the law touching on the social, political and economic sphere the body of Commissioners ought not to interfere and it ought to be left to Parliament. I wish, first, to deal with that argument, because it seems to me a complete fallacy.
What are we attempting to do by this Bill? As was pointed out by the hon. Member for Hendon, South when referring to Clause 3(1), the duties of the Commissioners are laid down quite clearly. They include, in particular, the codification of rules of law, and the right hon. and learned Gentleman's criticism cannot apply to that; the elimination of anomalies, and his criticism cannot apply there; the repeal of obsolete and unnecessary enactments, and there it cannot apply; the reduction of the number of separate enactments—there it cannot apply; and generally the simplifiaction and modernisation of the law. I suppose the right hon. and learned Gentleman would say that his criticism does apply to the latter.
What is there difficult in the functions of the Law Commissioners with regard to that? Why should not they consider proposals touching on the modernisation of law? If there is a proposal that appeals to them as something which ought to be discussed it would be referred to this House where it would be discussed as part of policy, but we would have the advantage that the Commissioners had dealt with the matter and directed the attention of Parliament to something which is in pressing need of reform.
The hon. and learned Member for Darwen (Mr. Fletcher-Cooke) referred to the bottleneck which might be created by an accumulation of Measures sent to the House by the Law Commissioners. I recognise that may well be a very serious problem. It will have to be tackled. I should like to say a few words about that at a later stage.
All those who have made criticisms so far must recognise the need for this Measure, or at any rate the need for reform of the law. One had only to listen to what my hon. Friend the Minister without Portfolio said on Second Reading about the difficulties which now arise. The ordinary man in the street who is supposed to know the law can know very little of it. The practitioner of the law in many cases has the greatest possible 111 difficulty in ascertaining what the law is. My hon. Friend gave the figures, which are very important—some 3,000 Acts of Parliament going back to as early as the middle of the thirteenth century, volumes of delegated legislation and over 300,000 reported cases which are constantly being added to. A mere recital shows how difficult it is for the law to be ascertained.
Surely, in those circumstances, no one will contend for a moment that there is not a need for law reform. Indeed, I would express the view, in spite of the catalogue of what has been done by the Home Office and other Departments, that it is extremely surprising that so little has been done today to achieve this end, reform of the law. Reference has been made to the two Committees, really the only two Committees which deal with reform of the law—the Law Reform Committee under the Lord Chancellor and the Criminal Law Revision Committee under the Home Office. Clearly, they have done very valuable work in the past, and we pay tribute to them. We have had Royal Commissions, we have had Departmental Committees, and some of their reports have been translated into law, but is it not right that reports and unanimous recommendations have too often remained pigeon-holed for too many years?
I will give two examples. We had a recent example in the Pearson Committee's Report, which had to await the advent of the present Government before it received legislative approval in the Administration of Justice Bill which was given a Second Reading about a week or two ago. There is another example in the Tucker Committee's Report on proceedings before examining justices, where unanimous recommendations were made nearly seven years ago. The late Government did not even provide an opportunity for discussion of the Report in the House. This Report also had to await a recent statement by the Home Secretary that he is now proposing to implement these recommendations.
§ Mr. Fletcher-Cooke
What does the hon. and learned Gentleman suggest that the Law Commissioners could have done about those two examples? It may be wrong that they were not translated into legislation, but when the Reports were made the Law Commissioners could have done nothing more about them.
§ Mr. Weitzman
I do not agree with the hon. and learned Gentleman. These were urgent matters. Take the Pearson Report, for example. The Law Commissioners could have dealt with that and could have seen that Parliament's attention was drawn to the need to deal with it effectively.
In any case, the point I am making—and the hon. and learned Gentleman might direct his attention to this—is that we have had tremendous delay over law reform. There are examples of how the findings of Royal Commissions and the recommendations of Departmental Committees are made many years before and not acted upon in any way. The need for law reform is shown by those instances.
§ Mr. Geoffrey Howe (Bebington)
Would the hon. and learned Member not agree that possibly more apposite examples of this delay are to be found in the Report of the Jenkins Committee on landlord and tenant law—the hon. and learned Member for Cardigan (Mr. Bowen) was a member—which specifically called for a codification and consolidation of the law of landlord and tenant ten years ago? Would he not agree that that is a function which the Law Reform Commissioners could devote attention to, thus helping this House?
§ Mr. Weitzman
I am obliged. In any case, the fruits of the work of Royal Commissions and Departmental Committees are clearly extremely limited, and this Bill provides for what is needed, a body which will keep the law as a whole under constant review and make recommendations for systematic reform. What I particularly like in the White Paper is the reference to the valuable guidance which may be obtained from the experience of other countries and from comparative legal studies, and the intention that there will be committees with research and advisory facilities.
May I just say a short word about codification? Consolidation has been touched upon. I am not bothered so much about consolidation; I think that that is a fairly simple problem. Progressive codification of our law, however, in my view is a vital necessity. The disappearance of the obsolete Statutes and the setting up of our law in codes such as the Partnerships Act and the Sale of 113 Goods Act is a task which should be tackled as quickly as possible. However, I agree with the view which has been expressed that some major reform should be effected first of all dealing with a particular subject before codification is embarked upon. In other words, the opportunity for codification should be taken when one has a major reform in that subject.
wish to refer to another matter. I hope that one of the tasks of the Law Commissioners in examining many other matters would, at an early date, be to examine the law with regard to the right to trial by a jury in law. The position about that, as set out in Clause 6 of the Administration of Justice Act, 1933, seems to me to be something which requires attention. That Clause, hon. Members will remember, gave the right to a jury in civil matters where there was a charge of fraud, in actions for libel or slander, malicious prosecution, false imprisonment and breach of promise of marriage with certain exceptions. Otherwise, it left the grant of a trial by jury to the discretion of a judge.
In my early days at the Bar, which were before this Act was passed, most actions for personal damages in the High Court were tried by a judge and jury. Hon. Members will know that there is upon the Order Paper at the moment a Motion which deprecates the recent decision of the Court of Appeal in the case of Ward and James, signed by more than 100 hon. Members. I have read in the Press that in some quarters this Motion is described as an attack on the independence of the judges. Of course, it is nothing of the sort. It is the right of Parliament—indeed, it is its duty—to criticise, in a matter of this kind, the view taken by judges with regard to juries and the assessment of damages and to put it right if it does not accord with the view of Parliament.
After all, the duty of judges is to interpret the law which Parliament makes. I notice that the legal correspondent of The Times in referring to this Motion quoted from the judgment of Lord Denning in that case. I want to quote part of that judgment as showing the need for pursuing this matter. The Master of the Rolls in that case is reported:Let it not be supposed that this Court was in any way opposed to trial by jury. It 114 had been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man was on trial for a serious crime; or when in a civil case a man's honour or integrity was at stake; or when one or other party must be deliberately lying; then trial by jury had no equal.Then Lord Denning is reported to have added:But in personal injury cases trial by jury had given place of late to trial by judge alone because in those cases trial by a judge alone was more acceptable to the great majority of the people. Rarely did a party ask in those cases for a jury. That was why jury trials had declined.But with great respect to the learned judge, that is a fallacy. Juries are not asked for in personal injury cases—and have not been asked for—because as a rule application for trial by jury is not granted and in most cases it is useless to ask for a jury.
It is important to point out that the then Attorney-General, Sir Thomas Inskip, introducing the Administration of Justice Act, 1933, gave as his reasons for Section 6 that the judge could decide the matter just as well as a jury, more quickly and more cheaply. The learned Attorney-General added:That is no suggestion that either party must discharge what we call the onus of satisfying the judge that his case must be tried with or without a jury.We know that in arguing a case before the court, one cannot refer to anything reported in HANSARD and certainly this expressed view of the Government in introducing Section 6 appears to have been disregarded. I would also add that in the debate on that Measure Sir Stafford Cripps said:There is a certain sympathetic humanity about a jury, which does not always exist so far as all learned judges are concerned."—[OFFICIAL REPORT, 28th June, 1933; Vol. 279, c. 1603–8.]I have taken the opportunity given by the Bill of mentioning this matter because I think that it is important. I appreciate fully that there are varying views which must be taken into account, but I hope that the problem will receive attention.
The hon. and learned Member referred to the bottleneck. That is a very serious problem indeed. We must see that facilities are provided for bringing into effect the reforms proposed. I realise that the question of time is extremely important and also the question of our 115 present procedure. These are the two great stumbling blocks to rapid progress in implementation. There are too many opportunities in our procedure for calculated delays, and I hope that the Select Committee on Procedure will go into this matter very carefully. Every attempt ought to be made to see that our procedure is so dealt with that when recommendations are made, when reforms are put forward, when subjects which require reforms are sent to the House for discussion, the procedure is quickened as much as is possible so that we can get them dealt with as soon as possible.
I welcome the Bill. I hope that it will reach the Statute Book as quickly as possible and I hope that the Commissioners will make rapid progress with their formidable but vital task.
§ 7.45 p.m.
§ Mr. Roderic Bowen (Cardigan)
The Bill has received a somewhat mixed reception. I regret that, because I support its main provisions enthusiastically. One would perhaps get the impression at first glance that the critics of the Bill have been concerned with questions of machinery for reform. It is my belief that in fact the conflict goes much deeper than that. It is not a question of what is the most appropriate machinery to employ for law reform; there is a conflict of view as to how much work there is to be done in this field and how important it is that this work should proceed with expedition. That is the real conflict. There are views about the machinery, but it is in that respect that the conflict about machinery arises.
I am satisfied that there is a great deal of work to be done in this field, and it is work that we can no longer expect to have done by people who, however worthy and eminent, have to do it in their spare time. The position in relation to law reform is such that we need a permanent, full-time Commission sitting with an adequate professional staff. I have sat on a few ad hoc committees dealing with law reform and have received every available assistance from the staff allocated to those committees, but I believe that that state of affairs is totally different from that which should 116 exist when the Bill becomes law and when we have a permanent Commission with a full-time professional staff on a scale adequate to deal with the Commission's requirement.
May I stress that it is not only a question of reviewing the law but also a question of carrying out a continuing review. It is not just a question of looking at the law and saying, "It should be changed in this way in relation to particular conditions". There should be a permanent body concerned with the continual process of review of the law. No such body exists today. It may be that the body envisaged in the Bill could be amended in some direction, but the basic concept, in my view, is sound.
The work of law reform has been done in various ways. We had the Law Revision Committee set up in 1934, the Law Reform Committee of 1952 and the Criminal Law Revision Committee. In other words, we have had standing committees and, in addition, we have had a series of ad hoc committees.
Within the limitations which I have attempted to indicate, no doubt those bodies have done excellent work. I am glad that the work which they have done can be continued by those and similar bodies. I gather that at one time it was thought that the Commission should swallow up existing committees dealing with law reform, but there have been second and wiser thoughts about that, and I welcome them. I hope that these standing committees to which I have referred and the ad hoc committees will be used as some of the agencies to which reference is made in Clause 3(l,e).
However, there is one aspect of the matter which causes me some anxiety. As I interpret Clause 3, the Commission will have no right to consider any matters other than those referred to it. I agree that when one considers the terms of reference of the Law Revision Commitee and the Law Reform Committee, that applied to matters referred to those bodies. They were not able to consider any subjects other than those referred to them by the Lord Chancellor.
I hope I am wrong, but my reading of Clause 3 leads me to believe that the Commission we are discussing will be able to deal only with matters referred to it. I will come to the question of programmes later, and although I do not 117 wish to go into each facet of the Clause, it will be seen that it refers to?… any proposals for … reform … which mail be made or referred to them".It goes on to refer to?… programmes of…revision… approved by the Minister".It also refers to… assistance to government departments … at the request of the Minister …This need for approval appears several times in the Clause. It is true, and this is an important function and one of the most delicate initial tasks of the Commission, that it must prepare a programme and submit it to the Minister. No doubt in that programme the Commission will indicate the subjects it wishes to deal with, but on the question of priorities—which, in the first two years, will be of vital importance—will not the Minster have the last word? The Commission will have a free hand to place in the programme for submission to the Minister any matter affecting any branch of the law it wishes to consider. As I understand it, the Minister will return the programme to the Commission indicating which parts of it have obtained his approval.
This means that, in effect, the Minister will have a complete right of veto over the activities of the Commission, while the Commission will have no right to consider any matter which has not received the Minister's approval. When setting up a body of this standing is not this an unnecessary limitation? Why should not the Commission have power to initiate the examination of any rule of law, statutory or not, which may appear to it to require examination? It may be that in the initial period there will be enough work for the Commission to do from the advice given to it by the Minister, but the stage may be reached when it is desirable for the Commission to have power to decide which branches of the law require examination.
To proceed in this way would have the advantage of removing from the public eye any suspicion that the activities of the Commission were being dictated in part by party political considerations. There is obviously a danger of that arising. If all that the Commission can do is what the Minister allows it to do, no more and no less, there must be a danger of the suspicion arising that party 118 political considerations have governed which parts of the programme have been accepted or rejected.
§ Sir Eric Fletcher
Perhaps I should correct the hon. and learned Member's misapprehension about the functions of the Commissions. They will not be confined to dealing with matters referred to them by the Minister. As he will see, Clause 3(1,a) states that the Commissions may
… receive and consider any proposals for the reform of the law which may be made or referred to them".Such proposals may be made from any source. Then, if the hon. and learned Member looks at subsection (2) he will see that it states:Each of the Commissions shall make an annual report to the Minister… and the Minister shall lay the report before Parliament…".Both Commissions will be entirely free to put what they like in their annual reports. The hon. and learned Member need not fear that either Commission will be subject in any way to any party political influence.
§ Mr. Bowen
I am grateful for that assurance. I understand from what the Minister said that bodies other than the Ministry or the Minister may submit representations to the Commission inviting it to consider certain reforms of the law and that whether or not the Commission intends to consider any matter will not depend on it having obtained the approval of the Minister.
While being grateful for that assurance, I still do not quite understand the position. I cannot see how that fits in with the concept of the Commission having to submit its programme to the Minister for his approval. If I have interpreted him correctly, the Minister said that the Commission will be able to consider something which was not included in the programme submitted for his approval. If so, I cannot see the purpose of the programme being submitted, apart, possibly, from questions of timing and priority. I am not certain that, as drafted, the Bill makes clear what the Minister said, and we may need to return to this in Committee. However, his assurance strengthens my support for the Bill and I am pleased to know that the Commission will be 119 able to initiate the consideration of reforms of the law with or without the Minister's approval.
§ Sir Eric Fletcher
As the hon. and learned Gentleman said, we can consider this matter further in Committee. In the meantime, if he looks at Clause 3(1,a) and 3(1,c) he will see that it is clear that there is no limit on what the Commissions can consider. There is no restriction on the source from which they can consider any proposals made to them for the reform of the law, and there is no restriction on what they can put in the annual reports which will be made to the Minister and laid before Parliament. On the other hand, it is equally clear that they can undertake the examination of particular branches of the law and the formulation of draft Bills and so on only in respect of recommendations approved by the Minister.
§ Mr. Bowen
I turn to the question of what will be done by the Commission. It is clear that one of its main functions—though I do not consider it its most urgent—will be dealing with comprehensive programmes of consolidation and statute law revision. The Commission will obviously be concerned with the reform of what is called the lawyer's law. As I interpret Clause 3, it will also be concerned with reform in relation to the administration of the law; that is, with all forms of legal process. More difficult is the question of how far the Commission will be concerned with questions of social legislation. That is an extremely difficult subject, and here other agencies, particularly the machinery of a Royal Commission or a Select Committee, could well be of use.
I see dangers in this Commission dealing with what are essentially matters of social legislation. I am sorry to return to the subject, but for it to do that would immediately endanger the Commission's position as being apart from party politics. If it were to be heavily involved in making recommendations on social legislation it could not avoid being placed in a position of, so to speak, taking sides in respect of that legislation.
I should have thought that its function in that regard would be that if the Minister responsible for a certain branch of social legislation referred to it, the 120 Commission would advise, as a matter of pure law, on the most suitable legal provisions for that legislation to have; but that the basic social needs should essentially be dealt with by some body other than this Commission—and, ultimately, of course, by this House.
Whether this Commission does a worth-while job for the country or not depends on how much Parliamentary time is given to the fruits of its labours as approved by the Minister concerned. Too much has been said in this debate about the limitations that Parliamentary time has put on reforms to date. If one looks at the records of the present Law Reform Committees one sees that Parliamentary time has almost kept up with the number of reports by those committees. Experience varies, but I know that in regard to those ad hoc committees of which I have been a member I have been surprised at the number of recommendations that have reached the Statute Book.
Nevertheless, it is clear that if the Law Commission has to do its work with the same amount of Parliamentary time allocated to law reform as there has been up to date, there will be a very substantial bottleneck. One hopes that the Select Committee on Procedure will produce recommendations that will be of considerable help, but I feel that the very existence of this Commission will of itself be a help. Law reform will be jockeying in the queue and competing with the demands of all other Government Departments for time for legislation of one kind or another, but I believe that the existence of such a permanent body as this, and the presentation to Parliament of an annual report, will considerably conduce to law reform having a place further towards the head of the queue.
The appointment of persons to serve on the Commission should be standard. Continuity is very important here. The Bill is framed in such a way as to enable this to be done, but I think that the initial periods for which the members are appointed should vary. The period may have to vary according to the type of person who is asked to serve, and his circumstances, but in any case it is highly desirable that in a period of, say, between three years and nine years there should be a variation in the period of service, so that at no time are 121 there people on the Commission who have not had some years of experience. Subject to those points, I welcome the Bill. It is an extremely important step forward in law reform.
§ 8.5 p.m.
§ Mr. Leo Abse (Pontypool)
The right hon. and learned Member for Warwick and Learnington (Sir J. Hobson), the former Attorney-General, concluded his speech by indicating his view that this Bill would do little good but would do no harm. I felt that his speech would do little harm and no good. I know that he would expect some strictures from me, and I regret that I have to make them again, because concealed within his speech there were rumblings of certain misgivings that I share. Those misgivings were, of course, completely covered by his attempt, first, to give an apologia as to why there had been such lack of zeal for reform in the Government in which he served, and also by the fact that he wanted to advance the proposition that a great deal of legislation had been passed by the Government with which he was associated.
As a result of those two things, his rumblings were never articulated clearly until we had the far more generous and less churlish speech of the hon. Member for Hendon, South (Sir H. Lucas-Tooth). He acknowledged, as I think do all those of us who are trying not to be excessively partisan, that the whole of English law today is littered with centuries of dust-covered Statutes and cases, and that there is a clamorous and urgent need for the law to be consolidated and codified, and for us to be rid of all that is ossified within statute and common law.
That this urgent necessity is acknowledged is healthy, and this Bill undoubtedly can do a great deal to remedy the present unfortunate position. I welcome the attempts that will be made possible to simplify the law and consolidate the law. Although there must inevitably be teething pains, I have no doubt that it will be possible for a Commission of this kind to perform the task allocated to it.
Like my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) I am a member of the Consolidation Committee, and I am sure that however distinguished the chairman and 122 the members may be, none can have confidence that, within the time available to the Committee and to the individual Members of Parliament on it, effective consolidation can be done through the medium of such a Committee. Quite clearly, if one really did one's task on the Committee, and examined and read all the literature that pours down on its members, one could almost abandon the rest of the work one is expected to do as a Member of Parliament. One would have to be, not a Member of Parliament but a lawyer doing a lawyer's job. That is not the task of hon. Members. We do not come here to do our professional jobs within the House.
While I pay my acknowledgements to the consolidation committee, as my hon. and learned Friend the Member for Edge Hill does, I share the view that it is inadequate. I hope that we shall hear from the Minister that he has in mind as a consequence of the Bill that we shall be looking forward to the end of using committees of that kind for consolidation since I trust that this will be the task which will be done by the Law Commission and the staff with which it will be provided.
Both the hon. Member for Hendon, South and the hon. and learned Member for Cardigan (Mr. Bowen) said that they had misgivings that there should be assigned to the Law Commission legislation which goes far beyond lawyers' law. I am deeply concerned always that no attempt should be made to devalue this House or the role of individual Members. I feel that there are certain subjects which the Commission can and should do, and others which it should severely eschew.
I will follow the lead of the hon. Member for Hendon, South and give a number of examples indicating what I think is the task of the Commission, and then I will mention some of the roles in respect of which, if it attempts to perform them, it will find itself not only politically embarrassed but, if it is not careful, in conflict with the House. For example, if it tried to remove the incubus of feudal law from conveyancing, that is a task which all hon. Members would like it to do. On all sides it is believed that, in view of the heavy burden which falls upon what is increasingly becoming a property-owning democracy, it is high time that conveyancing was simplified to 123 lessen the appalling burden which falls upon solicitors who have to do the conveyancing and the heavy costs which fall on purchasers.
Everybody is agreed about this, but we also know that the matter is much more complicated than the layman imagines. Every lawyer is aware of the complications and difficulties. Solicitors as a group are, naturally, fretful that they should be made the scapegoat for the present state of the law. Because of the frustration of the general public, they are often attacked for the high fees that go with a conveyance, whereas most solicitors would welcome a simplification of the law, for it would enable them to do less work in connection with the conveyance and charge less.
This is the type of thing which should come within the purview of the Royal Commission. Who else will tackle what is, clearly, a Herculean task, and one which requires a great deal of expertise and enough staff to serve any committee attempting to tackle the task?
As a second example of the type of problem with which the Law Commission could successfully tackle, there is the matter referred to by my hon. and learned Friend the hon. Member for Stoke Newington and Hackney, North (Mr. Weitzman)—the Motion which, with my right hon. Friend the Member for Caerphilly (Mr. Ness Edwards), I initiated, one which has been signed by more than 100 hon. Members.That this House, believing that the damages now being awarded in the courts to the victims of industrial accidents are too low, compare unfavourably with some other European countries and fail to accord with the general view of the community, notes with concern the Court of Appeal decision in Ward v James which removes the right to an assessment of damages by a jury in personal accident cases, and, in order to ensure the award of adequate damages at a level more appropriate to the loss suffered by industrial workers who sustain accidents as a consequence of the employers' neglect or breach of statutory duty, affirms the desirability of a right to a jury being available, and views with apprehension any usurpation of the legislative function by decisions calculated to override the declared intentions of Parliament.I shall not go into the merits or demerits of it, but it is a Motion which expresses the view of those hon. Members that at the present moment the damages that are being awarded to those suffering 124 industrial accidents are low, compare most unfavourably with other countries, and do not accord with the general opinion of the community, and that further standardisation of damages at this level is likely to result from a case which has been decided in the Court of Appeal, a decision which, in the opinion of the hon. Members who have signed the Motion, usurps the legislative function of the House.
It is not, I am aware, a Government Motion. Only someone as reckless and abandoned as the right hon. and learned Member for St. Marylebone (Mr. Hogg) could make speeches, as over the weekend, suggesting that the Government are attacking the judiciary, for he does not realise that hon. Members of the Labour Party are not supine but are able to have their own views and express them clearly inside a Motion of that kind when they believe that the jurisdiction of the House is being usurped by anyone.
We as a Legislature decided that damages should be awarded in certain circumstances when particular acts of negligence have been committed by employers or breaches of statutory duties have taken place. But we have not laid down any principles upon which the damages should be assessed. The result is that certain conventions and practices have grown up. No one knows the manner and method by which the damages are assessed. There is a mystique among the judges. As my hon. and learned Friend the Member for Stoke Newington and Hackney, North pointed out, juries have for a variety of reasons, largely through pressure from judges, been eliminated from personal injury cases, and as a result of this recent decision they are to be eliminated altogether.
There is a growing feeling, particularly among the trade union movement, that there is not sufficient understanding of the quality and value of the life and limb of industrial workers. There is growing resentment because the damages which are being awarded are low and apparently founded on no ascertainable principles. This is the sort of matter which could be referred to the Commission. The Commission could go into the principles and examine the contributions which have been made upon this subject, and it could decide whether actuarial calculations, and, if so, which, 125 should be taken into account. More than that, as the Bill indicates that the Commission is intended to be informed of the laws of other nations as well, the Commission would be able to ascertain why workers in Belgium or the United States receive more damages if they suffer industrial injury than are awarded in this country. This is the type of task that would be generally approved by all hon. Members.
However, the misgivings expressed by the hon. Member for Hendon, South are ones which I share, because the next question that one has to ask is: What other type of contemplated legislation should be considered by the Commission? The hon. Member for Hendon, South asked: Should it consider the law of divorce? Should it examine the doctrine of the matrimonial offence? This is dynamite, as I know. The Minister also knows that this subject is well mined. However, he and I may not have the same view about this. Views on this matter are emotional, and anything relating to legislation which impinges upon human relationships gives rise to views which may be coloured by theology, irrationality—all sorts of factors.
Can we responsibly say that five distinguished lawyers could possibly consider a matter of this kind? I do not think that it is their task. I do not think that they should touch it at all, because clearly it is the responsibility of the House of Commons, reflecting, as it must, the variety of views in the nation. Hon. Members may be influenced by their churches, by their synagogues or by their humanism, and all this will operate when we may come to a conclusion which may be ultimately acceptable to the majority of the nation on a subject of this kind.
I quote another example which may be said to be the type of case which should not go to the Commissioners, although at first sight it would appear to be the sort of thing that could well be considered by them. Several times in this Session I have asked my right hon. and learned Friend the Home Secretary about the law of infanticide. It will be known to the House that the law of infanticide is arousing considerable misgivings. It is an offence which only occurs when it can be shown that the balance of the 126 mother's mind was disturbed by the effects of the birth, and proof has to be given by the prosecution that her balance of mind was, in fact, disturbed. The present law, therefore, is, in my view and in the view of many people, patently illogical and runs totally counter to the principles of criminal responsibility.
If a woman kills her child because the balance of her mind is disturbed, the verdict should surely be not guilty on ground of insanity and punishment should be out of the question. Yet, as we know, under the present law, a verdict of guilty of infanticide can, at least theoretically, attract a punishment of life imprisonment.
The worst feature is that the law as it stands prevents the mother from being dealt with summarily and only permits her to be dealt with on indictment. This procedure inevitably results in appalling strain on her at the very time when there can be no doubt that she should be undergoing medical treatment. It can, and sometimes does, result in the wretched woman being brought two or three times before the magistrates for remand or adjournment or for the taking of depositions or for the request for bail, and not being brought to trial perhaps for many weeks. Then further strain is imposed upon her at the assize trial.
Most of these mothers are suffering from post-puerperal psychosis and whatever should be done it would certainly be much more intelligent to mobilise help for them at the earliest possible moment. I put it in this way because most mothers are naturally endowed with mother love and would say that, if a mother killed her child, she must be a sick woman. It cannot possibly be a matter for punishment. I am sure that the majority of us would take that view and probably would say that this was surely a case for consideration by the Law Commissioners. I doubt it, however. After all, it raises a considerable number of matters, many of them psychiatric, many gynaecological matters. It also, I have no doubt, raises theological questions.
The fact remains that something which may appear at first sight to be a case that could easily be referred to the Law Commissioners is surely a subject which must be determined in this House. It is the sort of thing on which perhaps the 127 Home Secretary could appoint an appropriate committee, with an expert staff and manned by gynaecologists, obstetricians and psychiatrists. But it is certainly not something that lawyers should be dealing with.
Usually, when I speak, I complain that whatever is before the House does not go far enough. I suppose that is the function of the ordinary back bencher.
§ Mr. Woodburn
Would not my hon. Friend agree that the Law Commission could point out that the law on infanticide was totally at variance with the criminal law, under which a man, if he is insane, is not found guilty at all? Why should we find a woman who has committed infanticide guilty but insane when in fact we do not have that verdict for an insane criminal?
§ Mr. Abse
I agree that the Law Commissioners could go thus far. They could say that 20 or more women every year go through an ordeal which clearly and abundantly is an ordeal which they should not go through because it is contrary to the principles of our criminal law. But when one comes to how to deal with the matter, that is another question. But certainly the commissioners should be able to go as far as my right hon. Friend the Member for Clackmannan and East Stirlingshire (Mr. Woodburn) suggests.
They should certainly go no further, because the question as to how such a mother should be dealt with is not one for them. The issues involved include whether the court should intervene at all, and if so in what form and whether she should have custodial treatment or not. These are matters about which no lawyers, however distinguished, are equipped or trained to express an opinion. It is something outside their jurisdiction and no one will suggest, I am sure, that the Law Commission will employ people other than—I assume—lawyers. It is not suggested that we are to set up a socioeconomic group. It is suggested, I understand, that the Commission will be composed of lawyers.
What I am trying to spell out is that, on this occasion, far from my wishing to prod the Government into going further, I say that the Bill, at least in its expressed intentions, is over-ambitious. For instance, the White Paper says: 128There is at present no body charged with the duty of keeping the law as a whole under review…".I do not think that the Commission can review all the law. If it did, I would have misgivings—as I have about the decision of the Court of Appeal of which I have spoken that it may usurp the functions of the House—because a highly qualified body of lawyers would be attempting to deal with a task which is that of the House of Commons. I want to see a Measure emerge that is valuable because we are thinking out the type of work that it must do and not permitting the Law Commission to take over tasks which it should not have and which it is not equipped to carry out.
If we are not careful, there could be some difficulties from this good Bill. Taking it at its worst, it could strengthen the Executive. It could leave programming to the Commission and to Ministers. It could diminish the initiatives of the House and it could be deployed as a brake against progress by procrastinating Ministers. I know that present Ministers would never dream of doing such a thing and that the present Lord Chancellor would never dream of doing such a thing, but we are setting up an institution and in doing so we must have the detachment to realise that we cannot depend upon existing personalities. I would hate a situation to arise where, under pressure for this or that reform, we should receive stereotyped answers suggesting that a matter is being dealt with by the Law Commissioners and for such answers to be the end of the road for an individual Member who is pressing for the reform.
§ Mr. Daniel Awdry (Chippenham)
Does the hon. Gentleman intend to exclude from the Commission all laws which impinge on or deal with personal relations? If so, where are we to draw the line? Would not that rule out almost the whole of the criminal law for instance?
§ Mr. Abse
I do not think that it would rule out all criminal law, but I would not like the reform of criminal law to be considered on the basis of the recommendations of lawyers. Lawyers have not had the training to know anything about criminals. They learn 129 how to defend them and to prosecute them, but beyond a certain limited experience, if they are solicitors, of dealing with criminals and any pragmatic knowledge which they may thus gain, they have no training which allows them to express a view or which could lead them to say that they have the necessary expert knowledge to suggest a reform of the law. Yet that is what is being suggested.
The Bill has excellent intentions and there is very much to be done. When one thinks of the reform of conveyancing, one realises what sort of task the Commission will have. The Minister spoke pithily about the number of Statutes in existence and the abundance of case law. Knowing all the codification which has to be done and all the consolidation, then I shall be prepared to support the Bill enthusiastically provided that we can have some assurance that the Law Commission will not necessarily go much further than that at the beginning.
If we do not go much further than that, we will have fewer difficulties about how what the Commission recommends can be implemented. Those hon. Members who have been concerned with the possibility of a bottleneck will agree that as the recommendations begin to pour from the Commission, as we trust they will, we will have to consider how they are to be dealt with in the House, when the Government are not trying not to legislate, but are a Government of activity, and how those recommendations are to be implemented.
If there is some form of Grand Committee, the House will not be so jealous about what goes before that Grand Committee if they are matters of consolidation and codification, matters ending ossified law. Hon. Members would he much more ready to consider the procedure of such a Committee if it had a supervisory function over law of that kind. But the House could be very jealous of the idea of changes in substantive law, falling within the prerogative of the House, being dealt with by a Committee.
If the rôle of the Commission is confined in fie way I have suggested, we are more 1ikely not only to get much of value out of it, but to get speedy legislation.
§ 8.33 p.m.
§ Mr. Daniel Awdry (Chippenham)
I am a lawyer and I welcome the Bill and I am sorry that it has not had a more enthusiastic welcome. I am not one of those lawyers who can call himself an "hon. and learned Gentleman", although, perhaps, this sort of distinction is something which will be ironed out by the Law Commissioners in due course. I am a solicitor and I know that the Law Society in general regards this as a useful step to impose much needed reform on our law.
If I were asked what institutions in this country most needed reform, I would start, in order of priority, with this place and then with local government and then, possibly, the legal system third. I realise that it is out of order to say anything about the first two now, except that I support what has been said about the difficulty of Parliamentary time. This is a difficulty which we must tackle soon.
One meets people who say that the British legal system is the best in the world and does not need very much reform. Many lawyers take that attitude. Those people should ask themselves the more fundamental question—why do we need laws at all? Quite clearly, the only basis on which our laws can have any moral justification is that they serve society. The law must, therefore, be designed to meet the needs of society and if we are to have law which correctly mirrors the needs of society, the law must change because conditions of society are changing.
More ordinary people than ever before are deeply interested in the law and its ramifications. The wireless, the newspapers and television are continually bringing legal problems before us. People are impatient when they find that the legal system and the needs of society are out of alignment.
This brings me to the first point which I should like to make. I am not entirely convinced that lawyers alone are the right people to deal with law reform. Obviously, they have a great part to play, but the truth is that laws are made for people and not for lawyers. What are laws except rules which people are prepared to obey provided that others accept them and think that they are reasonable? It is only because over the years and centuries life has become more 131 and more complicated that there has been any need for lawyers at all. I therefore agree that in dealing with the intricate task of law reform we must have the expert advice of lawyers, but I am sure that laymen have a vital part to play in it.
Some of the reform will be in the administration of the law; we must accept this. Undoubtedly, the Commissions will look at the way that the courts work. They may have to look at the somewhat old-fashioned etiquette which surrounds barristers and solicitors. A little more reform will be done if people who are not lawyers take part in it.
That brings me to the other point which I wish to make. I am sure that solicitors as a whole can play a vital part in many aspects of law reform. They do not have the detailed specialised knowledge—perhaps this is why we are not called learned—of teachers in universities or learned counsel in chambers in London, but they do have continuous contact with the people themselves in their daily life. They see day by day the weaknesses and loopholes in the present system. I therefore ask the Minister to make a special point of ensuring that the Government avail themselves of the services of solicitors.
The hon. Member for Pontypool (Mr. Abse) gave certain examples of reform, and I could give others. I am sure that reform is necessary in the county court procedure, particularly in enforcing judgments. This is the one court, apart from magistrates' courts, in which solicitors are even allowed to speak. On a subject of this kind, their advice would be very worth while. Incidentally, I have never understood why solicitors cannot act as judges in county courts. After the interesting speech of the hon. Member for Pontypool, I realise that we are on delicate ground when we consider where to draw the line in criminal matters, but the solicitor has close contact with people who are in difficulty and accused of offences and he has a useful contribution to make in the reform of such matters as bail. The Legal Aid Scheme works well, by and large, although there are a number of weaknesses in it. Here again solicitors could play a useful part.
132 If the Minister accepts the argument that solicitors and even people outside the law have a part to play in this matter, will he consider in Committee enlarging the size of the Commission? It seems to me that it is very small. If there were eight members on it, I cannot see why two should not be university dons, two from the Bar or the Bench, two solicitors and two practical sensible people who are not lawyers but who have a good deal of knowledge of life to keep the lawyers on the rails.
There has not been much difference of opinion between the two sides of the House during the debate. There seems to be general agreement that reform is necessary. I am sure that when the Commission is set up the Lord Chancellor will receive the most active, genuine and ready co-operation from the members of the Bar Council and the Law Society. Whatever our political views, we all have a common interest to try to bring our legal system more into line with the needs of the nation.
§ 8.39 p.m.
§ Mr. S. C. Silkin (Dulwich)
I begin by congratulating the Government, and in particular my noble Friend the Lord Chancellor, on a considerable measure in the field of law reform. I do not know whether technically the Bill qualifies for the first 100 days, but undoubtedly in spirit it does so.
To establish the case for this Measure, it appears to me necessary to prove two things, the first being that there is an urgent need for accelerating the tempo of law reform, and the second that the machinery which is set up in the Bill to achieve this is the right and proper machinery for the purpose. As to the first of those two matters, having listened to the whole of the debate I think I would be right in saying that it is generally accepted on both sides of the House. Indeed, even in the speech of the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson), which was a model of all that a cautious lawyer's conservatism should be, that at least was accepted.
If that is so, one comes to the second question of what is the right machinery. It is here that we have had the major difference of view between different Members of the House. There are those, of whom the right hon. and learned Member is one, who take the view that all 133 that is necessary is, possibly, an embellishment of the present system, with a little extra staff for my hon. Friend the Minister without Portfolio or something of that kind, and that that will be sufficient. There are others—and they have certainly been the majority among those who have taken part in these deliberations—who take the view that that is not enough aid that something on the lines of what is proposed in the Bill, possibly with modification, is necessary.
This issue depends, in part at any rate, upon how one interprets the function of the proposed Law Commission. I say "in part at any rate" because even if one takes it on its narrowest possible ground—that advanced by the right hon. and learned Member for Warwick and Leamington—it may well be that something on the lines of the proposed Commission would be necessary for the purpose of reforming the law.
It is a matter of interest that in an article in the Modern Law Review last month, one finds a report on the progress of another scheme of this kind in another part of the world, in the State of New York. The scheme there was established in 1935 and one finds it said that seven months after its inauguration the first bills recommended by the Commission were introduced into the Legislature of that State and that in the 28 legislative sessions from 1935 to 1962, bills on 327 different subjects were recommended to the legislature. Of those, 243 have been enacted into law, or an average of three out of every four bills proposed by the Commission. That is an admirable record.
The interesting thing is that a little later in the article one finds this comment:In its relationship to the Legislature, the Commission has been scrupulous in its recognition of legislative supremacy. It has sought to avoid recommendations on topics in which the primary question was one of policy rather than one of law.So that even on that basis the New York State commission has had a very considerable amount of work to do which has clearly justified its existence. Of course, it may be said that the law of the State of New York was in an even bigger mess than the law of this country, but I doubt whether that could reasonably be argued.
134 If, however, one goes further and accepts that something more than what has been called lawyers' law should be the subject of the activities of this Commission then a much wider field is obviously open to it. Speaking for myself, I have never wholly understood this distinction between lawyers' law and that which is not lawyers' law. I think it was the right hon. and learned Member for Huntingdonshire (Sir D. Renton) who described today non-lawyers' law as being matters which excite acute controversy between layman and layman. If that is right it may be that lawyers' law is that which excites acute controversy between lawyer and lawyer. At any rate, there is very little law which does not excite acute controversy between one person and another, and, equally, there is very little law which does not raise in some form or another at some time or another matters of policy, matters on which Governments have to make decisions because people differ about these issues.
I do not myself see that this, though, clearly, it is the nub of the controversy we have had today, is as difficult a question as some hon. Members have made it out to be. In the first place, it seems to me to be clear enough that for a good long time, at any rate, the Law Commission will have sufficient on its plate of what one may call the legitimate kind, that is to say, where the legal element overrides the policy element, not to be concerned to worry about straying into more dangerous fields. But, leaving even that aside, it seems to me that one can be overcautious about this matter.
By way of illustration I want to draw upon a very well-known case, a very controversial case which has excited considerable argument, in the field of trade disputes. I refer, of course, to the case Allen against Flood. That case, the House will recollect, was decided in the early years of this century, and it was followed by a Royal Commission on the whole subject of trade union law, a Royal Commission which, to the best of my recollection, consisted of about six or seven people, of whom, again to the best of my recollection, four, certainly a majority, were lawyers. Indeed the chairman was that distinguished lawyer Lord Dunedin, and one 135 of the members who took a most active part in the affairs of the Commission had been counsel in the case of Allen against Flood. I do not know if that was necessarily a very good precedent. But at any rate, the Royal Commission gave very powerful thought to a subject of the utmost delicacy, one in which, clearly, law and policy were heavily mixed. So far as the law was involved, it is sufficient to say that the report of the case in the House of Lords occupies several hundred pages of the Law Reports, and that the House took the views of each individual judge before coming to its conclusion. I need hardly embark upon a description of the acute issues of policy and controversy which were involved. At any rate, this Commission, consisting mainly of lawyers, having at its disposal the sort of material which I expect the Law Commissioners will have when they examine matters in the future, was able to put forward recommendations. They were not entirely accepted by Parliament, but they were accepted to a large degree, and Parliament was able the more easily to enact the Act of 1906 as a result of the consideration which that Royal Commission gave to the matter. If that can be done in a highly controversial issue of that kind by a Commission which, broadly speaking, consisted of lawyers—I admit that it had the advice of other people as well—I cannot see that any particular difficulty is likely to be caused by the sort of procedure which we are considering today.
It is a matter of interest perhaps that in the successor to the Royal Commission, recently referred to by the Government, the chairman again is a distinguished lawyer, and perhaps I might be permitted to congratulate him not only on his appointment but on his courage. As I see the matter, there is no reason why lawyers, given the necessary assistance and information, should not be able to make recommendations on large amounts of that part of the law which requires revision.
It is important, of course, that they should have all the information available, I agree with my hon. Friend the Member for Pontypool (Mr. Abse) that it would be useless to ask the Commissioners to make recommendations on, for example, the 136 law of infanticide without having before them the views of eminent members of the medical profession, and possibly other professions as well, on which they could base their considerations. That is evident, but why should it be assumed that they would be likely to make their recommendations entirely in the dark? If the Bill means that that is what is to happen, I suggest that it should be amended to make it abundantly clear that it is not; but I do not read that into the Bill.
As I see it, there should be no difficulty about the Law Commissioners making recommendations, for example, on the matters referred to by my hon. Friend the Minister without Portfolio, leasehold law, the hire-purchase law, minors, and so on. It may be that in certain cases they will want the assistance of other bodies and other agencies such as are referred to in the Bill, or the assistance of people with knowledge of particular subjects. It may be that in certain instances they will require the direction of the Government of the day. It may be that given the task of considering a particular subject they will reach a point at which they will say, "We cannot go any further forward without some policy direction from the Government". The Government will then have to give it, and the Commissioners will then be able to go on with their task in the light of the policy direction they are given. I see no difficulty about this, and I believe that the difficulties which have been referred to have been exaggerated.
I agree that there are bottlenecks which will have to be eliminated if this is to succeed. I believe, as has been said already, that the impetus given to law reform by the Bill itself, and what will follow when it becomes law, will be a powerful influence in removing these bottlenecks. With respect to the right hon. and learned Member for Warwick and Leamington, who I think raised the point, I do not believe that there is likely to be necessarily a particular bottleneck from the point of view of Parliamentary draftsmen. I think I am right in saying that the Bar is the biggest exporting profession in the country today. I am certain that it has ample talent, and that that talent would be likely to be available for this purpose.
I am a little worried, as others have been, about the position of Parliamentary 137 Counsel. I do not quite understand whether there are to be Parliamentary Counsel in the present Department, and Parliamentary Counsel as it were under the Law Commissioners, or whether there is to be a single Department and, if so, under whom that is to be. I hope that difficulty will be resolved when my right hon. Friend the Secretary of State for Scotland winds up the debate. I for my part would certainly like to see a single Department which will give greater scope than exists at the moment for the sort of promotion which is likely to produce the best people.
There is one other matter which is of importance and has not been mentioned in the course of today's debate. We have here a proposal for two Commissions, one for England and one for Scotland. There is reference, I believe, in the White Paper and in the Bill to the need to keep abreast of developments in the law in countries other than the United Kingdom. It seems to me that it is fantastic in 1965 that within one part of the United Kingdom there is a different law from that which exists in another part of the United Kingdom. I am not saying which is the better of the two, but I hope that one consequence of this Bill will be that a process of assimilation will take place, that each will draw the better part of the other, and the fact that the Commissions have to consult with one another as required by the Bill will, I trust, produce that result.
I go further and say that whatever view one may take about the Common Market, it is clear that trade with Europe is going to increase as the years go by, arid it seems to me just as important, if not more so, that one effect of the Commission should be that the process of assimilation should proceed in this sphere also. I hope that will be one of the side effects of the Bill.
Of course, this Bill poses problems. Problems of policy, how necessary directions are going to be given and the precise boundary lines beyond which the Commissions ought not to go are most serious problems. I have no doubt that they can be solved, and the fact that the Bill will become law, as I am sure it will with the support of hon. Members on both sides of the House, will give a tremendous impetus to law reform which we all agree is urgently necessary.
§ 8.58 p.m.
§ Mr. Geoffrey Howe (Bebington)
I welcome the Bill as warmly as did my hon. Friend the Member for Chippenham (Mr. Awdry), without reservation and, slightly to my alarm, differ from the hon. Member for Pontypool (Mr. Abse) in thinking that it may not in some respects go far enough.
The House may like to know that this Bill is being introduced 137 years and one day after Lord Brougham made his seven-hour speech on law reform, during which he sustained himself with a hatful of oranges. I do not propose to follow his example in either respect, but I feel that we who practise in either branch of the legal profession should now be convinced of the necessity for a further advance of a decisive kind over the whole field of reform.
I do not question what my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) said about the record of the last Government and others before. Within their terms of reference, they were all working to the utmost capacity to the limits of the system. But the time is now ripe for us to begin breaking down rather than accepting the several bottlenecks which have been referred to. This Bill is one blow which destroys one bottleneck. Surely, the remaining bottlenecks, can be broken, and surely there is no difficulty in creating the number of draftsmen, given the time. The bottlenecks of Parliamentary procedure ought also to be looked at, as I hope to show in a moment.
I was glad that the hon. and learned Member for Dulwich (Mr. S. C. Silkin) mentioned the article in last month's Modern Law Review. There, as I see it, are to be found the answers to most of the fears expressed by hon. Members, as well as most of their reservations about the machinery that is here involved. As the hon. and learned Member also pointed out, the New York Law Reform Commission has confined itself strictly to matters which do not raise major issues of policy. It has at all times been subject to the surveillance of the Legislature. For that reason it has achieved remarkably successful results.
There was something, disquieting about the way in which the hon. Member for Pontypool resented the notion of particular topics being dispatched to the Law 139 Commissioners, as though they would thereafter be in some limbo from which henceforth they could never be recovered —rather as if a Rugby Union footballer from South Wales had gone North and was thereafter irrecoverable. When matters go to the Law Reform Commissioners the Commissioners will still have to bring them back to the House, and it will still be for the House to decide on the merits of those matters, after such intervention by the Executive as is appropriate, when the body of a Bill has taken its final form.
I hope that the Government, when considering the machinery to be adopted in line with the Bill, and particularly when the Select Committee considers that machinery, will pay close regard to the experience of the New York Legislature. In that jurisdiction the Commission has itself laid before the Legislature Bills which it had worked out and evolved, and the Legislature dealt with them in a variety of ways. The Legislature, in New York, has a specific joint legislative committee, composed of members of both Houses, which considers recommendations of the Law Reform Commissioners before they are ever brought forward for debate in the Chambers. That is something which I hope we shall try to follow in our own subsequent reforms.
I also hope that the point raised by the hon. and learned Member for Cardigan (Mr. Bowen) will be borne in mind by the Government. It is my impression that the scope of the Commission to initiate proposals about the reform of law of its own motion is restricted by Clause 3(1,c). Clause 3(1,a), enables it to receive any proposals, but not without the approval of the Government, to go ahead and make recommendations and formulate draft bills. I hope that the risk of Executive surveillance of the work of this essentially non-political institution will be avoided by extending its powers more widely, again along the lines followed in New York, because there it is made quite explicit that the task of the Law Reform Commission extends to receiving suggestions for reform not only from the Government but specifically from citizens, lawyers and judges. It also has express power, without qualification, to recommend bringing in such changes in law as it deems necessary to drive out and 140 eliminate antiquated and inequitable rules of law.
I hope that the powers of the Commission can be extended in that way in the Bill before it finally reaches the Statute Book. That would also make it plain that Her Majesty's judges could specifically refer to the Commission points which occur to them in the course of cases. One reads in the law reports, three, four, five or six times a year of cases where Her Majesty's judges complain of the follies of the Legislature, and hope that something will be done. They should be given a specific rôle under the terms of the Bill to refer such matters to the Law Commission.
I hope and pray that the Law Commissioners will consider, as one of their first tasks, not so much the law as the procedures of the law and the rules within which the law is administered. From my investigations earlier today I have found that there are 28 different times prescribed in the rules of the High Court alone within which different notices of appeal must be given. I identified 23 other variations in the High Court but outside the Queen's Bench Division, and there are many others.
It is now nearly 30 years since the Royal Commission on the Dispatch of Business at Common Law recommended that a fixed date for trials should be extended to all litigants. And it is over 15 years since the Interim Report of the Evershed Committee made the same kind of recommendation. I hope, therefore, that procedure will be high on the agenda. I hope that this or some other body will eventually find time to consider the whole question of the organisation, training and recruitment of people to the legal profession, on the widest possible scale. Until men and machinery are brought up-to-date it will be in vain to bring the substantive law up to date.
§ 9.6 p.m.
§ Mr. N. R. Wylie (Edinburgh, Pentlands)
The first thing I wish to make perfectly clear is that no one on this side of the House, however apparently critical of these proposals, is against the idea of law reform. Anyone with any working knowledge of the law—quite obviously many hon. Members on both sides of the House have such a working knowledge—readily recognises the scope which exists 141 for law reform. I believe that there has always in the past been scope for law reform and I suggest that, by the very nature of things, in a developing society such as ours there will be a continuing need for it. To use the words of the Minister without Portfolio, we all want to see the law modernised, simplified and consolidated. We all recognise the pressing need for it, especially at this time.
There are two things about which we should endeavour to clear our minds at the outset. The first is whether the fact that law reform has not progressed in the past as rapidly as many of us would like has been due to the inadequacy of existing machinery for obtaining recognition for law reform or whether it was due to other factors. Secondly, is the machinery proposed in this Bill calculated to advance the process of law reform? In the debate there has been a gradual recognition and acceptance of the proposition, put forcibly by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) and also by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) that the real bottleneck in the process of law reform is not to be found in the machinery for obtaining recommendations for law reform but the bottleneck caused by lack of Parliamentary time. Secondly—I will deal with the two points at greater length later—there is the lack of a supply of skilled Parliamentary draftsmen. There is no point in obtaining recommendations from any body for law reform unless we devise a system for getting the reforms through this House and are able to provide the skilled Parliamentary draftsmen to frame legislation for this House to consider.
Whether this Bill devises the machinery appropriate for the object seems to me to raise understandable doubts in the minds of many of my hon. and right hon. Friends, doubts whether the essential proposals contained in the Bill really advance the system and machinery by which recognition for law reform could be obtained in a way which could not equally be well effected by the development of the existing machinery without a superstructure of this nature.
This has very properly been said not to be a party matter. It is clear that there is no unanimity on it on this side of the House. It is not a party matter. 142 Those of us who entertain doubts as to whether this machinery is really appropriate to the purposes for which it is intended entertain those doubts in good faith, and we are prepared to be convinced. There is no question of voting against this Bill. There is no question of not giving this Bill a Second Reading. We are prepared to be convinced about this. Indeed, if it be the case that the new machinery which is devised by this legislation—albeit, it will be fairly expensive—will be a more effective instrument of law reform than that we already have, then by all means let us have it, because we all want to see the reform of the law advance in the most rapid possible way.
Having said that, I think that it would be altogether wrong to underrate the extensive work of law reform which has been done in the past, particularly in recent years, by Royal Commissions and by Departmental Committees. Work is still being done by these bodies. I think, also, that it would be only right that an acknowledgment ought to be made—I think that it has already been done—of the very valuable work done by the main standing committees on law reform—the Lord Chancellor's Law Reform Committee, the Home Secretary's Criminal Law Revision Committee and, one which has not so far been mentioned, the Lord Advocate's Law Reform Committee in Scotland.
As a Scottish lawyer, and, I regret to say, the only one in the House—[An HON. MEMBER: "Surely not."]—at least, I am the only one here tonight. Perhaps I should say, as the only Member of the Scottish Bar, I would pay a particular tribute to the work of the Lord Advocate's Law Reform Committee, because I understand, and I note this with regret, that this body is about to be wound up. At least, I understand that, not from the Bill itself, but from the White Paper on the Bill. I may have something to say about that in a moment. That Committee, over the years, first under the chairmanship of Lord Walker and, more recently, under the chairmanship of Lord Kissen, has done a great deal of valuable work in law reform. I think that it is only right that recognition of that work should be put on record.
As I see it, we have to face the fundamental fact that if law reform has not progressed in the past as speedily as most 143 of us would have liked to have seen it and if recommendations for reform have tended in some cases to find their way into a pigeonhole, the defect for that is not to be found so much in the existing machinery for obtaining recommendations as in the awful problem of getting the necessary Parliamentary time to enact recommendations already made, and, in some instances, long since made. As I said, and as many hon. and right hon. Members have said, that is the real bottleneck. It is a problem which is still with us, because it is not a problem with which this Bill pretends to deal. Something must be done about that. If something is not done about it, and done very rapidly, the object of this legislation, the purpose of all these proposals, will be frustrated.
The second major hurdle which we must get over before we can go ahead with law reform is the question of Parliamentary draftsmen. One hon. and learned Member said that he could foresee no difficulty about that. I hope that he is right. All I know, from Scottish experience, is that there is great difficulty in getting Parliamentary draftsmen in the Lord Advocate's Committee. I hope that, if we are to have a greatly increased volume of law reform, we shall find, particularly in the Lord Advocate's committee, sufficient highly skilled and highly trained draftsmen to cope with it, because unless we have that the whole process falls flat, the whole enterprise is frustrated.
Let me just examine for a moment the functions of the Law Commission to see to what extent it will do anything which is not already done by other bodies or to what extent, in fact, it will do anything at all.
On any view, a great deal of law reform is not appropriate for consideration by a small body of lawyers, however eminent and however skilled. Once we go beyond the narrow field of purely lawyer's law, once we embark on broad questions of policy, it will always be necessary to work through machinery such as Royal Commissions. This is the type of thing which no Law Commission could ever cope with by itself, because in my view and that of many hon. Members, a Law Commission would be entirely unsuited for that kind of reform, a reform of the law which involves a social content.
144 Where we are trying to reform the law with a social content we require not only the co-operation of a body of lawyers but the pooled experience of men and women from all walks of life. The hon. Member for Pontypool (Mr. Abse) made that point very forcibly and effectively. To expect a body of lawyers such as this to embark on that field of law reform would be to invite it to take sides on highly contentious issues, and this would affect its authority and standing in the eyes of the public. There is a wide field of law reform which, whatever part the Law Commission will play, will not be handled by the Commission. It may make recommendations as to who will do it or it may do the programming in which it will be considered, but the Law Commission itself will certainly not handle it. It should be done, as in the past, by Royal Commissions or Departmental Committees.
Let us take, too, the whole question of consolidation and statute law revision. I agree that there is tremendous scope and need for consolidation and statute law revision. Good examples in the past have been factory legislation and company law. One need not look very far to find examples of fields of law crying out for consolidation in this way. The law of Estate Duty is an example and, as my hon. and learned Friend the Member for Hendon, South (Sir H. Lucas-Tooth) pointed out, the whole law relating to Income Tax is crying out for consolidation and statute law revision.
But once again we are thrown back to the question of whether this is a matter for a Law Commission or for any body of lawyers, however eminent and industrious. Surely it is entirely a matter for Parliamentary draftsmen. I am surprised to find in Clause 3(1,d) a provision that among the duties of the Law Commission is an obligation to undertake the preparation of draft Bills. Doubts have been expressed about this by hon. Members, and I will not elaborate the point, but I think that the existing machinery and structure of Parliamentary draftsmen is the proper machinery by which to effect drafting work of this nature. That is the proper body to undertake the preparation of draft Bills. It is not a function of a Law Commission.
145 We shall all be interested to know whether it is the intention that these Parliamentary draftsmen who will exercise the Commission's functions in Clause 3(1,d) will be a distinct and separate body from the other panels of Parliamentary draftsmen and whether the Commission will draw on the existing panels of Parliamentary draftsmen. These are all matters on which we should be interested to hear a full explanation. I believe that it would be far better to leave consolidation and statute law revision entirely to Parliamentary draftsmen, for it is not, in essence, a function appropriate to a Commission of this nature.
Let us take the whole question of lawyers' law in the narrow sense. I know that the boundaries tend to become confused, but most hon. Members know what I have in mind. There is plenty of scope for work here, notably, for example, in evidence and procedure. One need only look at the rules of evidence and procedure to realise that there is tremendous scope for improvement, improvement which would save a great deal of public money and expense. But is that the kind of thing which is appropriate to a standing commission of this nature? Is that not, once again, something which could more appropriately be done by the existing Committees, in England the Lord Chancellor's Law Reform Committee and the Home Secretary's Criminal Law Revision Committee?
§ Mr. A. J. Irvine
Would the hon. and learned Gentleman amplify that a little? Is not the matter to which he has referred one which calls for whole-time attention? Does he think that the existing Committees would be adequate for so considerable a task?
§ Mr. Wylie
Frankly, I consider that there would have to be changes. I do not think that the existing Committees, as they stand, would be able to cope with the increased volume of work which everyone hopes for, but the existing machinery, developed and expanded would, logically, be able to cope with that development without a superstructure of this nature. I take the hon. and learned Gentleman's point because it is a good one. One wants permanent supervision of this aspect of the law and I would like to see, speaking from my 146 experience in Scotland, more of that work done by the Lord Advocate's Law Reform Committee—but, again, the difficulty has been the shortage of time and the absence of staff.
The existing machinery could be developed in many of the ways suggested in this legislation, perhaps by a permanent secretariat, perhaps by a permanent chairman. In this sort of way, I should have thought, it would be possible to cope with the problems in these spheres of law reform, rather than creating a distinct and highly expensive independent body of this nature.
As to the question of the codification of the rules of law, some of this has already been done. If one is going to codify the common law of England or Scotland one is taking on a tremendous task and I must confess that I am highly sceptical about the ability of a narrow-based, full-time committee of this nature being able to cope with it. I am highly sceptical of the inroad which a committee of this size and nature would ever be able to make. I am also conscious—and I do not want to be thought in any sense reactionary here, because I am not so by nature—of the danger at least that if one tries to codify the common law one is running the risk of stultifying its development. After all, the common law has been built up over the centuries by judges on the infinite variety of things that come before them, which is something that is constantly developing.
If one tries to commit that to a code there is the danger that one may destroy the spirit of the common law and affect its future development. There have been excellent examples of codification in the past. The Bills of Exchange Act and the Sale of Goods Act are two supreme examples and, with respect to all concerned, I very much doubt if those monuments of draftsmanship could be repeated today. They were unique, in a sense. The Occupiers' Liability Act is also a fine piece of drafting. There is scope in certain spheres of common law at certain stages of its development for codification, but if one is to embark on the codification of the common law as a whole, one is not only undertaking a monumental task but, I should have thought, a task which is out-with the capacity of a body of this nature 147 and a task which is not altogether desirable.
§ Mr. Woodburn
Would it not be possible to enlist the aid of science to help lawyers in this matter; by using computers and other things which are doing marvellous work in other directions?
§ Mr. S. C. Silkin
Would the hon. and learned Gentleman not agree that, for example, the law relating to the sale of goods was developed perfectly amply since the 1890s? Why does he think that that development must stop when codification takes place?
§ Mr. Wylie
I accepted that we have two supreme examples of good codification in the Bills of Exchange Act and the Sale of Goods Act. The Occupiers' Liability Act is another example of the same kind of thing. I suggested that if we were to try to codify the law of tort, for example, or the law of contract, we could get into serious difficulties which might have a detrimental effect on the law. I must confess that I myself do not believe that a commission of four or five legal experts would make any real inroad into such a monumental task.
We on this side who are critical of this Measure have serious reservations about the whole question of the composition of this body. This is crucial, because if this Commission is to work at all it is absolutely essential that its members should be drawn from the ranks of men of the highest standing and the widest experience. That is crucial. We would have to get a judge as chairman, We would need a leading silk, a top-grade solicitor, and an eminent academic lawyer—preferably with a wide knowledge of comparative law. Will we get these people? Will we get people of the right calibre to do this work? I do not know. I hope that it is possible to do so, but I should like to voice doubts and difficulties here.
148 I do not think that it will be easy to get a leading silk to leave practice for three years to work on this Commission and then go back into practice. I think that it will be very difficult, despite what has been said by one of my hon. Friends about the Law Society, to get a leading solicitor to give up practice for three years to serve on a Commission such as this. Is it intended that any member of the Commission, the chairman or anyone else, should have a permanent appointment, or are all the appointments to be of a temporary nature, in the sense that they last for three, four or five years? I would be interested to know whether it is contemplated that any of the appointments are to be of a permanent nature in the proper sense of the term. These are reservations and doubts that we all have, and doubts that will be fully ventilated in the Committee.
Perhaps I may turn for a moment to the Scottish aspect of the Bill. Apart from the intervention of the right hon. Gentleman the Member for Clackmannan and East Stirlingshire (Mr. Woodburn), there has been no contribution on the Scottish side, for obvious reasons—
§ The Minister of State, Scottish Office (Mr. George Willis)
There are no Scottish Tories there.
§ Mr. Wylie
I am not worried about that. I am quite happy to raise these points, and will be most indebted to the Secretary of State if he will give some observations on them.
There are several distinctive features about the Scottish proposals that I cannot understand. First, unlike the Commission in England, the Scottish Law Commission will consist of four or five members of whom only one will be permanent. I confess that I would have preferred the broadly-based commission rather than the concept of the narrowly-based permanent body. I should have preferred a Commission fully representative of all sections of the Scottish legal system. I know the difficulties that have been referred to of getting busy men to serve part-time on those bodies, but I believe that a broadly-based law reform body presided over by a permanent chairman, working in sub-committees each expert in its own branch, and backed by a permanent staff, would best meet the requirements of law reform in Scotland. 149 That would be preferable to the narrowly-based permanent committee, which I am convinced would be very difficult to fill in Scotland.
But there is one thing on which I am clear, that this kind of compromise—neither one thing nor the other, neither a broadly-based part-time committee nor a narrowly-based full-time committee, but a part-time committee of four or five members with a permanent chairman—is unworkable. What is the justification for that? Is it to be said that the law of England is in a big mess and that the law of Scotland is in only a little mess? Has this ever been thought out at all? It is obvious that the English solution has been thought out over the years, but I am beginning to wonder whether anyone has ever applied his mind to the Scottish solution. It looks to me as if it is a case of "Well, we are having a Law Reform Commission in England, and if we do not do something for Scotland, they will begin to complain about it; so let us give them a Commission but do not let us spend too much money on it." That is not good enough.
I should like to know whether there has been any consultation between the Government and any of the legal bodies in Scotland. Has there ever been any consultation with the Lord President, the Faculty of Advocates or the Law Society to ascertain how these proposals could be worked out? I very much doubt it. If there had been any discussions along those lines, I do not think the proposal would ever have received much support. If the argument against a Law Reform Committee as it stands is that one cannot expect part-time people to devote enough time to it, how shall we fill a Commission of this nature which makes very much greater demands on time?
The second point is that the Law Reform Committee will be abolished. The Committee was only recently reconstituted. It is at present particularly strong. It is perfectly capable of doing a great deal of useful work. So far as I know, the Lord Advocate has remitted nothing to it since the change of power took place. May I be told why it is deemed advisable to retain the Committee in England and abolish the Committee in Scotland?
150 Thirdly, there is the point to which the right hon. Member for East Stirlingshire referred. What is the object of the dual responsibility between the Secretary of State and the Lord Advocate in Clause 2? The Lord Chancellor, very properly, has the responsibility in England. Why is it necessary for the Secretary of State to have a hand in the selection of members of the Commission in Scotland? There may be a technical reason for it, and I do not want to prejudge the issue, but I do not like the look of it. What will happen if they disagree? Who has the last word? If it is the Secretary of State, on whose advice does he go if not that of the principal Law Officer of the Crown in Scotland? The Lord Advocate of Scotland is not only a politician. He is one of the great Officers of State of Scotland, and I know that the Secretary of State will not expect me to allow to go by default anything which suggests, as this does to me, that it is detracting from the status and dignity of his position.
§ 9.33 p.m.
§ The Secretary of State for Scotland (Mr. William Ross)
We have had, as the Bill before us merits, a very wide-ranging debate, and one which has applied itself to the practical difficulties involved in what the Government are seeking to do.
The right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) more or less set the tone for the Opposition. They did not want to damn the Bill altogether, but they had not very much to say in its favour. It was rather surprising even towards the end that the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie), after spending the best part of half an hour telling us of his doubts, fears and scepticism, did not give us the impression that hon. Members opposite were going to vote against the Bill. That was surprising to me, because some of them said that they did not think it was a very good Bill.
However, I do not think that there is anyone in the House, whether he has spoken or not, who could disagree with the aims and purposes of the Bill. The law is not something abstract; it is not something related just to lawyers. It is related to people. The safety, the protection and the rights of every individual 151 depend upon the law. What we aim to do is to ensure that, as far as possible, the law shall be intelligible and simple; that it shall be accessible and not spread, as it is, over 300,000 reports of cases in England and Wales and tomes and tomes of statute law. Indeed, those who are supposed to be professionally concerned with the law find themselves in considerable difficulty, uncertainty and, at times, embarrassment because of the differing opinions they give.
All this is just not right. It was stated by most of those who have spoken today that we should make a determined effort to put it right. I know that it is an immense task. All right hon. and hon. Members who have spoken have said so. But because it is an immense task, must we not start on it?
I want to say now, echoing what has been said by others, that we must pay due regard to the fine work that has been done by the Law Reform Committees which hitherto have been dealing with these matters, but anyone who appreciates the immensity of the task that must be done surely recognises that, however good the work of those Committees may have been, they have not been able to get the right drive or cover the ground that it is essential to cover if we are to achieve our aim. So, in anything that we propose in the Bill, we are not stating that they have not done their job well but merely that, within their limits, they have done as well as they possibly could.
Both those who welcomed the Bill and those who were sceptical rightly stressed the difficulties that arise in relation to what were called "bottlenecks". My impression of the speeches of the right hon. and learned Member for Warwick and Leamington and the hon. and learned Member for Pentlands, was of suspicion and, indeed, of an enthusiasm for law reform that one might have expected of Luddites for the introduction of machinery. They are both learned gentlemen. They might have been a little more generous in relation to our determination to try to put things right and get things done.
The right hon. and learned Member for Warwick and Leamington talked about the immense opportunity and then said that what we were providing for it was an expensive spare wheel. But he pro- 152 ceeded to appoint for us a full-time chairman—a judge. He then gave us more committees, divided them up into subcommittees and, in effect, took the existing wheels out of something that worked well but not well enough and proposed in their place a variegated set of wheels which would ensure that the thing would not work at all.
§ Sir J. Hobson
I said that, with the hon. and learned Gentleman the Minister without Portfolio to assist, the present machinery, if expanded, would be adequate. That was the line I took.
§ Mr. Ross
I did not quite get that impression. By the time the right hon. and learned Gentleman had expanded it, he ended up with a machine that was not really related to the amount of work that needs to be done in the right way within the framework that we provide here. The present difficulty is the patchwork nature of the reform, its haphazard nature. What we want to try to get is a more coordinated and concentrated drive towards law reform.
I am very glad that the hon. Member for Bebington (Mr. Howe) went back to 1828 and to the speech of Lord Brougham. I thought that we might get more than one reference to that. The hon. Gentleman will recall that it was a long time before anything was done about what in 1828 was described as the great need for codification. It was not until the end of the century that we had the two shining examples of codification which were held up tonight. Seventy years later, we have very little in the way of codification, although everybody has declared the need. The doubters still say that we should not start now because it is too difficult, but there is always a time to start, and I think that that time is now.
Of course the law must live and develop with changing times and if we are to be tied, as in law we are tied, to past philosophy, we shall run up against decisions by the judges or the judiciary which are out of keeping with our ideas of justice. This is the task to which we have to set ourselves.
Hon. Members know that the task facing the Law Commission in Scotland is not so big as that facing the Commission in England and Wales, for the simple reason that the origin and 153 development of our law have been different. Our law in Scotland greatly depends on the canon law of Rome, helped by continental commentators. It is a logical build-up, a logical development of principles. It has benefited from contact with the commentators of the Dutch and the French of the sixteenth and seventeenth centuries. The great Scottish lawyers went not only to Scottish universities, but to the universities of Leyden and Utrecht. Faced by this kind of development and the ideas of Lord Stair—and I am surprised that the hon. and learned Member for Edinburgh, Pentlands could speak about reform of the law and the work to be done in codification and the gathering together of common law principles without mentioning the work done by Lord Stair and the work done in recent years in weeding out archaic Scottish law—in 1906 we had an Act which weeded out much that was obsolete, followed by a reprinting in 1908 and again by further work in 1964—the hon. and learned Gentleman might have made out a case for the reprinting and modernisation of ancient Scottish Statutes which are still extant.
What we have to appreciate is the immensity of the task and the need to get started, especially in view of past delays. The hon. and learned Member thought at one time that it was good enough to carry on as we had been doing in Scotland, perhaps with a little extension of the part-time committee, but then he said that there was no justification for having a full-time chairman and that a part-time committee with people spending a substantial part of their time on it would be enough. I can tell my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) that there will be no complete assimilation of the Scottish and English law, for that just cannot be done.
I want now to deal with something said by my right hon. Friend the Member for Clackmannan and East Stirlingshire (Mr. Woodburn) and the hon. and learned Member for Pent-lands. This was interesting. My right hon. Friend, a layman, said, "There is a joint responsibility in Scotland. There is a Lord Advocate and a Secretary of State for Scotland. Why is the Lord Advocate brought in?". But the hon. and learned Member for Edinburgh, Pentlands, who is a lawyer, said, "Why 154 is the Secretary of State brought in?". There are no fell and devious schemes in this.
There is ample precedent in joint action by two Ministers, one of them being the Secretary of State for Scotland. It is because the Secretary of State has such wide supervision in Scotland that he has to be brought in. [An HON. MEMBER: "Why?"] If the hon. and learned Gentleman had not paid so much attention to the speech which he proposed to make, he might have heard all the speeches which were delivered. People were terribly concerned about the political, Ministerial and Parliamentary aspects and the danger of lawyers getting out on a limb. In this connection my hon. Friend the Member for Pontypool (Mr. Abse) referred to a particular aspect which the Law Commission should have nothing to do with.
In Scotland the Secretary of State is the Minister of Education, Minister of Agriculture, Minister of Health, Home Secretary—is there any part of Scottish law which does not affect him? Is it not right that in these circumstances not only he should be brought in and given responsibility, but also the Lord Advocate, who, as the hon. and learned Member for Pentlands rightly said, is the Government's adviser on Scottish law?
§ Mr. Ross
Some of the functions of the Lord Chancellor, shall we say.
On the question of joint responsibility, the appointments to the Council on Tribunals are made jointly by the Lord Chancellor and the Secretary of State. On fishing matters, appointments to the White Fish Authority and Herring Industry Board are made by the Secretary of State, acting with the Minister of Agriculture. The hon. and learned Member for Pentlands need not worry about disagreements. We certainly agree. I do not know to what extent that happened in the last Administration, but I am perfectly sure that he would not want me even to venture a guess about that.
Hon. Members have rightly voiced fears about the possibility of bottlenecks. We are convinced that we need to make a start on this. Now that we have this drive, we must face up, first, to the need 155 for Parliamentary draftsmen—Parliamentary Counsel. As far as I know, there has been no indication that the Law Commissioners will set up their private empire and collar all the Parliamentary Counsel available. But the Parliamentary Counsel will be made available to them, and I see no reason why, as things develop and with the contacts which there will be between them and Ministers, they should not proceed towards the stage—and, remember, they will be dealing with programmes which are approved—of drafting the Bills. This would save overlapping and time. That answers some of the points raised by one or two hon. Members.
I turn to the great fear that there is about leaving all this to people who form a purely professional body. Let us consider what they have to do. Their task is to review the state of the law. They are eminent men, but they will not do the whole job themselves. Surely they can review the whole field and determine exactly where it is essential that law reform should be carried out. Their programmes must be approved by Ministers. Thus there is to that extent Parliamentary and Ministerial control.
They have to advise the Government, although it is not necessary for the Government to take their advice, about how the reform should be carried out and whether they should do it themselves with their own staff—this answers one of the points made by my hon. Friend the Member for Pontypool—or whether it should be done by some other body. This does not mean that because we have a Law Commission we will never again have a Royal Commission concerning any part of the law, any more than it will mean that for Scotland we will not be able to use a Departmental Committee, such as the Mackintosh Committee on the Law of Succession.
I am surprised at the hon. and learned Member for Edinburgh, Pentlands telling us that the bottleneck of Parliamentary time is the reason why such things do not come on to the Statute Book. Would he like to tell the House exactly how long the draft Bill concerning the law of succession in Scotland waited before eventually it was put on to the Statute Book, or shall I tell him again and give the Scottish Law Officers 156 of the last Administration cause to blush? It took about 12 years, and there was plenty of Parliamentary time judging by the kind of things we got during those 12 years. However, we managed it in the last year. We got it and it was worth getting.
That was the product of a Departmental Committee. There is no reason why that kind of agency cannot again be used. There is no reason why the Law Commission cannot advise that this kind of thing should be examined and how it should be done. Again, there is full control by the Minister, the Minister being the Lord Chancellor or in Scotland the Lord Advocate and the Secretary of State. The main object is to get things going and to get them done.
I am convinced that when we impart this drive, we will meet the need for the skilled draftsmen who will be required. I have not the slightest doubt that we will be able to get them, having set the targets for what we require.
There is the other point that Parliamentary time will be required. This is what concerns me, as a Parliamentarian and one who is not a lawyer, more than anything else, because we can have all the Law Commissions we like producing draft Bills but if the House of Commons does not look into the question of procedure to ensure that desirable legislation goes through, we will be failing in our duty to the public. There is no doubt about this. It can be done.
We dealt with that in consolidation For years, I was a member of the Consolidation Committee. It is a Joint Committee of Lords and Commons. It is the most austere, quiet and hushed Committee of the House. I was on it and I doubt whether I made a speech longer than about three sentences. That is hard to believe, but it is true.
We created that Joint Committee. It works in an expert way and it comes back to the House. Because it deals with consolidation, the part that the House plays in it is purely formal. I know that this cannot work in exactly the same way for other procedures, whether for codification or a particular branch of law reform. Surely, however, it is not beyond the wit of this House to recognise the necessity to meet that need by some new form of procedure. This, I believe, is a matter which will be discussed by the 157 Committee set up by the House to deal with procedure.
We backward Scots managed to deal with the situation to a certain extent in the last Session but one, when we set up a second Scottish Standing Committee, to which went Private Members' Bills. By the very nature of private Members' legislation, some of the law reform measures crept into it. We got two valuable Bills that we otherwise would not have had and they are now on the Statute Book. I hope that the hon. and learned Member for Pentlands will use his influence with his right hon. and hon. Friends opposite seriously to look at this point, because to my mind it is basic.
I will try quickly to deal with some of the other points which have been raised. We feel that a whole-time Commission will meet the needs of England and Wales, and that in Scotland the needs can be met by a full-time Chairman and part-time Commission. We must, however, bear in mind that, if we feel the need for full-time members, we can have full-time members in Scotland; but part-time members giving a substantial part of their time will, I think, meet the required procedures in Scotland.
The suggestion was made, I think by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) that the Commission would consist of civil servants and would, therefore, be dependent on Ministers. They are not going to be civil servants; they are going to be independent; although the staff they will employ will be civil servants.
The right hon. and learned Member for Huntingdonshire (Sir D. Renton) wanted to know whether the Commission could tackle the problem of trade union law. There is no reason why it should not tackle the problem of trade union law, or, rather, first of all see if it requires to be tackled, and then advise the Government how it thinks it should be done, either by the Commission itself or by a particular agency. Surely the important point is to determine that something should be done and then determine how it should be done, the Government accepting or rejecting the recommendations.
My right hon. Friend the Member fox East Stirlingshire asked whether or not there could come within the Commissions' purview Statutes affecting local 158 authority functions, particularly the food laws. Of course the Commission could go into these, and this is one of the things ripe for consolidation at the present time.
I think the same answer can be given to some of the hon. Gentlemen who asked whether or not, for instance, the Commission could deal with the Income Tax Acts. The hon. Member for Hendon, South (Sir H. Lucas-Tooth) raised that question in particular. Of course it can. There is no reason why it cannot ensure that this should be looked at and looked at in particular ways. The same thing applies to the law on divorce, although no one suggests that the law on these personal matters would necessarily be dealt with by the Commission itself. Indeed, divorce and that sort of thing, I am sure, would be put to a Royal Commission or some body of that nature.
I think the country as well as the House is seized with the vital need to take this matter seriously and make a start, that start to be followed through by the procedure of a Commission specially set up to do the job. No one need doubt that the Government of the time will be able to exercise their control over priorities, but in the first instance we are tackling a professional job by establishing a professional body, at the same time having available for our use all the other ways of investigating the need and producing the solutions for law reform.
I think the House has given to the Bill a welcome which certainly should gratify the Lord Chancellor for whose enthusiasm and zeal in this work praise has been rightly paid today. I sincerely hope that the House will now give a Second Reading to the Bill and go on to ensure that the points which have been raised are adequately covered and answered in our discussion in Committee.
§ Sir D. Renton
Would the right hon. Gentleman just deal with the matter of Parliamentary Questions about matters coming within the Commissions' responsibility?
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).