Clause 3.—(FUNCTIONS OF THE COMMISSION.) (Hansard, 22 March 1965)

§ Mr. Deputy-Speaker (Sir Samuel Storey)
The next Amendment selected is Amendment No. 8 and it may be convenient to discuss with it Amendment No. 7.

§ Sir Eric Fletcher
If it is not out of order, Mr. Deputy-Speaker, I would like, being in an accommodating mood, to move Amendment No. 7. It seems to be acceptable and I would like to be permitted to move it and not Amendment No. 8.

§ Mr. Deputy-Speaker
An hon. Gentleman who has given notice will have to move it.

§ Sir D. Renton
I beg to move Amendment No. 7, in page 2, line 24, to leave out "rules of" and insert "such".
This is simply a drafting Amendment. I hope that it does not seem too much of an anti-climax after the discussion on the constitutional history of Scotland. I am grateful to the hon. Gentleman for saying that he agrees with the Amendment. I am only sorry that the sphere of agreement is so small, but the evening is fairly young and there will be later opportunities for the Minister to show his open-mindedness.

§ Sir Knox Cunningham
I support my right hon. and learned Friend in his Amendment. I suspect that the Government will accede to it, and I am delighted that they should do so. It is early hours in the morning yet, and as the morning rolls on we hope that the Government will be just as accommodating with some of the other Amendments.

§ Sir J. Hobson
I beg to move Amendment No. 9, in page 2, line 29, at the end to insert: by a Minister of the Crown. 227 The object of the Amendment is to ensure that the duties of the Commission, in both England and Scotland, are limited to work and approaches which are referred or made to it by the Government of the day, who, as I have pointed out earlier, will retain the overall responsibility for the forwarding of law reform within the community. We are grateful to the Minister without Portfolio for accepting the last Amendment. His generosity is strictly limited, but I hope that he will be able to add to the little pile of generosity by accepting this Amendment, too.
Without the Amendment, the position of the Commission, in both England and Scotland, might be somewhat anomalous, because it will be under a duty not only to receive but to consider proposals for reform of the law which may be made or referred to it. There is, perhaps, a substantial danger under the existing form of words that the Commission might be utterly swamped with its duty to consider, because it would not only be under the duty to receive and consider proposals for reform of the law made to it by various organisations of Government and by Ministers of the Crown, but it would be bound to receive and consider any proposal that any Member of Parliament or Member of the House of Lords cared to make to it, and those people could make their proposals direct.
Not only could any body or organisation throughout the length and breadth of the country write to the Commission. I do not object to the Commission receiving proposals, but it is the addition of the duty to consider them that is awkward, because every body and every organisation, every citizen and every crackpot, could insist not only that the Commission receives their letters but that it considers them.
The Minister without Portfolio said in Committee that the Commission could keep a card index, but the keeping of a card index is not considering proposals. If the Commission is under a duty to consider every proposal which is referred to it for the reform of the law, it will be in an embarrassing position. It may be that large numbers of proposals which will be made by citizens to the Commission have already been considered by the Government Departments concerned and rejected.
228 We all know, as Members of Parliament, that we receive very frequently from citizens proposals for the amendment of the law, proposals which are quite hopeless, which possibly have been rejected by the House only a short time before. If we happen to be on the Government side we know that many proposals which are made are wholly unacceptable to the Government as a whole, and which the Government would never consider, or may have already considered and rejected. It may be that, because of what is proposed by a Government Department, proposals which are made to the Law Commission by an outside body behind the back of the Government Department concerned are in direct conflict with what that Government Department itself is considering and proposing. One would therefore have the situation in which the Commissioners would or might be under the statutory duty to consider large numbers of proposals which there was not the slightest prospect of putting into operation, or which might be in direct conflict with the proposals which the Government themselves are about to produce.
I would have thought it highly desirable that the proposals for the reform of the law which the Commissioners are to receive should be referred to them by a Minister of the Crown. This, of course, would enable Parliament also to have some control over what is being referred to the Commissioners, because it would enable Ministers of the Crown to be questioned about whether proposals have or have not been referred to the Commissioners.
Suppose the present Government go out of power. Is it suggested that the Labour Party as a whole, or ex-Ministers, should be able to write to the Commissioners and ask that they should consider certain proposals which the Labour Party itself has, say, about the Trade Disputes Act, or something of a highly political nature? Or, conversely, is it proposed that the Opposition Front Bench Members, or the Conservative Party as a whole, should send direct to the Commissioners their proposals for the reform of important matters of law, whether they have a social content, or whether they be solely matters of lawyers' law?
229 Just suppose that an important body, be it a political party or a major industry or a trade union, does send a proposal on a matter of major public importance and asks the Commissioners to consider it. Are the Commissioners to be able to do nothing about it? The body which sends the proposal will be constantly writing to ask the result of the Commissioners' consideration: have they made a report to the Minister, have they an answer they can send to the body in question? If after a period of eighteen months or two years the Commissioners have done nothing about it or say, "We are considering it", is there not likely to be public criticism that an important matter of the reform of the law, of a political or social or economic or legal nature, has not yet been considered by the Commissioners?
Purely as a matter of administration, I would have thought it would be much more satisfactory that proposals for reform of the law should be made direct from the Government or a Minister, or Members of Parliament through the Government or a Minister, for then the Commissioners would know what was in the minds of the Departments suggesting the proposals. They would know the aspects of the reform of the law having the highest prority in the programme which the Lord Chancellor was proposing, and they would know which matters were outside the programme of the Lord Chancellor, but were due for consideration by the Government departmentally. It would assist them in considering the proposals and in giving advice and help.
12.15 a.m.
Of course, the number of topics which the Commissioners can consider is infinite, and I am quite sure that the Government themselves, and all the Departments of Government, will keep the Commissioners very busy indeed through their own demands and requests. There is in the Bill an open-ended commitment of the Law Commissioners to consider anything which anybody refers to them. If they do nothing, if they just make no report and say, month after month, that they are still considering it, they will look very foolish. I do not say that they should have a writ of mandamus against them, but I think that there might be substantial public criticism if important 230 bodies or organisations within the State asked them to consider proposals and got no reply. I submit, in a spirit of helpfulness, that it is right that the Government themselves should be the body which will largely use this Commission.
I should have thought that the Government will occupy at least 85 or 90 per cent. of the energies of the Commission merely in dealing with programmes submitted to the Lord Chancellor and other proposals which Government Departments have to make, and that this is the method by which the Law Commissioners should be used, namely, that if good ideas come from outside the Government, the responsible Minister will want to refer them to the Law Commissioners, but that he and the Government should have some control over the flow of work to the Law Commissioners. Otherwise, we shall find the wires getting crossed and the Law Commissioners performing a dual duty, not only to the Minister to whom they have to give assistance and advice, but to the community at large. It may well be that they will be wholly overburdened and unable to compete with both and not know to which proposals they should give priority, those received from outside bodies, or those from Government Departments.

§ Sir Knox Cunningham
I do not want to delay the House at this early hour, but I should like to support my right hon. and learned Friend, and, in doing so, to say that if we do not add these words so that the present Clause 3(1,a) reads: …to receive and consider any proposals for the reform of the law which may be made or referred to them"— I would say— by a Minister of the Crown. there will be, as my right hon. and learned Friend has said, an open end. There are 50 million people in this country, and at some time or another a great number of them have ideas for reforming the law. It is not right to say that if they send in those ideas they can be received. There is a definite duty on the Law Commissioners to consider them; they must do so. If they do so, the process may simply choke up and they will not be able to carry out their functions properly.
231 It would be most helpful to add the words, …by a Minister of the Crown so that those recommendations which a Minister thought right he would recommend to them and they would get on with their work.
I think that this is a most helpful Amendment. I hope that the Minister will be just as accommodating now as he was a little earlier, and I hope that he will accept this Amendment.

§ Mr. Robert Cooke
I am glad that my right hon. and learned Friend for Warwick and Leamington (Sir J. Hobson) put down this Amendment, because it gives me an opportunity to ask a few questions of the Government on what would appear to be an important matter. Indeed, it would seem, from what has happened on this Amendment, that one has to examine most minutely every word of every line of every Bill introduced by the present Government, because all sorts of very wide issues are raised by the wording of line 29 and by the Amendment.
One of the large stable of Scottish Ministers, all of whom have now left the Chamber—I am not sure whether it is for good, but all of them seem to have left—said earlier on another Amendment that the Commission was not just to deal with lawyers' law. It would seem that the words now in line 29 are drafted in such a way that ordinary private citizens could make their representations to the Commission. What my right hon. and learned Friend is proposing is a filtration process by which those suggestions coming from any quarter other than the Government can get to the Commission only if they have the support of a Minister of the Crown. I can see his point of view there, though, speaking as the only layman who has spoken from this side of the House, I feel that I must probe a little deeper.
I arrived at these proceedings when they were already under way on an earlier Amendment to find my two hon. Friends the Member for Bebington (Mr. Howe) and the Member for Chelmsford (Mr. St. John-Stevas) indulging in a sort of lawyers' mutual admiration club on the back benches. My hon. Friend the Member for Bebington shakes his head, but I think he referred to my hon. Friend 232 the Member for Chelmsford as having been removed from the active practice of the Bar to some Olympian or ethereal heights. I am not sure whether regular appearances on controversial television programmes come within this category.

§ Mr. Deputy-Speaker
Order. This has nothing to do with the Amendment that we are discussing.

§ Mr. Cooke
I was just about to come back to the wording of the Clause, Mr. Deputy-Speaker, and say that it had occurred to me as well as to my right hon. and learned Friend that, as the Clause is now drafted, it would seem unnecessary for the Commission to take note of suggestions from Members of this House and another place, from public bodies of one kind or another and from voluntary bodies and private citizens. I am sure that almost every subject of a Private Member's Bill would perhaps, instead of being brought to this House for an airing—measures which perhaps could never become law in the ordinary course of events—be sent straight to the Commissioners and might considerably clog up their proceedings.
My right hon. and learned Friend did a valuable service to the House in referring to those eccentric members of the community who are perpetually inventing new ways in which the law might be amended or improved. There are members of the community who are continually up against the police or the magistrates, and if the Clause were left as it is now, they could in a most ingenious way impede the Commissioners in doing the valuable work which many of us would like to see them doing. Anyone who has been a Member of this House for any length of time knows that he has among his constituents most ingenious gentlemen, and some women, too, who write to him endlessly with proposals for amending and improving the law.

§ Mr. St. John-Stevas
Does my hon. Friend find that his own functions as a Member of Parliament are impeded by this correspondence?

§ Mr. Cooke
No, but if my hon. Friend will add up the correspondence to 630 Members of Parliament he will realise that the outpourings of the eccentrics in the country channelled through all the 233 Members of Parliament might considerably clog up the proceedings of the Commission. After all, my hon. Friend has been in the House only a short time, and the eccentrics have hardly had a chance to get to work upon him, but no doubt they will do so.
I should like also to take up the remark made, I think, by the Minister without Portfolic earlier, which no doubt he will use again when he comes to reply to the speeches on this Amendment. He said earlier that the intentions of the present Government were not to implement such and such a Clause in such and such a way. Really, that is simply not good enough. As we have discovered to our cost on many earlier occasions, the House can pass a Bill and make an Act and then one finds the interpretation of it is very different to what Parliament intended.
It is not the least bit of good for a Minister to say that it is not the intention—

§ Mr. Deputy-Speaker
Order. Again this is nothing to do with the Amendment which we are discussing.

§ Mr. Cooke
I am sorry if I have again transgressed, but I was trying to anticipate what the hon. Gentleman may say in reply to some of the points which have been made. I will cut out my references to certain other Acts which have not been interpreted quite as Parliament intended.
I would like the hon. Gentleman in replying to the speeches on this Amendment to tell the House whether in fact line 29 is really the Government's implementation of its pledge on the Ombudsman. Is this the channel through which the request for law reform—

§ Mr. Deputy-Speaker
Order. The hon. Gentleman must really come to the Amendment.

§ Mr. Cooke
I had no intention of pursuing that point any further but to come back to the actual words in line 29 which I have referred to on a number of occasions. The Clause as now drafted does appear to give an opportunity to any citizen, anyone in the United Kingdom, anyone at all, to send in a closely reasoned, or otherwise, suggestion for reform or improvement of the law.

Hon. Members
Why not?

§ Mr. Cooke
Hon. Members ask why not. My right hon. and learned Friend did a service to the House in illustrating some of the ways in which the excellent work of this Commission might be impeded if people were to write continually to the Commission and get it involved in all manner of activities which would impede its true and proper function.
My right hon. and learned Friend has proposed a most suitable compromise—namely, that Ministers of the Crown, who are pretty human people one would hope, should be required to filter these suggestions and see which ones should be sent on to the Commission. The Commission would therefore be enabled to get on with studying those things which need study, and the frivolous suggestions would fall by the wayside. I hope that this Amendment will be accepted.

§ Sir Eric Fletcher
I must accept the assurance of the hon. and learned Member for Antrim, South (Sir Knox Cunningham), that this Amendment was put down in a helpful spirit. But the hon. and learned Gentleman supported the argument by some rather far-fetched examples of what would be the effect of this Clause if the Amendment was not accepted. We canvassed this matter very thoroughly on the Committee stage, and I think the Committee were satisfied with the explanation I then gave why the Government thought it essential that these words should not be introduced into the Clause.
12.30 a.m.
The right hon. and learned Gentleman must not look at this particular paragraph in isolation from the other duties put upon the Commission. This is only one of the duties of the Commission, and I must make it clear to hon. Members who, like the hon. Member for Bristol, West (Mr. Robert Cooke), did not have the advantage of taking part in the Committee debates, that it quite definitely is the intention of the Government that the Law Commission should be able to receive and consider proposals coming from any source.
It is perfectly true that the bulk of its work and activities will be as to 85 per cent. or more taken up with remits which it receives from the Government—dealing with priorities, proposals, programmes and so on—but, in addition, it is clearly 235 intended—and that is why it is stated in the Bill—that the Commission should, as one of its functions, be able to receive proposals for law reform from any source and not merely from Ministers of the Crown.
It is intended that suggestions which from time to time might be made by the Bar Council, the Law Society, local government organisations and so on should be made to the Law Commission and considered by its members. It is intended that hon. Members of Parliament should be able to pass on suggestions. Sometimes such suggestions are made at Question Time and sometimes in the form of suggestions to Ministers. It is intended that hon. Members of both this House and of another place should be able, when they get instances where the shoe pinches, so to speak, about a particular problem, should be able to report it to the Commission. It is intended that the Commission should, therefore, in that sense act as a clearing house for ideas and should be able to collate those ideas and possibly use them in forming various programmes and suggestions for law reform.
It is wrong to suggest that because inevitably some proposals will come from what the right hon. and learned Gentleman called crackpots and what the hon. Member for Bristol, West called eccentrics, all suggestions will be immature. I am sure that the members of the Commission will have no greater difficulty in dealing with crackpot suggestions than the hon. Member for Bristol, West has when he receives such suggestions. They will know what to do with them, just as well as the hon. Member would know. They will be able to form their own opinions, and I am sure that nobody need have any fear that suggestions of that kind will result in the activities of the Commission being cluttered up or diverted from the serious work it will be appointed to do.

§ Sir Knox Cunningham
Will it be the intention of the Government that hon. Members of this House, when they receive matters concerning legal reform, should be able to send them at once to the Commission and get a reply from it?

§ Sir E. Fletcher
Hon. Members will send them on. That should be of advantage to hon. Members.

§ Sir J. Hobson
That last answer of the Minister puzzles me. We are in the position now that the hon. Gentleman is saying that serious proposals—and I am not now dealing with crackpot ones—should be sent to the Commission by, say, a trade union, a political party, church or anyone else; sent directly or through an hon. Member of this House. He is saying that the Commission is bound to receive it—it cannot help opening its post—it is bound to consider it; but it is not bound to answer it. It is under a statutory duty to consider rationally and as part of its duties proposals so made by all hon. Members of this House.
If the Commission is under a duty to consider it, are hon. Members and others not entitled to expect to get a reply? If so, and if every proposal from every hon. Member goes for consideration to the Commission, what is the Commission to reply? Is it to say, "We think that this is a very good idea and we have suggested it two or three times to the Government", and is it to deal with this mass of material on every sort of topic concerning the law of England together with, as the Minister mentioned, 85 per cent. of its activities being on remit from the Government?
This is not a matter that is left by the Bill as it stands in a satisfactory way. If, as is rightly envisaged, the Law Commissioners will occupy 85 per cent. of their time in considering the remits from Ministers and the Government, the obligation to deal with the proposals that every citizen or Member of Parliament makes and send an answer will lead in the end to their not knowing whether they have to give priority to such suggestions or to proposals which Ministers are making to them. The wires will get really crossed, because people will make many serious suggestions which the Government have said they do not want to deal with in this or the next Session or even in this Parliament and the Commissioners will be utterly wasting their time, which they are under statutory obligation to spend, in considering and answering matters on which the Government will not legislate.
A Member of Parliament is entitled to say to the Law Commissioners, "What has happened to the proposal I put to you and where are your recommendations 237 on it?". I am anxious from the point of view of proper administration, whichever party is in power, to see that we do not get this machine bogged down by a lot of outside suggestions. I hope, therefore, that the hon. Gentleman will consider the matter.

§ Sir Eric Fletcher
I appreciate that the right hon. and learned Gentleman is quite serious about the representations he is making. I am sure that he also realises that it would not be right for the initiation of proposals to be limited to Ministers. It must be reasonable that reputable and responsible bodies like the Law Society and the Bar Council and local government associations should be able to make representations to the Commissioners. The work of the Commissioners will not function unless bodies of that kind which have ideas from time to time long ahead of any Government Department can forward their suggestions to them.
The right hon. and learned Gentleman is underestimating the capacity of the Law Commissioners with regard to their task if he thinks that they will be submerged by these proposals. They will know how to handle them and what proposals are worthy of serious consideration and which merely fit for a pigeonhole or something else. They will know that their duties are not limited to paragraph (a) and that they have to consider proposals in the light of their other duties of making recommendations to Ministers for programmes.

§ Mr. Ian Percival (Southport)
I should like to support my right hon and learned Friend the Member for Warwick and Leamington (Sir John Hobson) and add one further consideration which I would ask him to take into account. I do not think, with respect, that the Minister without Portfolio is right in saying that this is a question of the initiation of ideas. Nothing should be done, of course, which would stifle the initiation of ideas, but what is of tremendous importance is the siting and vetting of ideas so that such time and talent as is available may be directed to ideas which will bear fruit.
The national pastime for the last few years has been running the railways. Almost every one of our fellow citizens discovered when railways became the talk of the day that he could run them 238 better than the experts. It may well be that when law reform becomes the talk of the day and the sole topic of conversation everyone may decide that he can reform the law better. There may well be a substantial flow of ideas from hon. Members and the difficulty of the Clause is that it requires the Commissioners themselves, not a body of their staff set up for the purpose of sifting and vetting, to consider any ideas referred to them. It is highly probable that most of the ideas sent to them will be pigeonholed after consideration in favour of the immediate consideration of better prospects. But who can decide whether they should be pigeon-holed or not without looking carefully at them?
I am sure that the Minister did not mean to give the impression that the Commissions would just sit there, taking a quick look at things and saying, "Out with that, out with that, but we will take this one". That would be making a mockery of the serious work of the Commissions. But the Clause as it stands requires the Commissions themselves to consider these questions, not just a single Commissioner. in the case of many tribunals, the initial work can be done by one commissioner. For instance, in the Foreign Compensation Commission, an initial decision may be made by one commissioner and then, if the decision is not acceptable to the applicant, the matter goes before the other commissioners.
If there were a provision that one Commissioner might consider proposals put up and do the preliminary sifting, that might save some time. But, as the Clause stands, everything sent in by anyone has to be considered by the Commission. We must not think that it will all come from responsible bodies. The Law Society and the Bar Council will, before making representations, ensure that, at least in their opinion, they are worthy of consideration. But this may not apply to everybody. All the proposals which are put to the Commission will have to go to the whole Commission, and, assuming, as we must, that the Commission will do its work carefully, there will be an awful lot of time wasted in sorting out the wheat from the chaff.
Let there be some process for vetting and sifting. Let that burden be taken off the Commissions themselves by some means. The Amendment introduces a 239 practical and sensible means of doing so. It is sufficiently well known now that somebody wishing to raise an alleged grievance or to air what is supposed to be a good idea has only to write to his Member of Parliament and then, if his Member does not pursue it, he can press him further about it. There one will have the first sifting process. It will be for the Member not just to pass everything on but to apply his mind to see whether there is something in it. If he thinks that there is something in it, he can put it to the Minister, or, perhaps, the Lord Chancellor rather than the Minister, and apply pressure if he thinks it right to do so. The Minister in charge of the Department or the Lord Chancellor will do the second sifting.
When the matter finally goes to the Commission, the Commission can apply its talents and time to considering suggestions which, after the sifting process, have been regarded by more than one person as worthy of examination. I urge the Minister without Portfolio to reconsider his attitude. The Clause as it stands will result in an immense waste of time.

§ Sir D. Renton
The Minister without Portfolio was quite right to say that we discussed this matter fairly fully in Committee, but, at the end of our debate, my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), who, like the right hon. Member for Clackmannan and East Stirlingshire (Mr. Woodburn), is across the Border at this moment and is unable to be here tonight, said, when he withdrew his Amendment, that it was a matter which we should have to consider again in the light of what was said hereafter.
During the discussion of the same Amendment in Committee we were not clarified in our minds by the hon. Member's replies, but we felt that when we discussed later Amendments the position would become plainer. That did not happen. That is why we are having this discussion. So much has been put to the Government tonight and in Committee about the effect of subsection (1,a), to which there has not been a satisfactory answer, that I feel obliged, for the first time for a long time, to address the Committee.
240 Will the hon. Member consider several points which have not been emphasised during the discussion? First, has he considered the effect on Parliamentary Questions of making it a statutory obligation on the Commission to consider any proposals for the reform of the law which may be made to them by anyone in the world? There is no limit whatever. [HON. MEMBERS: "No."] If hon. Members disagree, let them read the Bill. The operative words are at the beginning, It shall be the duty of each of the Commissions… In line 26 we read, and for that purpose—(a) to receive and consider any proposals for the reform of the law which may be made or referred to them". If that does not mean by anybody in the world, it should say so. There is no limit whatever to the statutory duty laid on the Commission. If the Bill is not amended as suggested it would be in order for an hon. Member to put a Question to the Minister without Portfolio or for a Member of another place to put a Question to the Lord Chancellor asking whether—[Interruption.] I am sure that hon. Members want to make progress tonight. I am putting the matter as succinctly as I can.
I do not know whether hon. Members have lost the thread of what I was saying. I certainly have not done so, and perhaps I had better start the sentence again. If a proposal for law reform is sent to the Commission from anywhere, it will be in order for a Member of either House to put down a Question to the appropriate Member of the Government—to the hon. Gentleman as long as he is Minister Without Portfolio—asking whether the Commission have considered that proposal. [HON. MEMBERS: "Why not?"] If hon. Members—especially those who have been here for a good many years—will look back over their correspondence they will realise that each is only one of about 600 Members who get many suggestions in the course of a year for the reform of the law. Once the Commission gets under way, there will undoubtedly be people, mostly thoughtless and some of them perhaps crackpots, but nonetheless thoughtless, who will get it into their heads that their pet ideas about the reform of the law can not only be referred to the Commission but must at 241 all costs be considered by the Commission. They will demand that the Commission considers their proposals arid, if they do not get satisfaction, they will then start asking hon. Members to table Questions in this House.
One point which was mentioned in the Committee but which has not been stressed tonight, although it is essential that it should be borne in mind, is that any single proposal for the reform of the law engages the attention of some Minister or other. The number of matters which can be described as "lawyers' law" is very small and narrow indeed and, before the Commission could consider any proposal for very long, it would have to refer it to the Minister responsible. For that reason alone, it would save effort and the expenses of administration if we stuck to the well-tried principle of referring reform of the law to the Minister concerned in the first place. If he should want to avail himself of the expert services of the Commission, that is another matter, but to have this dual process going on, as we shall have if the Amendment is not accepted, will mean a serious waste of time in Government departments.
It astonishes me that the Minister, with his long experience of this House, although not as yet of Government, who is doing such splendid work on the Front Bench within the sphere of his special responsibilities, should not have alerted his right hon. and noble Friend the Lord Chancellor of the position which would be reached if this Clause remains as it is.
With all respect to the Minister, I must point out that those of us on this side of the House who are interested in this Bill have been very selective about our criticisms. We have tried to show as much understanding as we can and have not been impatient. We have tried reasonably to persuade, and that is what I am trying to do yet again. I know that I have tried unsuccessfully before, but I hope that the hon. Gentleman will realise that we have made a substantial point. I hope that it will be given consideration in another place if not here tonight.

§ Mr. James A. Kilfedder (Belfast, West)
I rise to support this Amendment because I am anxious to see reform not only in the law itself but in the whole system of 242 law, and I fear that if the Commission becomes bogged down in its work and is eventually brought to a complete stop by a plethora of suggestions as some of my hon. Friends have mentioned, possibly from 50 million citizens of this country, then hope of bringing about changes in our system of law, unchanged for centuries, will not be realised.
What worries me as a very new hon. Member of this House and as one who has experienced the system of Question Time, with no priority given—the Question is taken as it is placed in the Table Office—is the matter of what reform will be taken on the suggestions possibly of 50 million people about the reforms they may wish to see, and the priorities that will be given to those suggestions. If it is to get all these suggestions and recommendations from all the people—many of whom are certainly not crackpots—then the Commission will be bogged down.
I would expect reforms to be suggested by the Bar Council, the Law Society and other eminent bodies, and by the Government. We in this House would have our own recommendations to make. We could put them to the Minister responsible and they would be put by him to the Commission. At Question Time we could find out what was happening to them. But what about the suggestions made by ordinary people? Would they get a reply? Is the Commission to spend a great deal of time setting our reasons for rejecting them?
I am deeply concerned about this. I hope that the Commission brings about great changes in the law and engenders great changes in our system of law. I hope, therefore, that the Government will accept the Amendment, which would mean that any considerations and proposals for reform would be made by a Minister of the Crown and that the Commission would therefore have as much time as possible to consider serious recommendations reaching it via a Minister of the Crown. I think it would be the wish of the country that the Commission should have the fullest time possible to consider serious recommendations and not be bothered by crackpot suggestions that might be put forward.

§ Mr. Deputy-Speaker (Sir Samuel Storey)
The Question is—

§ Sir D. Renton
I understood, Mr. Deputy-Speaker, that the Minister without Portfolio was going to reply to the debate.

§ Mr. Deputy-Speaker
Order. The right hon. and learned Member—

§ Mr. George Lawson (Motherwell)
On a point of order, Mr. Deputy-Speaker. How many times can an hon. Member speak on Report stage?

§ Mr. Deputy-Speaker
Order. I was calling the attention of the right hon. and learned Member for Huntingdonshire (Sir D. Renton) to the fact that he had no right to speak again.

§ Sir D. Renton
I was not attempting to do so. [HON. MEMBERS: "Order."] If we are on a point of order, may I point out, Mr. Deputy-Speaker, that I was not rising to make another speech? I have addressed the House once and only once. I was calling your attention to the fact—

§ Mr. Deputy-Speaker
The hon. and learned Gentleman cannot speak again without leave of the House.

§ Sir D. Renton
I was rising on a point of order, Mr. Deputy-Speaker, which was to call your attention to the fact that you appeared to be collecting voices without having noticed that the Minister without Portfolio was moving towards the Dispatch Box—wishing, I assume, to reply further to the debate, which, of course, he has the right to do.

§ Mr. Deputy-Speaker
The Minister has the right of reply if he wishes, but I looked at him before I began to put the Question. He showed no sign of rising. If he wishes to do so, he can.

§ Sir Eric Fletcher
I was not sure whether I had the right to speak for the second time to an Amendment on Report.

§ Mr. Lawson
The Minister has already spoken twice. Does he have the right to reply without permission of the House, Mr. Deputy-Speaker?

§ Mr. Deputy-Speaker
The mover of the Amendment and the Minister in charge of the Bill can speak a second time.

§ Mr. Lawson
The Minister has already spoken twice. Does he have the right to speak for the third or even the fourth time?

§ Mr. Deputy-Speaker
That is the right of the mover of the Amendment and the Minister in charge of the Bill.

§ Mr. St. John-Stevas
On a point of order, do I have the right to speak, Mr. Deputy-Speaker?

§ Mr. Deputy-Speaker
If the hon. Gentleman has not spoken then he has a right to speak, but I have not yet seen him rise.

§ Sir Eric Fletcher
In deference to the wishes of the House, I will endeavour to be brief. It is my misfortune if I have failed to explain to the right hon. and learned Gentleman why it is impossible for the Government to accept his Amendment. He must appreciate that the effect of his Amendment would be to exclude not only the crackpots but responsible bodies such as the Law Society, Bar Council and local government organisations from making recommendations direct to the Law Commissioners.

§ Sir J. Hobson
It does not require a statutory authority to receive a letter from the Bar Council. We are complaining that the Statutory Committee has not only to receive the letter but to consider it as well.

§ Sir E. Fletcher
The Amendment would prevent them receiving it as well as considering it. I recognise the intention of the Amendment, but it is the intention of the Government that it shall be entirely for the Commissioners, who will be emminent people, to decide what weight they should give to any proposals. If they came from a crackpot source then the Commissioners would know what to do with them. If the source were a recognised and responsible body, their proposals would be of value to the Government, the Commissioners and the community and would enable the Commission to act as a clearing house and collate a great many valuable suggestions for incorporation in such recommendations as they may wish to make to the Government of the day.
It cannot be seriously suggested that they will have to give a lengthy and considered reply to every suggestion from 245 every crackpot source. Nor can it be suggested that this is impinging on or interfering in any way with the duties of Members of Parliament. Hon. Members are frequently asking Ministers to introduce legislation of some sort or another. Ministers say they will consider it, and in due course they do. This Bill is necessary because so many valuable suggestions on law reform do not get entertained because there is no centralised Government machinery whose function it is to deal exclusively with matters of law reform. It is our intention that there should be.
I do not imagine that the right hon. and learned Gentleman will pester Ministers of the Crown and ask me whether the Law Commissioners have considered some crackpot suggestion. That would be a stupid Question for any hon. Member to ask, and he would know the kind of reply that he would get. I have endeavoured to convince the Opposition that it is part of our plan that the Law Commissioners should be able to reply to suggestions from any source and deal with them in accordance with their merits.
However, that will be only one of their functions to be dealt with in relation to paragraph (a, b, c, d and e) of subsection (1) which are their primary functions.

§ Mr. Robert Cooke
Will the hon. Gentleman clarify one point? He has used the words "clearing house" and said that the Law Commissioners will have to deal with suggestions from crackpots—although I use the word eccentrics. Are the Law Commissioners to have a vast secretariat and staff to do some filtering for them?

§ Sir E. Fletcher
If the hon. Gentleman will look at Clause 5 he will see provision is made for them to have a staff.

§ Mr. St. John-Stevas
I do not wish to prolong the discussion or oppose in any way my right hon. and learned Friend's Amendment. I suggest some guidance could be obtained on the topic from the experience of the Law Revision Commission of New York, of which a valuable account is given in the January edition of the Modern Law Review. This precise problem has arisen in the work of that Commission.
246 The Commission is free to receive suggestions for reform from anyone—from the Government, the legislature, lawyers or members of the public. The Commission solves the problem by having a study list, on which are put forward the serious suggestions for law reform. In deciding what to put on the study list, which is given prolonged and serious consideration, the Commission's primary consideration is the need for the reform that is put forward. It may be helpful to have this in mind when considering the problem.

§ Sir D. Renton
I beg to move Amendment No. 10, in page 3, line 1, to leave out "assistance" and to insert "advice."

§ Mr. Deputy-Speaker
I think that it will be for the convenience of the House to take at the same time Amendment No. 11, in line 1, after "departments," insert: if requested to do so by the department making any such request, and Amendment No. 12, in line 1, leave out from "departments" to end of line 4.

§ Sir D. Renton
I agree, Mr. Deputy-Speaker.
Paragraph (e) of Clause 3 (1) places upon the Commission a duty—I stress that it is a duty, because doubt arose about this in Committee— to provide assistance to government departments and, at the request of the Minister, to other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law. I said in Committee, and I still consider, that this is the major blemish in the Bill and the provision which is most likely to give rise to difficulties. In Standing Committee we took the matter to a Division and were defeated by one vote only. These three Amendments are a constructive effort to overcome the difficulties which, we believe, are inherent in paragraph (e).
During an earlier discussion tonight, the Minister without Portfolio said, when discussing the position of High Court judges in relation to the Bill, "I would be shocked if a High Court judge were to assume executive functions in Whitehall, and he will not have to do so under the Bill." I hope that I have correctly noted at least the effect of what the hon. 247 Gentleman said. HANSARD will show, the day after tomorrow, whether I am exactly right in the words used by the hon. Gentleman, but I have no doubt that that is the effect of what he said.
I agree entirely with what the hon. Gentleman said. He would, I am sure, agree that when the Commission, presided over by a High Court judge, is given the duty of providing assistance to Government Departments, that is carrying out an executive function in Whitehall. There can be no doubt about it. I assume, therefore, that the hon. Gentleman will be grateful for these Amendments, especially for No. 10. The giving of advice could, perhaps, even be said to be an executive function in Whitehall, but there is not the slightest doubt that providing assistance involves executive responsibility. So I would hope that the first of these Amendments need take up very little time and that the Government would agree with us, more especially as the Under-Secretary of State for Scotland, replying to the debate we had in Standing Committee, said that if a Department is itself contemplating a draft Bill which involves the reform of the law or the amendment of a particular branch of the law, it is perfectly reasonable that it should be able to ask the Commission for advice"— I stress that word, because that is the word he used— and, indeed, the Commission should feel obliged to give advice on it. The reference here is not just to the English Commission but to the Scottish Commission as well."—[OFFICIAL REPORT, Standing Committee A, 9th March, 1965; c. 127.] It was pointed out—and this is a subsidiary point on this Amendment—that the word "assistance" is somewhat ambiguous, one which sometimes has financial implications, though I must say I would not expect it to have financial implications here; but "advice" does seem to be the better word, more appropriate in this context, as well as reflecting the Government's intentions.
As to Amendment No. 11, I would ask the House to bear in mind that the duty to provide assistance or advice, as the case may be, to Government Departments is not dependent upon the Minister having requested that advice or on a Government Department having requested it, but when we come to the Commissioners giving assistance 248 to other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law we find written into the Bill a condition that it must be at the request of the Minister". That leads us into the somewhat strange position that the Commission apparently has a roving commission to give assistance to Government Departments even when not requested to do so. That is the position which we reach, and it is not a satisfactory one.
Again, it seems to me to be in accordance with the Government's intention, although the intention is not stated in the Bill, that words such as we put forward in Amendment No. 11 should be inserted. Again one can refer to the speech of the Under-Secretary of State on that same occasion, for he said that it is perfectly reasonable that it"— that is, the Government Department— should be able to ask the Commission…"—[OFFICIAL REPORT, Standing Committee A, 9th March, 1965; c. 127.] The hon. Gentleman there clearly contemplated that a Government Department would make the request to the Commission before the assistance would be given.
It was not only he but also the Minister without Portfolio who took this view, and the latter took it even more strongly, because he said: The intention is to enable the Commission, if assistance is desired and requested by a Government Department, to give it to the Department concerned."—[OFFICIAL REPORT, Standing Committee A, 9th March, 1965; c. 121.] There was another quotation, but I shall not trouble the House with it because I have not got it ready, but the hon. Gentleman stressed that the Commission's advice was to be given only at the request of the Minister. If that is the intention, why not let that appear in the Bill? There could be no harm in doing so. It would save a lot of misunderstanding. It would, in certain circumstances, prevent the Commission from appearing to become busybodies, and it would avoid getting the wires crossed. This expression is one which the hon. Gentleman came to understand quite well in Committee. I explained at some length what I meant, and there is no need to go over it all again—unless there is any hon. Gentleman who was not on the Committee and 249 who wishes to hear about it, in which case I can, of course, repeat the speech which I made then. I think, however, that hon. Members would prefer me not to do so. The wires could quite easily become crossed, because the Departments have their own responsibilities for law reform, and exceedingly expert facilities for carrying it out. Surely it must be only when the Department requests advice—or assistance, if the Government do not accept advice, which would surprise me—that this should happen.
1.15 a.m.
That brings me to the third Amendment, and here we are up against a very strange situation. I do not blame the Minister without Portfolio for having left the Chamber, as he has been here continuously for about three hours, but it is perhaps a little unfortunate that he is unable to hear what I have to say. He said this evening that he would be shocked if a High Court judge were to assume executive functions in Whitehall, but—

§ Mr. Cyril Bence (Dunbartonshire, East)
On a point of order, Mr. Deputy-Speaker. I understand that during the Committee stage, these very Amendments were tabled, were discussed, were voted upon and were defeated. Why is it that, at a quarter past one in the morning, we have to have these same arguments gone over again after the Committee proceedings on Amendments which were discussed, voted upon and rejected? Why are these brought here again on Report? The right hon. and learned Gentleman is moving these Amendments in the very words used during Committee stage. Is that in order?

§ Sir Knox Cunningham
Further to that point of order, Mr. Deputy-Speaker. Am I to understand that if people who were not on that Committee would like to hear how the wires were crossed they cannot hear it? I understood that my right hon. and learned Friend was quite willing to give an explanation, and I should certainly like to hear it.

§ Mr. Deputy-Speaker
The point which the hon. and learned Gentleman has just raised is not a point of order at all, as he must know. In answer to the first point of order, the hon. Gentleman ought to know by now that the selection of Amendments, both in Committee and on 250 Report, is announced by the Chair, and cannot be questioned.

§ Sir D. Renton
I hope that it is in order for me to add that these Amendments were not moved in Committee. What was moved in Committee was an Amendment to leave out paragraph (e) of Clause 3(1).
I had just come to the third of the three Amendments, which is to leave out from "departments" to the end of line 4. The reason that I moved that Amendment was that the explanation which the hon. Gentleman gave in Standing Committee as to the Government's intentions revealed a most extraordinary situation.
This is of course a very broad phrase, other authorities or bodies concerned with proposals", and I agree that there is a narrowing of the possibilities for other authorities or bodies expecting assistance from the Commission, because it can be given only at the request of the Minister.
It would seem, we find, that in the first place it is a free service to be given. We have had no clear indication of the circumstances in which the expenditure of public money would be thought to be justified. We find the Under-Secretary suggesting that Standing Committees and Select Committees of this House could be given the advice. I have no doubt that he said that after consultation with his right hon. and hon. Friends, but it is an entirely new constitutional departure that a Commission presided over by a High Court judge, even if he is in suspended animation as a judge, he nevertheless retains, as we understand it, his position as a judge—should be drawn into the political arena to the extent of giving advice to Standing Committees of the House. One wonders exactly how that advice is to be given. Will it be given during the Committee proceedings? Will the Committee adjourn in order that the advice can be obtained? What is to be the position?
We are entitled to know a little more about the Government's intention in regard to Select Committees, too, because Select Committees already have very fine, expert and experienced advice from such people as Counsel to Mr. Speaker and from the Officers of the House, including the Clerks at the Table, who are very often themselves lawyers. So there 251 is a most puzzling situation. The worst part of it is adding to the strange position that I have already referred to of a High Court judge becoming involved in executive functions in Whitehall, that of a High Court judge becoming involved in the political arena in the work of a Standing Committee.
The situation is even more complex than I have described, and in a sense even more strange. Again I have to rely on the speech made by the Under-Secretary in reply to the debate. It is perfectly in order for me to do so. We are seriously worried about this, and are entitled to explanations. The hon. Gentleman said that the Commission in each country will be a legal body of some expertise, particularly in Commonwealth and foreign law, and it may become an agency so highly respected in the country that many people will wish to have its assistance from time to time.
I think that in saying that the hon. Gentleman probably overlooked that in subsection (1,e) we are dealing not merely with the receiving and considering of proposals for reform, preparing and submitting programmes to the Minister, the examination of particular branches of the law, or the preparation of comprehensive programmes of consolidation and statute law revision. We are dealing with what seems to be, in the rather vague proposals contained in paragraph (e), something approaching the climax of the Commission's functions in relation to any branch of the law, and we find that there is a sort of mulberry bush that will come into existence. What will happen so far as one can tell is that a body which is not a legislative body will apply to the Minister for advice on the reform of a branch of the law which it has no responsibility to reform. The Minister will then consider whether the matter should be referred to the Law Commission.
It must, presumably, be a matter within his responsibility, because any branch of the law eventually comes within the responsibility of the Minister. The Minister then considers whether to allow the Commission to provide assistance to that body which has approached him. We will assume that the Minister says "Yes" and requests the Commission to do so. The Commission then considers 252 what the proposals for the reform of the law should be. Then it goes back to the Minister again, and then presumably in order that the matter can be fitted into the Commission's comprehensive programme it has to go back to the Commission again. Then it will form part of the legislative programme, but only after going back to the Minister once more.
So we have a strange sort of mulberry bush process. It is quite unnecessarily circuitous. It is no improvement whatever on the methods which are well-tried and well adopted and which lead to a great deal of law reform at present.
We suggest seriously to the Government that, rather than have all this uncertainty, all these constitutional snags that I have pointed out, it would be far better to cut out the last part of paragraph (e) altogether. That is why, therefore, we have moved this third Amendment.
These Amendments are not put down just for the sake of moving Amendments. They are, I think, the most important Amendments to the Bill. They are the Amendments that have caused the most anxiety of all, I know, among my hon. Friend's on this side of the House. There are hon. Gentlemen who are very much in favour of the Bill who feel doubts about this paragraph (e), as to whether what is contained in it may not undo a good deal of the good which, from their point of view, is contained in the Bill.
I think it is most regrettable that we should have to discuss a matter of such importance at such an hour of the night, but there it is—we have had this forced upon us. I hope that we shall get a very much more lucid answer than we have had before.

§ Dr. Dickson Mabon
In the absence of further comment from hon. Gentlemen opposite, who are so concerned about this matter, and since my task is made so much easier by the fact that virtually all my speech in Committee has been quoted tonight—with, perhaps, one distinctive exception; a section of it which explained 253 the whole matter—I will try to deal with the three Amendments, which are almost a rehearsal of the efforts made by hon. Gentlemen opposite in Committee to have the Clause deleted.
If it is the intention of the Opposition to welcome the Bill, then the Government deeply regret the lack of some imagination on the part of hon. Gentlemen opposite to see how the Law Commission will work. The right hon. Gentleman made much play of my use of the word "advice"—which, incidentally, I used largely at the behest of the hon. Member for Hendon, South (Sir H. Lucas-Tooth) who, I regret, is not with us tonight. I tried to explain to him then that it was clear that the word "assistance" could mean advice and information, and that for the sake of the Statute the word "assistance" was much better.
I pointed out that while the word "advice" was a much more positive term than "assistance" it would not reflect the true intention of the commissioners from the point of view of Government Departments. The commissioners might, for example, discharge their duties under the Bill as it stands by providing a Deparment with factual information on foreign law. They might not feel inclined to do any more than provide the factual information; and therefore it was the Government view that to put the word "advice" in the Statute would impose a positive duty on the commissioners which they might not be able to discharge.
On the other hand, the word "assistance" does not exclude the possibility of positive advice as well as information, and it is fair to say that its interpretation could be left perhaps more imaginatively than if we accepted "advice" as being a positive suggestion—

§ Sir D. Renton
Would the hon. Gentleman agree that by the Commission giving assistance to Government Departments that involves the carrying out of executive functions?

§ Dr. Mabon
No. I do not think so because the Bill is read as a whole one sees the Commission in the context of its responsibilities to the Lord Chancellor, the Secretary of State and the Lord Advocate. One sees that essentially its work is advisory in nature and that everything it 254 does in relation to the Clause cannot be taken to be in any other way. [Interruption.] Hon. Gentlemen opposite do not agree, but they will see that it does if they will only read the whole Bill and not individual parts of it and quote portions of speeches and Clauses. A reading of the whole Bill will reveal that what I have said is the intention. There is nothing sinister in this. It is perfectly clear and I am trying hard to explain the matter and this is the third attempt by Ministers to show that the word "assistance" is more desirable in relation to this matter.
We have no objection in principle to the second Amendment. It is perfectly clear and reasonable, but it does not seem to be necessary, for it is not contemplated that the Commission should force assistance on Government Departments which are not willing to accept it. The Amendment would not, therefore, serve a useful purpose and its wording—and I am sorry to say this to so many lawyers—would be unsatisfactory.
In regard to the third Amendment, some play was made about the Amendment being defeated by only one vote in Committee, but I understand from the Committee Whip that that one vote represented 100 per cent. of the Government's majority in Committee, which is not bad going in the circumstances. So I would not make too much of the result of 10 to 9 votes.
The Amendment would remove the obligation on the Commissioners to provide assistance at the request of the appropriate Minister to any authorities or bodies other than Government Departments which may be concerned with proposals for the reform or amendment of any branch of the law. It is true that this was criticised by the hon. Member for Hendon, South and others. It was suggested that it would be quite wrong to put the Commission under a duty, even at the request of a Minister, to provide assistance to local authorities, professional bodies like the Law Society and the Institute of Chartered Accountants or, as suggested by the hon. Member for Hendon, South, the Band of Hope or the Brewers' Society.
It is of course in the highest degree unlikely that any Minister would ever ask the Commission to give assistance 255 to bodies of that kind, but it might well be that bodies outside Government Departments with official responsibility for considering the reform of the law might reasonably look to the Commission for advice, for example a Royal Commission or, as has been said, a Select Committee of either House of Parliament. It seems to us perfectly reasonable that the Commission may be found to be a desirable body of advisers on particular matters.
The reference in Standing Committee, which I acknowledge, was made by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) who suggested that it would have been useful to have the assistance of the Law Commission, if it had existed, for example, in the discussion of the Measure dealing with hire purchase. It would have been useful to obtain the advice of the Commission on certain Amendments to that Bill relating to "the true measure of damages." Those who took part in discussions on that Measure can have some sympathy for the idea that the Law Commission should not be excluded completely.
I admit that this is a novel suggestion, imaginative and a little revolutionary for hon. Members opposite more content with the conservative machinery of this largely Victorian-based Parliament, but this is a radical Government intent on doing things and doing them well. It is only right that we should try to envisage a Commission which can do a great deal more than the simplified reform of the law which hon. Members opposite wanted it to achieve. Therefore, I strongly advise the House to resist the Amendment.

§ Mr. Percival
I am sure that the Under-Secretary of State for Scotland is very sincere when he tries hard to explain what he means. I am sure that he will give us credit for sincerity in trying hard to understand what he means and that he does not mind our pursuing the matter. He looks very fresh and we feel very fresh and this is the opportunity for clearing these matters up. I am sure that those who do not understand them will be patient while we endeavour to do so.
256 I understand that the hon. Gentleman's argument for rejecting "advice" for "assistance" is that the Commission might only want to give information, and not advice and that if paragraph (e) contained the word "advice" the Commission might be obliged to give advice when it only wanted to give information. But "assistance" included information and advice. Has not the hon. Gentleman therefore hoist himself with his own petard?
If assistance means both information and advice, the duty cast upon the Commission is to give both, and it has no right to limit itself to information. Moreover, while I can see that the word "assistance" may include information and advice, I have yet to hear any proposition which limits it to either information or advice or to information and advice. Assistance means something more than both put together. If the hon. Gentleman agrees with my proposition—one of us must be wrong here—it pulls the rug out from under his own argument because, if the word "assistance" remains, the commissioners could not limit themselves to information.
The Under-Secretary said that the paragraph must be read in the context of the whole Bill, that context being that the Commission is to act in an advisory capacity. Again, he is hoist with his own petard because, in that context, one cannot possibly limit the word "assistance" to information and exclude advice. It is putting far too narrow a limit on it to say that one can read the whole Bill as limiting the activities and duties of the Commission to an advisory capacity. This is supposed to be the Clause defining its duties. I doubt that it is a proposition which would stand up in any court of law that one could look at the whole Bill and say that the Commission was to be advisory only and then cut down the clear words of paragraph (e) to a meaning which limits it to the giving of advice.
I hope that the Government will consider seriously what I am saying and not pigeon-hole it as some of the ideas referred to earlier may be quickly pigeonholed. It is necessary to consider what else may be included in the word "assistance" in addition to information and advice. A Government Department 257 may want to have assistance in the drafting of a constitution for a new colony. There is nothing in the words here to limit the duty of the Commission if it were asked for assistance in such drafting. A Government Department engaged in litigation, having instructed counsel and having acted in the courts directly, might welcome assistance in that litigation. There is nothing in the words of the paragraph to limit assistance so as to exclude that kind of assistance. One can think of many more examples. [An HON. MEMBER: "Tell us."] The hon. Gentleman should not invite me to take up too much time. if his inquiry is serious, I can give him a dozen examples in writing afterwards.
There is another aspect of the matter which I ask the Government to consider and let us have their view on this evening. [An HON. MEMBER: "This morning."] Who is counting the time? We are not. The Under-Secretary said that assistance is better than advice because it includes information and advice. I hope to have an answer to my question as to why it is not wider and does not inlude other matters, but let us assume for the moment that it includes information and advice.
1.45 a.m.
I should like a more satisfactory answer than the bare statement that this does not involve trespass on the functions of the Executive. At the moment the officers of the Executive charged with the duty to give advice to Government Departments are not the Lard Chancellor but the Law Officers of the Crown. Suppose, at their own request, a Government Department receive advice from the Commission under paragraph (e). Provided that it was the same advice as that given by the Law Officers, no great harm might be done, but it is hardly worth contemplating who would sort out the tangle if the Department received one lot of advice from the Law Officers, the members of the Executive charged with the duty of advising them, and different advice from the Law Commission. There is a means provided as part of the constitution for the giving of advice to Government Departments.
I hope that we shall be told why it is thought necessary to charge the Commissioners with the duty to give advice if 258 asked, and how it can be said that if the Commission may be asked by a Government to give advice which it is the constitutional duty of the Law Officers to give, that does not involve a trespass on the duties of the executive.

§ Sir Knox Cunningham
I had not intended to weary the House and would not have done so but for some of the points which the Minister made. I should like to ask him about them.
We say that by using the word "advice" we use a word which is known and clear but that to give "assistance" goes much further. I ask the Minister whether "assistance" does not include executive responsibility. One of the functions being laid on the Commissioners by the Bill is to give "assistance." The Minister said that that word was preferable, but does he intend to widen the functions to include executive functions? If he does, he should be able to define the other functions which he has in mind.
He says that we should consider the Bill as a whole, but we are dealing with it Amendment by Amendment, Clause by Clause. I want to see advice provided to Government Departments, for that is clear and limited. I support the Amendment which deletes the word "assistance" in the phrase, to provide assistance to government departments and, at the request of the Minister, to other authorities or bodies concerned wih proposals for the reform or amendment of any branch of the law… At the moment, as I understand it, the Minister can request—and the Commission must do so if he so requests—that assistance shall be given to other authorities or bodies. What sort of authorities? What sort of bodies? Let us not forget that this is a duty laid on the Commission to give this assistance if so requested by the Minister, so I prefer that the Minister should accept these two Amendments. I have little hope that he will accept the second, but I should have thought that he could have accepted the substitution of "advice" for "assistance." It would certainly make for clarity, and would be an improvement to this Clause.

§ Mr. St. John-Stevas
I do not want to delay the House beyond anything but the minimum period, but I should like to associate myself, formally, with this Amendment and to say that I agree with my right hon. and learned Friend the 259 Member for Huntingdonshire (Sir D. Renton). This raises a point of major constitutional importance, and it would be useless for me to attempt to improve upon the argument which he has so brilliantly, so lucidly—[AN HON. MEMBER: "So succinctly".]—deployed. I merely want to say that, in the substance of his point, and in the deployment of his argument, he has my fullest support.

§ Sir D. Renton
I hope that the Under-Secretary will not mind my saying that his reply to this point was a great letdown. It was not a serious answer to the serious point which we on this side of the House made, but a partial and brief answer to some of the argument.
I would quickly summarise the position that we have reached. It is very difficult for the Minister without Portfolio not to feel anxiety about a duty which places upon the Commission the giving of assistance to that Commission. One cannot get away from the fact that that must involve a degree of executive function. The wording of the Bill is so perfectly plain. It is clearly stated, It shall be the duty of each of the Commissions…to provide assistance to government departments… There is no question of requesting. The word "assistance" is admitted to be a wide word, and there must be a risk of the wise principle which he laid down earlier this evening of the independence of the judiciary being infringed if the word "assistance" is kept in the Bill.
What the Government really contemplate is that the Commission should give information and advice. I would have thought that it would have been a sensible thing—not a generous thing, because we are not asking the Minister to be generous—to have said that he will ask the Lord Chancellor to consider meeting at least in spirit the anxiety expressed about this Clause; and to say that he would inquire whether "advice" would not be better than "assistance" and, at the same time, as he says there is no objection in principle to our second Amendment although he does not like the wording of it, satisfy our hope that a shorter one may be introduced in principle in another place.
Indeed, simply to insert the words "on request" might well meet the point of principle and I cannot imagine that it 260 would do any harm to the Bill. It would certainly do something to allay our anxieties and, incidentally, do something to meet the point of constitutional principle which the hon. Gentleman mentioned when he said he would be shocked if a High Court judge were to assume executive functions in Whitehall.
The brief reply on the third Amendment was a plain denial without reasons of the argument we put forward. As my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) and others have mentioned, there has been no reply by the Government to the serious point made about Standing Committees. There has been no reply as to how the Commission's advice is to be given to them. We were told in Committee that the position of the Law Officers would not be affected but now it seems there is to be duplication of their work. No reason has been given for that. The same can be said about the work of the Select Committees, which are already so well served. [Interruption.] I do not know whether the hon. Member for Dunbartonshire, East (Mr. Bence), who sits making a running mumble of incoherent commentary, wishes to intervene. If he does, I will give way.

§ Mr. Bence
We have heard the same sort of patter for the last hour. I wonder whether the right hon. and learned Gentleman really believes what he is saying. His hon. Friends do not. They are having a laugh, as we are.

The Deputy-Speaker
Order. Whether we have heard the same argument for the last hour or not, it is not in order for an hon. Member to make interjections while seated.

§ Sir D. Renton
It is a great pity that, when his own Government have introduced a Bill to which they attach great importance, as do most of us on this side, the hon. Member for Dunbartonshire, East does not rise to a serious study of the matter.
We have had no reply—not even a mention or a comment—on the way in which the Commission's free advice service to other authorities or bodies is to operate. Again, there is no limit to that except that it can be done only at the request of a Minister. We have not been told of the circumstances in which public money will be spent in giving that advice or about the responsibility for it. It is 261 really most regrettable that, when we stress that this is the part of the Bill on which we feel most anxiety, we should have had so little assistance from the Government in helping us to understand their views and so little consideration by the Government of the constitutional principles involved.

§ Sir Eric Fletcher
I do not accept any of those remonstrances because the right hon. and learned Gentleman must know, on reflection, that, on every single Amendment in Committee and on Report so far, we have endeavoured to give all the information and all the explanations asked for. All the points he has made can be answered quite shortly on these three Amendments. I will deal with the last Amendment first—the one that suggests that all the words after "departments" should be omitted.
The right hon. and learned Gentleman talks about their service and who is to be responsible for it. Surely he has observed, that this assistance can be given to outside bodies only at the request of the Minister, and therefore the Minister will be responsible. He will be responsible to Parliament and can be questioned as to whether he has authorised the Law Commission to provide assistance to bodies other than Government Departments. He will be accountable to Parliament and we desire that he should be. We think that occasions will arise in which the Minister in his discretion will find it necessary and sensible to get the Law Commissioners to give such assistance. Therefore there is no point in that Amendment and I ask my hon. Friends to resist it.
The Under-Secretary pointed out that the second Amendment was otiose because it was unnecessary. If it would assist the right hon. and learned Gentleman I am prepared to suggest to my noble and learned Friend that in another place the words "on request" should be introduced to precede the words at the beginning of line 1, paragraph (e). It is obvious that the Law Commissioners are not going to provide assistance unless requested, but if it would help the words "on request" can be inserted.
The right hon. and learned Gentleman and some of his hon. Friends raised a point which they have called a constitutional 262 issue and have suggested that the word "assistance" should be changed to "advice". There is not a shred of merit in this so called constitutional point. Whether the word "assistance" or the word "advice" is used, the constitutional point is precisely the same.
The right hon. and learned Gentleman quoted, I think inaccurately, something I said at an earlier stage about a possible conflict between a member of the judiciary who was seconded to the Law Commission and his judicial function. I again remind him that this was equally a constitutional problem which arose only on the assumption, right or wrong, that a High Court judge will be appointed to the Commission and will be Chairman. Otherwise, there is no constitutional point.
Again, this suggestion of some infringement of the constitution is far-fetched. That is why it is provided that a High Court judge who serves on the Commission will cease to perform any judicial function and for the time being will not exercise the functions of a judge, as in the case of Lord Reading who was seconded from the Bench to undertake a purely political appointment as Ambassador in Washington and who then returned to the Bench. This is a perfect precedent and a much more serious one, as that was a purely executive function and this will be a purely advisory one.
It is because we want to make a clear demarcation between the judicial function and the non-judicial function, and because we think it valuable to have a judge on the Commission and because we have made this carefully balanced provision, that I hope that the House will resist this Amendment.

§ Mr. Speaker
The next Amendment selected is Amendment No. 13.

§ Sir D. Renton
We were discussing Amendments No. 11 and No. 12 with Amendment No. 10. In view of the undertaking given about Amendment No. 11, I wonder wheher it would be correct for me to move that Amendment and then to withdraw it?

§ Mr. Speaker
I have not heard the debate, but the point is that I selected Amendment No. 10 and suggested that 263 there might be discussed with it Amendments Nos. 11 and 12, which does not leave opportunity for the step that the right hon. and learned Gentleman proposes. No doubt, all that has been said will be a matter of record as something to be further considered.

§ Sir Eric Fletcher
I beg to move Amendment No. 13, in page 3, line 7, at the end, to insert: (1A) The Minister shall lay before Parliament any programmes prepared by the Commission and approved by him and any proposals for reform formulated by the Commission pursuant to such programmes.

§ Mr. Speaker
I suggest that with this Amendment we discuss also the following Amendments, if that course appears to be right:

§ Sir J. Hobson
On a point of order, Mr. Speaker. Amendments Nos. 13 and 14 are only to transpose subsection (3) and make it follow subsection (1), because Amendment No. 13 is in the precise form of the existing subsection (3). Amendment No. 16 was intended as an Amendment to subsection (3). If that subsection is deleted and inserted, as proposed, earlier in the Clause, will it be possible to amend it as proposed in Amendments Nos. 15 or 16, or, if Amendment No. 14 is passed, must Nos. 15 and 16 automatically fall?

§ Mr. Speaker
I must call the Government Amendments No. 13 and 14; I have no choice. Supposing them to be accepted, Amendment No. 16 will fall. That is the inevitable consequence. All that I can do, therefore, is the method which I propose. I do not know what view the House will take about the Government Amendment, but what follow will necessarily be governed by that.

§ Sir E. Fletcher
Amendment No. 13 gives effect to an undertaking which I gave in Committee to reverse the order of subsections (2) and (3). The hon. 264 Baronet the Member for Hendon, South (Sir H. Lucas-Tooth), with his usual acumen, pointed out that it would be preferable to reverse their order. We accepted his persuasive argument on the subject and I undertook to adopt it. That is why the Amendment is put down, and I hope that the House will adopt it.

§ Sir J. Hobson
I am grateful to the Government for accepting the suggestion of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). In the circumstances, however, as the Notice Paper now stands, we hope that they will make this Amendment in another place. The transposition of subsection (3) is only a matter of detail. I hope that the Government will tonight accept either Amendment No. 15 or Amendment No. 16 to subsection (3), and when the Bill has been thus improved they can change the order in another place. The order in which the subsections appear is, of course, important, but it is not difficult to adjust in another place when we see what has become of it as a result of the activities of this House.
I can deal shortly with Amendments Nos. 15 and 16. My hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) put down the former. No. 16 is in a different form. I do not mind particularly which of the two forms of Amendment is adopted, because they both have precisely the same purpose of ensuring not only that either the Lord Chancellor or the Secretary of State, according to which Commission has made a recommendation to him, reports to the House of Commons what has been approved in that recommendation, but that it is perfectly plain to the House, and thereby to the public, what recommendations he has not approved.
It is surely a necessary part of the proper functioning of the Commissioners that the extent to which their proposals have or have not been accepted and approved by either the Lord Chancellor or the Secretary of State for Scotland should be known. The members of the Law Commission, particularly if headed by a High Court judge, might attract blame if, though they were to make recommendations, they were not approved by the Lord Chancellor and were not, therefore, conveyed to the House of Commons—when in fact the 265 Commissioners had made such recommendations.
It might be asked, "Why have not the Commissioners dealt with this or that or the other topic?", because, as the Bill stands at present, what will appear to have been done will be only what the Lord Chancellor has approved. I should have thought, that it was of vital importance that one should keep completely clear, in a formal recommendation made to the Lord Chancellor or the Secretary of State, and whether approved or not, the differences between the parts approved and the parts not approved by the Lord Chancellor.
As at present drafted the Bill provides that only so much of a recommendation as is approved should be laid before Parliament, and while there may be, at a later stage, perhaps up to two years afterwards, an opportunity, upon the annual report of the Commissioners, to deal with something recommended and not approved the position might remain in obscurity for a considerable time, if not in perpetuity, if it should not be mentioned in the annual report of the Commissioners.
As I say, we feel that it is of considerable importance that the House and the public should know not merely what has been approved but what has been recommended and not approved. I realise that this might be a matter which might embarrass the Government, and I say it with my eyes open, for I hope that shortly we on this side shall be on the other side of the fence, and we might have a recommendation which would be embarrassing to us as a Government, a recommendation which was not approved and not laid before the House, as the Bill stands. But one has to approach the Bill knowing that it will apply to any Government. I should not have thought it a right principle that the formal recommendations of the Commission should be segregated, that only those parts which are approved by the Lord Chancellor or the Secretary of State should be laid before Parliament, but that those which are disapproved should also and equally be laid before Parliament. That is the purpose of Amendments Nos. 15 and 16, and I care not in which form the Amendment be accepted.

§ Mr. St. John-Stevas
I consider these Amendments, either of them or both, extremely important and relevant. I speak as a staunch supporter of the Bill as such. I welcome it as the only worthwhile piece of legislation we have yet had from the Government and perhaps are likely to have. This is a serious Amendment. It is not a wrecking Amendment in any way.
The Commission, I hope, will do most important work, and I hope that it will be asked to report on not only lawyers' law but on other fields of the law where controversy may rage. There may well be such questions as reform of the divorce laws, the reform of the Sexual Offences Act, the reform of the law of arrest, the question of classification of offences. All these are possible subjects which might well come before the Commissioners. It might well be thought by the Government of the day that it would be politically expedient not to publish their recommendations. If this situation were allowed to arise, then the work of the commissioners would be largely wasted.
I think that, in this sphere of influencing opinion, publication is just as important as legislation, the more so as, for all we know, with a great number of recommendations produced by the Commissioners, there may not be immediate legislative time available. Therefore, the publication of these reports and their recommendations and proposals for reform have a most important part to play in educating public opinion and in forming law-making opinion. Nothing would be more useful than to have, to study and to consider, well in advance of actual legislation, proposals which would be considered to be proposals taken after months of work—perhaps, in some cases, year of work —by the Commissioners.
2.15 a.m.
I know that there is provision in the Bill, in Clause 3(2), for an annual report to be laid before Parliament. There will doubtless be an allusion in that report to the activities of the Commission, but there is no guarantee that a full report of its labours in any respect will be included and will be published. I therefore hope that, for the reasons which I have given, the Government will sympathetically consider this Amendment or its alternative. because I think that its acceptance will improve the chances of achieving the 267 objects of the Commission, which I and the rest of my hon. Friends enthusiastically support.

§ Mr. Howe
I should like to add my serious support to what has been said by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) and by my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas). Many of us, it is clear, welcome the Bill and welcome the arrival of a Law Commission enthusiastically, and are, to some extent, dismayed by the extent to which its rôles and its powers have been whittled away from the original conception enunciated by the Minister's noble Friend some years ago. The basis of the argument for a vigorous and dynamic and independent body to advance and reform the law rested upon the delays of between 25 and 50 years which elapsed between the formulation of generally acceptable proposals and their implementation in legislation. It is part of the Government's case that these delays will be diminished by the creation of this body, which I accept, and that they will be diminished by the allotment to a senior Minister—the Lord Chancellor—of responsibility for law reform, and that also I accept.
But I think that there is still a grave risk that without the maximum number of forces acting to generate and sustain public opinion in respect of law reform, the measures will not come forward as quickly and as readily as many of us would like. If one likes to compare the situation in which the Law Commission will find itself with other bodies, it may be useful to illustrate the point which we have in mind. The Council on Tribunals played a notable part in securing alterations of the procedure for public inquiries, the rights of objection of people not theoretically interested and the right of a Minister to take advice from other Departments. The Council was able to play that rôle only because it had direct access and was able to publish and republish its views and to mobilise public opinion against the Government, although it was the Government of my own party.
The Consumer Council give repeated support to proposals, for example, those made by the Molony Committee, concerning reform of the law. It seems to 268 me that anything—such as the Clause as it now stands appears to be—which diminishes the right and authority of the Commission to get its argument before the public is a pity. Hon. Members opposite must surely visualise their own reactions if this situation were to have been presented by a Government of my party.
Suppose the Law Commission had introduced proposals for reforming the law on some matter dear to the hearts of its members, such as the right of parading at Holy Loch or Trafalgar Square. Suppose the Government of the day, of whatever party, had chosen not to include those recommendations among those to go before Parliament. There would be legitimate concern about that. It is a matter of importance to those who support the cause of law reform. No doubt the annual report will say something about it, but that is late.
Many of us are disappointed in this respect, as in a number of others, at the extent to which the Law Commission falls short, above all, in its right of access to the House, of the New York Law Revision Commission, to which reference has often been made. If one looks at the powers of the New York Law Revision Commission, it is that Commission which decides in the first instance whether or not to recommend legislation. It produces a draft Bill, and along with it goes its recommendation. At that stage the Law Revision Commission carries out its own consultation with the State Bar Association as an essential part of the research process. Then the Commission presents a programme to a joint legislative hearing.
This seems to be of real importance. It accentuates the rôle of the Legislature in relation to the Commission and diminishes the rôle of the Executive. It does something to restore the authority of this House under pressure from the Commission. In the article to which reference has been made, it is said that: the Law Revision Commission has functioned as an intermediary between the courts and the Legislature"—

§ Mr. Bence
Oh dear.

§ Mr. Howe
I am glad that the hon. Member for Dunbartonshire, East (Mr. Bence) has come back into the Chamber. We would miss his interventions, even if choric or somnolent in form.
269 I was quoting from page 15 of "The New York Law Revision Commission" by John W. MacDonald. It goes on: investigating suggestions for changes in the law and making disinterested recommendations as to the revisions deemed necessary. There is this direct link between the Commission and the Legislature without the opportunity for intervention of the kind that I would regard as essentially objectionable.
If one looks at the passage in the article written by the Minister's right hon. and noble Friend in 1953 about this, he there quotes from a talk by Professor Seaborne Davies about the fate of many proposals in the past for the reform of criminal law. He quotes with approval the suggestion that: Somewhere between the Home Office and the office of the Lord Chancellor there is a large hole where projects for the reform of the substance of the criminal law are deeply interred. 1 am concerned that there should not be a hole, be it a large or a small one, between the Law Commission and the House in which proposals of programmes for the reform of the law could be interred, deeply or otherwise.
It seems to me that the original conception of the Law Commission is being to some extent altered, and although we welcome it as it stands, I should like to think that the function of the Law Commission would fulfil the aims set for it by Justice Cardozo many years ago when he said: Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate between them. The Clause as unamended appears to me to represent an interference with direct mediation of the kind which the Law Commission is designed to fulfil.

§ Sir Knox Cunningham
I should like to add my voice to those of my right hon. and hon. Friends in support of these Amendments, in particular of Amendment No. 16. I want to discuss one point, the very narrow point of information.
I think that the House would want information to be given as fully as possible, not only about the matters which are approved, but also those matters in programmes which are being brought forward and which are not approved. The House should have that information. It would be useful in the working of this 270 particular Measure and in the working of the Commission that the House should have that information.
I give this Amendment my warm support. I hope that the Government will consider this matter. If they cannot do anything here, I hope that in another place they will put forward an Amendment to allow the information to be given as widely as possible, not only about the things approved but also about those which are not approved.

§ Mr. Percival
I wish to support the Amendment for perhaps a slightly different reason. We are speaking here of the information which must be given to the House relating to programmes approved or, if the Amendments were carried, not approved by the Minister.
It is a necessary starting point to see what programmes would be laid before the House if the Government Amendments stood on their own, and then to see to what extent, if any, the position would be improved by the acceptance of the Opposition Amendment. Therefore, the best starting point for the argument I want to make is Amendment No. 13, which provides that The Minister shall lay before Parliament any programmes prepared by the Commission and approved by him… It is necessary to look back to the earlier provisions of the Bill to see what programmes these are which would be laid before Parliament if Amendment No. 13 stood on its own, and the relevant provisions are Clause 3(1), paragraphs (b), (c) and (d). Paragraph (b) deals with the preparation and submission of programmes for the examination of different branches of the law with a view to reform, including recommendations as to the agency (whether the Commission or another body) by which any such examination should be carried out; Paragraph (c) continues to undertake, pursuant to any such recommendations approved by the Minister, the examination of particular branches of the law and the formulation, by means of draft Bills or otherwise, of proposals for reform therein; If that paragraph read to undertake, pursuant to any such programmes approved by the Minister then it would be possible to relate paragraph (b) directly to Amendment No. 13, because one would be able to say then that the subsection in Amendment No. 13 271 is relating to the programmes approved by the Minister which are referred to in paragraph (b).
This may be a mistake, but the fact is that paragraph (c) does not say programmes; it says recommendations. If the word "recommendation" had never appeared before no harm might have been done, because the word might refer to a programme. But in the preceding paragraph recommendations are referred to. It says including recommendations as to the agency (whether the Commission or another body) by which any such examination should be carried out; When one goes to sub-paragraph (c), the reference to …such recommendations approved by the Minister can only mean recommendations as to the agency by which any such examination may be carried out. So one will not find in either (b) or (c) any question of programmes approved by the Minister, One looks on to see whether in the later paragraphs there is any reference to programmes, and there is in paragraph (d). Paragraph (d) reads to prepare comprehensive programmes of consolidation and statute law revision, and to undertake the preparation of draft Bills pursuant to any such programme approved by the Minister. Such a programme here is a comprehensive programme of consolidation and statute law revision. Is it not a programme for the examination of different branches of the law with a view to reform. It is limited by the words of the subsection.
2.30 a.m.
One arrives at the conclusion that if the Amendment in line 7 were accepted but stood on its own, the only programmes approved by the Minister to which the Amendment could apply would be the programmes referred to in paragraph (d), which relate only to …comprehensive programmes of consolidation and statute law revision, and to undertake the preparation of draft Bills… That, I suggest, is so narrow that it may be a mistake. It may be that the way to cure the mistake is by amending the wording in another place and making "recommendations" to read "programmes," because one cannot help 272 feeling that that was intended, although it is not said.
However, the Amendment we are discussing would at least remedy the defect to the extent that it would ensure that all programmes, whether or not they came strictly within the category of programmes approved under paragraphs (b), (c) and (d) would be brought to the attention of the House. Indeed, I hope that I am in order in suggesting for the consideration of the Government that not only is it desirable, for the reasons adduced, to accept one or other of the Amendments before us, but that it is also desirable to include another Amendment for the substitution in paragraph (c) of the word "programmes" for the word "recommendations." I appreciate that that could not be done at this stage. Meanwhile, for the reasons I have given, I support the Amendment before us.

§ Sir Eric Fletcher
I will certainly consider the rather technical point which the hon. and learned Member for Southport (Mr. Percival) just mentioned, which has not been raised before and which is not expressly raised by the Amendment.
As has been observed, the Amendment is concerned with the simple question of whether or not, when the Law Commission makes proposals or recommendations to the Minister which are not approved by the Minister, those proposals or recommendations should be published. I fully understand and sympathise with the point of view expressed, but I hope that the hon. Member for Bebington (Mr. Howe) and the hon. Member for Chelmsford (Mr. St. John-Stevas) will not feel unduly disappointed if the Amendment is not accepted. I do not share their view that failure to accept it is any detraction from the cause of law reform, to which they are so much wedded as I and my hon. Friends are. This point has been fully considered.
The hon. Member for Bebington quoted an article by Mr. MacDonald on the activities of the New York Law Revision Commission. He was right to suggest—although I have not had a chance to verify it—that that Commission has the full right to publicise any recommendations it makes, whether or not approved by the Executive. Be it so, but one corollary of that seems to be two sentences which the hon. Member did not quote 273 from page 15 where first of all, it is said that In its relation to the Legislature, the Commission has been scrupulous in its recognition of legislative supremacy. The next sentence is: It has sought to avoid recommendations on topics in which the primary question was one of policy rather than one of law. It may be that it is because of this complete right of publication that the Commission has felt inhibited about making recommendations on matters which are politically sensitive. This is the point which the hon. Gentleman appreciated. He was candid enough to say that if his Amendment was accepted it might produce embarrassment to either the present or some subsequent Government, and in framing the Bill one has to look at a solution designed to secure, as we all want, the recognition of legislative supremacy and also to combine full Ministerial responsibility for all changes in the law as well as a sufficient degree of independence on the part of the Commission.
There will always be some branches of the law more politically sensitive than others. The Commissioners may want to make recommendations about them and they will be able to do so. They may want to include them as a high priority in the programme. They may be unacceptable to the Government of the day for various reasons and it is right that the Government should have the last word in deciding whether proposals of a politically sensitive kind should be brought forward, or be brought forward with any degree of priority.
It does not follow that it is right that recommendations if not approved by the Minister should always necessarily be communicated to Parliament. I am not arguing that it is clearly wrong that they should be. Nor could it be argued that it is clearly right. It is an arguable hypothesis. Therefore, we think that we have reached a fair balance by providing two things. The first is that only programmes approved by the Minister should be reported as a matter of course to Parliament. But in addition, by the other paragraphs, we give the Commissioners an absolute right to make an annual report which shall be laid before Parliament, and they are entirely free to put in that report for publication anything they like, including if they so desire the fact that 274 they have produced certain recommendations which have not been approved by the Minister. Whether they will do that I cannot say.

§ Mr. St. John-Stevas
Would they be entitled to put into the report proposals in full which had not been accepted by the Minister?

§ Sir Eric Fletcher
The words of the Clause are that they shall make an annual report to the Minister on their proceedings, and the Minister shall lay the report before Parliament… There is no restriction on their right to put anything they want into the annual report, and if they put it in the Minister has to lay it before Parliament. The answer to the hon. Gentleman is that it must reside in the good sense and discretion of the Commissioners what they should report. If they felt strongly about something which they wanted to bring to the knowledge of the House and the public they would be entitled to refer to it, either in general or in detail—I do not know. But there it is. There is a certain element of safeguard for the House and the public in that paragraph which we regard as consistent with the preservation both of Ministerial responsibility and the ultimate sovereignty of Parliament.

§ Mr. Howe
I am grateful to the Minister for the care and patience with which he has, at this hour of the morning, explained a difficult and important point. I suggest for his consideration and that of his noble Friend that there is still this distinction. Under the earlier paragraphs of subsection (1), the Minister has power to approve or disapprove the programmes on which the Commission proposes to embark, so that the executive responsibility for embarkation is clearly provided for.
Is it not worth reconsidering the proposition that the Commission should be entitled to lay before the House charts of the route over which it would like to embark? It is at that point that the House and the public generally would like to be able to question the Minister's decision, right or wrong, to exclude this subject or that, for whatever reason. If the hon. Gentleman could give an assurance that the matter will be reconsidered in another place, I am sure that the House would be grateful.

§ Mr. Speaker
I had not called the hon. Gentleman. I thought that it was an intervention in the speech of the Minister. Otherwise, I do not know what it was. Sir John Hobson.

§ Sir J. Hobson
I should like to add to what has been said, whether properly or not, because this is a matter which calls for a good deal of consideration. Let us suppose that the present Government fell and that the next Lord Chancellor made a programme which went on for a considerable period. If the hon. Gentleman got back into power a second time, is the Law Commission stuck with that programme, and could not the hon. Gentleman, on his return to office, perhaps after 13 years, alter it?
He says that the Government would take control of any recommendations made, and ought to do so. I think he is not quite right here. As I read subsection (3) as it stands, once a programme is laid down, any proposal for reform formulated by the Commission pursuant to it has to be laid before Parliament, and the Government have no control at all, however objectionable the proposal might be to them. My Amendment would turn it the other way and make it essential that a programme should be laid before Parliament, whether approved or not, but the Government should be under an obligation only to lay before Parliament recommendations for reform which had been approved.
My hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) wants all of it, the programme and the recommendations, whether approved or not, to be laid before Parliament, and I think there is great force in the way he put his case. A good deal of consideration must be given to the exact position of the programme, whether it is approved, to the recommendations, to what happens on changes of Government when the outgoing Government have already approved a programme which may then not be acceptable to the following Government, and to the facts and circumstances which should be laid before the House by responsible Ministers. I hope that the hon. Gentleman will undertake that all these matters will be reconsidered before the Bill is brought to another place.

§ Sir Knox Cunningham
Mr. Speaker, may I draw your attention to the fact that not 40 Members are present?

§ Mr. Speaker
I understand that there was a count about half an hour ago. I do not accept notice now.

§ Mr. Norman Dodds (Erith and Crayford)
The country should know just what is going on.