§ 5.31 p.m.
VISCOUNT COLVILLE OF CULROSS
rose to call attention to the problems of Law Reform; and to move for Papers. The noble Viscount said: My Lords, every Act of Parliament, like the two Bills that your Lordships have just been considering at rather different lengths, is in some sense a reform of the law, but not in the sense in which I wish to deal with the subject this afternoon. In a rather narrower sense, law reform comes about through a variety of agencies. Perhaps, in order to set a background to this debate, I should list them and tell your Lordships roughly what they have achieved by way of some examples. First of all, the Government Departments deal with their own spheres. For instance, the Board of Trade deal with the Companies Act; the Ministry of Labour bring in a measure like the Contracts of Employment Act of last year; the Home Office 1036 produce a compendious Act, such as the Sexual Offences Act, 1956, to choose a rather unpleasant example. My Lords, Royal Commissions and Departmental Committees do a similar job, usually starting with a very thorough search of their subject. Their labours lead sometimes to a pigeonhole; sometimes to a Bill like the Succession (Scotland) Act, over which there was much discussion earlier on in this Session, or to such important measures as the Tribunals and Inquiries Act, 1958, which followed the Franks Committee's Report.
My Lords, there are permanent and technical Committees also in the field. There is the Private International Law Committee of my noble and learned friend the Lord Chancellor, which since it was set up in 1952 has produced seven Reports, only one of which, I am afraid, has become law; and there is the Criminal Law Revision Committee, under the Home Secretary, which was set up as recently as 1959. The Fourth Report of this Committee led to an Act of Parliament which received the Royal Assent yesterday; its Third Report led to a Bill that is due to receive its Second Reading in this House next week; two other Bills produced are already law. Then there is the Law Reform Committee, again of my noble and learned friend the Lord Chancellor, set up in 1952, since when it has published eleven Reports, most of which, if they required action and if action was recommended, resulted in measures that are now law. Indeed, the latest one is the Perpetuities and Accumulations Bill, now going through Parliament. There is also the Statute Law Revision Committee, which I think comes into this category, and which again comes under my noble and learned friend who sits on the Woolsack; and (lest for the moment we forget Scotland) there is the Lord Advocate's Law Reform Committee for Scotland, which since 1956 has also produced eleven Reports, most of which, where they required it, are, I think, now law.
All these, my Lords, are Committees either set up or supervised by a Minister of the Crown; but, so far as the majority of them are concerned, they are staffed by, or their members consist of, people acting part-time and voluntarily—and I must say that I think they can be seen to have done a very fine job. One such example is the Law Reform Committee, the chairman of which is Lord Justice 1037 Pearson. That Committee has on it, I think, five High Court Judges and Law Lords, five practising barristers, two solicitors and three academic lawyers, and a secretariat of two senior officials from my noble and learned friend's Department. It acts mainly, in the first instance, through sub-committees, of which there can be a fair number, because members can be co-opted on to them.
My Lords, it is of this system that there have been certain criticisms. I think there are three main criticisms. The first is that the system produces too little and does it too slowly. The second is that it does not work to any consistent, overall plan, a survey of the whole field of the law, but rather deals with individual matters as they crop up, without there being any particular consistency between them. When this criticism is put forward, perhaps a comparison can be made with the type of order of priorities suggested by the Molony Committee's Report on their subject. The third criticism is that when the Reports come out it is not Her Majesty's Government who put them into law: it is left to Private Members, either of this House or of another place—and I do know something about this aspect, because I have done quite a number of them myself within the last few years. I should like to deal with these criticisms later, but before doing so perhaps I could say something about one recent, constructive suggestion about how all this might be changed—and I refer, of course, to a book which was edited and in part written by the noble and learned Lord, Lord Gardiner, who I see in his place opposite.
The noble and learned Lord had certain proposals to make about this system, and he suggested that there should be set up a new Department, or a new branch of the Lord Chancellor's Department, headed by a man, perhaps called the Vice-Chancellor, with the rank of Minister of State, with a complete team of full-time Law Commissioners sitting under him. He suggested that they should have three main jobs. The first would be to make a new, systematic and long-term survey of the law over the whole field, The second would be, in the process, to attempt to codify the law. Thirdly, they should have default powers, as it were, to deal with subjects that would normally be dealt with by Departments such as 1038 the Home Office, the Ministry of Housing and Local Government and so on, where those Departments had not got on with a similar job in their own field—though in the first instance the task should be left to the Department itself. The noble Lord also suggests in his book (and if I refer to the book compendiously as "his suggestions", I hope that he will not object) that there should be, compulsorily, an annual Law Reform Bill, and that the Government should find Parliamentary time at least to debate, and possibly legislate on, every Report that emerges, There were two other suggestions, but I do not think these need be gone into this afternoon, because they touch upon rather a different matter.
My Lords, this body of suggestions seems to have become the policy of the Party of noble Lords opposite—at any rate, if one can judge from a speech made recently by the right honourable Gentleman the Leader of the Opposition. If I may venture to say so, I do not think that I can agree with the suggestions that have been put forward. The main difficulty I see is that these suggestions really confuse two types of law reform. And although I must admit that it is very difficult to draw a determined line between them, I think there is no doubt that there is a great difference. I will deal with the suggestions one by one, First of all, that for an annual, compulsory Law Reform Bill. I do not think there is any need to make such a suggestion in this field; because, of course, my Lords, it already happens—at any rate, it has happened under the present Government. If I may take the last four years, 1961 saw the Trustee Investment Act, surely within the field comprehended by the noble Lord's book; 1962 saw the Criminal Justice Administration Act; there was the Contracts of Employment Act, 1963, which I have already mentioned; and this year we have the Perpetuities and Accumulations Bill, which is still in the process of going through Parliament. I think that all these measures deal with topics touched by the noble Lord's book, and they fulfil, surely, the concept of an annual Law Reform Bill.
The true disagreement that I have with the noble and learned Lord opposite is that, if the new Department is to go through all the topics set out in this book—and more, as I think was suggested— 1039 this is going to amount in very large part to political, not legal, reform. Of course, it will be legal reform in a sense, but it will be legal reform instituted for political reasons, and against a political background. I think the book itself shows that this is so. For instance, there is a comment on the Karmel Committee on the Truck Acts which recommended a wholesale repeal of the law and a new approach being made to it. There were various recommendations, and the noble Lord and his colleagues agreed with one of them, but said—and I use their own words—We submit that the other recommendations are quite wrong.Quite wrong, on what criterion? I would suggest a political one. And the same could be said of so many other topics in the book, important though they may be, and controversial. I would submit, in contrast, that they are political in content and in essence.
All law reform alters the instance of the law on individual freedom in one way or the other—so it is also with all the suggestions in the book to which I refer—and this is one of the main functions of Government. But these alterations will be made, if they are dealing with large and important subjects, on the basis that the Party or person who introduces them considers they are alterations made "in the public interest." And what is in the public interest is a matter of politics and not of law reform. If, then, this is the scale of the law reform suggested by noble Lords opposite as being necessary in the public interest, much of it, I would suggest, should form part of their political platform and be implemented, or sought to be implemented, by the Party opposite if and when they win the Election. They need not expect everybody to agree. And if their reforms are so large that they require an extra Department of State to get them under way, then that is also part of their platform; it is also part of their political decisions.
But what I feel is unfortunate is that an attempt should be made to hang a case for major political reform upon the alleged inadequacies of a system of specialist Committees set up by various Government Departments to do some- 1040 thing totally different. I have attempted to tell your Lordships what those specialist sub-committees are, and I think their own purposes are quite important enough to examine on their own. It is on that aspect of the subject that I shall concentrate this afternoon; although I hope I may be forgiven for setting the debate in a larger context since this very topical book has recently come out.
I suggest that law reform, in what I believe to be the narrow sense and the one with which I should mainly like to deal, should deal with about four things. It should consider the decisions of the courts, especially where the existing law has been criticised by the judge or by counsel, or where the result is quite clearly contrary to the intention of Parliament under the Statute concerned. Legal maxims should be extremely carefully examined—the sort of maxims like nemo dat quod non habet, which is a horrid Latin tag with wide implication in the law of contract. Then there are many technical and smaller legal and administrative matters which fall essentially within this type of jurisdiction. Finally, this branch of law reform should. I would say, deal with the codification of Statute Law and the bringing up to date of blocks of administrative Statutes.
It may be that all this cannot be done by the Law Reform Committee. Perhaps the Statute Law Revision Committee has an equally important function to play in this field. None of these things can be defined very clearly, and many of them may be controversial—not necessarily on Party lines, but for other reasons. But with the system as it is, all of them depend on the judgment either of my noble and learned friend the Lord Chancellor or of one of his colleagues in the Government. Upon their judgment, I think—the judgment of these Ministers of the Crown—must depend whether the right subjects are tackled or not. If the specialist Committees are given too controversial and too political a task they will not succeed; and the Minister in charge can be criticised for having given the Committee that job in the first place.
I think the subjects they could deal with are those which, like the elephant, you recognise when you see although you cannot define them precisely in terms. Where the specialist Committees 1041 cannot deal with a subject, then I think it should go to a Royal Commission or to a Departmental Committee and be followed by a White Paper and a Government Bill which goes through the ordinary programme in Parliament.
To revert to the criticism that too little is done and too slowly, I would say that this is basically a matter of Parliamentary time. If there were more Parliamentary time, I have no doubt that more personnel would be required in the Department of my noble and learned friend the Lord Chancellor, and also, it may be, on the sub-committees of the Law Reform Committee; and perhaps other specialist Committees should have more sub-committees under them. There should be more of them, and it may be that the suggestion put by Professor Wade in the 1961 Modern Law Review for standing sub-committees should be adopted, if the Treasury are prepared to produce the necessary money.
It must be the duty of the Government to push forward as fast as they can with the work of these Committees, and the faster they can push them forward according to Parliamentary time available, so much the better. If they can push them forward faster than at the present moment, they should not in any way hazard the procedure by being short of staff or of sub-committees. Therefore, I would ask my noble and learned friend the Lord Chancellor, when he comes to reply, to make it quite clear that there will be no lack either of staff in his own Department or of sub-committees if Parliamentary time can be found to put their labours quickly into good effect and into law.
My Lords, I wonder about the terms of reference. The present Law Reform Committee's terms of reference are:To consider, having regard especially to judicial decisions, what changes are desirable in such legal doctrines as the Lord Chancellor may from time to time refer to the Committee.In fact, these terms of reference have been interpreted fairly widely, and have included for the consideration of the Committee certain Statutes; but, unlike the case with the 1934 Committee, the predecessor or the present one, whole blocks of Statute Law cannot be looked at, as I understand, by the Law Reform Committee; and I do not think it can touch the departmental side of the law 1042 at all. I should like to see this Committee enabled, if necessary, to deal with large blocks of Statute Law, because perhaps the Statute Law Revision Committee is not the right body for this if considerable changes are required. I should also like to see the Department of my noble and learned friend the Lord Chancellor act as a "long-stop" in the case of Departmental law.
I come now to one of the main reasons why I put down this Motion. I warned my noble friend Lord Hastings that I was to raise this matter, and although he is not at present in his place he is not going to be taken unaware. Your Lordships may remember that last year I introduced a Private Member's Consolidation Bill to deal with burial and cremation. I was told by my noble freind, Lord Hastings, that if I withdrew the Bill his Department would produce and draft a measure as comprehensive and perfect as it could be. I do not know what happened; but I have not seen the Bill since. I remember that the noble Lord, Lord Taylor, was most suspicious of the promise that was given by my noble friend Lord Hastings, and I am not sure that he is not right. In fact, perhaps I should not have withdrawn the Bill. But I was not the first person to try to deal with the law of burial and cremation. Attempts to do so had been going on year after year. As the noble Lord, Lord Taylor, said—and I will get his words right, they were so splendid—the law is "absolutely, staggeringly chaotic", and he is perfectly correct, especially when it has to be administered by people in parishes.
What redress is there, when a Government Department like that (take this only as an example) will not get on and reform blocks of Statute Law? So far as I know, there is none, because no other Department will interfere and there is no machinery or procedure which can get the Department to do it. And if the noble Lord, Lord Hastings, wants some other things to do, when he has done with burials, he may like to look at allotments and open spaces, because they are about as bad and should be cleared up. I wish that the noble and learned Lord could deliver a well-aimed nudge at this, and that Members of Parliament could go and ask him to do it. I am sure that it would be most salutary and most satisfactory.
1043 The second criticism made of the present system is the lack of a consistent plan. If the major reform of the law is to be a matter of politics, and not of specialist committees, then a consistent plan should be followed. But if specialist committees are to do their job in the way I think they should, they must deal with the urgent problems as they come up, but, always, of course, with a reserve of problems at which they can take a look the moment they have time. I hope that the Departments concerned have a list of matters which ought to be gone into at the earliest possible opportunity and do not wait until problems arise in an urgent form before seeking a solution for them. I hope that such lists are in existence at the Home Office and in my noble and learned friend's Department.
Then there is the third criticism, of implementation. I believe that this is the crux of the whole matter. Law reform, as produced by the reports of specialist Committees, should be introduced and taken through Parliament by the Government and not by private Members. At the moment, so far as another place is concerned, unless the procedure there is reformed it will not be easy. There is no difficulty in your Lordships' House, as all your Lordships will know: it is in another place that the trouble comes. Incidentally, the suggested reforms made to the Select Committee on Procedure of another place by Sir Edward Fellowes, in 1958, make interesting reading in this context. But, as I have never been a Member of another place and know very little about the procedure there, I do not feel that it would be right for me to go in great detail into the question of how it should be reformed. But in my view it is a vitally important subject, and one that deserves great attention.
If I cannot go into that, I think that there is something to be gained by a study of another piece of procedure of Parliament; that is, the Consolidation of Enactments (Procedure) Act, 1949, which was produced by the Party of noble Lords opposite. This is fairly narrow in its terms at the moment, and I would suggest that it could with advantage be widened. It provides for the setting up of a Joint Committee of the two Houses of Parliament to deal 1044 with Consolidation Bills. For dealing with small Bills which are not controversial, I think that a Joint Committee of both Houses is an admirable system. The Act allows—and any reform should also allow—representations to be made to the Joint Committee and the Joint Committee is able to amend a Bill, if it considers that the representations have any weight. The Act—and also any re-form of it, I would suggest—provides the perfect safeguard for the type of Bill that goes through this special procedure, in that it is my noble and learned friend the Lord Chancellor who decides which Bills should go to the Committee. If he sends the wrong Bill, then, as a Minister responsible to Parliament, he can be criticised. I think that this is a perfectly satisfactory safeguard in seeing that no politically controversial Bills are dealt with in this way.
My Lords, all Law Reform Bills, I feel, could be dealt with in this way, as well as the sort of Bill that was considered by your Lordships the other day—the Salmon and Fresh Water Fisheries Act, 1923 (Amendment) Bill, which was introduced by my noble friend Lord Massereene and Ferrard. This Bill dealt with a small point in that Act, where the law had gone wrong and required amendment. Why has that sort of Bill to go through the full procedure of both Houses of Parliament? Would it not be much better if it went to the Joint Committee, so leaving more time to Parliament to discuss matters that ought to be gone into on the Floor of this House and in another place? I suggest that the 1949 Act should be amended by leaving out, wherever it occurs, the word "minor". At present the Act states that "corrections and minor Amendments" may be put in by this procedure. Why should not "amendments" alone stand in the Act and allow the noble and learned Lord the Lord Chancellor all the time to decide which Bill will go through the procedure? It might also be worth considering an amendment which would allow a larger number of Law Reform Bills to go through the procedure, but I think that this would require a larger amendment than the one I have suggested.
1045 The last point I should like to deal with is the one of consolidation. Here I am 100 per cent. behind the suggestion of the noble and learned Lord opposite. He says that every major reform of Statute Law should be followed by a Consolidation Act. And it was the noble Lord, Lord Silkin, the other day, who drew attention to one glaring instance where this has not been done. He referred to the Housing Statutes. Since 1952, according to Halsbury's Statutes, there have been twelve Acts under the title "Housing". The thirteenth Bill on "Housing" is now before Parliament. It is true that one was a Consolidation Act, but that leaves twelve to muddle the citizen, the local authorities and everybody concerned. It is also true that there have been Consolidation Bills recently. There has been one this very year, if not two. But why should not this type of legislation—housing legislation and town and country planning legislation—be dealt with in the way company legislation has been dealt with in the past, and a full consolidating Statute passed every time?
This task need not be so formidable as one might think. Perhaps I could introduce a somewhat revolutionary idea. Could we not have loose-leaf Statutes? This works very well for lawyers in fields where it occurs. In fact, there is a very good loose-leaf housing encyclopædia. If there were a loose-leaf copy of the Housing Act, a full Consolidating Act would not need to be passed on every occasion. A short Bill putting in the necessary amendments could be passed. The loose-leaf copy could be re-leaved, and only the minimum time and trouble would he involved. Perhaps this proposal is not acceptable, but it would be a thoroughly up-to-date way of getting out of a formidable difficulty. May I put in one final plea to Her Majesty's Government for an instruction to their draftsmen? Could they please not legislate by reference? There is no need, in most cases, to refer to about four different other Acts in the clause of a Bill when, if the time and trouble are taken, the sections as amended can be written into the. Bill and the old sections repealed. I put in a plea for this procedure in the interests of anybody who has to understand and follow the ever-increasing complexity of the laws of this country.
1046 My Lords, these are some of my suggestions, perhaps rather jejune, but it is a difficult subject and one that has not been considered this afternoon for the first time. I look forward to a remarkable list of speeches from noble Lords who have put their names on the Paper. I hope that my suggestions may be criticised and that others will come forward. I hope that this debate may result in a quicker reform of the law, in the sense in which I was speaking, and one which will be more up to date and with the times. I beg to move for Papers.
§ 6.0 p.m.
§ LORD SILKIN
My Lords, I am sure we are all grateful to the noble Viscount for having introduced this Motion and for the way he has dealt with it. I know these are observations that are made about every introducer of a Motion in this House, but I do not say it in any formal sense. We are very much indebted to the noble Viscount because we do not often have the opportunity of discussing subjects of this kind. He has put most of us in some difficulty because we had no idea how he was going to deal with the subject, and if it is not possible to follow him along all the paths he has trodden I hope he will understand.
Broadly speaking, I think we should all agree with him that there is room for improvement in the making of laws and in the way in which changes take place. I would take him up on one point, where he criticised my noble and learned friend Lord Gardiner for the changes which the noble Viscount says are political. I think that all changes, including those which the noble Viscount has recommended, are bound to be a matter of political judgment by the Party in office; and, in that sense, every measure introduced in this House is a political measure. It is even political in timing. One has to recognise that no Government can introduce all the legislation which they think necessary in any one Session, or even in one Parliament, and the selection of legislation to introduce is a matter of political judgment. Therefore, I do not feel that my noble and learned friend is to be criticised because the proposals that he makes are on the basis of political decisions. 1047 The Motion has, I suppose, deliberately been made wide in order that we may talk about all aspects of law reform, and about some things which the noble Viscount introduced which are not strictly speaking law reform at all but reform of the legislative procedure. I do not propose to follow him along those lines. There is, I think, room for improvement in our legislative procedure, but I feel that we have enough to do if we stick to the terms of the Motion and talk about law reform. That is what I propose to do.
What is the purpose of law reform? I will try to put forward a number of reasons for the reform of the law which I hope will commend themselves to most noble Lords. The first thing is that our law should be clear and intelligible to the ordinary, intelligent citizen. I will not say every citizen, but the ordinary, intelligent citizen ought to be able to go to a particular Statute, read it and understand it. I would perhaps even narrow the definition of an ordinary, intelligent citizen and say that at any rate the reasonably educated ordinary, intelligent citizen ought to be able to read a Statute and understand it. If we applied that test, I wonder how many Bills that have been introduced recently, or at any time, would pass it.
I hope nobody will say "tu quoque" to me because I am reputed, quite falsely, to have introduced a measure which only one person could understand I thought I would have a look at this measure, and I find it is the essence of clarity compared with some of the measures which have been introduced recently. I would refer to certain clauses in the Diplomatic Privileges Bill, which we dealt with only last week, and to the Resale Prices Bill. I would not suggest that the clauses in this Bill are not intelligible, but their exact meaning is ambiguous and difficult to understand. There are many others which are quite unintelligible to ordinary people, and, as the noble Viscount suggested, particularly because so much legislation is by reference.
I have, as all of us have, read clauses in a Bill where, in order to begin to understand them, you have to look up Statutes going back perhaps fifty or sixty years. The ordinary person has not these Statutes available. What is he to do? 1048 Must he go to the public library? It is fantastic that this legislation, which is, after all, being made for the general public, should be framed in such a form as to be difficult, if not impossible, for the ordinary, intelligent citizen to understand. That it should be understandable is the first precondition of all legislation.
The second is that it should not be confusing; there should not be a multiplicity of legislation on a particular subject. The noble Viscount referred to housing, one of the matter I dealt with some months ago, and said that since 1952 there have been 12 or 13 Bills dealing with this subject. I should like to correct him: there have been 27. But they are not all described as Housing Bills but have come under various titles. For instance, the 1954 Landlord and Tenant Bill, which one would imagine was a Bill concerning relations between landlord and tenant, and in fact was specifically designed to deal with business premises, has in Part I provisions relating to housing. There have been, as I say, including the present Bill, 27 measures dealing with housing laid before Parliament since 1952.
I say nothing about the practitioner who has a point of law on housing to look up. But what about the ordinary citizen: what is he to do? It is impossible for anyone to know what the law is, in these circumstances, unless he has devoted his life to the subject. I therefore strongly support the noble Viscount in saying that there should be a greater and more frequent measure of consolidation and codification, and that it should be quite unnecessary to have so much legislation on the Statute Book relating to the same subject. I am not suggesting that we have done nothing at all, because we frequently have consolidation measures before us. But we want many more, and we want them particularly on these vitally important subjects—on every subject, so to speak, which more nearly affects the ordinary citizen.
Then there is a tremendous amount of deadwood still on the Statute Book. I know that the other day we dealt with a Bill to repeal Acts of Parliament dating back to fifteen-hundred-and-something. Why should we be doing that to-day? It cannot be said that it is only in 1964 1049 that an Act of Parliament of fifteen-hundred-and-something has become obsolete. Many of these Acts have been obsolete for centuries, but they have remained on the Statute Book and cluttered up Halsbury's Laws of England, and practitioners have had to pay for volumes of it which are quite obsolete. Ought there not to be some body in permanent session for constantly removing from the Statute Book Acts of Parliament which have become obsolete and which have no further justification at all?
The noble Viscount referred also to the Law Reform Committee, and I share with him the view that this is doing very valuable work. Indeed, I would say quite frankly that I have read every one of the Reports of the Law Reform Committee, and I cannot remember a single one with which I was not in a considerable measure of agreement. In some cases, of course, the Committee itself was not unanimous, but in practically every case one found oneself in a great measure of agreement. The noble Viscount himself has put forward criticisms which I think are well founded, though he did not associate himself necessarily with those criticisms. One is that the subjects which they dealt with were laid down for them—they are not necessarily of their choice—and, therefore, in that sense it is in a way a political decision to say to a Committee, "Will you go into such-and-such a question?" I will not go so far as to say that the subjects chosen are not necessarily the most important, but they are matters which the Government themselves want to deal with, and certainly not necessarily things that ought to be dealt with in the order laid down.
Reports of necessity take a long time to produce, and when they are produced they take a long time to implement. I have on a number of occasions in this House had to say that the average time taken to implement these reports is a matter of five or six years. In some cases it has been very much longer. Generally speaking, the Government have implemented the reports, or perhaps I should correct myself and say that they have instigated Private Members to introduce Bills to implement them. If that is so, why is it necessary to take so long? If it is to be done by means of Private Members' Bills, these measures can be implemented much earlier. So my 1050 general criticism of the Law Reform Committee is that, while what they produce is excellent in quality, it is much too little and too late. What is needed is something much more constant, purposeful and regular.
The noble Viscount, in the concluding part of his speech, referred to the legislative machinery. I am far from saying that it is perfect, but I do not propose to deal with that because it is a matter which I regard as strictly outside the scope of law reform. But that some kind of improvement is necessary there can be no doubt. We are frequently being told that certain measures are not being introduced because of lack of time. It ought not to be the case that necessary legislation is held up because of lack of Parliamentary time. It is the business of Parliament so to organise itself that necessary legislation is capable of being dealt with at the proper time and not held up. But this is worth a debate in itself, and if the noble Viscount likes to put down another Motion—perhaps not in this Parliament, but in the next—we shall certainly be very happy to discuss that subject on its merits. Finally, 1 find myself in considerable agreement with the noble Viscount, though not completely, in what he has said, and we are certainly grateful to him for having introduced this Motion.
§ 6.16 p.m.
§ VISCOUNT SIMONDS
My Lords, however much we may disagree among ourselves upon some things—and I do not think we disagree very much—we can agree about congratulating the noble Viscount, Lord Colville of Culross, for introducing this subject in a most able and interesting speech. I am particularly grateful to him because he has said so much that I came prepared to say that I can jettison a great part of my speech and so achieve what I regard as the greatest virtue of Parliamentary speech, brevity. May I say in that connection that unfortunately this debate has come on at a rather later hour than I expected, and I hope your Lordships will not think me guilty of any discourtesy if I have to leave without waiting to hear all that all your Lordships have to say.
I thought it my duty, I would say, to intervene in this debate because it happens that, apart from the noble and learned Lord who now occupies the Woolsack, I am one of only two Members 1051 of your Lordships' House who in the past have occupied that high office. The other of those two unfortunately is unable to be here. I am sorry for that, for he occupied the office not only more recently but for a longer time than I did, and it would have been useful to hear what he had to say upon this topic. I myself have always taken the view—and I have shown it not only by words but by deeds—that I regarded it as the duty of the Lord Chancellor of the day, in the narrow sense, to supervise what has been called law reform.
Now let me, if I may, without undue repetition, emphasise what the noble Viscount has said. Of course, in its widest sense, law reform will embrace almost every legislative measure that one can think of. If the law involves the sum total of the rights vested in the citizen, or the obligations imposed upon him, clearly every legislative measure will be a measure of law reform. But it was not in that sense that the noble Viscount was using the term. He excluded, and rightly excluded, from law reform all those measures which fall primarily within the province of one of the other Departments of State—and let me say how important that is. It would be folly to have any duplication, to have attached to the Lord Chancellor's Department, whether under the title of Law Commissioners or any other name, a body of men whose duty it would be to supervise the law generally, at any rate so far as it fell within the purview of a particular Department. I could not imagine anything more foolish or anything more completely a negation of sensible government than to have that sort of duplication.
Accordingly, as the noble Lord has said, the subject which we are discussing is narrowed down very largely. It is narrowed down further, I think, by this. We must exclude from the purview of the Lord Chancellor's Office, however it is constituted, those large measures on such matters as capital punishment, trade union law, marriage law and so on, which are of universal interest. All those, if they are to be the subject of previous investigation, must, I think, be referred to a committee appointed ad hoc, as indeed they have been in the past. That, as I say, narrows down the sphere very 1052 considerably in which the Lord Chancellor can act; and, although this can be only guess-work, I do think that the mechanics which are at present available for his discharge of this limited duty are quite adequate. They are adequate in the sense that, so far as one can see—and, like the noble Viscount who has spoken, I feel a great difficulty in speaking about what happens in another place—with the Parliamentary time at present available, there is no room for more legislation than is provided by the Law Reform Committee as at present constituted.
I should like to tell noble Lords a little bit of history, because, as Lord Chancellor, I was of course in a position to know this. Your Lordships will remember that the Law Revision Committee, so called, was started by Lord Chancellor Sankey, I believe, in the year 1934. It produced a number of excellent reports, and a number of Acts were passed embodying them. Then came the war and nothing was done. In 1945 the Labour Party came into power, and it is very interesting to notice that, although the then Lord Chancellor, Lord Jowitt, was able to embody certain reports that had previously been made in Acts which were passed through Parliament from 1945 onwards, yet he did nothing else at all in this regard. It is true that he appointed a Committee on Procedure, but he did not re-establish the Law Revision Committee, and so no questions could be referred to it. Nothing was done. I am not blaming or criticising Lord Jowitt; he was a realist; and he knew that it was quite hopeless to expect to get Parliamentary time for the sort of legislation that fell within his sphere. Accordingly, he did nothing.
In 1951 the old Law Revision Committee was in abeyance, and nothing was done. In 1951, as noble Lords know, a new Government came into power. The now Lord Chancellor, perhaps, was not a realist. It may be that he was an idealist. He has even been described in a recent book as an "innocent"—strange though that may seem to noble Lords. But idealist or innocent, I did set about at once (because it was a matter upon which I was rather enthusiastic) forming the Law Reform Committee, which took the place of the Law Revision Committee. We learnt by 1053 experience and accordingly, in order that the Lord Chancellor might keep a closer hold upon it, the Secretary and Assistant Secretary were members of the Lord Chancellor's staff, instead of being recruited from outside. Moreover, the constitution of the Committee was different, in that it was able to work by sub-committees and (this is important) was able, with the approval of the Lord Chancellor, to co-opt members from outside on matters which required particular specialist knowledge.
I daresay that I was optimistic. That Committee was appointed, and it was a very high-powered Committee, consisting of Judges and barristers of eminence, among whom I was happy to invite the noble and learned Lord, Lord Gardiner (as he now is), and I am glad to say that he was able to give of his valuable time to the work of that Committee which, in due course, made a number of very valuable Reports. Alas! we were unable to get Parliamentary time, and now it has been suggested that that might be remedied by having a Vice-Chancellor, so-called, in the House of Commons. Well, I have been Chancellor, and I do not believe that a Vice-Chancellor in the House of Commons would be more fortunate in persuading the Cabinet (of which I think he would not be a Member), or his colleagues in the House, or the Leader of the House, to find time for this sort of legislation when the Chancellor himself was unable to do so. So I regard this suggestion as a hopeless expedient.
Nor, my Lords, do I think for a moment that a Report by a body of persons permanently attached to the Lord Chancellor's Office would succeed in impressing upon Parliament the necessity of legislation where the present Law Reform Committee cannot. Necessarily, it would not command a greater respect, because it would be out of touch with the Bar and the practice of the law. So these expedients for getting law reform in this sense seem to me to be really futile. It may be that I am an innocent, but I have been in the queue at the Legislation Committee which precedes every Session, and I know how hopeless it is, and your Lordships know how hopeless it is, even when a Bill has found its place in the queue; for it is as likely as not to find its place also among the massacre of innocents at 1054 the end of the Session. There just is not time, unless the procedure in another House is altogether remedied; and upon that it would not be even decent for me to say anything at all.
My Lords, that is the whole problem of Parliamentary time. Lord Jowitt knew it. He had been a Member of the House of Commons, as the critics of our laggardness have not. Not only had he been a Member of the House of Commons, but he had been a Minister: he knew just what was possible and what was not; and he did nothing. That should be sufficient answer why things are as they are.
But I would add this. Supposing I am quite wrong, and that it would he possible by these means to provide for more ample legislation of this kind, how are you going to get these so-called "Law Commissioners"? I use the expression because I found it in a very interesting and useful hook which my noble friend has written. Who are they? Obviously, as I have said, they must be men who command the respect of the Bar and of the public. How are you to get them? I confess that I do not see at all. They must be men who have already attained eminence in their profession. Are you going to ask a Judge to give up his high office and come into the Lord Chancellor's Department as a Law Commissioner, or something of that kind? Are you going to ask a barrister who has attained high position at the Bar to give up his work? Are you going to ask a professor at Oxford or Cambridge to give up his professorship? It does not sound to me to be a feasible proposition at all, and I shall be very glad to hear how it should be accomplished. I do not think this means is, in fact, available.
So, my Lords, it all comes down to this: find time. The trouble is (this is very materialistic perhaps, but here I will leave my ideals behind) that it is not a matter which makes an appeal to the electorate; and if it does not appeal to the electorate it does not appeal, either, to the Members of Parliament. I do not think that if I were to put in an Election address that the Government proposed to introduce a Bill to secure contribution between joint tortfeasors it would arouse a spark of enthusiasm in the breasts of any electorate. Yet it is a matter upon which lawyers regard the amendment of the law—or did until it 1055 was done—of great importance. And I do not see any Party putting on its electoral banner a proposal to investigate the acquisition of easements by prescription—a topic upon which the Law Reform Committee are at present busily engaged. That is the unfortunate truth. Members of Parliament are interested in what interests those who elect them. So you will not get Parliamentary time unless you can interest Members of Parliament; and Members of Parliament will not be interested unless it interests the electors. That is the unfortunate fact.
So we have to work as best we can, and the best way we have been able to work in the past has been to ask private Members who are fortunate in the ballot to take our Bills into their charge. I would say nothing the least bit in detraction of the good work done by private Members—of course not—but one must not forget that they have been enabled to work upon the Reports made by the Law Reform Committee, and I think that in every case they have been assisted to do so by Parliamentary Counsel.
The noble Lord, Lord Silkin, and also the noble Viscount who introduced this matter, discussed a very important question, the question of consolidation, but I do not think that they were quite aware of all the facts. The noble and learned Lord the Lord Chancellor will tell us more about it—I am not quite up to date. But, of course, it is a fact that this is extremely skilled work, and this extremely skilled work is being done all the time by skilled Parliamentary draftsmen: there is a special section of the Parliamentary draftsmen who are occupying their whole time on consolidating Statutes, and digging out dead wood, too. As I say, this work is of such skill that it cannot proceed apace—I wish that it could proceed faster. Lord Jowitt had a good deal to do with this, and the work that he started has continued and increased to this day. I think that the noble and learned Lord the Lord Chancellor knows more about this than I do, and I will therefore say nothing more about it. I would only add that the sum total of this matter is the problem of finding Parliamentary time; and I will not occupy any more of your Lordships' time.
§ 6.33 p.m.
§ LORD CHORLEY
My Lords, I hope that the noble and learned Viscount, Lord Simonds, will forgive me if I do not take up all the points he has made. I hope to do so to some extent as I go along with my speech. I should like to say to him at this point that I think he is quite wrong when he suggested the general public are not interested in law reform as a general proposition. It is easy enough to put up technical points of the kind he did, and of course the general public does not understand what they mean and one can score a point in that way. But I think that the general public is really very dissatisfied with the general run of the law in very many ways. It is hit all the time in the criminal courts and in the county courts. I think there has been a really quite remarkable welcome to the proposals which my noble and learned friend Lord Gardiner and the others of us who were in his team on the book have put before the country.
Having said that, I should like to thank the noble Viscount, Lord Colville of Culross (I hope he will forgive me if I do not pronounce his name so expertly as the noble Lord who has the Gaelic), for giving us the opportunity of debating this important subject. One or two of his points, again, I hope to take up as I go along. I should like to challenge what he seemed to be saying in suggesting that law reform now is really Party politics in disguise. It is not. It is quite true, as succeeding speakers have said, that there are political decisions in all these matters, but they are not Party political decisions, and there is very little Party politics in this book except in so far as it puts before the country a general programme of law reform which could be regarded as a matter of Party politics.
There are many aspects of the law of this country in which the law was laid down in times past in a way which was unfair to the underdog, to the underprivileged section of the community, and the noble Viscount might well find in this book proposals for redressing this situation. I would not in any way apologise for that, because I think it is something we have not been doing sufficiently quickly. I hope that the noble Viscount will look at the book again, 1057 and having done so I think he will agree that to accuse the noble and learned Lord, and those of us who worked with him on it, of being merely concerned with scoring Party political points really was not altogether fair.
The noble Viscount's Motion is drafted in very wide terms, and it would enable us, of course, to consider very many points in the law where reform is necessary. But I think he himself took the better line of approach when he discussed the method by which the needed reforms can be brought about, rather than the actual reforms in the law themselves. I do not want to pursue the actual reforms in the law any more than he did, but there are one or two matters which I think one might refer to just by way of illustration of the extraordinary difficulty under the present machinery of getting absolutely essential legal reforms carried through.
As long ago as 1898 in the County of London a system of registering transfers of land was introduced which has been, I think, pretty generally agreed to be an outstanding improvement on the older methods. It is not necessary here to explain the great advantages of this system. My purpose in this debate is to show the extreme slowness of its introduction over the rest of the country. I think I am right in saying that, even now, more than half the country has not the advantage of these excellent arrangements which have been carried through in London now for a period of well over sixty years. We ought to remember that proposals for conveyancing by registration were already being put forward by the Benthamite property lawyer Humphreys as long ago as 1826, and giving rise to a very great deal of interest in the profession and in the country as a whole. And Park, the newly appointed professor of law at King's College which had just been established at that time, made a great part of his lectures on property at King's College on the basis of introducing registration methods and discussed the whole matter as long ago as 1833; and it was not until 1897, sixty years later, that the Land Transfer Act of that year introduced a system of compulsory registration which was immediately put into force in London; and now—what is it?—65 years or more 1058 later, there are still very large areas and very important areas of the country in which this admirable system has not been introduced. This is really quite inexcusable. The only reason why it has not been done is that the present arrangements for law reform are so inadequate.
One could instance very many situations of a similar sort. I would have liked to spend some time on the very important problems which became perhaps rather more pressing when there was a prospect of our going into the Common Market, problems of unification of private law. The commerce of this country is carried on with foreign countries which have different systems of commercial law, and there has been during the present century quite a movement towards unification. So far as shipping is concerned, this country has played a very honourable part, but so far as the law of the sale of goods and bills of exchange, the rules on which finance is conducted, are concerned, we have been very behindhand.
There is at the moment a draft international code for the sale of goods which I am quite sure could be got through quickly if this country would put its weight behind it. But there is nobody to put his weight behind it. The Board of Trade send observers to conferences; but it is not their job to carry through important matters of legal reform of this kind. It really is nobody's job. That, of course, is the difficulty. The noble and learned Viscount, Lord Simonds, said that when he was Lord Chancellor he regarded it as his job to deal with law reform—and of course he did a certain amount. But the Lord Chancellor of thirty years ago, Lord Haldane, who had experience of this office, said that it was the work of four men to be Lord Chancellor. How can the Lord Chancellor possibly give more than a fraction of his time to this most important problem? That is the basic reason why I think our present arrangements are so inadequate.
The Lord Chancellor has a great deal too much to do, and he cannot do all his different jobs efficiently. It should be one man's job to look after this, and that is, in effect, what my noble and learned friend Lord Gardiner is proposing. He has said that there should be a Minister 1059 having this specific job—call him a Vice-Chancellor if you like. At present, there is in the House of Commons nobody who has this sort of job. The Law Officers of the Crown, it is true, do a certain amount on these lines; but it is not really their job to be handling this business. There ought to be somebody in another place specifically charged with this important matter, because the happiness of the general community so largely depends on our having an adequate system of law on the basis of which their business arrangements, their social arrangements and their domestic arrangements can be properly conducted. I do not deny for a moment—I agree with the noble and learned Viscount who introduced the Motion, with the noble and learned Viscount, Lord Simonds, and with my noble friend Lord Silkin—that a great deal has been done. A good deal of reform has been accomplished under Lord Chancellors who have been in office since the end of the war. I did not agree with the noble and learned Viscount, Lord Simonds, when he said that my old noble leader Lord Jowitt had done nothing—I think he meant in the way of appointing one of the advisory committees. But Lord Jowitt introduced some most important legal reforms. If he had nothing more than the Crown Proceedings Act to his credit, that was a tremendous achievement which we owe largely to Lord Jowitt's personal initiative; and in many other ways he did a considerable amount in the way of law reform.
These Advisory Committees have done good work. I would claim that it was the law schools in the universities that were largely responsible for getting them set up. I know that we had a great deal to do with persuading Lord Sankey to set up the first one, and I myself persuaded Lord Jowitt to receive a deputation from the Society of Public Teachers of Law. It may be that Lord Jowitt did not set up the new Law Reform Committee—the wheels had already begun to turn in the Department; and if the noble and learned Viscount, Lord Simonds, had been still here, I am sure he would have agreed that when he became Lord Chancellor he found there were already in the Department proposals which he was able to work upon and bring into force.
1060 What we have to do it to devise a much more radical and efficient method—a method which will bring our law into the modern world. With all the reforms that we have accomplished we are not really keeping up with the modern world. This world moves rapidly, and at the end of ten years we are, in a sense, behind where we were when we started; because the world is moving rapidly forward and we cannot keep up with its requirements. I think we have to consider this situation most carefully. We should all be most grateful to the noble and learned Lord, Lord Gardiner, for bringing this before the public in the way he has done, by stimulating us to work on this book. He is putting forward these proposals for discussion. I think we must give a great deal of thought to getting the right sort of machinery. His proposals are not necessarily 100 per cent. perfect. It would be much better to discuss them and show how they can be improved rather than simply discount them, out of hand, in the way that has been done.
We ought to study carefully what has been done in the other great Common Law countries—and a great deal has, in fact, been done during the present century. Particularly is this true of the United States of America. They have evolved a system which, though it may not be altogether a system that would be good for us, has enabled them to make significant improvements in their Common Law. There are many parts of the re-statement of the law, and particularly, from my own point of view, of the restatement of the Mercantile Law, which have already been adopted in the majority of the States in the U.S.A. and which it would pay us to consider most carefully. Possibly part of what has been done there could be introduced into our own legal system.
Turning to the specific proposals made by the noble and learned Lord, Lord Gardiner, I was glad that the noble and learned Viscount, Lord Colville of Culross, gave us so clear a description of them. I had hoped that we should hear them from Lord Gardiner himself—no doubt we shall do so in due course. I hope that I shall still be here when he speaks but, like the noble and learned Viscount who has already left us, I had arranged my engagements on the basis that this debate would start earlier, and 1061 it may be that I also shall have to ask your Lordships' indulgence to leave before all the speeches have been made.
I have always supported the proposal to establish a Ministry of Justice. It has a most honourable history. It was first proposed by Jeremy Bentham and Lord Brougham, well over one hundred years ago, and it has had the support of many eminent lawyers, among them Lord Chancellor Westbury and others. The great advantage of this is that there is a Ministry which has a job of work to do, whether it is law reform or Company Law in the Board of Trade. The noble Lord referred to Company Law, and how well the legislation was carried through. That is because the Board of Trade have the specific job of seeing that our Company Law is kept up to date. Incidentally, they are not doing their job quite at the moment, because the Jenkins Committee reported a long time ago, and many of the reforms which they wanted introduced are quite uncontroversial and might well have been in an Act of Parliament by now. In the same way the Ministry of Labour is a valuable Department from the point of view of the introduction of legislation. However, I agree with what Lord Gardiner says: that during, the last few years (I think that the late Lord Jowitt could claim a good deal of the credit for this) the Lord Chancellor's Department has, in fact, been built up into something like a Ministry of Justice: and if the Lord Chancellor himself had much more time to devote to law reform I think it would be doing its work much more efficiently than it has been able to do.
I am in broad sympathy with Lord Gardiner's suggestions, because I think that until we have a permanent body of Commissioners, of high eminence in the profession, engaged on this task, we shall not get this reform carried through and the situation brought into line with the requirements of the times. The trouble about the Advisory Committee is that they come to their work at the end of the day. These Judges have done a day's work before they assemble for the work of the Advisory Committees. They are not coming every day or every week, but perhaps once a month—and in some cases at even longer intervals. It really is not possible to carry this business through effect- 1062 tively on that sort of basis. I think it is a matter of argument whether all the Commissioners should be whole-time, as Lord Gardiner proposes. Of recent years there has been a tendency to establish Boards and Commissions on a mixed basis, with a chairman and some of the members whole-time and others of the members part-time. The London Transport Board and the Water Board are examples of this kind. Having part-time personnel enables the introduction of wider expertise, which is an advantage in a highly specialised field like the law with so many branches.
Having got our Law Reform Commission established, we must obviously consider its terms of reference. One of the main weaknesses of the present system, as has been pointed out this afternoon, particularly by my noble friend Lord Silkin, is that the Advisory Committee can deal only with matters specifically referred to it by the Lord Chancellor. And as the Lord Chancellor is so busy, he cannot refer to it more things than he has time to deal with, think about and decide ought to be referred to the Committee, so that again one is in this vicious circle. The new Commissioners ought to have much wider power to select subjects for themselves to consider, as well as suggestions made by responsible bodies from outside, many of which are much concerned with the improvement of our law. It is a matter for consideration whether the Lord Chancellor should have the right to veto what the Commission wished to do, and I should have thought that, with consultation, it ought to be possible to devise a reasonable method by which all the necessary reforms would be put into a programme and carried through, with the support of the Lord Chancellor and his Department.
I appreciate what has been said about the difficulty of obtaining Parliamentary time but, despite all that, it is the fact that practically all these reports have been put into legislation over the years. It may be that it has taken rather a long time, but if it had had the Government behind it, instead of their going round finding Private Members to do it and getting them into consultation with the draftsmen, it could have been done a great deal more quickly, as my noble friend Lord Silkin has said.
1063 The problem of codification has been little mentioned this afternoon. I regard this as an important line on which we ought to proceed. The codification of several branches of our law in the last century was a great achievement, and I think the noble Lord, Lord Tangley, who has been so much in the commercial world, will agree that such Acts as the Sale of Goods Act and the Bills of Exchange Act and other commercial Statutes have been of the greatest advantage, not only to the legal profession but to the business world as well. It was a great pity that the process came to an end in 1906 with the Marine Insurance Act of that year, and that no further efforts have since been made.
My noble friend Lord Gardiner thinks we ought not to proceed to codify other branches of the law until we have got the law into a fit state to codify. That is an attractive argument, but there is no reason why reform should not go on at the same time as codification. The first of these codification Statutes, the Bills of Exchange Act, 1882, which originated with the banking world rather than the legal world, contained a number of important amendments to the law. The draftsman, Sir Mackenzie Chalmers, explained in a lecture, as I remember, that if he had not been told that it would be much more difficult to get the Bill through Parliament if he introduced more than a few of the necessary amendments, he would have introduced a substantial number of further ones.
If it were understood that codification should also include reform, the codification process could go through quite successfully combined with the necessary amount of reform as well. I hope that when the time comes for my noble friend Lord Gardiner to deal with these matters, he will look at it from that point of view so that we shall be able to re-embark on this important process of codifying those branches, not only of commercial law but of Common Law generally, where obviously that would be a feasible solution and would enable us to provide Statutes which the ordinary citizen could read. Sir Mackenzie Chalmers, although he did not always succeed, produced Acts of Parliament like the Sale of Goods Act, 1064 whose provisions (although I appreciate the ordinary man must find certain of them difficult) were on the whole intelligible, and a business man, with a certain amount of assistance from his lawyer, can find his way about them—which is not the case with a great deal of the other branches of our legislation. Time is getting short, and I will leave it to the other noble Lords who are taking part in the debate to make their points.
§ 6.55 p.m.
§ LORD REID
My Lords, I, too, should like to add my thanks to the noble Viscount, Lord Colville of Culross, for bringing forward this Motion at a very apposite time, because it is claimed that this matter is before the public and I think that the voice of this House is due to be heard. Law Reform comprises an immense variety of different kinds of topics, and if one is to regard it from a practical angle it is essential that different kinds of topics should be dealt with in different ways; otherwise if one tries to have one method of dealing with them all one will simply produce confusion.
I wish to direct my remarks, so far as possible, to the practical application of what we all want—namely, reform. It is quite true that some want more than others, but we are all prepared to go a very long way. I agree with my noble and learned friend Lord Simonds that it would be quite absurd to try to put under some new legal body the matters which at present are the concern of various Departments. I am not going over the ground he covered, but let me mention one topic which has not yet been mentioned—the impenetrable thicket of income tax. Is it to be thought that the law of income tax is to be remitted to this new body? I am going to agree in a moment that some new body is required. I do not wish to down the proposals of the noble and learned Lord, Lord Gardiner, one bit; I am only going to quarrel with his method. A great deal of what he wants to do I would support, but not the way in which he wants to do it. I shall come to that in a moment.
Does anybody suggest that income tax can be clarified either by this body or, for that matter, by anybody else? 1065 The noble Lord, Lord Silkin, said—and it is a great ideal—that he wants the law to be clear. The first thing one has to do when dealing with Statute Law is to revise the present methods of drafting. I do not believe anybody has yet devised a system—perhaps the noble Lord and his friends will be able to—which is better from all points of view than the system which has been worked out by generations of the most skilful draftsmen in the world whom undoubtedly we have at our disposal in this country. If we are going to have a new method of drafting, well and good, but it is not a job for a new committee of this kind. They are not going to be comprised of skilled draftsmen, and if we are looking for clarity in Statute Law we cannot gel it by means of this kind of committee. We can get it only by some committee of draftsmen who can elaborate some new method, and I believe that in that way we could do something, but not a great deal.
The noble Lord, Lord Chorley, talked about registration of land. That is not a problem for this committee. I happen to know something about registration of land in Scotland because I have recently been engaged in that subject—and, incidentally, I learned a good deal of what goes on in England. But the whole problem there is not law reform at all; it is a practical problem of administration. If the noble Lord is going to provide more resources to the Department concerned, more rapid progress can of course be made. But I should be surprised if anybody would call that law reform. I do not think it has anything whatever to do with it.
§ LORD CHORLEY
My Lords, surely the noble and learned Lord would agree that it started as a reform of the old methods of conveyancing. What I am complaining about is, the reform having been accepted, so to speak, it has not been applied sufficiently quickly. I agree it has nothing to do with the Commissioners, but it shows that our methods are at fault.
§ LORD REID
No, my Lords, I do not think it does. The noble Lord is perfectly entitled to say that our predecessors a century ago were very slow, and I would agree with him in that in a great many respects. There you were dealing with law reform. But once you 1066 got your system cut and dried, it was no longer a question of law reform; it was a question of implementing the Statute. That is a question not of reform but of administration, and that depends fundamentally on how much of the scarce resources at the disposal of the Government you are prepared to put into this particular project. If you put a lot of resources you will get quick progress; if you put a few resources you will get slow progress. The noble Lord may say, and I am not going to quarrel with him, that we ought to put more resources into that department. I would only ask him: where are you going to take them away from? But let that be. I differ from him entirely on bringing that kind of thing under the heading of law reform. If you do, all that will happen will be that you postpone any general law reform by getting the whole thing bogged down in a morass.
Let me come to this question of code. Personally, I am no believer in codes. I believe that the Common Law method is better. But there, again, it is not a question of law reform; it is a question of drafting. If this Committee is going to take up drafting as its main job, then, it may be good and it may be composed of good draftsmen, but they will not be law reformers; they will be draftsmen, which is an entirely different job, to my mind.
Let me come nearer to what I believe to be the crux of the matter. Broadly speaking, there are two classes of law—if you like to call it law—Common Law or Statute, which need reform, and I agree. There is the kind of subject such as divorce, capital punishment and all the rest which has been mentioned already. There is the kind of subject which involves broad questions of policy, where any man's view is as good as anyone else's, where there is no particular merit in a lawyer's view, where there is no great technical difficulty in giving effect to the policy once you have decided it; and if there is any responsibility for delay, that responsibility lies not on the lawyers but on the Government of the day and Parliament as a whole.
On the other hand, I should prefer to limit my discussion to the narrower type of law reform, and I would define that type in this way. I would say that it 1067 covers topics where reform can and ought to be regulated by legal principles, and not by general considerations of policy. Of course, I agree that in the application of legal principles you want to have in mind the conditions of the day and the requirements of modern society. But they are two quite different approaches. One is: what shall we do as a matter of policy? You are not concerned with legal principle as a general rule. Then, having settled that, it is a comparatively easy matter to draft your proposals. The other approach is: how do we develop the law as a matter of legal principle? There it is much more technical; the drafting may be much more difficult. But that, I think, is the type of matter that we ought to be discussing, and I think most of us have been discussing, here to-night.
I would begin my discussion of that more limited type—which I cannot help thinking is the type of thing which the noble and learned Lord, Lord Gardiner, had chiefly in mind when he was devising his machinery—in this way. I think that, generally speaking, material changes of the law of that kind ought to be preceded by a fairly wide inquiry, and I am not sure that they always are at present. I do not say one word against the Committees which have been sitting—they have done wonders, looking to their limitations—but, generally speaking, they have had to deal with rather narrow topics, because it is impracticable for them to deal with wider topics, and I think wider topics ought now to be dealt with.
Therefore, I am going to say a word in a moment in proposing some constructive suggestions for modification of the scheme of the noble and learned Lord, Lord Gardiner. You must precede your reform by adequate inquiry. The first thing you want to find out in very many cases—not in all—is by evidence, because you want to know where the shoe pinches in practice at present, and lawyers very often do not know that. Then, the next thing you want to do, and I do not think this is adequately done at the moment, is to collect and digest not merely all the authorities in the technical sense, but also academic writings, which, I am afraid, we are often guilty of neglecting 1068 at the moment. It is quite true that some are rather dull, but many of them are very useful, and I think we ought to pay much more attention to them than we do.
Again, and this has been mentioned once to-night, we ought to know far more about what is being done in other Common Law jurisdictions, and particularly within the Commonwealth, because we can very often get lessons either on what to do or what not to do from the experience of other Common Law jurisdictions. The noble Lord, Lord Chorley, mentioned mercantile law. There I would agree that you not only want to go to the Common Law jurisdiction; you want to know what is being done in the other half of the civilized world, whose law was founded on the civil law. We certainly ought to know that kind of thing, and we have not got the machinery to-day by which to discover it.
I entirely agree that you cannot expect results—unless you give them a very limited term of reference—from a Committee which meets only after hours. It really does not make sense to expect it. I would, therefore, say that the two main defects of the present system are, first of all, that you do not have a Committee which is enabled to sit consecutively for a week at a time, like a Departmental Committee or a Royal Commission; and, secondly, you do not have adequate preparation so that they may be fully informed about everything that they ought to have in mind. That is leading you, of course, very close to the proposed organisation, but here is where I diverge completely.
I would not have any permanent appointment at all. I would have a permanent organisation, but I would not have any permanent appointment, because I feel sure that it would not be nearly as attractive to the kind of man we want. I would select somebody with the status of a Lord Justice, and I would appoint him Chairman for three years. After all, most people's new ideas begin to run out after about three years, and if he had three years seconded from official duties I have not the least doubt that he would do the job of Chairman very much better than anyone you can get on a permanent basis. I would give him two or three legal assistants. I would appoint 1069 them, also, on a temporary basis. This would be a position of high distinction, and to have been selected for that position would be a mark of distinction in the profession which would stand a man in very good stead in his after life.
Then I would get the organisation to settle topics with the Lord Chancellor, and then to prepare the ground on each of these topics adequately. I would have an expert committee on each topic, separately—just counsel, solicitors, professors and laymen where appropriate; and it often is appropriate where you are dealing with a technical subject. If there were a Committee of six or seven people with adequately prepared ground, and they sat a week at a time until they had finished their task, I believe you would get a very good series of reports on a broader basis than anything you can expect at present. Of course, it may be that the Treasury would have to see to the remuneration of the people who were being asked to give up all this amount of time, and I would hope that, whichever scheme was adopted, Treasury parsimony would not come in the way. I think that would just as likely be one of the obstacles of the noble Lord, Lord Gardiner, as it would be mine; but I hope that, whatever else we think about these things, we can all combine to defeat that enemy.
I agree entirely with what was said by the noble Viscount, Lord Simonds, about the Government programme. I think one of the main advantages of dividing this project of law reform into broadly two halves, the public policy half and the legal reform proper half, is that if this committee or this series of committees deals only with topics which are purely topics of law reform, there will be very little public controversy about it; and I would expect that, in normal times, a Government would each year be prepared to get through legislation based on two or three reports of that kind. But, of course, if we are going to expand the field so as to bring in topics where there is public controversy, we shall never get any through at all: as the noble Lord said, you go to the bottom of the queue. But I think that if those in authority, and Governments, were to be satisfied that this matter had the backing of not only the legal profession but laymen who understand the position, it would be easy 1070 to prevent such an amount of Parliamentary opposition as would seriously delay the passage of the necessary Bills.
Perhaps I might now mention one or two of the technical points which I think require urgent investigation. I will mention three—I could easily mention a dozen. They are the law of hearsay evidence; the rule that you cannot make an admission in a criminal trial; and the peculiar rule of English law that two contracting parties cannot confer a right on a third party. If we take topics of that kind, I believe we can get them through, but if we take wider topics we shall not. We had a case recently—I cannot say a word about it because we have not yet decided it—which showed the incredible complexity, indeed the absurd illogicality, of the law of hearsay evidence. For a hundred and fifty years it has been getting worse, not better, and nobody has done a thing about it, and it is high time that somebody dealt with it. Take, then, the second topic I mentioned, that there is no right to make an admission in a criminal trial; everything has to be proved meticulously. Days and days of valuable time and an immense amount of money are wasted, and yet there is not the slightest reason that I can see why the reform should not go through. I have never understood why you can admit the whole crime by pleading guilty, but cannot admit any particular fact in the course of the trial if you plead not guilty. To my mind it makes no sense at all, but, again, for a century and a half nobody has done a thing about it because evidence and procedure have tended to be neglected. I put evidence and procedure first for this reason: nine-tenths of the litigation in this country is not concerned with law at all; it is concerned with the ascertainment of facts, in either civil or criminal proceedings. Therefore, if you want to do good, the first thing to do is to improve the law of evidence and procedure. Now I do not think we shall get spectacular results, but I think we can get substantial results which will be of benefit to everybody.
I say we shall not get spectacular results because everybody who has had any experience knows that the investigation of fact is a most difficult matter, and if you try to curtail or cheapen that 1071 investigation you will seriously imperil the standard of justice which prevails in this country to-day. But, leaving that aside, I would say quite deliberately, as a result of sixteen years' experience judicially in this House, that the general shape of our law is good and that the tasks for reform are of a limited character. I am not at the moment talking about making it clearer—as I have said, that is a matter for the draftsmen; I am talking about the substance of the law. I believe that the great bulk of the substance of the law is as good as we are likely to make it, but there are a very considerable number of topics, particularly on the fringes of the law, where I think we could do quite a good deal.
I am not going to pretend that I am a perfectionist. I would never seek to chase the will-o'-the-wisp of perfection. I am inclined to let sleeping dogs lie provided they are doing nobody any harm; but the trouble in recent years has been that quite a number of sleeping dogs have in fact been showing serious signs of waking up, and I would think that the main purpose of speeding up the process of reform is to prevent any of these topics breaking out in such a way that the public will be inconvenienced, if not worse. I think our whole approach to this question ought to be the practical approach: how are we going best to serve the public in the administration of the law? I do not think that we shall get much further on that topic unless we regard this from a purely practical angle—what are the topics that want tackling; what, in each case, is the best way of tackling it?—and then hope for the best that the Government will find the necessary time.
§ 7.17 p.m.
§ LORD PARKER OF WADDINGTON
My Lords, may I add my congratulations to my noble and learned friend for introducing this interesting and, I venture to think, important debate? He has done it already once before, alto I hope he will do it again. I will not detain your Lordships for more than a moment, but I should like to address myself to two matters. The first is to try to dispel the feeling, which I only hope is not with your Lordships but which is certainly with members of the public, 1072 that the Judges are a reactionary body of people who are set against all reform. I should have thought that history alone would have shown the opposite. For centuries the Judges made the law and extended the law to meet the changing needs of society. Indeed, in doing so, they gave decisions involving a very high degree of policy.
It is only in this century and the last that the Judge—made law has shrunk and shrunk; and now the position is that the Judges sit day by day in court, they see where the shoe pinches and they see where the law which they have to administer appears to work an injustice. I venture to think that the Judges have done a lot to accelerate reform. Certainly they have not put a brake on it; the brake has been put on it by Parliament. But not only is the Judge, by tradition and inclination, a reformer. I think that to-day self-preservation against criticism alone would make him progressive. I am thinking of the attacks on the Judges made last summer—at a time, incidentally, when your Lordships' House was not sitting, and no explanation could be given. Those attacks, though directed at the Judges, were on analysis directed at the law which the Judges have to administer; and the criticism could be justified only, I venture to think, if the Judges were responsible for the law.
The second matter is to try to get into perspective for the moment, if I may, the possibilities of law reform. I picture the subjects which are the potential subjects of law reform as forming a spectrum and shading into each other according to the degree or absence of policy. At the end of the spectrum are all those cases to which noble Lords have referred, questions such as the abolition of the death penalty and the major reform of divorce law, which are matters of grave policy. At the other end there is what I will, for lack of a better phrase, call "lawyers' law", where the political element is either wholly lacking or is there only to a small extent. In between is that vast area where policy to some extent is there and where accordingly there may be matters of controversy.
Going to the far end of the spectrum, I venture to think that nothing can be done to accelerate reform. It is always a matter for the Government of the day 1073 to find the lime to deal with those matters of high policy. They are not attractive to Governments; no doubt the standing of a Government is not enhanced by introducing them. In many cases they may be said to be "hot potatoes". All that the lawyer with reform at heart can hope for is that the Government of the day will seriously take it upon itself to make time to debate matters which really are of public importance. It seems to me that that usually happens too late, and usually as a result of outside pressure. To some extent that is also true of the intermediate area of the spectrum, the chances of reform again depending on policy and the likelihood of controversy.
It is, however, I think, at the other end of the spectrum where there really is a chance to do something and where something ought to be done. It is an area which concerns lawyers almost entirely, and where, if the lawyers agree among themselves, there is unlikely to be any real controversy in the matter. It is in that area where the various Committees that have been referred to, and particularly the Law Reform Committee and the Criminal Law Revision Committee, have undoubtedly done most valuable work. I venture to think, however, that more could be done. It seems to me that every day there are matters, even within the sphere of "lawyers' law", which require to be looked at. Either those Committees ought to be increased in membership so that it can be divided into more sub-committees; or more specialised Committees should be formed so that more than one or two matters can be under consideration at the same time.
I also venture to think that it should be accepted that those manning these Committees should be able to do it in their working hours. I think, as has been said earlier, that casual evenings for overtired lawyers as an overtime task is really not enough in this important field. But more important in my view is that there should be a central organisation of some sort, with somebody who will collect the points which require investigating and will refer them to these Committees, unless the Committees under one chairmanship can initiate the subjects for reference to themselves. I am thinking of the Criminal Law Revision Committee, who can act only from a reference from a very large Ministry, a very 1074 overworked Ministry, a Ministry who are unlikely to refer a matter to that Committee unless there is a public clamour for a reform and where there is no policy involved. I venture to think that it is not often that those two qualifications are present. There is not much public clamour for what I may call the reform of "lawyers' law".
There is policy to be found in almost anything; and therefore it is difficult to get a reference. I can give a personal experience when I tell your Lordships that over three years ago I tried to get something referred to the Criminal Law Revision Committee. Just about three years to the day I heard that no reference was being made because the Department did not think the reform was necessary. Well, something is wrong if the Department is going to take upon itself the decision that no reform is necessary. Accordingly I am very anxious that there should be one instigator, not at the head of a big and overburdened Government Department, who will collect the material and be responsilble for referring the subject in question to the appropriate Committee.
At the end of the day, when the Committee has reported, I venture to think that something more could be done to accelerate the process. This matter has been referred to in your Lordships' House earlier, and I am afraid I would only show my ignorance if I tried to suggest any precise method by which it could be dealt with; but it certainly should not be beyond the ingenuity of Parliament, given the will—and I say "given the will"—to introduce some procedure whereby matters where no controversy arises can be dealt with more quickly. Finally, my Lords, while being a reformer at heart I feel very strongly that, especially in the law, great care should he taken to see that what you are seeking to put in its place is better than what was there before. This, as my noble and learned friend Lord Reid pointed out, takes time. It cannot be unduly hurried. Above all care should be taken not to reform for reform's sake or to carry out reform which is purely window-dressing.
§ 7.28 p.m.
§ LORD TANGLEY
My Lords, I have been a Member of your Lordships' House for a very short time but it has 1075 been long enough for me to realise that one of the new pleasures of life is to enjoy the force and clarity with which the noble Viscount, Lord Colville of Culross, always speaks; and to-night we have had another example of that. I am glad to say—and I am sure your Lordships will be even more pleased to hear—that practically all the points I wanted to make have already been made, and I shall limit myself to a very narrow area. All through this debate there has been running through my mind this thought: the law is a living thing and, like all living things, either it changes and adapts itself or else it decays and dies. That seems to be the law of all living things. But, looking back over my own lifetime, what surprises me is the astonishing vitality and adaptability that our law has shown.
We have been looking at one side of law reform to-night but we ought to consider this. There is a vast amount of law reform going on all the time that never comes before Parliament and never requires statutory effect at all. Vast areas of our personal, social and business life are not affected by or governed by legislation at all; they are still governed by the Common Law and by the principles and rules of equity. The noble and learned Lord the Lord Chief Justice, Lord Parker of Waddington, mentioned a moment ago that if anybody thinks the Common Law of to-day is in the same state that it was when the noble Lord, Lord Silkin, and I were students together at the Law Society, then he ought to go in for a course of quite intensive reeducation; and I think we might put on some refresher course at the Law Society to help in that process. This process has been going on for hundreds of years. I hope that it will go on for hundreds of years more. It is a process in which noble Lords, in whose presence I have great pride and great humility, are taking their active part, a process which has shaped the character and institutions of our people and the character and condition of countless people all over the world. That process, that leavening of the lump, is going on the whole time, both in Common Law and in equity; we ought never to forget it or lose our sense of proportion when thinking about law reform.
1076 What we are referring to this afternoon is the reform of Statute Law, and on that may I offer these few observations? First of all, the one thing that is lacking above all, in my humble submission, is a sufficient sense of urgency in this matter. We all accept the fact that law reform is needed, and that some procedure is needed to achieve this, but we have not a sufficient sense of urgency. I suggest to your Lordships that this sense of urgency will arise from this fact; that the state of the law, the form of the law, and in many instances the substance of law, are such as to be brought into disrepute. We find people to-day quite naturally and normally taking the line that they cannot be expected to understand an Act of Parliament, and certainly cannot be expected to understand a series of Acts of Parliament. I find it very hard for a lawyer to counter that point of view. While that position persists, the law, the Bench and Parliament are in danger of being brought into disrepute. From that feeling we ought to derive a far greater sense of urgency about the necessity for putting these things right than most of us feel to-day.
I should like to make three points about procedure. Coming back to the sense of urgency, the first point is that I should like to see every Government Department feeling that its constitutional duty is not only to administer the law but also to sit back, from time to time, and see how the law which it administers ought to be improved, not necessarily in matters of policy, but in procedure and in practical work. If that sense of urgency could be instilled in every Government Department, and if that were part of their constitutional duty, I believe that there would be a much greater flow of ideas and proposals from the Government Departments concerned. The second thing I would suggest in the matter of procedure is not that there should be a Committee in the Lord Chancellor's Department trying to coordinate the ideas of other Departments, but that there should be the feeling in every Department that there is a serious risk of prodding from the Lord Chancellor's Department if they do not get on with the job of initiating ideas for themselves. That would not require a 1077 great staff, a vast organisation. It requires only this constant kindling of the sense of urgency.
The last point I want to make concerns the question of Parliamentary time. In great matters, to which reference has been made to-night, in issues which go throughout society and arouse deep differences of thought and feeling, such as the marriage laws, I believe that the Parliamentary system works extremely well. In all these great matters, the main objective must be to achieve harmony between the law and informed public opinion. If the law and public opinion are out, the law will not be a successful one. In order to achieve this harmony, a long time is needed. The interaction of Parliamentary opinion upon public opinion and of public opinion upon Parliamentary opinion is needed; and sometimes, also, Royal Commissions and Committees. But this is an essential part of the process of achieving the essential harmony between the law and public opinion.
At the other end of the scale, there is what has been referred to to-night as "lawyers' law". This raises no question of politics or of public opinion—certainly no question of Party politics. Yet here we are up against the question of Parliamentary time. Here, perhaps, my naïvety and innocence is almost as primeval as that enjoyed, or suffered, apparently, by my noble and learned friend Lord Simonds, when he came to a certain office not so long ago. Because on this point I was horrified to hear the noble Lord, Lord Silkin, say that there was no Bill which had not some political content, if only that it was a political matter whether or not a Bill should be introduced, or in what order Bills should be presented. If that is so, it seems a gloomy outlook for law reform. If law reform is to be the plaything of Party politics in that way, bearing in mind that this is not likely to be a matter on which Party politics can be aroused, it is much more likely that law reform will be neglected by Party politics.
§ LORD SILKIN
My Lords, may I correct my noble and learned friend? I did not mean to imply that the decision was a matter of Party politics. All I meant to say was that it was a political decision. I was referring to something 1078 which the noble Viscount, Lord Colville of Culross, had said. Every decision to introduce a Bill is a political decision, but it is not necessarily a Party political decision.
§ LORD TANGLEY
My Lords, I am much obliged for that explanation. I am not quite sure whether I understand the distinction between the two forms of politics which he mentioned.
Coming back to this "lawyers' law", if it is impossible to find Parliamentary time for it, must we expect that for ever and ever these matters are going to be dealt with by the full procedure of Parliamentary Bills? The other day, we had a fascinating little Bill, to which reference has already been made, the Perpetuities and Accumulations Bill. It was a fascinating little Bill, which did a great deal of good in certain directions; and it could do no possible harm in any possible direction. I cannot help feeling that the contents of that Bill might have been contained in some form of statutory instrument. It might have been looked at in that light, either by two Committees, one here and one in another place, or by a Joint Committee; and we could have dealt with the matter quite adequately if we had had a Report from a Committee saying that it was an innocent little Bill which did some good in some directions and no harm in any. Perhaps that would have relieved the Government of the day of the necessity of finding Parliamentary time somewhere, in one House or the other, for that Bill. That is just an illustration of "lawyers' law" and how it might be dealt with.
My Lords, I may be naïve and innocent in making these suggestions, but if the essential object of law reform is always to be baulked by the question of finding time, either with or without political content, and if we are to save our reputation as a legislative machine, we must find some way to overcome this problem of Parliamentary time. It is a question of urgency. I have been speaking quite differently from the way I had intended to speak, when I thought about this debate. Probably I have been led into some rash statements, but I do not regret them. I throw myself on your Lordships' mercy, and hope that your Lordships will treat me with kindness, as you always do.
§ 7.40 p.m.
§ LORD GARDINER
My Lords, after that very interesting speech, I should like to begin by congratulating the noble Viscount, Lord Colville of Culross, on having introduced for our discussion a subject which I believe to be one of considerable importance. I wish him well in his Motion and hope that he will press it to a Division, partly because I have always wanted to see, if a Motion for Papers was carried, what Papers would be produced. The noble and learned Lord, the Lord Chancellor, has a lot of papers there, and it would I think, be interesting to see what Papers were produced.
VISCOUNT COLVILLE OF CULROSS
My Lords, it did once happen. My noble friend Lord Ailwyn had a Motion on dogs, and there were some Papers of great interest produced in the Library.
§ LORD GARDINER
I am very glad to know that. I think both the noble Viscount and I would be equally interested to see what is produced on law reform.
Secondly, I should like to say with what great interest I, personally, have naturally listened to all the observations which have been made by the different Members of your Lordships' House who have spoken in this debate. In view of the lateness of the hour, I propose to say only about one quarter of what I had intended to say, and I am sure noble Lords will acquit me of any discourtesy if I am unable to make any observations on a number of the statements which have been made by various speakers.
Condensing the subject as much as I can, I would suggest that there are here really three questions. First, when you talk about law reform, are you envisaging some major overhaul of English law, or are you contemplating matters of mere detail? Secondly, if you are contemplating a major overhaul of English law, is this something of real importance to our people, or is it really only a matter of interest to lawyers? Thirdly, if you contemplate a major overhaul and it is of importance to all our people, then I think the question is: what is holding up law reform?
1080 Personally, when I talk about law reform I am envisaging a major overhaul of the whole of our law. I think it is in a state in which it can no longer be allowed to remain. I think I observed before in your Lordships' House, on some other occasion, that the whole of the Code Napoleon was drafted and enacted in ten months and has stood the test of time. But here we have the best Judges in the world. There are many features of our legal system of which we are not only proud ourselves but which are acknowledged as excellent by the lawyers of other countries. Our great defect is in the content of our law, and, indeed, this has been generally criticised.
So far as our Statute Law is concerned, there are, I think, about 4,000 extant Statutes, and if you took down those volumes of the Statute which contained Acts which are still in force I think you would have to take down something like 358 volumes—although a firm of law publishers that we all know has kindly already done the job for us and reduced it to 33 volumes. Then there are 99 volumes of delegated legislation and about 350,000 reported cases. What sort of system of law is this? As the noble Viscount knows, on almost any subject, to find the law on some particular point one may have to look at twenty different Acts of Parliament all dealing with the same subject matter. It is not just that this all takes up lawyers' time that has to be paid for—and, of course, from the point of view of the community, the less they spend on lawyers the better—but that here we are coming up to the Scientific Revolution and we are all saying, I am afraid, lawyers included, that industrialists and commercial people have to be a good deal more efficient than they are at present. But are they not entitled to turn to the lawyers and say: "Look at the state of your law; look at its physical condition"?
One can take almost any branch of the law. Take, for example, the law of maintenance and champerty. Here is a matter which may well be considered as to whether it is right that if a Frenchman has to bring an action in England and cannot get legal aid, and an English solicitor helps him to do as is done in France—borrow the money on the footing that if successful whoever 1081 has put up the money will get part of the damages—that solicitor cannot recover any of his costs, because what has happened is a criminal offence. No Judge can say: "I do not think the solicitor has done any harm." One cannot get away from our Statute Law.
What is our Statute Law in this field? To start with, a Statute of 1275 (and this is the law to-day in 1964): "Maintenance by officers of courts", "Deceits by pleaders", and "Purchasing titles of land in suit". Then you get, in 1305, the "Definition of champertors"; and so you go on. There is the Maintenance and Embracery Acts, and then a fascinating one in the reign of Henry VIII which, had time permitted, I should have read, and which is in language of intense interest to all antiquarians, though some of the words I do not think anybody living to-day can understand at all. This is not old law, but English 1964 law.
The one thing that I am sure all noble Lords who have spoken to-day agree about is that our Statute Law, at least, ought to be consolidated; and one great advantage of consolidating our present Statute Law would be, I think, that, having consolidated it we should see how idiotic some of it is. If it were anybody's job—which it is not—to take our law and submit it to any system of review, and he looked at our law of maintenance and champerty, he might have said: "Do we need this law to-day, or not?" But if he thought we did, no one could possibly have left it in its present form.
With regard to the book that has been referred to, I would make it quite plain that I take no responsibility for anything in it that I did not write myself. Its distinguishing feature was really this: that you cannot get everything that is wrong with English law into one book, and the real difficulty of the editors was the task of selection. We had to leave out altogether a number of branches of the law, because there is so much wrong with English law that you cannot get it all into one book. Therefore I suggest the time has come, in the age in which we are living, to have a real, systematic overhaul of the whole of our law. Consequently, I suggest that this is of real importance to our people, and not just to lawyers.
1082 We may differ as to what the law as to landlord and tenant ought to be, but what that law is is obviously of desperate importance to people who want homes, or who, having homes, want to keep them. The noble Viscount will remember that we used to have as a Common Law doctrine the doctrine of common employment, although Judges had said since the turn of the century that this was quite out of accord with modern conditions. As he will remember, it used to be the law that in a road accident if "B" was 95 per cent. to blame, "A" could not recover if he was 5 per cent. to blame, although the law of collision at sea had always been different. And nothing was done about it.
If a married man runs off with another woman, leaving his wife in the house with the children, and she is not at work because she looks after the children (which some of us old-fashioned people think is quite a good idea), it is important for her to be able to go to a local court and get an immediate order for maintenance. And so she has been able to, up to a maximum of £2 a week, which I dare say was a proper figure when fixed, having regard to the cost of living on July 1, 1896, when the Act was passed. But, in spite of the fall in the value of money since 1896, over the turn of the century and up to 1914 nothing was done; in spite of the further fall in the value of money from 1914 to 1918, no change was made; and in spite of the further fall in the value of money between 1918 and 1939, it was still £2 a week; and the same thing was true from 1939 to 1945.
I will come, if I may, to the reason for that, but, in passing, I would say that there is one observation that has been made with which I could not agree, and it must be due to an error of recollection: it is the observation of the noble and learned Viscount, Lord Simonds, who said that the Labour Government had not done any law reform. There would have been a good excuse if they had not, because that Government, I suppose, had a bigger legislative programme than any Government of modern times. But, of course, in fact they did. They swept away the doctrine of common employment, and they swept away that curious law of contributory negligence, as it then was. They saw that the deserted wife was 1083 properly treated, and the maximum allowance increased. I do not think there is any Government, before or since, which found more time for law reform than that Government.
If it is right to say that the time has come when the content of the law itself ought to be submitted to an overall review—we have had, for example, no examination of our Statute criminal law for a hundred years—and if the reform of our law really matters to our people, I come to the third question: what is stopping law reform? What we are always told is that it is Parliamentary time. Having no experience of another place I cannot, of course, express any view based on my own experience. But I would suggest to the noble Viscount that he should not believe this. I am now starting to belong to the past. The future lies with him. I was always told that in the field of law reform the only thing that was stopping law reform was Parliamentary time. I never did believe it. Let us go back to consolidating the Statute law.
It must be nearly twenty years ago when I pointed out to Lord Jowitt and Sir Stafford Cripps what an awful thing the Statute Book was. I pointed out to them that if one took what should he a simple law, the law of getting married, there were about twenty-five Acts of Parliament dealing with it. It should be much simpler than the law of getting unmarried. I said "How long is this nonsense going to go on?" and it was after that that Lord Jowitt introduced the Consolidation of Enactments Procedure Act, under which the law can be consolidated without taking up any time at all. He started, in fact, with the Marriage Act. Before that we had always been told it could not be done because of Parliamentary time. It is not Parliamentary time that has been stopping it since. If you are going to do that when you are going to alter an Act, you must repeal, amend and re-enact. I am sorry to see that since then we have got the Marriage Act (Amendment) Act, and, of course, if you go on like that for twenty years you are back in the same position. As the noble Viscount knows, if it is certified by a Joint Committee that consolidation makes no real amendment of the existing law, then it takes up absolutely no Parliamentary time at all.
1084 May I take one more example?—and I promise not to take up too much of your Lordships' time. About seventeen years ago when, like the noble Viscount, I was a junior at the Bar, I was appointed a member of a 24-man Committee—twelve legal, and twelve representatives of industry and trade unions—to revise the whole of the practice and procedure of the Supreme Court. The noble and learned Lord, Lord Evershed, was the Chairman. I shall not forget it because I attended 330 meetings of the Committee, and I think it is sometimes not appreciated what a lot of time that sort of thing takes, and sometimes you find afterwards that the report has never been considered by either House of Parliament. One of the things we found was that the costs of litigation were, we thought, increased by the complexities of the law of evidence.
We said in paragraph 280 of our Report—and this was unanimous—that the Statutes dealing with the law of evidence amounted to 40 Acts, covering a period of 329 years from 1609 to 1938, and we strongly recommended that they should be at once consolidated. After six years' work we reported in our final Report in July, 1953. Next month it will be July, 1964. Perhaps when the noble and learned Lord the Lord Chancellor comes to reply, he will tell us what is holding that up, because as there have been eleven years to draft one Bill, after a unanimous recommendation from what, after all, was a very strong Committee, and in view of the provisions of the Consolidating Act, the reason cannot be lack of Parliamentary time.
I believe the truth to be that there are two things, and two things only, which are holding up law reform. May I deal with the minor one first, and I do this with considerable trepidation, in view of what the noble and learned Lord, Lord Reid, said, because, as he knows, there is no one for whose opinion I have a higher regard. The noble and learned Lord said that we could not have law reformers (if I may call them that) who were the same people as the Parliamentary draftsmen. I am not at all a good comparative lawyer; I am not a good any-kind-of-lawyer really, but I do know about other countries. I do know that in France, I do know that in Germany, I do know 1085 that in Sweden, I do know that in Holland, and I do know that in Denmark those who draft the Statutes are the same men as the men of the law reform section of the Department of Justice. I do not know any other Western European country where they are not.
Having mentioned the Department of Justice, may I refer to one point made by the noble Lord, Lord Chorley? I am again not a constitutional lawyer. I understand that the constitutional lawyers are divided in opinion as to whether the first function of Government is to provide for defence against external attack and the second function is to provide for a system of justice, or whether the first function is to provide for a system of justice and the second to provide for defence against external attack. Whichever is right, everybody would agree that you could not have a Government of a civilised country for 48 hours which did not have some department which was responsible for justice. Of course, the extraordinary thing is that in every other Western country, and in our Dominions, they have this Department, the Ministry of Justice. We call it the Lord Chancellor's Office. But I was not clear what Lord Chorley meant, because I cannot see how it matters what you call such a Department. The question is whether it is efficient or not.
So far as the drafting is concerned we, so far as I know, are entirely peculiar in tying a label round our Parliamentary draftsmen saying "Finance" because they come under the Treasury. I believe I am right in saying, incredible though it may sound, that the Lord Chancellor of this country cannot himself get a Bill drafted without the approval of some Cabinet Committee because the Parliamentary draftsmen can be approached only in that way. There is not another country that does this.
§ LORD GARDINER
I had thought that perhaps that could be the only reason why the law of evidence has not been consolidated after eleven years. But I may be wrong about that. But in every other country the Department of Justice always has a law reform section, and these are the men who are trained to do 1086 the drafting. You could not have there what we had yesterday, a Bill like the Resale Prices Bill referring to profit and not saying whether it was net or gross profit, and then find that the Government did not know themselves which they meant, because the man who did the drafting would be an expert in that field and he would know what he meant.
The second reason, which is much the major one, is that in life you do not get anything done unless it is somebody's job to do it. It has never been anybody's job to see that our law is kept up-to-date and in good working order. Theoretically it is the job of the Lord Chancellor with, I think, in criminal matters, some responsibility on the part of the Home Secretary. The line is not clear, because again when a junior counsel at the Bar I found some obviously defective criminal law. I wrote to the Lord Chancellor about it, and he said that it was a matter for the Home Secretary. I wrote to the Home Secretary, and he said that it was a matter for the Lord Chancellor. I think it was Profesor Keeton who observed that somewhere between the Lord Chancellor's Office and the Home Office is a large hole where projects for the reform of our criminal law lie deeply interred. So perhaps in the first place we ought to decide where the line ought to be drawn.
Broadly speaking, it is the responsibility of the Lord Chancellor, but he cannot touch it. How can he? He is, after all, a member of the Cabinet who has to read the Cabinet papers like any other member. He is, in effect, the Speaker of your Lordships' House. He has to appoint all the High Court Judges and all the county court judges. He is responsible for the administration of that dreadful building in the Strand; and the salaries and wages bill of the inhabitants, apart from the Judges, comes to over £500,000 a year. He has to deal with the whole of the administration of the county courts. He has to appoint all the justices of the peace. He is, incidentally, having to appoint clergy to new benefices; indeed, he has five times as much ecclesiastical patronage as the Archbishops of Canterbury and York put together. He has supervisory duties in lunacy. I think I am right in saying that every lunatic 1087 has a statutory right to write to the Lord Chancellor—and most of them do.
My Lords, this is the man who, in his spare time, is supposed to be thinking about whether English law is working properly or not! And, of course, he cannot. The noble Lord, Lord Chorley, referred to the fact, which is right, that Lord Haldane, in his biography, says that at about the time he was writing with his own hand the "Justice" section of the Machinery of Government Report, while it had been said that the Lord Chancellor's job was a two-man job he had come to the conclusion in his time that it was a three-man job. What it is now I shudder to think.
Of course, he cannot do it personally. Nor can he do it by his extremely able, very overworked, very underpaid and under-accommodated staff—which is all the measly Treasury allow him—because they also have all these other jobs to do. It is said that the Lord Chancellor has his Law Reform Committee and the Criminal Law Revision Committee. As one who was for eleven years a member of the Law Reform Committee, I naturally do not wish to undervalue their work. We would be given a little tiny piece of law to look at, and after about two years we produced what I believe were very useful Reports, most of which at some time or other were implemented. But this work meant attending about one afternoon a quarter, after a long day's work, for about one and a half hours; and I think it was Professor Sir Arthur Goodhart who said that you simply cannot get English law into good working order in that way. One of the reasons I resigned from the Committee was because, after eleven years, I realised that this was simply scratching the surface. The truth is that, broadly speaking, nothing gets done in the field of law reform unless there is a pressure group, or the Daily Express says something about it. There was no League of Deserted Wives, and the Daily Express never said anything about that; so nothing was done.
So, my Lords, to put it very shortly, it seems to me that the remedy one can arrive at, after studying the causes of the lack of law reform, is, first, that so far as consolidation is concerned, there is no reason why we should not have a Statute Book with all the Acts dealing 1088 with each subject in one Act, and no Act earlier than 1964; and no reason whatever why this should not be completed in x years, provided only that we have wise Parliamentary drafting counsel, because there is nothing else which can hold it up.
So far as the rest of our law concerned, it has always seemed to me that what we primarily need is someone who has not only the duty but also the time to submit the whole of English law to a systematic and continuous review; and I have suggested five or four Law Commissioners. I do not, very respectfully, agree with the views which have been expressed that one will not be able to find them, and find them of the class indicated by the noble and learned Viscount, Lord Simonds. There may be rather more difficulty in finding for them a proper staff. But unless and until we have a body of men whose sole whole-time job it is to survey the whole field of English law and gradually try to bring it up to date, the job will never be done. I do not in the least dissent personally from the view expressed by the noble and learned Lord, Lord Reid: that while they should be whole-time, they need not be permanent; they could well be appointed for three years. I see no reason why this should not generally apply; I see great advantages in it. Certainly I feel sure that it is essential they should be full-time.
I should have liked to deal with a great many of the points that have been made. I fully appreciate that it would be very foolish to try to throw on the Law Commissioners all the good work at present being done by the departmental lawyers. I am not sure that they ought not to have a general surveillance over the whole field. I am not sure whether, if the Minister of Transport makes some new regulations with penalties in it, it should not be the job of the Law Commissioners to see whether the penalties accord with the sort of penalties which are being imposed for other relevant offences in other fields.
I am sorry, my Lords, to have been as long as I have, but this is, I think, a question of real importance. Something obviously depends on having a Government which feels this to be of importance and is determined to do something about it. I naturally hope that some day 1089 (because this ought not to be a matter of Party politics at all) we shall have a Government which does feel that the state of the law is of great importance to all our people and that the time has come when we cannot go on just fiddling with law reform, but must tackle the whole field in a very much more determined manner than we have of late. But whether that happens or not, we shall all be grateful to the noble Viscount for introducing the subject this afternoon.
§ 8.6 p.m.
§ THE LORD CHANCELLOR
My Lords, I shall, of course, deal in some considerable detail with the speech we have just heard. As usual, the noble and learned Lord delivered a speech with great eloquence and very persuasively, but I am afraid that once again it is unfortunate that his case is supported by certain inaccuracies of fact. He told us, if your Lordships will remember, how it was that the last Socialist Government, after many years of lawyers demanding a change in the law, introduced a Bill and got it on to the Statute Book dealing with contributory negligence. But, of course, that was on the Statute Book and passed in the time of the Government of which I was a member before 1945. The noble Lord was, I am sorry to say, equally inaccurate about his assertion as to my responsibilities and powers. It is somewhat surprising to me, the way in which the noble and learned Lord puts forward these statements which really do not stand examination.
He had great fun at the end of his speech with the responsibilities and work of the Lord Chancellor. Of course the work is heavy—it always has been—but if one had listened to his speech one would have come to the conclusion that I was endeavouring to do it all singlehanded. He talked about my ecclesiastical patronage. That I exercise with the help and advice of a very highly qualified staff. I have that help, too, in my other spheres of responsibility. And if one had paid attention to his speech one might have gained the impression that the Lord Chancellor could concern himself about the subject of law reform only in his spare time. That is also completely inaccurate.
I will come back again to the noble Lord's speech, but before I do so I should like to deal with some other 1090 matters and, in particular, to join with all those who have expressed their in- debtedness to my noble friend Lord Colville of Culross for moving this Motion. It has led to a most interesting debate. He has given us the opportunity of discussing a subject which is of perennial interest to all lawyers and which, as we know, has recently received a good deal of publicity. It might, I suppose, be said by some laymen that we have been having a lawyers' paradise. The subject we have been discussing—and I agree here with the noble and learned Lord, Lord Gardiner—is of great importance. Before I say anything more about the main theme of the debate, may I pick up one or two points which were made in the course of it?
The noble Viscount, Lord Colville of Culross, began the debate by drawing attention in particular to the position in regard to the Burial and Cremation Bill which he introduced. I should like to say a word on that now, because when I get into the main theme of this debate I might overlook it. It is true, as I am sure he will agree, that the Burial Acts are very complex, and a large number of very small authorities can operate only one code of the two codes that are now in existence. The noble and learned Viscount introduced a Bill and, as I think he agrees, it was indicated to him that the Bill did not go far enough, and that if Parliamentary time were to be spent on the whole subject it would be better devoted to unification of the whole law. The noble Viscount withdrew his Bill on the undertaking given him by the Government that they would prepare a Bill for him and prepare drafting instructions as soon as possible.
VISCOUNT COLVILLE OF CULROSS
My Lords, I then proceeded to give the Department a draft Bill covering the whole subject, not only the one I withdrew.
§ THE LORD CHANCELLOR
I was not criticising the noble Viscount; I was trying to remind him shortly of the facts. Since that time the Ministry of Housing and Local Government have been working on proposals for a Bill to unify both codes of legislation. This has necessarily been a lengthy and detailed task, but proposals are now 1091 ready and are about to be sent to the interested bodies for comment, and it is hoped that the noble Viscount will have the Bill ready to present sometime early in the next Session.
§ THE LORD CHANCELLOR
I am glad to have been able to satisfy the noble Viscount about that.
One other matter I should like to deal with is the assertion—it did not really come under the heading of law reform —by the noble Lord, Lord Chorley, that we had failed to give the support we should have given to an International Convention on the sale of goods, and he suggested that that was a serious defect on our part. In fact we have participated very closely in the discussions at The Hague on this subject, and as a result of our contributions agreement has been reached on a draft which we should be able to accept eventually. I hope that has corrected that matter of fact.
I shall in the course of my speech have some critical things to say of the views put forward by the noble and learned Lord, Lord Gardiner, both in the book which was edited by him and in his speech to-day, views which would appear to have been endorsed by the right honourable gentleman the Leader of his Party. But I can at least congratulate him on having brought the question of law reform to the fore and on having made it a subject of public discussion, sometimes in circles which have little understanding of the real problems at issue.
I must say that I think it is wholly misleading to give the impression that a vast part of the law of England, for which most of us, whether we are lawyers or not, were brought up to have a deep respect, is in fact in such a state as to need to be torn up by the roots or, as the noble and learned Lord said this afternoon, as to be in need of a general overhaul. Of course it is quite easy to turn to an old Statute which has probably very little impact on the daily lives of the inhabitants of this country, like the Act dealing with champerty and maintenance, and say that ought to go.
But having read the noble Lord's book and listened to his speeches, I must say 1092 that I think he has wholly failed in his main charge that there is a need for a major overhaul over the whole field of cur law. That really is not the case. As my noble and learned friend Lord Reid said, while there is of course some need for reform—and I will come to that later—the general shape of our law is good and the task of reform is of a limited character. I ask your Lordships to pay great weight to the view my noble and learned friend expresses In the light of his great experience.
People may be led to believe as a consequence of what has been said and written that the state of our law is really better fitted to a vanished age than that in which we find ourselves to-day, and that really is Lord Gardiner's thesis. I would make it quite clear that, just as the noble and learned Viscount, Lord Simonds, when he was Lord Chancellor, was keen on reform, so am I, and so I think must be any Lord Chancellor. I recognise that in some respects the law does need to be reformed, and while recognising it to be the duty of the Lord Chancellor to be vigilant with regard to that, I would say, as emphatically as I can, that to suggest that our law is in a very bad state is both utterly misleading and wholly inaccurate.
I must say that I regard it as unfortunate that the Leader of the Opposition and the noble Lord, Lord Gardiner, should seek, as it appears from this book and from the speech made by the right honourable gentleman the Leader of the Opposition, to be making this question of law reform a political issue. No doubt that is done in the hope of securing some political advantage; and the point was put very well, I thought, by my noble friend Lord Colville of Culross in his opening speech, when he said that it was unfortunate that the attempt should be made to hang political reform on the peg of alleged inadequacies of Committees set up for an entirely different subject. And when one reads the noble Lord's book, interesting though it is, one sees that many of the subjects on which he advocates changes are subjects with a very considerable Party political content, like leasehold enfranchisement. I will not take up time drawing attention to the others.
Also it is the case that, just as it is inaccurate and misleading to represent 1093 our law, built up over the centuries, as in a sorry state, so it is equally inaccurate and misleading to represent the Conservative Party as opponents of law reform. In fact, a great deal has been done in the way of law reform, both in this Parliament and since 1951, and I say, without hesitation, that the record of what has been achieved in this field under Conservative Governments far exceeds what was done under the Socialist Government.
When we talk of law reform it is as well to make quite clear what we mean by those words. That has been stressed in the debate to-day. Changes in the law made to give effect to the policy of the Government of the day are not what is commonly meant by law reform in this context. What is meant is, I think, reform of the Common Law, of equity, of criminal law and law established by judicial decisions, and reform because people have come to the conclusion that the law is wrong. The noble Lord, Lord Gardiner, drawing attention to the number of Statute books on a lawyer's shelves, to the large number of volumes containing statutory orders and regulations and to the vast number of reported cases decided in the courts, seems to argue that that, of itself, shows that there is need for a major overhaul of our law. I do not agree with him. There is a case, and I will come to it later and say what is being done with regard to it, for consolidation of our Statute Book. There is a case, too, for consolidation of some of the statutory orders and regulations. That, too, is being done. But to say that our law is comprised in a large number of volumes, though it may make it difficult for some lawyers to find out what the law is—that I recognise—really does not establish at all that our law as a whole is bad, or is in need of a major overhaul.
I want, if I can, to be as short as possible, because I realise that the hour is late. But I make the point that a measure which to one group of people may seem to be no more than pure law reform in the narrowest sense may, to others, appear to be charged with political content. That, I think, was indicated in the debate to-day, when Lord Chorley asserted that there was no project in the hook, for which he and the noble and learned Lord, Lord Gardiner, were together responsible in different degrees, with any political content.
1094 There is one further point I should like to make. It appeared to be assumed in the course of this debate that if there is no Party political content to a measure there will rarely be a controversy with regard to it, if it is based on a Report coming from a Law Reform Committee. I am afraid the facts do not support that premise. It really cannot be assumed that changes in what can be called "lawyers' law" will not be controversial, though not on Party lines; nor can it be assumed that they will not lead to a great deal of discussion when proposals for the reform based on a Report, be it of the Committee or if you like, of Law Commissioners, come before Parliament. If I may at this late hour give just one example, your Lordships may be interested to know that when the law of libel and slander was under discussion in the Defamation Bill in 1952, it was acutely controversial, but not on Party lines, and that Bill occupied no less than eleven days in Standing Committee in another place. As I have said, law reform in the sense that I have indicated does not usually give rise to Party controversy, but it may give rise to a considerable consumption of Parliamentary time.
The noble Lord, Lord Tangley, made an interesting suggestion—namely, that the Bill (a Government measure, I would ask your Lordships to note, of law reform dealing with perpetuities) which I introduced into this House this Session might really have been embodied in a statutory instrument. It is an interesting suggestion, but of course you would have to have an Act of Parliament making it possible for a statutory instrument of that kind to be made. Therein lies the rub, because I think I am right in saying that Parliament as a whole is most watchful over the powers it gives in relation to delegated legislation. Parliament would not be ready to give a wide, undefined power to the Government of the day to legislate by statutory instrument in matters which were generally deal with in a Bill, just because the contents of that statutory instrument had met with the approval of some body or other, who were not Members of Parliament and not part of Parliament.
I will just say a word on this, too. If projects of law reform which have 1095 been evolved after careful consideration by those who have devoted much time to this subject are to stand any chance of becoming law within a reasonably short space of time, it is surely essential that they should be such as to command general assent when laid before Parliament. Your Lordships heard a lot this afternoon about the Law Reform Committee and the Criminal Law Revision Committee. Both Committees were created by Conservatives under Conservative Governments, one in 1952 and the other in 1959. I do not think that anyone will dispute—indeed, no one has today—that these Committees have done most valuable work. I do not propose to take up valuable time in reminding your Lordships of what they have done, The question with which we are con corned to-day raised by my noble friend is really whether the existing machinery is broadly adequate for the task it has to perform. And that question has to be considered, bearing in mind that there is in existence to-day, and has been since 1952, machinery for law reform which has been both productive and valuable.
The noble Lord, Lord Chorley, sought to suggest that the basic difficulty with regard to law reform was the Lord Chancellor. I do not think there is the slightest foundation for that suggestion, The noble Lord, Lord Gardiner, takes the view that the present machinery is not adequate, and he proposes the creation of five full-time Commissioners charged, I gather, with the duty of a wholesale revision of the general law. That proposal has obtained the public support of the right honourable gentleman the Leader of the Opposition.
Before I say any more about this matter of the Commissioners and about law reform, there is one matter to which I should like to draw attention. I said a little time ago that I thought it was a pity that law reform should be dragged into the arena of Party politics, and I indicated that I thought that the contents of the book to which the noble Lord has lent his name suffers to some extent from the defects of containing Party political proposals. Its dust cover, which contains a summary of the contents of the book, bears the headline "Regrettable denial of justice". This is a quotation from a headline of The Times of June 18, 1963, and it is clearly implied that the case for 1096 "Law Reform now" is to remedy such injustices. It clearly suggests that, even where the state of the law is shown to be manifestly unjust, nothing is done to remedy it.
No worse case could have been selected to support the noble Lord's thesis, and I should like to remind your Lordships shortly of the facts. Your Lordships may remember that there was a Committee presided over by Lord Tucker, appointed in 1949 to review the times within which actions in the courts had to be instituted. Their recommendations were given effect to by the Limitation Act, 1954—a law reform measure passed in the time of a Conservative Government. Everyone then thought that there was no possibility that the Tucker Committee's proposals would prejudice injured workmen. It was not then realised that the time taken before a disease due to conditions at work became apparent might exceed the period of limitation. This fact came to public notice in a pneumoconiosis case in June, 1959, where the trial Judge heard that the case was statute barred.
Despite the fact that that decision was known to be under appeal, my predecessor on the Woolsack appointed a strong Committee presided over by Mr. Justice Edmund Davies on January 27th, 1961, to review the matter, months before the case was heard in the Court of Appeal. That Committee reported in August, 1962, and a Bill to give effect to its recommendations was introduced in another place in November, 1962. The noble Lord, I think, introduced the Bill in this House; the House of Lords in its Judicial capacity gave its decision on January 18th, 1963, and the Bill received the Royal Assent in July, 1963. And yet when this book is published that is the cover which is put upon it.
This history shows that steps were taken with remarkable speed to remedy an injustice. At the very time that the House of Lords said that here had been a denial of justice, a Bill was under consideration. But there is not the slightest reference to that on the dust-cover of the book. What was said was to suggest the urgent need for law reform. What ought to have been said was that this was a case where law reform had been put in hand by a Conservative Government months before 1097 the case had been heard by the House of Lords. I would be the last person to suggest that the noble and learned Lord, Lord Gardiner, would wish to support his case by misrepresentation. But this is a glaring instance of suppressio veri suggestio falsi and may well have led some people to suppose that there was an overwhelming case in favour of the noble and learned Lord's contentions.
The noble and learned Lord, as we know, has suggested that there should be a Vice-Chancellor who would sit in another place and would, with four other Commissioners, devote his whole time to law reform. That proposal has been publicly endorsed by the right honourable gentleman the Leader of the Opposition. Quite what the Vice-Chancellor would have to do in the other place, what part he would play in the work there, I do not know. So far as I can see, all he would be required to do would be to concern himself with the promotion of law reform. Of course, it would be a nice job for some lawyer Member of another place. But who would the Law Commissioners be? The noble and learned Lord and the Leader of the Opposition do not tell us. We are told that they should be highly-qualified lawyers, and I really think that the noble and learned Lord ought to indicate what kind of lawyers he and the Leader of the Opposition have in mind. I cannot, in view of what he said the day before yesterday, think that he means Judges. Then, although it was not strictly relevant to the Resale Prices Bill, he gave expression to his personal views on extrajudicial employment of Judges. He said that the practice really started with the sending of a Judge to Nyasaland. In fact, it started much earlier than that, and it is not a fact that Judges have been increasingly employed on different extra-judicial work from that on which their help has been sought over the years.
Then the noble and learned Lord could not resist a "dig" at me. I do not in the least object to that, but I do wish he would get his facts right. I did not say that the learned Judge had found his facts all wrong. If he will read the speech I made in that debate he will see that it was based on findings of fact by the learned Judge, and the trouble was that many of the findings of fact were 1098 contradictory. But if the Law Commissioners are not to be Judges, who are they to be? I think the noble and learned Lord will agree that it will not be easy to recruit leaders of the Bar or leading solicitors in active practice. I doubt whether they would be so ready to give up their practices to serve as full-time Commissioners. No doubt it might be possible to recruit highly-qualified academic lawyers. I have a high regard for them, but they would be the first to agree that in the difficult work of law reform it is essential that those engaged in active practice and concerned with the practical problems should play a large part. I believe that the present system. though it may not be perfect, is much to be preferred.
It is sometimes suggested (I think Lord Chorley suggested it) that the functioning of the present system depends upon what the Lord Chancellor may decide to remit to his Law Committee. But that is not how things work. The Committee of very eminent lawyers drawn from all sections meet together to consider and make up a list of what they think are suitable subjects for them to settle. They settle an order of priority and then send their suggestions to me; and if I disagree with them at all I discuss them with the Chairman. It is perfectly open to me, to put forward suggestions for their consideration, but I am concerned that the Law Reform Committee should not engage on those tasks which have such a political content that the report of that Committee may bring them into the field of Party political controversy.
I can always appoint further sub-committees—I am glad to say people are willing to serve on such committees—to tackle particular subjects, and there are a number of subjects which, I agree, ought to be considered. At the present moment that Committee is dealing with a subject to which the noble Lord drew attention to a great extent in his book, the doctrine of nemo dat quod non habet, and a subcommittee is dealing with the question of positive covenants affecting land. With this flexible system of Committees it is possible to select experts in every particular field to consider what should be done in relation to that particular branch of the law.
The work of these Committees takes time—and here I come to the point raised 1099 by the noble and learned Lord, Lord Reid, about the absence of adequate preparation. I should like to know—perhaps he will tell me on another occasion—exactly what he has in mind about that, because I do not myself see much scope for more preparation than is now undertaken. The views of bodies like the Bar Council, the Law Society, the Inns of Court Conservative and Unionist Society, and the Society of Labour Lawyers are sought. This process of consultation is regarded as invaluable, and I do not think the time so spent is ever wasted, but it does mean that the Committee have little to do while the interested bodies are considering their views.
I have to-day received a letter from my noble and learned friend Lord Donovan, who unfortunately is unable to be present and I think that it supports what I have been saying to your Lordships. He says in his letter:On the 4th December. 1963, I held a first meeting of a Law Reform Sub-Committee to consider your request that the Law Reform Committee should consider amending the law in favour of innocent purchasers who lose what they have bought because the vendor has stolen them or acquired them by fraud or through mistake. We necessarily had to get the views on this matter of interested bodies such as the Bar Council, the Law Society, the Society of Labour Lawyers, Lloyd's, the Association of British Chambers of Commerce, the Auctioneers Institute, and so on, so we wrote to each of thirteen such bodies inviting their views. Seven months have now gone by and we have received memoranda from twelve out of the thirteen. The Bar Council's views are still awaited. I do not criticise this delay at all; I think it is inevitable.My Lords, that is how time is taken, and if full-time Commissioners were appointed in place of these Committees, they would be likely to have periods with very little indeed to do. The noble and learned Lord may say that when the Law Commissioners really got going they could turn to another subject while waiting for the views from various bodies, but I do not see how the Bar Council and the Law Society are likely to be able to keep the Commissioners supplied with a steady flow of memoranda setting out the views of those they represent unless it is suggested that the professional bodies themselves should set up a replica of the full-time machinery which the noble and learned Lord envisages for his Commissioners.
1100 The noble and learned Lord seems to envisage (I do not know whether in this he has the support of the right honourable gentleman the Leader of the Opposition; it would be interesting to know, but this, I suspect, may be a subject on which he would prefer to maintain a discreet silence) that the Law Commissioners should have some kind of overriding supervision and jurisdiction over Departments, for he says that they should not be debarred fromtaking the initiative themselves whenever they think that any part of the administrative law is in need of reform and no initiative is forth, coming from the department which is primarily responsible.Let me suppose that a whole series of Bills emanate in a rapid flow from the Law Commissioners. How is it suggested that these Bills will be enacted? The noble and learned Lord sees no difficulty. He says: "Deal with them as you deal with the consolidation of enactments"; and the noble Viscount, Lord Colville of Culross, put forward a suggestion on those lines. But in his book the noble and learned Lord, Lord Gardiner, said that the Act establishing the Law Commissioners should require the Government to find Parliamentary Time for the consideration of any legislation proposed by the Law Commissioners. This is, to me, a somewhat novel and surprising suggestion. Is he really suggesting that by the passage of a Bill in one Parliament, it is possible to restrict the actions of the next Parliament: that it is possible for one Parliament to bind another—and it may be another Government— to introduce certain legislation? I must say that I should have liked to hear that novel constitutional doctrine elaborated.
The noble Lord wants one Law Reform Act each year. There certainly has been one a year in my time, and more than one a year under Conservative Governments since 1951. I do not want to recite a number of Acts, but I would remind your Lordships of what we have done this year. We have passed the Legal Aid Act, making provision for payment out of the Legal Aid Fund of costs incurred by successful opponents to legally aided litigants. We have passed the Criminal Procedure (Right of Reply) Act and the Criminal Appeal Act. We have had the Criminal Procedure (Insanity) Bill and the 1101 Perpetuities Bill before Parliament. These are all strictly law reform measures, if the narrowest interpretation is given to the expression "law reform".
It is, of course, true (and comment has been made upon this) that Bills giving effect to recommendations of the Law Reform Committee have often been Private Members' Bills—not all of them, but a great number of them—and I and my predecessors are very grateful to the Private Members concerned. Virtually all these Bills which Private Members have piloted through have been drafted by Parliamentary draftsmen, and the Private Member concerned has had all the assistance my Department and any other Department can give him or her.
Of course, I should like to secure that Parliamentary time was found for a Government Bill to give effect to the recommendations of a Committee which I have appointed, and which has devoted so much time and thought to proposals for reform if they are approved. But I cannot agree that it would be right, as the noble and learned Lord, Lord Gardiner, suggested on Tuesday, and as he has suggested in his book, for any Government to agree in advance to accept any conclusions to which a Judge, appointed to hold an inquiry, or a Committee considering reform of any particular branch of the law, might come. For any Government whatever to do so would be an abdication of its responsibility, and would not, I believe, be acceptable to either House of Parliament.
But, my Lords, anyone who has had any experience as a Minister knows full well that the number of Bills jostling for a place in an invariably overcrowded Parliamentary programme is such that time can be found for only a fraction of them. I see no reason to suppose that that state of affairs is likely to change in the immediate future. It would, indeed, be interesting to know whether the right honourable gentleman the Leader of the Opposition—and I am sure the noble and learned Lord would like to know it—would give an assurance that, if these Law Commissioners are appointed and they produce a flood of Bills, the Government will find time for them. If that pledge, which will certainly be of some considerable importance, is given, that the Socialist 1102 Government would find Government time for all the Bills which the Law Commissioners produced, we certainly, I feel, should be informed, because that will affect the whole of the Government's programme, unless the Opposition intend drastically to alter present Parliamentary machinery; and if they have proposals to that end then, at least, they ought to be put before the public.
I would just touch on this if your Lordships would bear with me at this late hour. In his recent speech to the Society of Labour Lawyers, the right honourable gentleman the Leader of the Opposition said that a Socialist Government would give the law reformers in his ranks a heaven-sent opportunity. I should like to quote his words. He said:In the first few weeks of a new Parliament, when the Government's main measures are still being drafted—really major measures can take up to three months or even longer—there is a danger of prolonged hiatus, a legislative vacuum, with an urgent need for Bills to be introduced into both Houses.My Lords, this is apparently to be the time in which the Law Reform Bills are to be introduced in order to fill the gap, apparently on the assumption that there is little or no difficulty in drafting suitable measures of law reform for this purpose in a short space of time.
I would just quote what The Times said in a leading article on this, because it put it very well.Law reform"—The Times said—demands more, not less, premeditation than other classes of legislation. The law is what it is for reasons which once won acceptance in Parliament or the Courts. Those reasons may have lost their validity with the passage of time, or the law itself may have fallen into obscurity or desuetude; but still it behoves reformers to move with care, because society is disposed to find what is customary and familiar appropriate also, and because it is not the sole requirement of the law that it should be just, or even that it should be 'modernised': it must also be stable over a reasonable period of time if citizens are to be permitted to arrange their affairs and their legal relationships with a sufficient degree of certainty.My Lords, I believe that those are words which should be carefully studied, and certainly as regards the difficulty of drafting Law Reform Bills, they are profoundly true.
I just want to touch on one other point 1103 in relation to the speech made by the noble and learned Lord, Lord Gardiner. He referred to the use of Parliamentary draftsmen. Of course, Parliamentary draftsmen possess tremendous skill. They do not grow on every bush and they are very fully employed now; and as the noble and learned Viscount, Lord Simonds, said, some of them are employed full-time on the process of consolidation. It would be quite wrong to suggest that that is always easy, even with the advantage of the Consolidation of Enactments Act. We have a Committee upon which representatives of both Houses serve, which considers the priorities, and we are making as much progress as we can. The noble Lord drew attention to the Housing Acts. I think they were consolidated in 1957. The time will be coming round again when that consolidation should be brought up to date.
VISCOUNT COLVILLE OF CULROSS
My Lords, they were not comprehensively consolidated even then. All the House Purchase Acts were left out.
§ THE LORD CHANCELLOR
My Lords, as the noble Lord, Lord Silkin, mentioned, the word "housing" in itself is ill-defined. You can bring in landlord and tenant, and you can bring in a number of other Statutes, but I think I am right in saying that what are called Housing Acts as such were consolidated in 1957, and they will presumably, in due course, have to be consolidated again, I should not like it to be thought that progress is not being made on that.
It is perfectly easy, as I have said, to set up, with the flexible machinery that we now have, more committees to consider various branches of the law. But it would be time-consuming and wasteful if one really set up more committees to produce more Bills than the Parliamentary machine can tackle. It is all very well airily to dismiss the difficulties and delays in Parliamentary process. I agree that they do not occur in your Lordships' House, but they ought not to be underestimated, as I am sure the noble Lord, Lord Silkin, will agree, with his experience of Bills that he himself has conducted through the House, including the Bill which I was astonished to hear him say was the model (I think it was) of 1104 perfect expression—the Town and Country Planning Act, 1947. That is the first time I have heard that claim made, and I think it is worthy of having attention drawn to it.
My Lords, I had proposed to say something this evening about the position with regard to land registration. I should like to say just this. There was a time when it was not very popular and not so much in demand. The mood has chanced. I should like to see it extended as quickly as possible, but it is necessary to recruit a trained staff to operate it. However, I have been able to make more progress, and I am now considering with my colleagues the possibility of planning for a 15 per cent. expansion each year for several years ahead, which ought to do something to alleviate the situation.
The fundamental difference between the noble and learned Lord, Lord Gardiner, and myself appears to be in his belief that there is a need for a major overhaul of almost the whole field of our law. I do not believe for one moment that that case is made out. That I should like to see more law reform is true—I think that every Lord Chancellor would; and law reform of the non-Party political kind that we have been discussing to-day. I hope that our debate here will serve this useful purpose: that it will draw attention, as I am sure the noble and learned Lord would like it to do, not only to these questions of law reform, but also to the problems of the Parliamentary procedure for dealing with proposals (some of which, as I have said, may be controversial, but none of which, so far as I can recollect, has ever given rise to a division on Party lines) emanating either from the Criminal Law Committee appointed by my right honourable friend the Home Secretary or, indeed, from the Law Reform Committee.
I am grateful to your Lordships for bearing with me while I made this rather long speech, and to the noble Viscount, Lord Colville of Culross, for giving us the opportunity of discussing this subject. I hope that what I have said will put the matter in its proper perspective, though it is perhaps too much to hope that there will not be some who will ignore what has been achieved; who ignore what is being done and who seek to represent, quite wrongly, in the hope 1105 of gaining some political advantage, that our law is in a sorry state.
§ 8.53 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, these days your Lordships work very long and late, but, even on the 1964 model of your Lordships' House, it is getting rather past the usual hour, and I do not wish to go into the major issues which my noble and learned friend on the Woolsack has been mentioning. Before I ask leave to withdraw this Motion, may I do two things? May I commend very strongly to my noble and learned friend the opinions expressed by my noble and learned friend Lord Simonds about the time problem, and the need to do something about it? And I welcome very much the encouragement of the noble and learned Lord, Lord Gardiner, when he says that one should not "sit down" under remarks about difficulties of Parliamentary time. I hope that something will be done about that. May I also express my great gratitude to all noble and learned Lords and noble Lords who have taken part in this debate? I am sure it has been worth 1106 while, and I hope that something will emerge from it. With those words, I ask leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.